J-A11002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEANNE HEIDORN,                                       IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellant

                       v.

CHELTEN CHURCH,

                             Appellee                         No. 1590 EDA 2015


                 Appeal from the Order Entered April 10, 2015
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2014-32390


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                                      FILED JUNE 22, 2016

       Appellant, Jeanne Heidorn, appeals from the order entered on April 10,

2015, that granted preliminary objections in the nature of a demurrer filed

on behalf of Appellee, Chelten Church (“the Church”) in the underlying

wrongful termination of employment action. We affirm.

       In   its   opinion,   the   trial   court   provided    the   following   factual

background:

             [The Church] employed [Appellant] as an administrative
       employee from 1996 until her termination on June 2, 2014. The
       Church also employed Andrew Hudson (hereinafter “Hudson”) as
       Lead Pastor from 2001 until September 2013. After Hudson’s
       resignation, [Appellant] testified in a court proceeding involving
       Hudson on Wednesday, May 28, 2014. The Church’s leaders
       attended the court proceeding when [Appellant] testified. On
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11002-16


      Friday, May 30, 2014, the Church’s leaders scheduled a meeting
      with [Appellant] for Monday, June 2, 2014. At the meeting,
      [Appellant] was discharged with no performance issues
      documented or cited. [Appellant] alleges she was terminated
      because the Church’s leaders did not approve of her testimony
      at the court proceeding the previous week.

             [Appellant] filed the instant Complaint on December 5,
      2014 for equitable relief and damages due to her wrongful
      termination. In her Complaint, [Appellant] alleges the Church
      terminated her employment as retaliation because she “testified
      honestly under oath” at Hudson’s court proceeding. The Church
      filed Preliminary Objections in the nature of a demurrer on
      January 15, 2015 and [Appellant] timely replied on January 28,
      2015. Oral argument was held before the undersigned on April 7,
      2015. This Court issued an order sustaining the Church’s
      Preliminary Objections and dismissing [Appellant’s] Complaint on
      April 9, 2015.

Trial Court Opinion, 7/6/15, at 1-2 (internal citations omitted).   Appellant

filed a timely notice of appeal, and both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents the following issues for this Court’s

consideration:

      1. Did the Trial Court err by sustaining [the Church’s] demurrer
         to   [Appellant’s]   one-count     complaint   for    wrongful
         termination?

      2. If the Superior Court finds that the Trial Court did not err in
         sustaining [the Church’s] demurrer, was it error not to allow
         [Appellant] to file an amended complaint?

Appellant’s Brief at 4.




                                    -2-
J-A11002-16


     At the outset, we note that appeals from orders granting a preliminary

objection in the nature of a demurrer are reviewed under the following

standard:

     A preliminary objection in the nature of a demurrer is properly
     granted where the contested pleading is legally insufficient.
     Preliminary objections in the nature of a demurrer require the
     court to resolve the issues solely on the basis of the pleadings;
     no testimony or other evidence outside of the complaint may be
     considered to dispose of the legal issues presented by the
     demurrer. All material facts set forth in the pleading and all
     inferences reasonably deducible therefrom must be admitted as
     true.

     In determining whether the trial court properly sustained
     preliminary objections, the appellate court must examine the
     averments in the complaint, together with the documents and
     exhibits attached thereto, in order to evaluate the sufficiency of
     the facts averred. The impetus of our inquiry is to determine the
     legal sufficiency of the complaint and whether the pleading
     would permit recovery if ultimately proven. This Court will
     reverse the trial court’s decision regarding preliminary objections
     only where there has been an error of law or abuse of discretion.
     When sustaining the trial court’s ruling will result in the denial of
     claim or a dismissal of suit, preliminary objections will be
     sustained only where the case is free and clear of doubt.

     Thus, the question presented by the demurrer is whether, on the
     facts averred, the law says with certainty that no recovery is
     possible. Where a doubt exists as to whether a demurrer should
     be sustained, this doubt should be resolved in favor of overruling
     it.

Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-209 (Pa.

Super. 2012) (internal citations and quotation marks omitted).

     As noted, Appellant initiated a wrongful termination action against the

Church.     “In Pennsylvania, employment is presumed to be at-will, unless


                                     -3-
J-A11002-16


there is an agreement otherwise.”     Wakeley v. M.J. Brunner, Inc., ___

A.3d ___, ___, 2016 PA Super 88 (Pa. Super. filed April 19, 2016).

Pennsylvania does not recognize a common law action for wrongful

termination of at-will employment.    Weaver v. Harpster, 975 A.2d 555,

562 (Pa. 2009). As an at-will employee, Appellant “may be terminated at

any time, for any reason or for no reason.” Stumpp v. Stroudsburg Mun.

Auth., 658 A.2d 333, 335 (Pa. 1995). An employee may bring a cause of

action for termination only in the most limited circumstances, namely “where

the termination violates a clear mandate of public policy.”          Roman v.

McGuire    Memorial,    127   A.3d   26,   32    (Pa.   Super.   2015)   (quoting

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa.

2000)).

     Here, Appellant claims she was wrongfully discharged in retaliation for

testifying truthfully at Hudson’s hearing, and she argues that the public

policy exception to the employment at-will doctrine applies.         Complaint,

12/5/14, at 3, ¶¶ 14-15; Appellant’s Brief at 7-8. Appellant cites to Mikhail

v. Pennsylvania Organization for Women in Early Recovery, 63 A.3d

313, 317 (Pa. Super. 2013), as support for her position. Appellant’s Brief at

9. In Mikhail, a panel of this Court discussed at-will employment and the

public policy exception. This Court explained:

     Pennsylvania courts have found actionable exceptions where the
     employee was terminated for filing a claim for worker’s
     compensation benefits, Shick v. Shirey, 552 Pa. 590, 716 A.2d
                                     -4-
J-A11002-16


      1231 (1998); for filing a claim for unemployment benefits,
      Highhouse v. Avery Transportation, 443 Pa.Super. 120, 660
      A.2d 1374 (1995); for failing to submit to a polygraph test
      where a statute prohibited employers from so requiring, Kroen
      v. Bedway Security Agency, Inc., 430 Pa.Super. 83, 633 A.2d
      628 (1993); for complying with a statutory duty to report
      violations to the Nuclear Regulatory Commission, Field v.
      Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170
      (1989); and for serving jury duty, Reuther v. Fowler &
      Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978).

Mikhail, 63 A.3d at 317.

      In the case at bar, Appellant argues that her termination for testifying

truthfully under oath at a judicial proceeding violated public policy and is

akin to the aforementioned exceptions.         Appellant’s Brief at 10.      We

disagree. The trial court addressed this issue as follows:

            [Appellant] argues that “in Pennsylvania, the public policy
      exception to employment at will recognizes a cause of action for
      wrongful discharge if the employee has been retaliated against
      for conduct actually required by law” (i.e. testifying honestly
      under oath). Appellant’s Compl. ¶ 14-15[. Appellant] relies on
      Reuther v. Fowler & Williams, Inc., 386 A.2d 119 (Pa. Super.
      1978), to support her position that the Church’s termination of
      [Appellant’s] employment violated public policy. In Reuther, the
      court held “that the law of this Commonwealth recognizes a
      cause of action for damages resulting when an employee is
      discharged for having performed his obligation of jury service”
      because “the necessity of having citizens freely available for jury
      service is just the sort of ‘recognized facet of public policy’”
      which “an employer’s ‘intrusion into’ ... should ‘give rise to a
      cause of action.’” [Reuther,] 386 A.2d at 120, 121 (citation
      omitted) (quoting Geary, [v. U. S. Steel Corp.,] 319 A.2d
      [174] at 180 [(Pa. 1974)]). Reuther is distinguishable from the
      instant case because an “obligation of jury service” is a
      “‘recognized facet of public policy,’” pursuant to Article I, § 6 of




                                     -5-
J-A11002-16


       the Pennsylvania Constitution and an individual may be
       penalized for choosing to ignore “‘summonses of the court’” in
       accordance with 17 P.S. §§ 1099, 1336.[1] Id. (citations and
       footnote omitted) (quoting 17 P.S. § 1336). Testifying in a court
       proceeding has never been a “recognized facet of public policy.”

             [Appellant] has not averred she was wrongfully terminated
       for obeying a lawfully issued subpoena, but that she was
       discharged because she “testified honestly under oath.”
       [Appellant’s] Compl. ¶ 15[.2]

             Pennsylvania law simply does not support a claim for
       wrongful termination under any permutation of [Appellant’s]
       factual scenario. [Appellant] is asking this Court to establish a
       new public policy exception which would prohibit an employer
       from discharging an “at-will” employee who testified “honestly.”
       If this scenario supported a cause of action, every wrongful
       termination claim would, in essence, turn on the issue of
       whether the underlying testimony was “honestly” given.2
       Suppose the testimony in the underlying matter was completely
       honest, but incomplete? Suppose the underlying testimony was
       substantially honest, but inaccurate, mistaken, or contradicted in
       one or more respects? Suppose the underlying testimony was
       honest in all respects, but nonetheless gave a misleading or false
       impression because of the way it was presented?
              2
                It is not clear whether honest testimony means
              testimony made in good faith or truthfully made.

____________________________________________


1
  The procedure for selecting and summoning jurors, which was previously
enumerated in Title 17, is now encompassed as part of the Judicial Code at
42 Pa.C.S. §§ 4501-4584.
2
  We note that terminating an employee for complying with a subpoena
could violate public policy because “A subpoena is an order of the court
commanding a person to attend and testify at a particular time and place. It
may also require the person to produce documents or things which are
under the possession, custody or control of that person.”         Pa.R.C.P.
234.1(a). Thus, complying with a subpoena is parallel to a jury summons.
However, that scenario is not present in the instant case.


                                           -6-
J-A11002-16


              Just as there is no prohibition for an employer to terminate
        an at-will employee who gives false testimony in a court
        proceeding, nor can there be any conceptual or practical
        prohibition for an employer to terminate an employee whose
        honest testimony may be incomplete, mistaken, or misleading in
        some respect. This new cause of action, previously not
        recognized by any appellate authority, would be completely
        unworkable. Pennsylvania law simply does not support
        [Appellant’s] claim.

Trial Court Opinion, 7/6/15, at 5-6.

        After review, we conclude that there was no statute or constitutional

provision compelling Appellant to provide testimony.           If the Church did

terminate Appellant’s employment because it did not agree with her

testimony, public policy was not violated. Nevertheless, Appellant avers that

she was terminated because her testimony was truthful. Appellant’s Brief at

7. First, we must point out that we cannot verify the veracity of Appellant’s

testimony as we are not privy to those ancillary proceedings.          Secondly,

while Appellant notes that she was not permitted to testify untruthfully

because perjury is a crime,3 there is no indication that the Church suborned

perjury or coerced Appellant to testify falsely.       As noted above, Appellant

testified voluntarily. Thus, the truth of her testimony is immaterial.

        After review, we conclude that Appellant has failed to illustrate how

her termination violated public policy.        As an at-will employee, the Church


____________________________________________


3
    Appellant’s Brief at 11; 18 Pa.C.S. § 4902.


                                           -7-
J-A11002-16


was free to terminate Appellant’s employment for any reason or for no

reason. Stumpp, 658 A.2d at 335.

      Next, Appellant claims the trial court erred in not allowing Appellant to

amend her complaint.       Appellant’s Brief at 15.   “[T]he right to amend

pleadings is within the sound discretion of the trial court and should be

liberally granted.” In re Lokuta, 11 A.3d 427, 439 (Pa. 2011). However,

where amendment would be futile, the complaint may be dismissed without

allowance for amendment. Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d

616, 624 (Pa. Super. 1999) (citation omitted). Because we have concluded

that no public policy consideration was implicated, we reiterate that the

Church was free to terminate Appellant for any reason or for no reason.

Stumpp, 658 A.2d at 335. Accordingly, no amendment could cure this fatal

flaw in Appellant’s cause of action.

      For the reasons set forth above, we discern no error in the trial court

granting the Church’s preliminary objections in the nature of a demurrer.

Accordingly, we affirm.

      Order affirmed.




                                       -8-
J-A11002-16




 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




                          -9-
