J-S51002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KELI R. GENTZLER,                               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

GRAHAM PACKAGING COMPANY, L.P.,

                         Appellee                     No. 525 MDA 2014


              Appeal from the Order Entered February 19, 2014
                In the Court of Common Pleas of York County
                  Civil Division at No(s): 2013-SU-3450-88


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 15, 2014




alleging that her discharge prior to the expiration of two years was a breach

of their employ



amended complaint with prejudice, finding that Employee failed to plead

sufficient facts to overcome the presumption that her employment was

terminable at will by either party. After careful review, we affirm.

      On or about September 11, 2012, Graham Packaging confirmed in



Employee accepted the offer. Trial Court Opinion, 2/19/14, at 1. Exhibit A
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provided for a salary of $85,000 per year, and contained a provision entitled



       As special consideration, you will receive a sign-on bonus of
       $20,000 subject to applicable taxes. Should you leave the
       company voluntarily within two years, you agree to reimburse
       Graham for the entire amount.

Amended Complaint, Exhibit A.



employment. Trial Court Opinion, 2/19/14, at 2. On September 25, 2013,

Employee commenced the instant action alleging that Graham Packaging

prematurely breached its contract with her when it terminated her within

two years of the inception of the employment relationship.     After Graham

Packaging filed preliminary objections in the nature of a demurrer, Employee

filed an amended complaint pursuant to Pa.R.C.P. 1028(c)(1), and averred



               in exchange for her acceptance of the offer. Id. at ¶ 14. She

alleged further that by agreeing to repay that bonus if she voluntarily



by agreeing to refrain from voluntarily termina

two-year period. Id

two-                                                                   Id. at

¶ 18. Employee contended that her discharge prior to the expiration of the

two-year period was a breach of contract.




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     On November 26, 2013, Graham Packaging again filed preliminary



renewing its contention that the pleading failed to defeat the presumption of

at-will employment. Specifically, it contended that its discharge of Employee

did not create a legal cause of action because Employee was an at-will

employee who could be terminated at any time for any or no cause.             The

trial court agreed, sustained the d

amended complaint with prejudice.         Employee filed this timely appeal and

presents two issues for our review:

     (1) Did the trial court err as a matter of law in sustaining the
                                                     of [a] Demurrer,

     insufficient to support a claim for breach of contract?

     (2) Did the trial court abuse its discretion in dismissing

     depriving [Employee]     of    the    opportunity   to   amend   [her]
     pleading?



     Initially, we note the stand

preliminary objections in the nature of a demurrer:

     Preliminary objections in the nature of a demurrer test the legal
     sufficiency of the plaintiff's complaint. The question presented
     by the demurrer is whether, on the facts averred, the law says
     with certainty that no recovery is possible. Thus, our scope of
     review is plenary and our standard of review mirrors that of the
     trial court. Accepting all material averments as true, we must
     determine whether the complaint adequately states a claim for
     relief under any theory of law.




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Grose v. Procter & Gamble Paper Products, 866 A.2d 437, 440

(Pa.Super. 2005) (citations and internal quotations omitted).     We are not

bound, however, to accept as true any conclusions of law in the amended

complaint.    Nix v. Temple Univ. of Commonwealth Sys. of Higher

Educ., 596 A.2d 1132, 1134 (Pa.Super. 1991).

     In order to plead a legally sufficient claim for a breach of contract, the

following elements must be present: (1) the existence of a contract, (2) a

breach of duty imposed by the contract, and (3) damages.          Sullivan v.

Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa.Super. 2005).

Preliminarily, we recognize that under the well-settled laws of this

Commonwealth, all employment is presumed to be at will.              Mudd v.

Hoffman Homes for Youth, Inc., 543 A.2d 1092, 1095 (Pa.Super. 1988).

In an at-will employment situation, an employee may leave a job for any or

no reason and an employer may discharge an employee with or without

cause.   Id

against an employer for termination of an at-                    Id. Thus, in

order for Employee to maintain the instant cause of action, her amended

complaint must contain factual allegations that rebut the presumption of at-

will employment. The presumption of at-will employment can be overcome



duration; (2) an agreement specifying that the employee will be discharged

for just cause only; (3) sufficient additional consideration; or (4) an


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                                                    Janis v. AMP, Inc., 856

A.2d 140, 144 (Pa.Super. 2004) (quoting Luteran v. Loral Fairchild Corp.,

688 A.2d 211, 214 (Pa.Super. 1997)).

      Preliminarily,   Employee   asserts   that   the   trial   court   erred   by

overstepping its boundaries in ruling on the demurrer.           Specifically, she

alleges that the trial court erred in the following respects: by considering

whether a contract of a specified duration existed; by speculating as to the

intent of the parties with respect to the bonus clause; by considering, sua

sponte, the existence of an express contract when Graham Packaging did

not object to it in its demurrer; and by considering the merits

cause of action rather than determining whether a legally sufficient claim for

                                                                                 -6.

We address first these allegations of error by the trial court in ruling on the

demurrer.

      Employee argues that the trial court should have accepted as true the

averment in her amended complaint that an employment contract for a



However, the trial court found this averment to be a conclusion of law, which

it was not obligated to accept as true. Trial Court Opinion, 2/19/14, at 5.

The trial court has wide discretion in determining whether a particular

averment in a pleading is a conclusion of law or an allegation of fact.

Cucchi v. Rollins Protective Services Co., 546 A.2d 1131, 1135


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(Pa.Super. 1988) (reversed on other grounds, 574 A.2d 565 (Pa. 1990)).

Whether an averment is one of fact or a conclusion of law is determined by



Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 496 A.2d 762,

765 (Pa.Super. 1985).

      We agree with the trial court that the averment that Exhibit A

constitutes an employment contract for a specified term is a legal

conclusion. The trial court was bound to accept Exhibit A as an employment

agreement executed between Employee and Graham Packaging, the facts

pled in the amended complaint and the inferences reasonably drawn

therefrom, but not the legal conclusion that it was an employment contract

for a specified term of two years.

      Employee also claims that it was error for the trial court to find that

the bonus clause was intended to create an additional benefit and not a

clause that created an employment contract fo

brief at (unnumbered page) 10. She continues that the trial court was not




disagree. Contract interpretation is a question of law.   Halpin v. LaSalle

University, 639 A.2d 37, 39 (Pa.Super. 1994).        Generally, the task of

interpreting a contract is performed by a court rather than a jury, and the

goal is to ascertain the intent of the parties from the language of their


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agreement.    Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 510

(Pa.Super. 2013). The trial court properly examined the clause in question

to determine it was capable of supporting the inference that employment

was guaranteed for a minimum of two years.



only to the existence of an implied employment contract for a specified term

and that the trial court erred by considering sua sponte whether there was

an

upon Alumni Assoc. v. Sullivan, et al, 535 A.2d 1095, 1101 (Pa.Super.



are not to be considered by the court sua sponte



preliminary objections, it is apparent that Graham Packaging objected on the

basis that Exhibit A, the executed agreement, was not an employment

contract for a specified term. Graham Packaging pointed to the lack of any




                                                                ployment or

just-cause language are two terms in an express contract that may

overcome the at-will presumption of employment. Veno v. Meredith, 515



based on the absence of terms in the writing that would defeat the


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presumption of an at-

that the trial court sua sponte raised the issue.

      Finally, we find no indication that the trial court considered the merits

rather than the legal sufficiency of the pleading. The court was charged with

determining whether the amended complaint contained factual averments

that, if proven, were capable of overcoming the presumption of at-will

employment. The court performed that task.

      Having concluded that the trial court applied the proper legal standard



amended complaint was legally sufficient to rebut the presumption of at-will

employment. The trial court found the following: the bonus clause did not

contain a definite term of employment; there was no language stating that

Employee could only be terminated for just cause; there was no additional

consideration present as the bonus clause did not confer any special benefit

on Graham Packaging nor subject Employee to any hardship; and there was

no applicable public policy exception that would preclude termination of

Employee. Trial Court Opinion, 2/19/14, at 6-7. The court concluded that

the bonus was merely an incentive.



that Employee has not stated a legally sufficient claim for breach of an

express   or   implied   employment    contract     that   would   overcome   the

presumption of at-will employment.          We turn first to the employment


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agreement, Exhibit A.   As this Court noted in Nix, supra at 1135, the

                                             -at-will is where the employer

and employee have entered into a valid contract which expresses an

intention to overcome t                         Veno, supra at 577, we

recognized that the most elementary way to do so is by express contract



However, we held therein that such a contract must be clear and definite.




that the employment is at-      Id.

                                                                  mployee

argues that one can reasonably infer from the absence of any at-will



(unnumbered page) 10.        Such an argument flies in the face of the

presumption that all employment under the laws of this Commonwealth is at

will. Mudd, supra at 1095.

     Employee contends further that the bonus clause was an agreement of

duration, creating an employment contract for a specified term of two years

because she could not freely resign prior to that time without incurring a

penalty. Id. at ¶¶ 14-18. We disagree. The bonus clause, by its terms, did

not express an obligation to employ Employee for at least two years.




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              gests that Employee was free to leave her employment at any

time, and that the employer could terminate her within that two-year period,

which were scenarios consistent with at-will employment.            Certainly, this

language does not clearly and definitely support a finding of an employment



the bonus if she were to voluntarily resign within two years create a contract

for that specified term. We find this analogous to the situation in Nelson v.

Genesee & Wyo. Inc., 2010 U.S. Dist. LEXIS 96836 (W.D. Pa. 2010),

where   a   federal   district   court    applied   Pennsylvania   law   regarding



which obligated an employee to repay prorated relocation expenses if he

resigned within six months, did not create an employment contract of

definite duration.

      We agree with the trial court that this clause is exactly what its label

suggests: a sign-on bonus. It is merely an incentive to entice Employee to

accept employment and stay for at least two years, and not a promise to

employ her for a minimum term of two years.              It does not clearly and

unambiguously set forth a definite term of employment.             Furthermore, it

contains no provision for discharge for just cause only. Hence, we do not

find any language in Exhibit A that can be construed to be a term of definite

duration.




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                                                                           ere



intend the employment to be at-will or where the employee provides special

consideration to the employer in addition to the services for which he was

hired, or incurs substantial hardship.   Luteran, supra at 214; see also

DiBonaventura v. Consol. Rail Corp., 539 A.2d 865, 867-70 (Pa.Super.

1988) (finding that reliance on an employee manual suggesting that

employment is not at-will, or an allegation of a company policy prohibiting

discharge of employees except for just cause, are examples of facts that

may permit a finding of an implied employment contract for a specified

term).

     Employee avers that her receipt of the bonus was special consideration

that would overcome the presumption of at-will employment.            However,

Employee misapprehends the law.          The question is not whether the

employee   received   special   consideration   but   whether   the   employee



consideration exists when an employee affords his employer a substantial

benefit other than the services which the employee is hired to perform, or

when the employee undergoes a substantial hardship other than the services

                                Donahue v. Fed. Express Corp., 753 A.2d

238, 245 (Pa.Super. 2000) (quoting Cashdollar v. Mercy Hosp. of


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Pittsburgh, 595 A.2d 70, 73 (Pa.Super. 1991)). Substantial hardship has

been found where an employee left his former job, sold a house, and moved

away for employment. Id.

      The amended complaint does not contain any factual allegations from

which it reasonably can be inferred that Employee conferred any special

consideration on Graham Packaging or that she incurred substantial

                                                                        i.e., the

obligation to reimburse the bonus to Graham Packaging if she voluntarily

resigned within the first two years is neither additional consideration to

Graham Packaging nor a substantial hardship to Employee. Therefore, we

agree with the trial court and find that the third factor is not pled or present.

      Finally, our law does provide legal redress in those situations when

discharge offends public policy.    Luteran, supra at 214.       For example, a

cause of action may exist where an employer discharges an at-will employee

when the employee refused to commit a crime or when he complied with a

statutorily-                                                     See Donahue,

supra at 244.     However, Employee does not contend that a recognized

public policy was violated by her termination. In sum, Employee does not

allege facts that establish a legally sufficient claim for a breach of an express

or implied employment contract and the trial court did not err by sustaining




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      Employee

dismissing her amended complaint with prejudice. She maintains that she

should have     been given the    opportunity to   amend   to   correct any

deficiencies.   The principles governing amendment of a pleading are as

follows:

      [T]he right to amend a pleading should not be withheld when
      there is a reasonable possibility that amendment can be
      accomplished. . . [E]ven when a complaint is deficient,
      amendment and not dismissal, is the appropriate remedy. If a
      demurrer is sustained, the right to amend should not be withheld
      where there is some reasonable possibility that amendment can
      be accomplished successfully.

Hoza v. Hoza, 448 A.2d 100, 103 (Pa.Super. 1982) (citations and internal

quotations omitted). However, the trial court has broad discretion to grant

or deny a petition to amend. Schwarzwaelder v. Fox, 895 A.2d 614, 621

(Pa.Super. 2006). In reviewing the pro



                                         Id. In Schwarzwaelder, we found

no abuse of discretion where the trial court denied permission to amend to

attach a document where the language therein did not remedy the pleading

deficiencies. See also Pennfield Corp. v. Meadow Valley Elec., 604 A.2d

1082, 1089 (Pa.Super. 1992) (collecting cases).

      In the present case, after Graham Packaging filed a demurrer to



Employee had the opportunity to amend her complaint and cure the alleged


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deficiencies. While she availed herself of the right to amend, she failed to

remedy the defects. Employee has not proffered additional facts that, were

she permitted to amend, would state a claim. Thus, we find the trial court

did not abuse its discretion in finding no reasonable possibility that Employee

could successfully amend.

      Exhibit A is not legally sufficient to create an express employment

contract for a specified term. Employee has also failed to plead facts from

which one can reasonably find that she incurred hardship or that she

conferred special benefit upon Graham Packaging that would support a

finding of an implied contract for a definite term. On the record before us,



amended complaint with prejudice.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2014




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