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JOHN NOVOSEL, Appellant
vs.
NATIONWIDE INSURANCE COMPANY (C.A. No. 82-1600)
 
Case:
No. 83-5101
 
Location:
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
 
Date:
December 19, 1983
 
Court:
Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, GARTH, HIGGINBOTHAM, SLOVITER, BECKER, Circuit Judge.
 
Author:
The Hon. Justice Adams
 

The petition for rehearing filed by Appellant in the above-entitled case having been submitted to the Court who participated in the decision of this Court and to all other avail able circuit Court in the circuit in regular active service, and no Court who concurred in the decision having asked for rehearing, and a majority of the circuit Court of the circuit in regular active service not having voted for rehearing by Court in banc, the petition for rehearing is denied.

STATEMENT OF JUDGE BECKER SUR THE DENIAL OF THE PETITION FOR REHEARING

Because this is a diversity case, the holding of the panel constitutes a mere prediction of the likely course of Pennsylvania law, one subject to revision by the Pennsylvania Supreme Court or the Pennsylvania General Assembly. While this fact would ordinarily render en banc consideration inappropriate, I nonetheless believe that the panel's decision is sufficiently important and sufficiently questionable to call for reconsideration by the en banc Court. See Third Circuit IOP Chapter 8 B. I suspect that this assessment will be joined in by many of the district courts in this circuit, which are bound by the panel's prediction and whose dockets may well be inundated by wrongful discharge claims asserting termination for failure to undertake a job action colorably characterizable as political.

My concern is that the panel has announced an extremely broad "public policy" exception to the law of at-will employment in Pennsylvania that threatens to engulf or "overrule" the holding of the Pennsylvania Supreme Court in Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) -- an action Pennsylvania itself has apparently shown no inclination to undertake. Cf. Constance Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. 106, 466 A.2d 1084 (Pa. Super. Ct. 1983). More specifically, I have three major problems with the panel opinion.

First, the opinion ignores the state action requirement of first amendment jurisprudence, particularly by its repeated, and, in my view, inappropriate citation of public employee cases, and by its implicit assumption that a public policy against government interference with free speech may be readily extended to private actors in voluntary association with another, see, e.g., Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976). Second, the opinion could be read to suggest that an explicit contractual provision authorizing an employer to dismiss a lobbyist for failure to undertake lobbying might be unenforceable or subject to a balancing test. Third, the opinion fails to consider other public policy interests, such as the economic interests of the public in efficient corporate performance, the first amendment interests of corporations, see First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978), and the legitimate interests of a corporation in commanding the loyalty of its employees to pursue its economic well being. *fn1

I therefore dissent from the denial of rehearing.

 
Notes:

*fn1-I recognize that all of these problems may be partly remedied by the balancing test announced on page 15 of the slip opinion; however, I fear that application of that test nonetheless attenuates the employers' and the public's interests.