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MARTHA G. MUSE
vs.
PHILADELPHIA ELECTRIC COMPANY, INC.
 
Case:
CIVIL ACTION NO. 96-873
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 
Date:
June 3, 1996, Decided
 
Attorneys:
For MARTHA G. MUSE, PLAINTIFF: JAMES T. MARSH, PHILA, PA USA. For PHILADELPHIA ELECTRIC COMPANY, INC., DEFENDANT: MARK B. PEABODY, PECO LEGAL DEPT, PHILADELPHIA, PA.
 
Court:
John P. Fullam, Sr.J.
 
Author:
The Hon. Justice John P. Fullam
 

Plaintiff filed an eight-count complaint alleging that she was wrongfully terminated from her employment by the defendant, in violation of her rights under the ERISA statute, Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Pennsylvania Human Relations Act, and the common law of Pennsylvania. On April 8, 1996, the defendant filed a motion to dismiss, seeking dismissal of five of the eight counts. Instead of responding to the motion to dismiss, plaintiff filed an amended complaint, re-alleging the original eight counts, and adding a ninth count. Because the defendant's motion to dismiss the original complaint raises issues equally applicable to the amended complaint, it is appropriate to treat the defendant's motion as applying to the amended complaint.

Count III of the amended complaint asserts that plaintiff's dismissal from employment was wrongful, because it violated the public policy of Pennsylvania. Plaintiff alleges that she was discharged because she refused to undergo drug and alcohol testing. But plaintiff was an at-will employee, subject to discharge for any reason, or for no reason at all. While there are certain narrow exceptions to the employment-at-will doctrine in Pennsylvania, where exercise of the right to discharge an employee would violate some clearly established public policy, this case is not within any such exception. No Pennsylvania statute or legal principle precludes a private employer from requiring drug or alcohol testing. Count III will therefore be dismissed.

Closely related to Count III is Count II, which was not specifically included in the original complaint, but was added in the amended complaint. Count II asserts that plaintiff's discharge was wrongful because the defendant allegedly did not fully comply with its own personnel policies in achieving the dismissal. But there is no allegation that the alleged personnel policies amounted to a binding contract, and there is no basis for an inference to that effect. Count II will therefore also be dismissed.

In Count IV, plaintiff asserts that her discharge was in violation of an implied covenant of good faith and fair dealing. But no such covenant can be implied in an employment-at-will situation. Count IV will therefore also be dismissed.

Count VIII asserts a state-law claim for invasion of privacy, predicated upon the defendant's July 7, 1994, request that plaintiff submit to drug and alcohol testing. But the applicable statute of limitations requires that any such action be instituted within one year, and plaintiff did not file this suit until February 6, 1996. Plaintiff attempts to escape the bar of the statute by asserting, in the amended complaint, that she could not file suit for invasion of privacy until after she obtained a right-to-sue letter (from the Pennsylvania Human Relations Commission and/or EEOC). Plaintiff is IA error. While a right-to-sue letter is a condition precedent to her various discrimination claims, Count VIII attempts to assert an independent tort claim for invasion of privacy, as to which there is no requirement of exhaustion of administrative remedies. If plaintiff had any such claim, it could have been asserted at any time, and is plainly time-barred.

It should be noted, however, that any such tort claim is precluded by the exclusivity features of the workers compensation statute. Moreover, since plaintiff did not undergo drug or alcohol testing, the likelihood that her privacy was actually invaded seems remote. Count VIII will be dismissed.

Count IX asserts claims for intentional infliction of emotional distress. Any such claim, as an independent tort, is precluded by the exclusivity features of the workers compensation statute. Dismissal of Count IX does not, of course, preclude plaintiff from seeking damages for emotional distress, if recoverable under one or more of the remaining counts. Count IX will be dismissed.

Defendant's motion also challenges Count V, in which plaintiff seeks damages under the Americans with Disabilities Act. While I agree that plaintiff has failed to specify the nature of her alleged disability, and that the assertion of disability-discrimination seems inconsistent with other allegations of the amended complaint, plaintiff does allege, alternatively, that she suffered from a disability as defined in the statute, and that she was perceived by the defendant as being disabled; I believe this suffices to withstand dismissal under F.R.Civ.P.12(b)(6). Defendant may, if appropriate, seek summary judgment when the facts are more clearly established on the record.

To summarize, all of the counts of the amended complaint will be dismissed except Count I (ERISA claims), Count V (Americans with Disabilities Act Claims), Count VI (race discrimination, Title VII), and Count VII, discrimination, Pennsylvania Human Relations Act). An order follows.

ORDER

AND NOW, this 3rd day of June, 1996, upon consideration of defendant's motion to dismiss, it is ORDERED:

1. The following counts of plaintiff's amended complaint are DISMISSED WITH PREJUDICE: Count II, III, IV, VIII and IX.

2. As to the remaining counts (I, V, VI, and VII), the motion to dismiss is DENIED.

John P. Fullam

Sr. J.