           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Paul Gilmore,                        :
                            Appellant        :
                                             :   No. 31 C.D. 2015
              v.                             :   Submitted: September 14, 2015
                                             :
Borough of Kutztown                          :

BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: October 16, 2015

              Kenneth Paul Gilmore (Gilmore) appeals from an order of the Court
of Common Pleas of Berks County (trial court) that entered judgment for the
Borough of Kutztown (Employer) and dismissed Gilmore’s breach of implied
contract and promissory estoppel claims.1 Gilmore sought back pay and benefits
following Employer’s termination of his employment. The trial court determined
Employer hired Gilmore as an at-will employee, and no implied contract for the
continued payment of benefits existed. With respect to promissory estoppel, the
trial court determined Gilmore failed to show Employer made any promises to him
regarding continuation of employment or benefits.


              On appeal here, Gilmore contends the trial court erred in determining
he did not have an implied contract with Employer, which Employer breached

       1
         The Honorable M. Theresa Johnson ultimately presided over Employer’s motion for
summary judgment, following the Honorable Jeffrey L Schmehl’s appointment as a U.S. District
Court Judge in 2013.
when it terminated Gilmore’s employment in 2006. Gilmore further asserts the
trial court erred in failing to determine he had a right to lost wages and benefits for
the period of time he was medically barred from returning to work. In addition,
Gilmore claims the doctrine of promissory estoppel applies under the facts of this
case, and the trial court erred in failing to determine whether a jury question
existed as to what benefits, including back pay, Employer owed Gilmore under a
theory of promissory estoppel. For the reasons that follow, we affirm.


                                   I. Background
                                    A. Generally
             Employer hired Gilmore, an at-will employee, as a laborer in 2003.
Gilmore worked for Employer as a laborer until July 2006, when he sustained
serious injuries in a non-work-related automobile accident that took his mother’s
life. In August 2006, Gilmore’s doctor diagnosed him as temporarily disabled as a
result of severe hip injuries he suffered in the accident. Initially, Gilmore could
not work at all following the accident. Thus, Gilmore took paid leave under the
Family and Medical Leave Act (FMLA), 29 U.S.C. §§2601-2654, for the 12-week
maximum period.


             In December 2006, the FMLA leave period expired. On December
13, 2006, Gilmore’s doctor issued him a return to work slip clearing him to return
to light-duty work as of January 2, 2007, subject to light-duty restrictions,
including a 50-pound lifting restriction.     The doctor also indicated he would
reevaluate Gilmore in three months.




                                          2
               In response, Employer informed Gilmore that it had no available
light-duty laborer positions. Following the expiration of Gilmore’s paid FMLA
leave, Employer provided some extra leave without pay, with life and health
insurance benefits, until it terminated Gilmore’s employment by Borough council
vote effective December 31, 2006.


               Gilmore’s doctor eventually cleared him to return to full-duty work in
March 2007, approximately 10 weeks after Employer dismissed him. Several
months later, Employer advertised an open laborer position in a Reading
newspaper.       Gilmore applied, and Employer called him for an interview.
Ultimately, following some tests, Employer rehired Gilmore in May 2007 as a new
employee for the laborer position he performed prior to his injuries. Employer did
not provide Gilmore with back pay, and it did not restore his previously earned
seniority.


               Initially, Gilmore filed a claim of disability discrimination with the
U.S. Equal Employment Opportunity Commission (EEOC). In September 2009,
the EEOC did not find probable cause for Gilmore’s claim.


                                  B. Original Complaint
               In December 2009, Gilmore filed a complaint against Employer,
which included two counts. Count I involved a claim under the Americans with
Disabilities Act of 1993 (ADA), 42 U.S.C. §§12101-12213. Count II involved a
claim under the Pennsylvania Human Relations Act (PHRA).2 Employer removed

      2
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.



                                               3
the case to federal district court and filed a motion to dismiss. In its motion,
Employer asserted both claims were barred by the statute of limitations. Following
a hearing, Gilmore abandoned his ADA and PHRA claims.


                                  C. Amended Complaint
               In February 2010, Gilmore filed an amended complaint, which set
forth a claim under the Wage Payment and Collection Law (Wage Law).3 Upon
Employer’s motion, the federal district court dismissed the case without prejudice
because of lack of subject matter jurisdiction.


               Two and a half years later, in December 2012, Gilmore filed a motion
to reinstate the amended complaint in the trial court. Following oral argument,
President Judge Jeffrey L. Schmehl dismissed the Wage Law claim as untimely,
but permitted Gilmore to file an action in assumpsit, which the trial court
determined would not impermissibly raise an entirely new cause of action after the
expiration of the limitation period.


                      D. Second Amended Complaint (Assumpsit)
               In April 2013, Gilmore filed a second amended complaint setting
forth an assumpsit claim against Employer.                 Gilmore’s complaint states in
pertinent part:

               21. The Plaintiff believes, and therefore avers, that by
               refusing to pay him the amounts he was entitled to
               receive for the period of time he was not allowed to
               return to work, the Defendant withheld providing
      3
          Act of July 14, 1961, P.L. 637, as amended, 43 P.S. §§260.1-260.45.



                                                4
           benefits that it could have paid, either in the form of short
           term disability or supplemental wage loss.

                                     ****

           23. The Plaintiff believes, and therefore avers, that
           pretrial discovery in this case will reveal that other
           employees have received compensation for periods of
           time when they were out of work due to illness.

           24. The Plaintiff believes, and therefore avers, that due to
           circumstances surrounding his termination and his
           eventual rehire by the Defendant, he should have been
           provided with [back pay] for the period of time in which
           he was out of work.

           25. Plaintiff believes, and therefore avers, that Defendant
           has policies, practices and procedures in place that would
           have justified the payment to him of [back pay] and lost
           benefits for the period of time in which he was displaced
           from work by the Defendant.

           26. The Plaintiff has suffered, and will suffer, continuing
           and ongoing economic losses due to the actions of the
           Defendant, as enumerated herein.

           27. The Plaintiff believes, and therefore avers, that due to
           the willful non-payment of [back pay] and benefits owed
           to the Plaintiff by the Defendant, he is entitled to
           damages for the economic losses he sustained.

           28. The Plaintiff believes, and therefore avers, that he is
           also entitled to [back pay], benefits and accrued interest
           pursuant to the Defendant’s existing pay scales and
           salary policies.

Second Am. Compl. at ¶¶21, 23-29.




                                        5
                   E. Preliminary Objections/Discovery Order
             Employer responded with preliminary objections, including a
demurrer, which the trial court overruled. In its order, the trial court stated in
pertinent part:

             [Gilmore] is entitled to proceed to discovery in an effort
             to establish that he was entitled to back pay on the basis
             of [Employer] policies, any other implied agreements, or
             any other causes of action pled in the Second Amended
             Complaint.

Tr. Ct. Order, 6/25/13. Employer then filed an answer and new matter. Following
the close of pleadings, the parties proceeded with pre-trial discovery. Employer
deposed Gilmore.     Thereafter, Gilmore deposed Employer’s manager, Gabriel
Khalife (Borough Manager).


                         F. Motion for Summary Judgment
             Following the close of discovery, Employer filed a motion for
summary judgment. Employer sought summary judgment because the evidence
failed to establish that Gilmore was anything other than an at-will employee at the
time of his dismissal in December 2006. Further, no evidence supported Gilmore’s
claim of entitlement to back pay and benefits for the period of time he did not
work. Borough Manager testified that when Employer rehired Gilmore, it did not
agree to provide Gilmore with back pay for the period of time he was not working.
Dep. of Gabriel Khalife, 5/13/14 (Khalife Dep.), at 22. Borough Manager further
testified Employer never provided back pay to an employee it terminated and then
rehired. Id. at 22-23.




                                         6
                               G. Gilmore’s Response
             Conversely, Gilmore argued Employer, in accord with its custom and
practice, should have provided him with light-duty employment or continued his
unpaid leave and other benefits until he obtained medical clearance to return to
full-time employment.        Gilmore testified that Employer permitted two other
employees, Jay Smolnik, an electrician, and Dan Batz, a mechanic, to return to
light-duty work after they exhausted their FMLA leave. Dep. of Kenneth Paul
Gilmore, 11/19/13 (Gilmore Dep.) at 18-19. In the present case, Gilmore asserted,
Employer offered little or no explanation why it could not have extended his leave
by an extra 10 weeks. Gilmore further claimed that in the case of a female
employee who ran out of FMLA leave, Employer permitted other employees to
donate their FMLA leave time so she could stay off work without pay.           In the
present case, however, Employer rejected other employees’ offers of donations of
leave to keep Gilmore employed. See Gilmore Dep. at 30.


             Therefore, Gilmore asserted Employer’s practice of providing
compensation and benefits to its injured employees created an implied contract
under which Gilmore had a right to a continuation of employment and benefits.
Gilmore argued Employer’s decision to terminate him rather than to continue his
unpaid leave and other benefits constituted a factual issue for the jury in his breach
of implied contract claim.


             In support of his position, Gilmore cited Bauer v. Pottsville Area
Emergency Medical Services, Inc., 758 A.2d 1265 (Pa. Super. 2000) and Sullivan
v. Chartwell Investment Partners, L.P., 873 A.2d 710 (Pa. Super. 2005). In Bauer,



                                          7
the Superior Court recognized that the promise of benefits in an employee
handbook may evidence the employer’s intent to supplant the at-will employment
rule and be legally bound by its representations in the handbook. In Sullivan, the
Superior Court recognized that even an at-will employee may have a contractual
right to benefits.
              Gilmore also cited several cases stating that an implied contract is an
actual contract. See, e.g., Elias v. Elias, 237 A.2d 215 (Pa. 1968). Gilmore then
claimed the evidence adduced before the trial court indicated an implied contract
existed. Gilmore essentially argued Employer’s failure to continue his benefits to
keep him employed raised a material issue of fact relevant to his claim for
Employer’s breach of implied contract.


              Gilmore also raised a promissory estoppel claim.           He argued
Employer knew all along that it would rehire him and that he justifiably relied, to
his detriment, on that clearly telegraphed assumption. Gilmore therefore claimed
entitlement to back pay for the period of his unemployment based on a theory of
promissory estoppel.


              Here, Gilmore claimed, Employer briefly terminated him, then it
rehired him. Therefore, Gilmore had a reasonable expectation of being brought
back, and he was in fact brought back. Nobody replaced him in the interim.
Consequently, Gilmore argued a jury question existed as to what benefits,
including back pay, Employer owed him under a theory of promissory estoppel.




                                          8
                  H. Motion for Summary Judgment Granted
            In October 2014, the trial court granted Employer’s motion for
summary judgment and entered judgment in Employer’s favor.               Summary
judgment is appropriate where the pleadings, depositions, answers to
interrogatories, admissions and affidavits, if any, demonstrate there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a
matter of law. Kniaz v. Benton Borough, 642 A.2d 551 (Pa. Cmwlth. 1994) (citing
Dep’t of Envtl. Res. v. Bryner, 613 A.2d 43 (Pa. Cmwlth. 1992)). When a motion
for summary judgment is made and supported, the adverse party may not rest on
mere allegations or denials in his pleadings, but must produce affidavits or other
evidence demonstrating specific facts in dispute. Id.


            The trial court noted that in Pennsylvania an at-will employee has no
common law cause of action against an employer for termination of at-will
employment, unless the discharge threatens clear public policy mandates. Hunger
v. Grand. Cent. Sanitation, 670 A.2d 173 (Pa. Super. 1996). An at-will employee
may be discharged for a good reason, a bad reason, or no reason at all. Krasja v.
Keypunch, Inc., 622 A.2d 355 (Pa. Super. 1993). The public policy exception is
very narrow and applies only in rare instances where important issues of public
policy are raised. Reese v. Tom Hesser Chevrolet-BMW, 604 A.2d 1072 (Pa.
Super. 1992). The trial court further observed that in the present case, no such
public policy issues were applicable.


            Further, the trial court determined that the record, viewed in a light
most favorable to Gilmore as the non-moving party, is devoid of any facts that



                                         9
could reasonably establish the existence of any relevant implied agreements or
Borough policies that could overcome the strong presumption that Gilmore was, at
all times, an at-will employee. Also, Gilmore’s breach of implied contract claim
seeks compensation for a period of time that he did not work for Employer.


             The trial court also distinguished the Superior Court’s decisions in
Bauer and Sullivan. In Bauer, a case involving a breach of contract claim by an
emergency medical technician (EMT), the employee handbook provided that full-
time benefits would vest in part-time employees who worked more than 36 hours
per week after 90 days of work. At that point, the employee would receive the
wages and benefits of a full-time employee for weeks in which they worked 36 or
more hours. After working 200 days, the employee complained that his full-time
benefits had yet to vest. The employer then fired him. The employee sued the
employer for breach of contract, and the trial court sustained the employer’s
preliminary objection on the ground that the employee handbook stated the
employee was an at-will employee at all times.


             On appeal, the Superior Court reversed, noting an employee handbook
is enforceable against an employer “if a reasonable person in the employee’s
position would interpret its provisions as evidencing the employer’s intent to
supplant the at-will rule and be bound legally by its representations in the
handbook.” Bauer, 758 A.2d at 1269. “The handbook must contain a clear
indication that the employer intended to overcome the at-will presumption.” Id.
(emphasis added). A factual issue existed as to whether the handbook contained
evidence of the employer’s intent to be legally bound by it.



                                         10
             In short, the provisions in the handbook constituted a unilateral offer
that the employee accepted by rendering a performance; no additional
consideration was required. In Bauer, the Superior Court allowed the breach of
contract claim to proceed limited to the period during which the employee fulfilled
the terms of the contract by working over 36 hours per week.


             In addition, the Superior Court observed that an important public
policy supported enforcement of the handbook. The provision of EMT services
touches on the availability of 24-hour emergency medical services. Flexibility in
the employment relationship is therefore needed. In other words, in accord with
the handbook, an EMT who works more than 36 hours per week for a period of
time is contractually entitled to full-time benefits for that period of time. However,
if the employee thereafter works less than 36 hours per week, his entitlement to
full-time benefits ceases.


             Here, however, the trial court noted Gilmore’s breach of contract
claim seeks compensation for the period between his termination and rehire, during
which he performed no work. In addition, the present case does not fall within a
specific public policy exception. As such, Bauer is inapplicable.


             Similarly, in Sullivan, a vice-president of marketing brought an action
against his former employer, an investment firm, for, among other things, breach
of an express agreement for compensation made during the course of his
employment. In Sullivan, the employer offered to pay the employee a guaranteed
minimum, which the employee accepted, foregoing his right to resign.              The



                                         11
employee alleged his employer breached the compensation agreement by failing to
pay him an amount equal to his 2000 earnings. The employee also stated a claim
for $75,000 in damages.


             The trial court in Sullivan, however, dismissed the employee’s claims
on preliminary objections on the basis that the employee’s at-will status precluded
him from establishing a contractual right to compensation.         In reversing, the
Superior Court found the employee’s breach of contract claim legally sufficient.
The Court found the employee’s at-will status irrelevant as to whether a contract
existed during the term of his employment. Although the employer could have
terminated the employee at any point, the employee would nevertheless be entitled
to receive the agreed upon compensation earned prior to his termination. See
Sullivan, 873 A.2d at 716.


             In the present case, the trial court again noted that Gilmore’s breach of
contract claim sought compensation for a period following his termination from
employment during which he performed no work for Employer.                 Therefore,
Sullivan is inapplicable.


             The trial court further determined no implied contract existed based
on Employer’s past instances of providing light-duty work to two employees, a
mechanic and an electrician, while they recovered from their injuries. Here, the
trial court determined, even considering the surrounding circumstances, the record
failed to establish the existence of an implied contract between Employer and
Gilmore. To the contrary, Gilmore, was, at all times, an at-will employee.



                                         12
               Finally, the trial court rejected Gilmore’s promissory estoppel claim.
The trial court noted Gilmore failed to provide any evidence that Employer
promised him anything. Therefore, the trial court noted that the doctrine of at-will
employment controls and that promissory estoppel is inapplicable.


               Consequently, the trial court determined Gilmore failed to articulate
specific facts sufficient to overcome his status as an at-will employee. As such, the
trial court requests we affirm its entry of judgment for Employer and dismiss
Gilmore’s appeal.4


                                        II. Discussion
                             A. Breach of Implied Contract
                                         1. Argument
               Gilmore first contends that the trial court erred in determining he
could not satisfy the elements of a successful breach of contract claim.


               Gilmore notes Employer terminated him because he could not return
to his full-time laborer position following his automobile accident. However, he
asserts, an examination of Employer’s conduct reveals an implied agreement
existed to keep him employed until he could return to that position. In December
2006, Gilmore’s doctor issued Gilmore a return to work slip indicating he could

       4
         Our review of a trial court order granting summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion. Kuniskas v.
Commonwealth, 977 A.2d 602 (Pa. Cmwlth. 2009). We must examine the record in a light most
favorable to the non-moving party, accepting as true all well-pled facts and reasonable inferences
to be drawn from those facts. Id.




                                               13
return to work on January 2, 2007 subject to light-duty restrictions. For example,
Gilmore could not lift more than 50 pounds. Gilmore’s doctor further indicated he
would reevaluate Gilmore in three months.


            In his deposition, Gilmore testified Employer permitted two other
employees, Jay Smolnik, an electrician, and Dan Batz, a mechanic, to return to
light-duty work after they exhausted their FMLA leave. Gilmore Dep. at 18-19.
Gilmore further testified that in the case of a female employee who ran out of
FMLA leave, Employer sent out a memo asking other employees to donate their
FMLA leave so she could remain on leave status. Gilmore Dep. at 30. Therefore,
Gilmore asserts, Employer customarily continues to employ persons with medical
restrictions. Thus, Gilmore argues, his temporary disability placed him in similar
circumstances with these other temporarily disabled employees.         Therefore,
Employer’s policy of accommodation should have also applied to him.


            However, instead of providing Gilmore a light-duty work assignment,
Employer terminated him.        Gilmore asserts his supervisor, Norm Milnes
(Supervisor), opposed his termination and wrote a letter in support of Gilmore
keeping his job. Supervisor’s support is further evidence of Employer’s breach of
an implied contract to keep Gilmore employed.


            Gilmore therefore argues there are material questions of fact
remaining as to whether Employer breached an implied contract with him.
Therefore, the trial court erred in granting summary judgment.




                                        14
                                     2. Analysis
             Summary judgment is proper in cases where the party who will bear
the burden of proof at trial fails to produce evidence of facts essential to a cause of
action or defense in which a jury trial would require that the issue be submitted to a
jury. Jones v. Se. Pa. Transp. Auth., 772 A.2d 435 (Pa. 2001).


             A successful breach of contract action involves: (1) the existence of a
contract; (2) a breach of a duty imposed by the contract; and, (3) damages.
Sullivan. A contract implied in fact is an actual contract that arises where the
parties agree upon the obligations to be incurred, but their intention, instead of
being expressed in words, is inferred from acts in light of the surrounding
circumstances. Elias; Ameripro Search, Inc. v. Fleming Steel Co., 787 A.2d 988
(Pa. Super. 2001).


             The trial court determined Gilmore, an at-will employee, failed to
present sufficient evidence that would support the inference of an implied contract
based upon the surrounding circumstances. We agree. In the absence of an
agreement for a fixed period of time, an employee is hired at-will. Holewinski v.
Children’s Hosp. of Pittsburgh, 649 A.2d 712 (Pa. Super. 1994). The at-will
doctrine creates a strong presumption that a contractual employment relationship
does not exist, and it impedes an employee’s ability to bring a cause of action for
the termination of the employment relationship. Sullivan.


             In short, no common law cause of action exists against an employer
for termination of an at-will employment relationship. Werner v. Zacyczny, 681



                                          15
A.2d 1331 (Pa. 1996).       This also applies to at-will municipal or government
employees. Id.


             Moreover, Employer’s offer of light-duty employment in the past to
an electrician and a mechanic does not establish an implied contractual obligation
on Employer’s behalf to continue Gilmore’s employment status and benefits until
he could return to full-time work as a laborer. To that end, Borough Manager
testified Employer has no light-duty policy. Khalife Dep. at 16. If an injured
laborer could perform his job duties, Employer would permit them to continue
working. Id. at 17. If the restrictions placed time restraints on the employee, such
as four hours instead of eight hours, that would be allowed.        Id.   However,
Employer does not make light-duty work available. Id.


             As Employer further explains in its brief, a laborer position, by
definition, involves nothing but manual labor. Appellee’s Br. at 9. Therefore,
there is no such thing as a light-duty laborer position. Id. Thus, available light-
duty work did not exist. Further, like most municipalities, Employer can only
afford to pay a limited number of employees. Id. As a result, Gilmore cannot
claim Employer breached any implied contractual obligation based on the
surrounding circumstances when it terminated his at-will employment because he
could not return to the full duties of a laborer.


             Borough Manager further testified as to one instance several years ago
when Employer, after being approached by the employee’s union (AFSCME),
entered into an agreement where employees with a certain amount of earned



                                           16
FMLA sick leave could donate a limited amount of time to an injured employee
who was a member of the collective bargaining unit. Khalife Dep. at 12-14.
However, Borough Manager further testified this was a one-time agreement
negotiated by the union for this particular employee, and Employer did not intend
to establish a policy based on this incident. Id.


             Based on the record, we discern no error in the trial court’s
determination that no implied contract existed based on Employer’s custom or
practice of providing light-duty work. Borough Manager testified Employer does
not offer a light-duty work program for laborers. Khalife Dep. at 16. Further,
Gilmore testified he did not know of any Borough laborers who worked light-duty
positions. Gilmore Dep. at 29-30. In short, the totality of the circumstances in this
case do not establish an implied contract between Employer and Gilmore to
provide him with light-duty work while he recovered from injuries sustained in an
automobile accident unrelated to his employment. As such, Gilmore’s at-will
status continued at all times during the course of his employment preceding his
December 2006 discharge.       Therefore, Gilmore’s claim for breach of implied
contract fails. Werner.


                            B. Lost Wages and Benefits
                                    1. Argument
             Although Employer eventually rehired him, Gilmore contends
Employer improperly withheld benefits it should have paid, either in the form of
short-term disability or supplemental wage loss, for the time he could not return to
work. Gilmore asserts an employer’s obligation to provide compensation and



                                          17
benefits is different from its obligation to provide employment for a particular
duration.   To that end, specific provisions in a contract or handbook for
compensation or benefits may bind the employer to provide such items. Bauer.
Even an at-will employee may have a contractual right to compensation. Sullivan.
Further, there is no legal requirement that the specific provisions for benefits be in
writing. Hamilton v. Air Jamaica, Ltd., 945 F.2d 74 (3d Cir. 1991), cert. denied,
503 U.S. 938 (1992). Therefore, Gilmore argues, a question of material fact
remains as to his entitlement to benefits during the period when he did not work.


                                     2. Analysis
             First and foremost, Gilmore’s breach of contract claim seeks
compensation for the period during which he performed no work. In addition, the
present case does not fall within a specific public policy exception. In both Bauer
and Sullivan, the employees’ breach of contract claims alleged their employers
failed to compensate them for work actually performed during the course of their
employment.

             Here, Gilmore remained an at-will employee until Employer
terminated his employment at the end of 2006. Absent a contract, Employer could
terminate Gilmore at any time for any reason or no reason. Stumpp v. Stroudsburg
Mun. Auth., 658 A.2d 333 (Pa. 1995). As of the date of Gilmore’s termination,
Employer no longer had any contractual obligation to provide benefits to him.
Thus, Gilmore’s reliance on Bauer and Sullivan is misplaced.


             Further, Gilmore testified he could not recall whether his health
insurance provided for short-term disability or supplemental wage loss. Gilmore


                                         18
Dep.at 9. In short, nothing in the record establishes Employer had an implied
contractual obligation to continue to provide Gilmore with light-duty work or
employee benefits when he could not physically return to work for Employer as a
laborer.   As noted above, no common law cause of action exists against an
employer for termination of an at-will employment relationship. Werner. This
also applies to at-will municipal or government employees.          Id.   Therefore,
Gilmore’s breach of implied contract claim for back pay and benefits for the period
of time he did not work fails.


                                 C. Promissory Estoppel
                                      1. Argument
             In his final argument, Gilmore contends Employer knew all along that
it would rehire him and that he justifiably relied, to his detriment, on that
assumption. Therefore, Gilmore claimed entitlement to back pay for the period of
his unemployment based on a theory of promissory estoppel.


             Here, Gilmore argues, Employer briefly terminated then rehired him.
Gilmore asserts he had a reasonable expectation under the circumstances of being
brought back, and he was, in fact, brought back. Nobody replaced him in the
interim. Consequently, Gilmore asserts the trial court erred in failing to determine
a jury question existed as to what benefits, including back pay, Employer owed
him under a theory of promissory estoppel.




                                          19
                                     2. Analysis
             For the doctrine of promissory estoppel to apply: (1) the promisor
must make a promise that he should reasonably expect to induce action or
forbearance on the part of the promisee; (2) the promise must actually induce such
action or forbearance; and (3) injustice can be avoided only by enforcement of the
promise. Holewinski. The party asserting an estoppel claim has the burden of
establishing all the essential elements. Thatcher’s Drug Store of W. Goshen, Inc.
v. Consol. Supermarkets, Inc., 636 A.2d 156 (Pa. 1994).


             We agree with the trial court that Gilmore failed to provide any
evidence that Employer promised him anything. In particular, we note Gilmore
did not testify Employer made him any promises at all. To the contrary, Gilmore
testified he did not think Employer would want him back after his termination.
Gilmore Dep. at 21. However, he saw a job advertisement in a newspaper and
decided to apply. Id. at 22. Gilmore further testified he did not ask to be rehired at
his former salary. Id. at 25. In addition, Gilmore did not request back pay. Id. at
26. Although he inquired about the possibility of getting his lost seniority back, he
did not testify that anyone ever promised him that. Finally, Gilmore agreed that
Employer had no obligation to rehire him. Id. at 29. In short, the record shows
Employer never made any promises to rehire Gilmore at his former salary with
back pay. Thus, Gilmore’s promissory estoppel claim fails. Holewinksi.


                                  III. Conclusion
             Summarizing, viewing the record in the light most favorable to
Gilmore, we discern no genuine issue of material fact exists as to whether the



                                         20
doctrine of at-will employment controls here. In addition, the evidence, viewed in
a light most favorable to Gilmore, fails to establish the existence of an implied
contract between Employer and Gilmore to provide him with light-duty work or
employee benefits when he could not return to work for Employer as a laborer.
Therefore, Gilmore’s breach of implied contract claim fails. Further, the record is
devoid of any evidence indicating Employer made any promises to rehire Gilmore
at his former salary with back pay. Consequently, Gilmore’s promissory estoppel
claim also fails. For these reasons, we affirm the trial court’s order granting
Employer’s motion for summary judgment.




                                      ROBERT SIMPSON, Judge




                                        21
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Paul Gilmore,                  :
                        Appellant      :
                                       :   No. 31 C.D. 2015
            v.                         :
                                       :
Borough of Kutztown                    :


                                    ORDER


            AND NOW, this 16th day of October, 2015, for the reasons stated in
the foregoing opinion, the order of the Court of Common Pleas of Berks County is
AFFIRMED.




                                     ROBERT SIMPSON, Judge
