J-A31022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIAN DOWLING                                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

PENNSYLVANIA PSYCHIATRIC
INSTITUTE,
MICHAEL J. FELICE, AND WANDA
GEESEY

                         Appellee                    No. 473 MDA 2014


                Appeal from the Order Entered March 4, 2014
              In the Court of Common Pleas of Dauphin County
                  Civil Division at No(s): 2012-CV-10599-CV


BEFORE: BOWES, J., OTT, J., and STABILE, J.

DISSENTING MEMORANDUM BY OTT, J.:                      FILED JUNE 08, 2015

      Because I conclude that Dowling failed to plead sufficient facts to

support his claims for breach of contract, promissory estoppel and

intentional interference with contractual relations, I am compelled to dissent.

      With regard to Dowling’s breach of contract claim, I agree with the

Majority that Dowling has demonstrated, at this preliminary stage in the

proceeding, that he had formed an oral contract with PPI, through its agent,

Groves, and that the agreement was supported by valid consideration. See

Majority Memorandum at 8-10. Nevertheless, I conclude Dowling failed to
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present a valid claim for breach of contract, albeit on a different basis than

that of the trial court.1

       It is axiomatic that in order to maintain a breach of contract action, a

plaintiff must demonstrate:        “(1) the existence of a contract, including its

essential terms, (2) a breach of a duty imposed by the contract and (3)

resultant damages.”         Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super.

2002), appeal denied, 856 A.2d 834 (Pa. 2004). This Court has expressed

that “[w]hile not every term of a contract must be stated in complete detail,

every element must be specifically pleaded.”               Pennsy Supply, Inc. v.

Am. Ash Recycling Corp. of Pennsylvania, 895 A.2d 595, 600 (Pa.

Super. 2006) (citations omitted and emphasis supplied), appeal denied, 907

A.2d 1103 (Pa. 2006). Indeed,

       Pennsylvania is a fact-pleading state; a complaint must not only
       give the defendant notice of what the plaintiff’s claim is and the
       grounds upon which it rests, but the complaint must also
       formulate the issues by summarizing those facts essential to
       support the claim.

Lerner, supra, 954 A.2d at 1235.                 Moreover, “[c]larity is particularly

important where an oral contract is alleged.” Pennsy Supply Inc., supra,

895 A.2d at 600.

____________________________________________


1
 “[W]e are not bound by the rationale of the trial court and may affirm on
any basis.” Southwestern Energy Prod. Co. v. Forest Resources, LLC,
83 A.3d 177, 184-185 (Pa. Super. 2013) (citation omitted), appeal denied,
96 A.3d 1029 (Pa. 2014).




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      Furthermore,     when   considering   whether   a   trial   court   properly

sustained preliminary objections in the nature of a demurrer, we must bear

in mind:

           A demurrer is an assertion that a complaint does not set
           forth a cause of action or a claim on which relief can be
           granted.   A demurrer by a defendant admits all
           relevant facts sufficiently pleaded in the complaint
           and all inferences fairly deducible therefrom, but not
           conclusions of law or unjustified inferences. In ruling
           on a demurrer, the court may consider only such matters
           as arise out of the complaint itself; it cannot supply a
           fact missing in the complaint.

      Binswanger v. Levy, 311 Pa.Super. 41, 457 A.2d 103, 104
      (1983) (internal citations omitted). Where the complaint fails to
      set forth a valid cause of action, a preliminary objection in the
      nature of a demurrer is properly sustained.         McArdle v.
      Tronetti, 426 Pa.Super. 607, 627 A.2d 1219, 1221 (1993),
      appeal denied, 537 Pa. 622, 641 A.2d 587 (1994).

Lerner v. Lerner, 954 A.2d 1229, 1234-1235 (Pa. Super. 2008) (emphasis

supplied and some emphasis omitted).

      Dowling averred in his complaint that he entered into an oral contract

with Groves, the essential terms of which were Dowling would submit his

resume for the CFO position and Groves would keep his application

confidential.      See First Amended Complaint, 7/11/2013, at ¶¶ 22.         With

regard to PPI’s alleged breach of that agreement, Dowling averred the

following facts:

      22. Groves encouraged Dowling to submit his resume for the
      position and specifically informed him that his submission would
      be kept confidential, such that no one at PPI would know that
      Dowling applied for the job, with the exception of the search
      committee.


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                                   ***

     24. On Friday, July 13, 2012, Dowling spoke with Groves, and
     Groves told Dowling that “she would reach out to the
     search committee regarding his interest in the position.”

     25. On Monday, July 16, 2012, Felice, in the presence of
     Geesey, terminated Dowling, thus precluding Dowling’s
     consideration for the CEO position. Felice undertook this action
     out of concern for his job security and that of Geesey. When
     Dowling inquired as to the reason for his dismissal,
     however, Felice and Geesey refused to give him a reason.
     Instead, both remarked that it “was his last day at PPI and that
     security was waiting for him.”       Further, contrary to PPI’s
     customary practice, Felice and Geesey advised Dowling that he
     would not be able to retrieve any personal items from his office
     prior to his departure.

     26. Thereafter, Dowling spoke to Groves, who was shocked to
     learn of his dismissal and suggested that he contact a labor
     attorney about the matter.

     27. Dowling then called Daly, who informed Dowling that it
     was Felice’s decision to fire him; Daly refused to provide any
     further information.

Id. at ¶¶ 22, 24-27 (emphasis supplied).

     Based on these factual averments, I conclude Dowling has not averred

sufficient facts to demonstrate PPI breached the confidentiality agreement.

Dowling states only that Groves promised she would keep his application

confidential from all of PPI’s employees, with the exception of the members

of the search committee, one of whom, as Dowling was aware, was Geesey.

Dowling does not aver that Groves told anyone, besides the search

committee, about his interest in the position, and, more importantly, he

does not specify when Groves informed the committee about his

application. Although, he states that on Friday, July 13, 2012, Groves told



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him “she would reach out to the search committee about his interest in the

position[,]”2 Dowling does not assert whether she did so that day, over the

weekend, or at any time before he was fired the following Monday.

Moreover, Dowling also does not aver that Geesey, a member of the search

committee, violated the confidentiality agreement he made with Groves. He

simply claims that Felice terminated him, in the presence of Geesey, when

he returned to work after the weekend. He does not even state that Felice

terminated him because he had applied for the CEO position. Accordingly,

in my opinion, Dowling has failed to plead sufficient facts demonstrating PPI

breached the purported oral confidentiality agreement.

        The Majority maintains, however, that Dowling is “entitled to all

inferences fairly deducible from the alleged facts.” Majority Memorandum at

11. To this end, the Majority states:

        The clear inference created by [Dowling’s] averments is that
        Geesey, in breach of the oral confidentiality agreement entered
        by PPI, immediately informed her friend Felice about Dowling’s
        candidacy for CEO.     Due to Felice’s and Geesey’s personal
        animosity against Dowling, Felice was fearful for his job and fired
        Dowling.

Id. The Majority then concludes that these facts “are sufficient to support

an inference that Geesey breached the confidentiality agreement.”             Id.

(emphasis supplied).



____________________________________________


2
    First Amended Complaint, 7/11/2013, at ¶ 24.



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       I do not agree that PPI’s breach of the confidentiality agreement,

through the actions of Geesey and Felice, is an inference “fairly deducible”

from the pleadings.       Lerner, supra, 952 A.2d at 1235 (citation omitted).

Dowling was required to “specifically plead[]” every element in his breach of

contract claim.      Pennsy Supply Inc., supra, 895 A.2d at 600 (citation

omitted).    While the timing of his termination is suspect, Dowling did not

aver Groves actually informed the search committee, and particularily

Geesey, of his application before he was fired, or that Geesey violated the

agreement and shared his candidacy with Felice.             The averments in

Dowling’s complaint simply do not make the requisite connection between a

violation of the confidentiality agreement and Dowling’s termination.

Accordingly, because Dowling failed to aver that PPI breached his oral

confidentiality agreement, I maintain that Dowling’s first issue fails.

       Next, the Majority concludes Dowling also set forth a valid claim for

promissory estoppel.        However, I find that this claim fails for the same

reason as Dowling’s breach of contract claim – Dowling failed to plead that

the purported “promise” was actually broken.        Nowhere in his complaint

does Dowling assert that either Groves or Geesey violated the promise of

confidentiality.3 Therefore, I conclude Dowling is entitled to no relief on his

second claim as well.

____________________________________________


3
  Additionally, with regard to his promissory estoppel claim, I note Dowling
asserts in his amended complaint that “[i]njustice can be avoided only by
(Footnote Continued Next Page)


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       Lastly, with regard to Dowling’s cause of action for intentional

interference with contractual relations, the Majority finds Dowling set forth a

valid claim that Geesey and Felice, acting based on their “personal animus

toward Dowling[,]”4 improperly interfered with his employment contract

with PPI. Citing Yaindl v. Ingersoll-Rand Co. Std. Pump-Aldrich Div.,

422 A.2d 611, 619 n.6 (Pa. Super. 1980), the Majority maintains that “an

action for intentional interference with a contractual relationship is viable

even if the contract with which the defendant interfered was terminable at

the will of the parties.” Majority Memorandum at 13.

       However, in subsequent decisions, this Court has rejected the

language in Yaindl as dicta, and held that a cause of action for intentional

interference with contractual relations does not lie in the context of an at-will

employment contract.           In Hennessy v. Santiago, 708 A.2d 1269 (Pa.

Super. 1998), this Court stated:

       First, the language from the footnote [in Yaindl] quoted above
       is dicta because it was not essential to the holding of the panel.
                       _______________________
(Footnote Continued)

enforcing this promise, because, but-for this promise, Dowling would still be
employed by PPI.” First Amended Complaint, 7/11/2013, at ¶ 37. Here, the
promise was Groves’s assurance that Dowling’s application would be kept
confidential. Such a promise would be impossible to enforce. Further,
Dowling does not specify what other damages he seeks. See Restatement
(Second) of Contracts § 90 (1981) (“Unless there is unjust enrichment of the
promisor, damages should not put the promisee in a better position than
performance of the promise would have put him.”).
4
    Majority Memorandum at 14.




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       Second, Appellant brings no cases to our attention where this
       doctrine has been extended to the ambit of at-will employment.
       Thus, we are constrained to hold that an action for intentional
       interference with performance of a contract in the employment
       context applies only to interference with a prospective
       employment relationship whether at-will or not, not a
       presently existing at-will employment relationship.

Id. at 1278-1279 (emphasis supplied).            See also Haun v. Cmty. Health

Sys., Inc., 14 A.3d 120, 125 (Pa. Super. 2011) (relying on Hennessy and

rejecting plantiff’s claim for intentional interference with contractual relations

in at-will employment context; “our review of the record reflects that

[plaintiff] does not allege any interference with a prospective employment

relationship, nor does he establish that he was not an at-will employee.”)

(emphasis supplied).        Accordingly, based on this Court’s decisions post-

Yaindl, I maintain Dowling cannot establish a claim based upon Felice’s and

Geesey’s purported intentional interference with his at-will employment

contract.5

       Furthermore, with respect to Dowling’s assertion that Felice and

Geesey interfered with the confidentiality agreement he had with Groves and

PPI, I find this claim fails for the same reason as the previous two, namely,

____________________________________________


5
  Moreover, from my review of Dowling’s brief, it appears Dowling has
abandoned this claim on appeal. Indeed, in his brief he argues only that
“Geesey and Felice acted intentionally to interfere with the confidentiality
agreement which had been formed between Downing and PPI’s agent, Jane
Groves.” Dowling’s Brief at 19 (emphasis supplied). He does not argue
that Geesey and Felice interfered with his at-will employment contract.




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Dowling never pled facts sufficient to demonstrate there was a breach of

the confidentiality agreement.       In the absence of a claim that Groves

informed Geesey of Dowling’s candidacy for the position, and that Geesey

then   told   Felice   of   Dowling’s   candidacy,   breaching   the   purported

confidentiality agreement, Dowling cannot sustain his cause of action, and

his third issue, similarly, fails.

       Accordingly, because I find Dowling failed to plead sufficient facts to

support his claims for breach of contract, promissory estoppel and

intentional interference with contractual relations, I would affirm the order of

the trial court sustaining the Defendants’ preliminary objections and

dismissing Dowling’s complaint. Therefore, I dissent.




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