J-A19021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAUL J. BUKOVINSKY, II                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

G4S SOLUTIONS, LISA HENNICK, AND
RAYMOND BROCK

                        Appellees                   No. 1260 WDA 2014


                    Appeal from the Order July 14, 2014
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD 13-006228


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 14, 2015

      Appellant Paul J. Bukovinsky, II appeals pro se from the order entered

in the Allegheny County Court of Common Pleas, which denied Appellant’s

motion to strike, granted G4S Solutions’, Lisa Hennick’s, and Raymond

Brock’s (“Appellees’”) preliminary objections to Appellant’s complaint, and

dismissed Appellant’s complaint with prejudice. We affirm.

      The relevant facts and procedural history of this appeal are as follows.

Appellant worked for Appellees as a security officer from November 25, 2011

until September 2012.      Appellees issued several notices to Appellant

regarding his poor performance, including failing to sign site visitors in and

out and watching movies and sleeping on the job. On September 24 or 28,

2012, Appellees conducted a meeting with Appellant and terminated his
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employment, although Appellant claims not to have been aware of his

termination at this time.1

       On December 10, 2012, the office of Unemployment Compensation

(“UC”) issued a notice of determination, finding the last day of Appellant’s

employment was September 24, 2012, and determining that he was

ineligible for benefits.     The notice informed Appellant that his last day to

appeal the determination was December 26, 2012. On December 18, 2012,

Appellant filed a notice of appeal.            On January 9, 2013, the UC Board of

Review conducted a hearing and issued a “Referee’s Decision/Order”

affirming the determination of the service center and denying Appellant

benefits.

       On April 10, 2013, Appellant filed a complaint against Appellees for

wrongful termination, but mailed the complaint to Appellees instead of

properly having the sheriff serve it. Because they were not properly served,

Appellees did not respond to the complaint. Appellant moved for summary

judgment on September 25, 2013.                  The court conducted a hearing on
____________________________________________


1
   The exact date of Appellant’s termination is disputed. Although not
mentioned in his complaint, in his brief Appellant contends that he informed
his supervisor about a car accident in which he was involved on September
21, 2012. He then assumed that he was on medical leave pursuant to the
Family Medical Leave Act. Appellant admits to attending a meeting on
September 28, 2012 about his poor work conduct. He alleges “Skip” was
going to call him. He claims he was not notified of his termination until
December 10, 2012, when he received an order from the unemployment
office.




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February 10, 2014, which Appellees did not attend.             The court granted

summary judgment in favor of Appellant as to liability but not damages.

Appellees then filed a motion to dismiss Appellant’s complaint and

preliminary objections on February 11, 2014. On March 10, 2014, Appellees

filed a motion for reconsideration of the February 10, 2014 order. The next

day, Appellees filed a notice of appeal. This Court quashed the appeal as

interlocutory.     415 WDA 2014.           On May 15, 2014, the court granted

Appellees’ motion for reconsideration and vacated the February 10, 2014

order.2

       On July 14, 2014, the court granted Appellees’ preliminary objections

that were filed February 11, 2014 and dismissed Appellant’s complaint with

prejudice. On August 1, 2014, Appellant filed a notice of appeal. The court

did not order, and Appellant did not file, a Pa.R.A.P. 1925(b) statement.

       Appellant raises the following issues for our review:

          1. THE CASE LAW THAT WAS PRESENTED WAS FROM A
          RULING FROM THE UNITED STATES SUPREME COURT AND
          OTHER APPEAL COURTS WAS NOT UNHELD[?]

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2
  In the May 15, 2014 order, the trial court specifically stated that
“[Appellees] acknowledge proper service of the complaint.” Trial Court
Order, filed May 15, 2014. Appellant should consider himself very fortunate
the court did not dismiss his complaint for improper service. Because
Appellees acknowledged proper service of the complaint on May 15, 2014,
they could have properly filed preliminary objections within 20 days of the
order, or before June 4, 2014. Thus, we consider Appellees’ preliminary
objections, filed February 11, 2014, timely.




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           2. AFTER A JUDGE REVIEWS A COMPLAINT FOR THE SOLE
           REASON TO DECIDE IF THEY WILL GRANT AN IN FORMA
           PAUPERIS PETITION AND THEY GRANT IT CAN THAT SAME
           JUDGE DISMISS THE CASE FOR NOT FILING THAT SAME
           COMPLAINT WITHIN THE STATUTE OF LIMITATIONS FOR
           FILING THAT COMPLAINT IF THEY HAVE DECIDED THE
           COMPLAINT WAS BEING FILED IN A TIMELY MANNER?

           3. CAN PRELIMINARY OBJECTIONS BE FILED IN RESPONSE
           TO A MOTION?3

              4. ONCE THE DEFENDANTS RECEIVE A NOTICE TO
              DEFEND ALONG WITH THE COMPLAINT FILED IN THE
              COURT OF COMMON PLEAS DO THEY HAVE TO
              RESPOND EVEN IF THEY DON’T BELIEVE A PRO SE
              LITIGATE CAN FILE SUCH A COMPLAINT?

              5. IF DEFENDANTS FAIL TO RESPOND TO A COMPLAINT
              DO THEY HAVE THE RIGHT TO PRESENT A DEFENSE A
              YEAR LATER?

              6. ARE EMPLOYERS PROTECTED FROM LAWSUITS FOR
              WRONGFUL TERMINATION IF THEY VIOLATE THE CIVIL
              RIGHTS ACT, FAIR LABOR STANDARDS ACT, THE
              WHISTLEBLOWER ACT, AND THE OSHA ACT OF 1970?

              7. IS IT A 14TH AMENDMENT VIOLATION UNDER THE
              EQUAL PROTECT CLAUSE FOR THE TRIAL COURT TO
              TAKE AN ATTORNEY’S WORD OVER EVIDENCE
              BECAUSE THEY ARE ATTORNEYS?

              8. IF IT IS SHOWN THAT THE DEFENDANTS HAVE
              FALSIFIED LEGAL DOCUMENTS TO A GOVERNMENT
              AGENCY CAN THEY BE CREDIBLE WITNESS?

              9. IS IT A 6TH AMENDMENT VIOLATION TO NOT ORDER
              A DEFAULT JUDGMENT WHEN THE DEFENSE HAS NOT
              UPHELD THE PENNSYLVANIA CIVIL PROCEDURES?


____________________________________________


3
    Questions 4-15 are indented as if they are subsections of question 3.



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J-A19021-15


              10. SHOULD THE COURT TAKE INCONSIDERATION A
              LITIGATES COLLEGE DEGREE THEY MAY HAVE IN LAW?

              11. CAN EMPLOYERS PLEAD “AT WILL DOCTRINE” IF
              THEY HAVE VIOLATED THE EMPLOYEE’S CIVIL RIGHTS?

              12. CAN AN EMPLOYER TERMINATE AN EMPLOYEE TO
              MAKE A SPOT FOR A FAMILY MEMBER TO TAKE THEIR
              PLACE?

              13. IS IT A 6TH AMENDMENT VIOLATION FOR THE
              COURTS TO PROLONG PROCEEDINGS IF THE DEFENSE
              HASN’T UPHELD PENNSYLVANIA CIVIL PROCEDURES
              WHILE THE PLAINTIFF HAS?

              14. IS A FINAL COURT ORDER VALID IF THE ORDER IS
              FROM ANOTHER JURISDICTION?

              15. CAN THE APPELLEES STATE THAT THE COMPLAINT
              WAS NOT FILED TIMELY IF THEY FRAUDULENTLY
              CONCEALED THE TERMINATION DATE FROM THE
              APPELLANT?

Appellant’s Brief at 8 (verbatim).

       In his combined issues, Appellant argues that the trial court erred by

granting Appellee’s preliminary objections and dismissing his complaint with

prejudice.4    Appellant challenges both the procedural and the substantive

aspects of the trial court’s decision. Specifically, he claims his complaint was

timely, Appellee’s preliminary objections were untimely, the trial court failed

to review the case law he presented, and the trial court erred by failing to

rule he had a cause of action against Appellee. He claims he is entitled to

____________________________________________


4
  We note that Appellant fails to separate his issues into separate sections in
the body of his brief in violation of Pa.R.A.P. 2119.



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relief on the theory of wrongful termination, and in addition under the

Occupational Safety and Health Act (“OSHA”) and the Whistleblower Act.

We disagree.

      “This Court reviews a trial court’s decision sustaining or overruling

preliminary objections for an error of law.” O'Donnell v. Hovnanian

Enterprises, Inc., 29 A.3d 1183, 1186 (Pa.Super.2011). “In so doing, [the

Court] employ[s] the same standard as the trial court, to wit, all material

facts set forth in the [] Complaint and inferences reasonably drawn

therefrom are admitted as true." Knight v. Springfield Hyundai, 81 A.3d

940 (Pa.Super.2013). “Preliminary objections which seek the dismissal of a

cause of action should be sustained only in cases in which it is clear and free

from doubt that the pleader will be unable to prove facts legally sufficient to

establish the right to relief.”   Richmond v. McHale, 35 A.3d 779, 783

(Pa.Super.2012).

      Generally, in Pennsylvania, there is no common law cause of action

against an employer for termination of an at-will employment relationship.

Krajsa v. Keypunch, Inc., 622 A.2d 355, 358 (Pa.Super.1993) (“an at will

employee may be terminated for good reason, bad reason, or no reason at

all”). An exception to this general rule may exist where the termination of

the at-will employment “threaten[s] the clear mandates of public policy.”

Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 175 (Pa.Super.1996),

appeal denied, 681 A.2d 178 (Pa.1996) (internal citations omitted). Public


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policy exceptions to the at-will employment doctrine, however, have been

permitted in only very limited circumstances. Rothrock v. Rothrock Motor

Sales, Inc., 883 A.2d 511, 515 (Pa.2005).    We observe:

        To state a public policy exception to the at-will-
        employment doctrine, the employee must point to a clear
        public policy articulated in the constitution, in legislation,
        an administrative regulation, or a judicial decision.
        Jacques v. Akzo International Salt, Inc., 619 A.2d 748
        ([Pa.Super.]1993). Furthermore, the stated mandate of
        public policy, as articulated in the constitution, statute, or
        judicial decision, must be applicable directly to the
        employee and the employee’s actions. It is not sufficient
        that the employer’s actions toward the employee are
        unfair. Reese v. Tom Hesser Chevrolet-BMW, 413
        Pa.Super. 168, 604 A.2d 1072 (1992) (fact that employer
        required employee, as condition of continued employment,
        to reimburse it for losses attributable to action of
        employee may have been unfair but did not violate law;
        therefore, employee failed to state public policy exception
        to doctrine of at-will employment); Darlington v.
        General Electric, 504 A.2d 306 ([Pa.Super.1986) (no
        public policy exception to at-will employment doctrine
        found even though employee was discharged unfairly in
        that he was not afforded the opportunity to defend himself
        against allegations of accounting irregularities).

Hunger, 670 A.2d at 175-76.

     Regarding Appellant’s OSHA claim, our Supreme Court observed:

        We recognize that the Superior Court and some federal
        courts have assumed by implication that sole reference to
        federal statutes could form the basis for a claim for
        wrongful discharge in violation of the public policy of this
        Commonwealth. In Field v. Philadelphia Electric
        Company, 565 A.2d 1170 ([Pa.Super.]1989) and Sorge
        v. Wright's Knitwear Corp., 832 F.Supp. 118, 121
        (E.D.Pa.1993)[,] the courts indeed hold that the public
        policy set forth in a federal statute, including OSHA,
        announced a clear and significant policy of Pennsylvania.
        Hence, in those cases an employee could bring a claim for

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          wrongful discharge based on that federal statute. In
          addition, some state jurisdictions have held that the public
          policy of the state could be found within the OSHA
          provisions prohibiting a retaliatory discharge for filing an
          OSHA complaint. Also, in Kulch v. Structural Fibers,
          Inc., 78 Ohio St.3d 134, 677 N.E.2d 308 (1997)[,] the
          highest court in Ohio found that OSHA could form the basis
          for a wrongful discharge claim. However, this view is not
          uniform.[5]

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 289

(Pa.2000).

       The Whistle Blower statute provides in relevant part:

          § 1422. Definitions

          The following words and phrases when used in this act
          shall have the meanings given to them in this section
          unless the context clearly indicates otherwise:

          “Appropriate authority.” A Federal, State or local
          government body, agency or organization having
          jurisdiction over criminal law enforcement, regulatory
          violations, professional conduct or ethics, or waste; or a
          member, officer, agent, representative or supervisory
          employee of the body, agency or organization. The term
          includes, but is not limited to, the Office of Inspector
          General, the Office of Attorney General, the Department of
          the Auditor General, the Treasury Department, the General
          Assembly and committees of the General Assembly having
          the power and duty to investigate criminal law

____________________________________________


5
    “OSHA…provide[s] specific remedies for corporate retaliation against
employees who participate in any action to carry out the purpose of the
federal statutes. The statutory remedies are exclusive: they provide for the
filing of a complaint with the Secretary of Labor and there is no private right
of action.” Braun v. Kelsey-Hayes Co., 635 F. Supp. 75, 80 (E.D. Pa.
1986) (emphasis added) (internal citations omitted).




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        enforcement, regulatory violations, professional conduct or
        ethics, or waste.

        “Employee.” A person who performs a service for wages
        or other remuneration under a contract of hire, written or
        oral, express or implied, for an employer.

        “Employer.” A public body or any of the following which
        receives money from a public body to perform work or
        provide services relative to the performance of work for or
        the provision of services to a public body:

        (1) An individual.

        (2) A partnership.

        (3) An association.

        (4) A corporation for profit.

        (5) A corporation not for profit.

        *   *   *

        “Public body.” All of the following:

        (1) A State officer, agency, department, division, bureau,
        board, commission, council, authority or other body in the
        executive branch of State government.

        (1.1) The General Assembly and its agencies.

        (2) A county, city, township, regional governing body,
        council, school district, special district or municipal
        corporation, or a board, department, commission, council
        or agency.

        (3) Any other body which is created by Commonwealth or
        political subdivision authority or which is funded in any
        amount by or through Commonwealth or political
        subdivision authority or a member or employee of that
        body.

43 Pa.C.S. § 1422 (emphasis added).

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        Appellant’s complaint was timely whether he was terminated on

September 14 or December 10 of 2012 because he filed his complaint on

April 10, 2013, which was within the two-year statute of limitations period

for a wrongful employment action based on an alleged public policy

exception. See 42 Pa.C.S. § 5524.6 However, in the light most favorable to

Appellant, his complaint fails to articulate a cognizable cause of action.

        Appellees employed Appellant “at-will,” and reserved the right to fire

him at any time, for any reason.               No contract prevented Appellee from

terminating Appellant’s employment. Further, Appellees’ “Discipline” policy

states as grounds for immediate dismissal:              “Any other reason that the

company feels, in its sole discretion, warrants termination.”            Discipline

Policy, pp. 33-34.       Appellant’s allegations that Appellees’ warnings were

issued to him for the wrong reasons are of no consequence because

Appellees were entitled to terminate Appellant’s employment for any or no

reason at all, without warning him.

        Appellant cannot articulate any public policy exception to the at-will

employment doctrine.         Even if he was fired to make room for one of the

Appellees’ family members, as he claims, this is not a public policy

exception.



____________________________________________


6
    As previously discussed, Appellees’ preliminary objections were also timely.



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      Appellant did not file an OSHA claim and OSHA does not provide a

private right of action. Appellant wrote an email to the G4S corporate office

that stated:

         [T]here is no fire extinguisher in the shack and secondly
         the light plant is malfunctioning it will turn off then back on
         it has been causing shorts and because of that it blew up
         the microwave and almost started a fire this light plant
         needs repaired or replaced as soon as possible please it is
         very dangerous and I don’t want anybody to get hurt I
         hope you can help I tried keven ice [sic] but nothing was
         done he called me back but was asleep getting ready for
         the night shift and after I returned his call I never heard
         anything back.

“Unsafe condition” email addressed to Larrymcevoy@consolenergy.com,

dated May 1, 2012.

      Not only is this not an OSHA claim, but it was written on May 1, 2012,

and Appellant was terminated in September or December of 2012. He does

not articulate how the two events were related.

      Appellant’s Whistleblower claim is also meritless.       Appellees are a

private company, not “public bodies” as defined by the statute.            Further,

Appellant’s bald allegation that he was not promoted because he is male

lacks foundation and was not raised in his complaint.

      Even if all of Appellant’s allegations were true, the claims raised in his

complaint did not articulate any cognizable causes of action. Therefore, the

court properly granted Appellees’ preliminary objections and dismissed

Appellant’s complaint, with prejudice.

      Order affirmed.

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J-A19021-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2015




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