J-A13010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MICHAEL BAHNATKA                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    VICTORY BREWING COMPANY, LLC               :   No. 1095 EDA 2019

                 Appeal from the Order Entered March 18, 2019
     In the Court of Common Pleas of Chester County Civil Division at No(s):
                                2016-07968-MJ


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 08, 2020

        Appellant, Michael Bahnatka, appeals from the trial court’s March 18,

2019 order granting Appellee’s, Victory Brewing Company, LLC (“Victory”),

motion for summary judgment. We affirm.

        The trial court summarized the background of this case as follows:
        [Victory] moved for summary judgment against [Appellant] on his
        third amended complaint for wrongful discharge.

        When considering a motion for summary judgment, the record is
        viewed in the light most favorable to the non-moving party.
        Accordingly, in the light most favorable to [Appellant], the facts
        are:




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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          1. [Appellant] started working for Victory on July 14,
          2014[,] as a part-time Retail Associate.[1]

          2. [Appellant] was promoted on November 24, 2014[,] to
          Inventory/Point of Sale Clerk.

          3. David Hindman, an in-house accountant for Victory,
          instructed [Appellant] to provide him with physical inventory
          counts, not calculated on-hand inventory counts.[2]

          4. Hindman used [Appellant’s] monthly counts to calculate
          the difference between calculated on-hand inventory and
          actual physical inventory, known as a variance, before
          making any accounting adjustments.

          5. In October 2015, [Appellant] was instructed by his two
          superiors, Jen Corrigan, vice-president of finance and
          corporate strategy, and John Dykstra, director of supply
          chain fulfillment, to submit calculated on-hand inventory
          counts to Hindman, instead of physical counts.


____________________________________________


1The parties do not dispute that Appellant was an at-will employee of Victory
at all times relevant to this action.

2 Appellant explains the difference between physical inventory counts and
calculated on-hand inventory counts as follows:
       [Victory] required … monthly physical inventory counts to
       compare those figures to the calculated on-hand inventory figures
       maintained in its computerized tracking program referred to as
       “Great Plains.” The “Great Plains” program kept track of inventory
       available and inventory allocated. However, said progeam [sic]
       did not deplete daily sales and, accordingly, the program did not
       reflect “live” inventory. [Victory] conducted the aforesaid monthly
       physical inventory counts to compare those figures to the figures
       in its “Great Plains” database and to determine whether any
       variance1 existed.
          1 A variance could occur for various reasons including, but
          not limited to, shrink/inventory loss (i.e.[,] human error,
          input errors, theft, property damage, [or] vendor fraud).

Appellant’s Brief at 10-11 (internal citations omitted).


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       6. [Appellant] refused and stated that doing so would
       constitute falsifying company records and was against the
       law.

       7. [Appellant] contends that the calculated on-hand
       inventory reflected a materially inflated inventory value,
       greater than $50,000, as compared to the physical
       inventory value.

       8. [Appellant] contends that the falsification of inventory
       would increase the perceived value of the company to
       potential lenders and he therefore refused to comply with
       his superiors’ directive, which ran counter to the directive
       he had received from Hindman months earlier.

       9. [Appellant] contends that the conduct he was asked to
       engage in constitutes a fraudulent business practice under
       [18] Pa.C.S.[] § 4107[,] and unlawful tampering with
       company records under 18 Pa.C.S[] § 4104(a).

       10. Shortly after [Appellant] refused to engage in these
       activities as directed by his superiors, Victory embarked on
       a campaign of retaliation.

       11. [Appellant] was pressured to resign by Corrigan and
       Dykstra, but resisted.

       12. On December 3, 2015, [Appellant] was given a
       Performance Improvement Plan (“PIP”) despite his stellar
       performance and was demoted.

       13. On December 7, 2015, [Appellant] submitted a letter to
       Betsy Benner, [the] human resources manager[,] in which
       he stated that he … had been issued the PIP in retaliation
       for reporting and refusing to engage in illegal activity within
       the company (“Protected Activity Letter”).

       More specifically, [Appellant] wrote[:] “I believe that the
       issuance of the aforementioned PIP is retaliatory in nature
       and in direct response to my complaints of illegal activity
       within the company, namely, theft…. In April of 2015, I
       discovered a substantial amount of merchandise missing. I
       raised my concern with Jen Corrigan that employees of
       Victory were engaged in illegal activity, specifically, stealing
       cash sales, and stated my opposition to the practice.
       Thereafter, I conducted an investigation on non-company


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          time, and identified several individuals who were stealing
          cash sales. In September of 2015, I presented [m]y
          findings to [management]. Immediately thereafter, Jen
          began exhibiting hostile conduct toward me, and has
          continued to do so[.] I believe that Jen’s hostility is in direct
          response to my complaints of illegality within the
          company.”[3]


____________________________________________


3 For context, later in the trial court’s opinion, it explained that — in addition
to Appellant’s claim relating to Victory’s methods of counting and recording
inventory — Appellant had pleaded another claim in his complaint regarding
theft, which he subsequently abandoned. Specifically,
       [Appellant] contended that he was terminated for “refusing to
       engage in the illegal activities of [Victory], namely theft of
       company property [growlers] in violation of 18 [Pa.C.S.] §
       3921(a).” (Third Amended Complaint, ¶ 43)[.] In this regard,
       [Appellant] contends that he was punished for his persistence in
       uncovering employee theft of growlers and/or cash receipts from
       the sale of growlers. ([Id. at] ¶¶ 13-18, 20-22)[.] In response
       to Victory’s summary judgment motion, [Appellant] does not
       argue that this claim is viable. Furthermore, [Appellant] admitted
       in his deposition that he was never asked to cover up the theft of
       growlers or the theft of cash receipts from the sale of growlers.
       The summary judgment record demonstrates that Victory actively
       investigated growler shortages after [Appellant] observed
       variances in the growler inventory. Victory began conducting daily
       counts of growler inventory at its three restaurant locations,
       rather than monthly counts. Victory devoted increased labor
       resources to this investigation. [Appellant] admitted that his
       concern about possible retail theft was never disregarded, nor was
       he ever told not to investigate the matter. Victory provided
       [Appellant] with access to video surveillance systems in its
       restaurants and access to employee work schedules.             After
       investigation, there was conclusive evidence that implicated two
       bartender employees and [Appellant] admits that Victory took
       action and terminated the two bartenders who had engaged in
       retail theft. [Appellant] has come forward with no evidence to
       support a claim that he was ever directed or urged to engage in
       retail theft or that Victory condoned or ignored retail theft by its
       employees. The Protected Activity Letter addresses only this theft



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          14. On December 9, 2015, [Appellant] signed the PIP and
          added a statement that he found “the issuance of this
          document unjustified and retaliatory.”     Nonetheless,
          [Appellant] immediately began to conform his conduct to
          the requirements of the PIP.

          15. On December 10, 2015, Benner and Amy Brill, also from
          human resources, met with [Appellant] to discuss the
          allegations in the Protected Activity Letter.      Brill told
          [Appellant] that his allegations were very serious and he
          could get in trouble for registering such a complaint. Brill
          told [Appellant] that Corrigan no longer wished to work with
          him[,] and she believed other employees would also be
          uncomfortable working with him.

          16. On December 15, 2015, Dykstra canceled the first
          scheduled catchup meeting, a PIP condition.

          17. On or about December 16, 2015, Victory terminated
          [Appellant’s] employment. Brill told [Appellant] that his
          employment was terminated because [Appellant] had
          written on the PIP that its issuance was retaliatory.

TCO at 1-3 (internal citation omitted).

       In ruling on Victory’s summary judgment motion, the trial court

recognized that the only remaining claim advanced by Appellant was that “his

employment was terminated in retribution for his refusal to commit a criminal

act, specifically, falsification of business records[,]” as “he refused to provide

Victory’s internal accounting manager with a ‘calculated on[-]hand’ inventory

figure, rather than a physical count, for the month ending [on] September 30,

2015.” See TCO at 3-4. The trial court noted that, according to Appellant,

“Victory intended to overstate its inventory on financial statements and loan
____________________________________________


       claim and does not address [Appellant’s] claims regarding
       Victory’s methods of counting and recording inventory.
Trial Court Opinion (TCO), 3/18/19, at 3 n.1 (some brackets added).


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applications to induce third[-]party investment and financing[,]” and that such

conduct constitutes the criminal offenses of fraudulent business practice and

tampering with records.     Id. at 4.    Despite Appellant’s contentions, after

examining the relevant criminal statutes and case law, the trial court granted

summary judgment in favor of Victory, determining that Appellant had “failed

to demonstrate how the use of a particular accounting method fits into the

definition of either the crime of fraudulent business practice or tampering with

records.” Id. at 8.

      Appellant subsequently filed a timely notice of appeal, and timely

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.          Presently, he raises the

following issues for our review:

      1. Whether the trial court’s [o]rder granting summary judgment
      was issued in error as a result of the court’s erroneous finding that
      there were no genuine issues of material fact as to a necessary
      element of the cause of action.

      2. Whether the trial court’s [o]rder granting summary judgment
      was issued in error as a result of making an erroneous finding of
      fact in the light most favorable to [Victory] that “the use of a
      particular accounting method to record monthly inventory was not
      a crime.”

      3. Whether the trial court’s [o]rder granting summary judgment
      was issued in error as a result of the court’s erroneous finding that
      [Victory] did not discharge Appellant in violation of public policy.

Appellant’s Brief at 5.




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       For ease of disposition, we address Appellant’s issues together.4       In

doing so, we remain mindful of our standard of review for an order granting a

motion for summary judgment:
       We view the record in the light most favorable to the non-moving
       party, and all doubts as to the existence of a genuine issue of
       material fact must be resolved against the moving party. Only
       where there is no genuine issue as to any material fact and it is
       clear that the moving party is entitled to a judgment as a matter
       of law will summary judgment be entered. Our scope of review of
       a trial court’s order granting or denying summary judgment is
       plenary, and our standard of review is clear: the trial court’s order
       will be reversed only where it is established that the court
       committed an error of law or abused its discretion.

Doman v. Atlas America, Inc., 150 A.3d 103, 105 (Pa. Super. 2016)

(citation omitted).

       With respect to wrongful termination, this Court has previously

explained:
       “In Pennsylvania, absent a statutory or contractual provision to
       the contrary, either party may terminate an employment
       relationship for any or no reason.” Weaver v. Harpster, … 975
       A.2d 555, 562 ([Pa.] 2009). “[A]s a general rule, there is no


____________________________________________


4 Appellant raises three issues in his statement of the questions involved, but
does not divide the argument section of his brief into three corresponding
parts, in contravention of Pa.R.A.P. 2119(a). See Pa.R.A.P. 2119(a) (“The
argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.”); Donaldson
v. Davidson Bros., Inc., 144 A.3d 93, 99 n.9 (Pa. Super. 2016) (determining
that the appellant failed to comply with Rule 2119(a) where the appellant’s
brief did not “present and develop eight arguments in support of the eight
questions raised”). Notwithstanding, Appellant’s noncompliance with Rule
2119(a) does not preclude our review.

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     common law cause of action against an employer for termination
     of an at-will employment relationship.” Id. …

       An employee may bring a cause of action for a termination
       of that relationship only in the most limited circumstances,
       where the termination implicates a clear mandate of public
       policy. In our judicial system, the power of the courts to
       declare pronouncements of public policy is sharply
       restricted. Rather, it is for the legislature to formulate the
       public policies of the Commonwealth. The right of a court
       to declare what is or is not in accord with public policy exists
       only when a given policy is so obviously for or against public
       health, safety, morals, or welfare that there is a virtual
       unanimity of opinion in regard to it. Only in the clearest of
       cases may a court make public policy the basis of its
       decision.      To determine the public policy of the
       Commonwealth, we examine the precedent within
       Pennsylvania, looking to our own Constitution, court
       decisions, and statutes promulgated by our legislature.

     Id. at 563 (quotation and citations omitted).

     Applying this standard, Pennsylvania courts have found actionable
     exceptions where the employee was terminated for filing a claim
     for worker’s compensation benefits, Shick v. Shirey, … 716 A.2d
     1231 ([Pa.] 1998); for filing a claim for unemployment benefits,
     Highhouse v. Avery Transportation, … 660 A.2d 1374 ([Pa.
     Super.] 1995); for failing to submit to a polygraph test where a
     statute prohibited employers from so requiring, Kroen v.
     Bedway Security Agency, Inc., … 633 A.2d 628 ([Pa. Super.]
     1993); for complying with a statutory duty to report violations to
     the Nuclear Regulatory Commission, Field v. Philadelphia
     Electric Co., … 565 A.2d 1170 ([Pa. Super.] 1989); and for
     serving jury duty, Reuther v. Fowler & Williams, Inc., … 386
     A.2d 119 ([Pa. Super.] 1978).

     Courts have found no public policy exception where the employee
     was terminated as a result of sexual discrimination by an employer
     not covered by the Pennsylvania Human Relations Act, Weaver,
     supra; for complaining about violations of the Occupational
     Safety and Health Act, McLaughlin v. Gastrointestinal
     Specialists, Inc., … 750 A.2d 283 ([Pa.] 2000); for expressing
     concerns that the employer’s product was unsafe, Geary v. U.S.
     Steel Corporation, … 319 A.2d 174 ([Pa.] 1974); for disengaging
     an illegal surveillance system, Hineline v. Stroudsburg Electric


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      Supply Co., … 559 A.2d 566 ([Pa. Super.] 1989), appeal denied
      … 574 A.2d 70 ([Pa.] 1989); or for complaining about the waste
      of taxpayer money, Rossi v. Pennsylvania State University, …
      489 A.2d 828 ([Pa. Super.] 1985).

      In sum, “an employer (1) cannot require an employee to commit
      a crime, (2) cannot prevent an employee from complying with a
      statutorily imposed duty, and (3) cannot discharge an employee
      when [specifically] prohibited from doing so by statute.”
      Donahue v. Federal Exp. Corp., 753 A.2d 238, 244 (Pa. Super.
      2000) (quoting Spierling v. First Am. Home Health Servs.,
      Inc., 737 A.2d 1250, 1252 (Pa. Super. 1999)). Outside of those
      categories of our legislature’s expression of public policy, a court
      may find a public policy exception that will sustain a wrongful
      termination action only if the public policy “is so obviously for or
      against public health, safety, morals, or welfare that there is a
      virtual unanimity of opinion in regard to it.” Weaver, 975 A.2d
      at 563.

Mikhail v. Pa. Org. for Women in Early Recovery, 63 A.3d 313, 316-17

(Pa. Super. 2013).

      Here, Appellant argues that “[t]he record demonstrates that [Victory’s]

accountant, Hindman, expressly instructed Appellant to submit actual physical

inventory counts rather than calculated on-hand inventory figures. Further,

Appellant testified that Corrigan and Dykstra instructed him to disregard

Hindman’s instruction and instead submit calculated on-hand inventory

figures to Hindman.” Appellant’s Brief at 25-26. Appellant maintains that,

had he followed Corrigan and Dykstra’s instruction, “he would have provided

fraudulent information to [Victory’s] accountant[,] in that Hindman expected

[him] to submit actual physical inventory counts as opposed to calculated on-

hand inventory, thereby inflating the value (greater than $50,000) of

[Victory’s] non-alcoholic inventory.”   Id. at 26.   Doing so, Appellant says,



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would have violated 18 Pa.C.S. § 4104(a)-Tampering with records or

identification, and 18 Pa.C.S. § 4107(a)(11)(i)–Deceptive or fraudulent

business practices, which respectively provide the following:

             § 4104 - Tampering with records or identification

      (a) Writings.--A person commits a misdemeanor of the first
      degree if, knowing that he has no privilege to do so, he falsifies,
      destroys, removes or conceals any writing or record, or
      distinguishing mark or brand or other identification with intent to
      deceive or injure anyone or to conceal any wrongdoing.

            § 4107. Deceptive or fraudulent business practices

      (a) Offense defined.--A person commits an offense if, in the
      course of business, the person:

           (11) does either of the following when the person is in a
           client relationship with a certified public accountant, public
           accountant or public accounting firm:

              (i) provides false or misleading information to the
              certified public accountant, public accountant or public
              accounting firm in connection with performance of an
              attestation function for the client which results in an
              attestation by the certified public accountant, public
              accountant or public accounting firm of a materially
              misleading financial statement, audit, review or other
              document….

18 Pa.C.S. § 4104(a); 18 Pa.C.S. § 4107(a)(11)(i); see also Appellant’s Brief

at 24-25. Appellant argues that, because he refused to commit such crimes,

Victory terminated him. Appellant’s Brief at 27.

      No relief is due. Despite viewing the record in the light most favorable

to Appellant, he has failed to demonstrate that Victory required him to commit

a crime.     As the trial court discerned, Appellant “was simply required by

Victory to use a particular accounting method to record inventory.” TCO at 8.


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Though the instructions of Corrigan and Dykstra differed from those of

Hindman, Appellant offers no explanation as to why he could not have

informed Hindman at the time that he would no longer be submitting actual

physical inventory counts to him, but instead would provide calculated on-

hand inventory counts per Corrigan and Dykstra’s instructions.5           Such

communication would have seemingly resolved any concerns Appellant had

about possibly misleading Hindman and falsifying records. Thus, viewing the

record in the light most favorable to Appellant, the evidence does not support

that Victory required Appellant to commit a crime by providing false and

misleading information to Hindman.

       Moreover, Appellant does not suggest that a calculated on-hand

inventory count is, in itself, an unlawful or otherwise prohibited accounting

method.6 Rather, it appears that Appellant had a difference in opinion with
____________________________________________


5 Appellant testified at his deposition that he verbally reported to Hindman
that he had been asked to give Hindman “inaccurate numbers,” but did not
remember when he did so, or if it was before or after he was terminated. See
Exhibit C to Victory’s Motion for Summary Judgment, 1/10/19, at 182.
Appellant also testified that he did not report it to anyone in Human Resources
as of early October of 2015. Id. at 182-83.

6 Victory correctly notes that Appellant “does not actually claim that Victory’s
choice of accounting method violated any applicable accounting standard, or
that Victory ever prepared financial records or statements without disclosing
the method used for recording inventory.” Victory’s Brief at 34. See also id.
at 36-37 (“[Appellant] admitted at his deposition that he could not show that
the monthly September valuation for [point of sale] inventory ever made its
way onto any type of financial statement, or point to any specific financial
statement or loan application by Victory that was purportedly falsified, much
less sent to lenders or other third parties. [Appellant] also never alleged that



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Corrigan and Dykstra about how inventory should be counted. This Court has

previously stated that:
       An employee who is also a professional has a dual obligation: to
       abide by federal and state laws, in addition to staying within the
       bounds of his/her professional code of ethics. Such responsibility
       may necessitate that the professional forego the performance of
       an act required by his/her employer. However, when the act
       to be performed turns upon a question of judgment, as to
       its legality or ethical nature, the employer should not be
       precluded from conducting its business where the
       professional’s opinion is open to question.

McGonagle v. Union Fidelity Corp., 556 A.2d 878, 885 (Pa. Super. 1989)

(emphasis added; internal citations omitted).      See also, e.g., Clark v.

Modern Group Ltd., 9 F.3d 321, 323 (3d Cir. 1993) (rejecting the employee’s

claim that “Pennsylvania’s public policy exception to the at-will doctrine

extends to cases in which an employee ‘reasonably believes’ that his employer

has requested him to perform an unlawful act and is discharged for objecting

to the proposal be believes is unlawful”);7 Mikhail, 63 A.3d at 321 (“[W]e

cannot conclude that [the appellee’s] decision to terminate [the appellant]

based upon differences in judgment violates the public policy of this

Commonwealth.”); Riggio v. Burns, 711 A.2d 497, 502 (Pa. Super. 1998)

____________________________________________


such purportedly ‘falsified’ (and nonexistent) financial statements ever
actually induced any specific third party to commit to a financial investment,
or that any third party ever relied upon an estimated calculation of inventory
to his or her detriment.”) (footnote omitted).

7The trial court relied on Clark in its opinion. We acknowledge that “[w]e are
not bound by decisions of the federal courts, but we may rely on them for
persuasive authority.” See, e.g., McEwing v. Lititz Mut. Ins. Co., 77 A.3d
639, 648 n.7 (Pa. Super. 2013).

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(rejecting the appellant’s claim that her termination violated the Pennsylvania

Whistleblower Law at summary judgment stage where it “appear[ed] that the

question of what constituted proper supervision involved a difference of

medical opinion”); Nix v. Temple University of Com. Sys. of Higher Educ.,

596 A.2d 1132, 1136 (Pa. Super. 1991) (determining that the appellant’s

termination due to her refusal to approve acts that she believed would be

unlawful did not violate public policy because “merely alleging an illegality or

an attempt to avoid it is not a violation of a clearly defined mandate of public

policy”) (citation omitted); Rossi v. Pennsylvania State University, 489

A.2d 828, 836 (Pa. Super. 1985) (concluding that the trial court properly

granted summary judgment to the appellees on a wrongful discharge claim

brought by an employee, and recognizing “the unwise effect of transferring to

the judicial forum the duty of evaluating the propriety of management

decisions”). Accordingly, we agree with Victory’s claim that “[i]t is merely

[Appellant’s] conclusory assertion that reporting inventory as directed would

constitute ‘falsification’ of inventory records. [Appellant’s] mere belief that

the activity was illegal or disagreement with Victory’s accounting methods,

are [sic] insufficient to establish a public policy violation under Pennsylvania

law[,] which requires an actual crime.” Victory’s Brief at 26.8

____________________________________________


8 Appellant argues that “[w]hether … [Victory’s] directive to Appellant to
submit to [Victory’s] accountant calculated on-hand inventory counts instead
of actual physical counts — in direct contravention of the accountant’s explicit
directive — constituted a crime is an issue of fact and therefore a question for



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       Finally, we take into account the narrowness of any public policy

exception to at-will employment. As the trial court observed, “[t]he public

policy exception is not meant to usurp a private business’[s] operations, nor

interfere with management prerogatives. The public policy exception is not

intended to protect employees who question internal business practices that

are not criminal acts.” TCO at 8. Indeed, our Supreme Court has noted that

its jurisprudence “demonstrate[s] that the strong presumption of all non-

contractual employment relations is at-will. An employee may bring a cause

of action for a termination of that relationship only in the most limited

circumstances, where the termination implicates a clear mandate of public

policy.” Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009). See also id.

(“These cases demonstrate Pennsylvania’s traditional view that exceptions to

at-will employment should be few and carefully sculpted so as not to erode an

employer’s inherent right to operate its business as it chooses.”). As Appellant

has not shown that Victory required him to commit a crime, or that some other

public policy exception should apply, we conclude that the trial court properly

entered summary judgment in favor of Victory.
____________________________________________


the jury.” Appellant’s Brief at 18. However, even in viewing all of the evidence
in the light most favorable to him, Appellant has not established, among other
things, that such a valuation method is illegal or improper, or that he was
precluded in some way by Corrigan and Dykstra from informing Hindman of
the change in counting inventory. Consequently, as a matter of law, we are
able to conclude that Corrigan and Dykstra’s directive does not constitute a
crime. Accord Victory’s Brief at 51 (“In finding that [Appellant’s] case has no
merit, the [trial] court fully credited [Appellant’s] version of the events and
submitted documents and testimony, but found that he failed to show that he
was directed by Victory to commit a criminal act.”) (citation omitted).

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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




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