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Bauer v. Pottsville Area Emergency Medical Services8/25/2000
J. A29012/00
Appellant, Dennis Bauer, appeals the August 2, 1999 Order sustaining the preliminary objections in the nature of a demurrer of appellee, Pottsville Area Emergency Medical Services Inc., A/K/A Lions Ambulance Service, and dismissing his complaint with prejudice. On appeal, appellant argues appellee breached the terms of the employee handbook, which were enforceable as provisions of an implied contract. Furthermore, appellant contends appellee violated the Fair Labor Standards Act (FLSA), 29 U.S.C.A. ยงยง 201-219, by constructively terminating his employment.
Appellee employed appellant as an emergency medical technician in April 1997 and, thereafter, provided a handbook to its employees, which indicated an employee working at least 36 hours per week for 90 days would be treated as a full-time employee. Appellant worked 36 hours per week for over 90 days and believed he had a right to receive full-time wages, health insurance and other benefits pursuant to the employee handbook. After more than 200 days of working 36 hours per week, appellant informally complained to appellee that he was not receiving full time benefits. On November 23, 1998, appellant instituted a breach of contract action and an action under the FLSA, to which appellee filed preliminary objections raising the legal insufficiency of appellant's pleading. By court Order dated April 8, 1999, appellee's preliminary objections were sustained; however, appellant was given leave to file an amended complaint. On April 28, 1999, appellant filed his amended complaint wherein he alleged the following:
26. Both [appellant] and [appellee] are under an obligation to abide by the terms and conditions set forth in [appellee's] Employee Handbook which both parties agreed to voluntarily be bound by, and which was in full force and effect when [appellant] demanded full time employment and status with [appellee]. ...
27. The Employee Handbook creates an express written and implied contract between [appellant] and [appellee].
28. [Appellee] owed a duty to [appellant] to fairly and equitably abide and comply with all of the terms and conditions set forth in their agreement/contract.
29. [Appellee] breached the terms of said agreement/contract by failing to promote [appellant] to the status of full-time employee since he has been scheduled for, and has worked, at least 36 hours per week for a period of 90 consecutive days.
*
44. [Appellee] is in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C.S. Section 215, et seq.
45. [Appellee] is in violation of the anti-retaliatory provisions of said Act by discriminating against/constructively discharging [appellant], and reducing [appellant's] hours to zero shortly after [appellant] voiced informal/unofficial complaints regarding his employment status at [appellee], and telling [appellee] that it was unlawful for [appellee] to not bestow upon [appellant] the right's and benefits that would accrue to a full-time employee in accordance with the terms of the handbook. [Appellant] also told [appellee] that he was going to see an attorney to discuss the fact that [appellee] was not "promoting" [appellant] to full-time status in spite of the fact that [appellant] had qualified for such in accordance with the terms of the handbook.
46. [Appellee] had threatened [appellant] and told him not to speak to an attorney or to consult with anyone regarding clarification of his legal rights, and further intimidated and threatened [appellant] with legal action against him if he sought counsel of an attorney. (Appellant's Amended Complaint at 5, 8-9.)
On June 3, 1999, app
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