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Even if an employer does fire a supervisor for refusing to dissuade a subordinate employee from filing a workers’ compensation claim, such a termination is lawful under Pennsylvania’s at-will employment doctrine, counsel for the appellant in Rothrock v. Rothrock Motor Sales Inc. argued Wednesday before the Supreme Court. But the attorney for the appellees argued that such a rule would have a chilling effect on employees’ rights. The case stems from a wrongful discharge claim brought by Theodore Rothrock and his son, Douglas. Both men were employed at Rothrock Motor Sales, of which Bruce Rothrock, Theodore’s brother, was the owner and president. In May 1992, Douglas, who worked under the direct supervision of his father, claimed that he had incurred a work-related neck injury and stated his intention to pursue workers’ compensation for it. Theodore and Douglas later alleged in their complaint that Bruce had demanded that Theodore either pressure Douglas into signing a release absolving the company of liability or be fired. Douglas’ claim, ultimately successful, was filed. Theodore was terminated, and a jury later awarded him $192,000 in compensatory damages. The Superior Court upheld that verdict. Rawle & Henderson partner Carl Buchholz III, on behalf of appellant Rothrock Motor Sales, began his arguments by stating that despite the complicated familial history in the case, the legal issues presented by it are fairly straightforward. Buchholz said that while the 1998 Supreme Court decision Shick v. Shirley prohibits firing an at-will employee for filing a workers’ compensation claim, a ruling in favor of the appellees would extend that statutory right to a third party — in this case, the employee’s supervisor. Chief Justice Ralph Cappy asked Buchholz whether he conceded that Theodore was indeed fired because of Douglas’ claim. Buchholz did concede that point but went on to say that a decision in the appellees’ favor would open up a “Pandora’s box of problems for employers,” possibly inviting a wave of wrongful discharge actions from ex-employees who claim that they were fired, for instance, because their friend had filed for workers’ compensation. Later, Justice Russell Nigro asked Buchholz whether employers shouldn’t be held to a more “genuine” standard than effectively coercing supervisors into interfering with subordinates’ statutory workers’ compensation rights. Buchholz responded that because of Pennsylvania’s at-will employment doctrine, employers already enjoy significant latitude when it comes to terminations. He gave the hypothesis of an employer being legally able to fire an employee because of differences in political affiliation. Justice Thomas Saylor asked Buchholz if a ruling in favor of the appellant wouldn’t cause the same type of restraint of employees that Shick was intended to counteract. Buchholz responded that a ruling in favor of the appellees would extend to a third party an employee’s personal statutory rights. Arguing against retroactivity for any ruling in favor of the appellees, Buchholz noted that the underlying events in Rothrock took place in 1992, while Shick was not decided until 1998. Alan Feldman of Feldman Shepherd Wohlgelernter & Tanner argued on behalf of appellees Theodore and Douglas Rothrock. A ruling in favor of his clients would not extend the holding of Shick, Feldman reasoned, but rather would affirm its public policy concerns. Justice J. Michael Eakin asked Feldman whether an employer could ever make an unethical request of an employee — such as demanding that he or she not wear a certain type of clothing — without violating that employee’s rights. Eventually, Feldman assented that an employer feasibly could make such a request without violating the employee’s rights, but he called attention to the fact that in the instant matter, the supervisor was asked to interfere with a subordinate employee’s right to file for workers’ compensation. Cappy asked Feldman whether the public policy as set out in Shick should be extended to a third party. Feldman responded that to rule otherwise would legalize employer intimidation and have a chilling effect on what the court has already deemed a statutory right for all employees. Advocating for retroactivity of any decision in his clients’ favor, Feldman noted that in the four instances in which the state’s appellate courts have created exceptions to Pennsylvania’s at-will employment laws, those rulings have always had retroactive effect. After the arguments, Buchholz told The Legal Intelligencer he recognizes that the case presents a tough choice for the justices. “As the questions from the court [today] showed, it’s a close, difficult question whether to extend the protection afforded to the worker to the worker’s supervisor,” Buchholz said. Feldman said that Theodore’s $192,000 award is on hold pending the outcome of the case. “I believe the case presents an important policy issue in Pennsylvania,” Feldman told The Legal Intelligencer. He added, “I’m hopeful that our Supreme Court will continue its tradition of protecting the right of a worker to receive benefits when injured on the job without the threat or fear of intimidation.” Justice Sandra Schultz Newman, who broke an arm last month, was absent from Wednesday’s arguments in Rothrock, as she was from all of Tuesday’s arguments. She is not participating in the cases whose arguments she missed, her assistant told The Legal Intelligencer.

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