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In a case of first impression, on Oct. 27, Dauphin County Common Pleas Judge Barry F. Feudale, specially presided as an out-of-county judge in the case of Sheeran v. Kubert Himmelstein & Associates and Bernard L. Kubert, ruled that an employee who is terminated in retaliation for serving jury duty can maintain a common-law cause of action for wrongful discharge. The determination of this issue had been long-awaited in that the Pennsylvania courts have never before decided whether the Pennsylvania Legislature’s enactment of 42 Pa.C.S.A. Section 4563, titled “Protection of Employment of Petit and Grand Jurors,” which was adopted in 1980, pre-empted a common-law wrongful discharge cause of action by an employee who is discharged for serving jury duty. Section 4563(a) provides for protection of employment of petit and grand jurors and states in relevant part that “an employer shall not deprive an employee of his employment … because the employee … serves as a juror or attends court for prospective jury service.” Subsection (c) provides an employee with the right to bring a civil action against her former employer for reinstatement, recovery of wages and benefits as a result of violating subsection (a). Subsection (d) excepts employers from subsection (a) if the employer is engaged in the retail or service industry and has fewer than 15 employees. Subsection (e) provides an employee who is excluded from the protection of subsection (a) the right to request to be excused from jury service. The statute calls for criminal penalties for employer violators and it contains a fee-shifting provision allowing an employee’s attorney to recover reasonable attorney fees in the event the employee is the prevailing party in the ensuing litigation. Julia Sheeran was an office manager with the small Philadelphia personal injury law firm of Kubert Himmelstein & Associates for almost 23 years. In April 2001, Sheeran received a summons to appear for jury duty in Philadelphia Common Pleas Court. Pursuant to the summons, Sheeran informed her boss, Bernard Kubert, that she was summoned for jury duty the next month and that she would be unable to report to work on that date. Kubert instructed Sheeran not to perform jury duty and directed her to write a letter to the court stating that the office would be short-staffed if she were selected as a juror. Sheeran refused to accede to the directives of Kubert because she believed that such statement would be a misrepresentation. Sheeran reported for jury duty and was assigned to a selection pool for a case wherein Judge John J. Chiovero was presiding. Sheeran was selected to serve on a jury for a trial estimated to last two to three days. Sheeran immediately notified Kubert that she had been selected for jury duty and would not be able to report to work the following day. Kubert voiced his dismay at Sheeran for having been selected for jury duty, and Sheeran informed the judge that she felt her job would be in jeopardy as a result of her jury service. Sheeran served on the jury for three days, during which time she continued to run back and forth from the court to her office in order to make sure she was available to complete any necessary bookkeeping for the law firm. While Sheeran was serving on jury duty, Kubert secretly began searching for a replacement for her. On July 13, 2001, Kubert terminated Sheeran’s position of employment with the law firm. In November 2001, Sheeran filed a civil action against Kubert and the law firm asserting a claim for wrongful discharge. Sheeran claimed that the termination of her employment was in retaliation for serving on jury duty and violated well-established public policy. On the eve of trial, the defendants filed a motion for summary judgment, asserting that Sheeran had no right to maintain a wrongful discharge action because 42 Pa.C.S.A. Section 4563 exempts employers in the service industry with fewer than 15 employees. The defendants argued that the Pennsylvania Legislature, in enacting Section 4563, and as evidenced by subsection (d) of the statute, did not intend to sanction service-industry employers of fewer than 15 employees who terminate an employee for serving on a jury. The defendants asserted that, despite the fact that there existed no legislative history regarding Section 4563, the Legislature must have specifically considered such employees and employers and opted to exclude such employers from liability. In the defendants’ view, a clearer statement of public policy cannot be found. In their motion for summary judgment, the defendants argued that the Legislature recognized the hardship of small service-industry business owners that would result from losing an employee to jury duty and in creating subsection (d), believed that the competing interest of economic vitality of small businesses outweighed the interest in the performance of jury duty. The defendants further argued that the Legislature provided in subsection (e) that an employee of a small service or retail business who is called to serve jury duty can request to be excused. In light of subsection (e), the defendants contended that Sheeran, despite Kubert’s insistence, failed to avail herself of her subsection (e) statutory remedy to be excused from service. In response, Sheeran asserted that Section 4563 did not preclude Sheeran’s wrongful discharge cause of action and that Pennsylvania public policy would be frustrated if the court were to interpret Section 4563 to bar her claim. In support of her position, Sheeran relied on Pennsylvania law that has long recognized the importance of jury service. In Reuther v. Fowler, (Pa. Super. 1978), the Pennsylvania Superior Court recognized that discharging an employee for serving jury duty was a violation of public policy and gave rise to a wrongful discrimination claim. The Reuther court cited the Pennsylvania Constitution as the source for such policy, noting that “the necessity of having citizens freely available for jury service” is critical and an employer’s “intrusion into this area by virtue of his power of discharge … should give rise to a cause of action.” Sheeran further argued that the “economic vitality of small businesses,” such as Kubert’s law firm, is protected not by eliminating an employee’s ability to bring a claim for wrongful discharge, but rather by not exposing small businesses to the criminal and attorney fee-shifting provisions that large businesses are subjected to under subsections (b) and (c) of Section 4563. Sheeran further asserted that by adding subsections (d) and (e) to the statute, the Legislature sought to exclude employers in the defendants’ class from the severe penalties imposed upon large employers by subsections (b) and (c) but did not seek to eliminate an employee’s right to bring a claim for wrongful discharge when terminated for serving on a jury. Sheeran also posited that the defendants’ interpretation of Section 4563 would produce absurd and unreasonable results. If Section 4563 were interpreted in the manner so asserted by defendants, that is, if employers in the service industry with fewer than 15 employees are not prohibited from terminating employees for serving on jury duty, the statute would operate so as to systematically exclude a large group of citizens from the juror pool, thereby leaving only the employees of large businesses to serve on jury duty. Such a result would in effect eviscerate 42 Pa.C.S.A. Section 4501(1), which provides that “all persons entitled to a jury trial … shall have the right to jurors selected at random from a representative cross section … of the community.” In his opinion last month, Feudale ruled that the Pennsylvania Legislature, in enacting 42 Pa. C.S.A. Section 4563, did not pre-empt an employee’s right to bring a common-law wrongful discharge action where the employee is terminated in retribution for jury service. “Too often, lawyers lament that if only they could obtain a truly representative jury, one that includes a true representative cross-section of the community (i.e. a fair share of business owners, professionals, and broad base working Americans) then jurors would reach well-reasoned decisions that more accurately reflect community mores, values, and fundamental fairness,” Feudale wrote. “Unfortunately, the laws including the provisions and interpretation that defendants request we make as to employees in any retail or service industry employing fewer than 15 persons, or by implication any employer in any manufacturing industry employing fewer than 40 persons, would allow too many people to avoid jury service. While we could only speculate on the number of people who could arguably opt out of jury service in Philadelphia, in our home county of Northumberland, with the exception of our largest employer (Northumberland County …) and retired persons, the majority of our work force would fall within the ambit of Section 4563 (d).” The Sheeran ruling is consistent with 42 Pa.C.S.A. Section 4501(2), which expressly states that “all qualified citizens shall have the opportunity to be considered for service as jurors in the courts of this commonwealth and shall have an obligation to serve as jurors when summoned for that purpose.” A contrary ruling would in effect strip from employees of small businesses their opportunity, right and civic obligation to participate in the judicial process by serving as jurors when summoned for that purpose. Significantly, Feudale adopted the proposals set forth in the American Legislative Exchange Council’s Model Jury Patriotism Act, which, among other things, addresses the protection of employee rights. ALEC’s Model Jury Patriotism Act, according to Feudale, would provide even more protection for employees by explicitly prohibiting a business from requiring its employees to use their annual, vacation or sick leave time for jury service. In this regard, the court stated, “In the release by ALEC they acknowledge most states prohibit employers from terminating or threatening to terminate an employee because he or she takes time off to serve on a jury. They noted several states go further and protect employees from any adverse action taken as a result of their responding to a jury summons. The Jury Patriotism Act provides even more protection for employees.” Although the ruling in Sheeran comports with well-established Pennsylvania law, because the court was presented with a case of first impression, the defendants have filed a petition for certification with Feudale requesting permission to file an immediate appeal from the court’s interlocutory order to the Pennsylvania Supreme Court. Sheeran intends to object and move that the case be listed for trial. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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