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Bauer v. Pottsville Area Emergency Medical Services8/25/2000
46, 348 (Pa. 1990).
Several years later, in Niehaus v. Delaware Valley Medical Center, 631 A.2d 1314 (Pa. Super. 1993), this court ruled in a divided three- member panel decision that an employee could sue a former employer for breach of contract where an employee handbook provided for rehire under the circumstances present. The complaint alleged that the employee had sought approval for a leave of absence under the terms of the handbook, that the approval was given, and that the employer then refused to rehire, despite a contrary provision in the handbook. The panel of this court found that a cause of action for breach of contract could be maintained since the employer had guaranteed rehire in the employee handbook and that it was "essential to avoid injustice" to enforce the promise. Id. at 1318. This holding was summarily reversed by the supreme court upon citation to its decision in Paul v. Lankenau Hospital, supra. Niehaus v. Delaware Valley Medical Center, 649 A.2d 433 (Pa. 1994).
The law is clear that no cause of action, whether styled as one at law sounding in contract or as one in equity upon estoppel principles, may be maintained by an employee for enforcement of the provisions of an employee handbook where that handbook was not a bargained for portion of the offer of employment. Here, the handbook was not an element of the offer of employment since its effective date was May 1, 1998, and appellant was hired in April, 1997. The amended complaint contains no averments which would constitute additional consideration sufficient to bind the employer to the provisions of the handbook.
I would hold that the rejection of this court's decision in Niehaus by the Pennsylvania Supreme Court renders the majority's disposition to reinstate the breach of contract count of the complaint erroneous under existing law. See also McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 290 (Pa. 2000) (supreme court has steadfastly resisted any attempt to weaken the presumption of at-will employment in this Commonwealth). I, therefore, would affirm the order granting the preliminary objections in the nature of a demurrer.
I agree with the majority that the amended complaint fails to state a cause of action under the Fair Labor Standards Act, 29 U.S.C.A. ยง201 et seq.
For the forgoing reasons, I dissent in part and concur in part with the result reached by the majority.
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