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Don’t use middlemen to do your dirty work, the Pennsylvania Supreme Court seems to be telling employers. If state courts have already held that it’s unlawful to fire an employee for seeking workers’ compensation benefits, employers shouldn’t now be permitted to fire supervisory employees who refuse to tell their subordinates not to seek workers’ compensation benefits, the justices have unanimously ruled. Affirming the Superior Court, the justices chose to extend a pre-existing exception to Pennsylvania’s at-will employment doctrine. “We hold, as a necessary corollary to the policy established [by our court in previous holdings], that a Pennsylvania employer may not seek to have a supervisory employee dissuade a subordinate employee from seeking WC benefits,” Justice Max Baer wrote in Rothrock v. Rothrock Motor Sales Inc. “If an employer does so, the supervisory employee shall have a cause of action for wrongful discharge from employment.” Justices Thomas G. Saylor and J. Michael Eakin joined Baer. Justice Sandra Schultz Newman did not participate in the case. In a concurring opinion in which he was joined by Justices Russell M. Nigro and Ronald D. Castille, Chief Justice Ralph J. Cappy argued against the majority’s referencing out-of-state precedent, but otherwise agreed with the holding. Carl Buchholz III, of Rawle & Henderson in Philadelphia, represented the employer in Rothrock and argued on its behalf before the justices. He said he hopes the court’s decision doesn’t lead to attacks on the at-will employment doctrine itself. “But that remains to be seen,” Buchholz said. Counsel for the employee in the matter were Alan Feldman (who argued before the high court) and Daniel Weinstock, both of Feldman Shepherd Wohlgelernter Tanner & Weinstock in Philadelphia. “From a policy standpoint, I think this was kind of a no-brainer,” Weinstock said of the ruling. Rothrock stems from a dispute over workers’ compensation benefits at a family-run Allentown, Pa., auto dealership. In 1992, Bruce Rothrock owned Rothrock Motor Sales. Bruce’s brother Ted and Ted’s son Doug were at-will employees assigned to the dealership’s body shop. Ted, as the body shop’s manager, was Doug’s direct supervisor, according to Baer’s opinion. In March 1992, Doug said he injured his neck while unloading heavy computer equipment at work. He subsequently reported the injury to the Bureau of Workers’ Compensation, according to the opinion. When Bruce learned that Doug appeared to be planning to file a claim for workers’ comp benefits, he approached Ted and said Doug had actually been injured several years earlier in a stockcar accident. Ted later testified that Bruce told him to convince Doug to sign a form waiving his right to workers’ comp benefits, Baer wrote. The three later had a meeting at which, Doug and Ted later said, Bruce tried once more to discourage Doug from filing a claim and then fired them both when Doug expressed his intention to go forward with his claim petition, according to the opinion. Ted later sought unemployment compensation. The dealership told the Department of Labor and Industry that Ted had been terminated for willful misconduct. Ted was awarded unemployment benefits. In early 1993, Ted and Doug sued the dealership for wrongful discharge from employment. In the fall of 2000, a Lehigh County jury found against Doug but awarded Ted $192,000 in compensatory damages. The dealership appealed, but a Superior Court majority affirmed, arguing that a decision in favor of Rothrock Motor Sales would contradict the Supreme Court’s 1998 holding in Shick v. Shirey. “[The dealership] was well aware of our decision in Shick, where we determined that it violated Pennsylvania law to terminate an employee for seeking WC benefits, but, nevertheless, argued that such a decision should not be extended to prohibit an employer from terminating a supervisory employee for refusing to attempt to dissuade a subordinate employee to not seek WC benefits,” Baer wrote. The justices concluded that public policy supports the likening of Rothrock to Shick. “There is little doubt that the policy of protecting subordinate employees’ rights to seek WC benefits will be well-nigh eliminated if employers can avoid the rule of Shick by pressuring and firing supervisors who do not or cannot coerce subordinate employees into foregoing their rights,” Baer wrote. “Moreover, it would be equally repugnant for this court to turn its back on such supervisors, who amount to innocent pawns in conflict between employer and subordinate employee, and, nevertheless, would find themselves out of employment without cause or recourse absent this decision.” In his concurring opinion, Cappy objected to the majority’s apparent adoption of the test utilized by Washington state appellate courts in analyzing possible exceptions to the at-will employment doctrine. Cappy wrote that the same conclusion could have been reached relying on Pennsylvania precedent. Weinstock said he is glad the justices’ decision was unanimous, as the Superior Court’s 2-1 ruling below had given his side cause for concern. In an October 2002 dissenting opinion in Rothrock, Judge John G. Brosky criticized the Superior Court majority for expanding the Supreme Court’s holding in Shick. Buchholz said it is clear that the justices were guided by public policy concerns. “We were obviously disappointed that the Supreme Court felt it was necessary to expand its holding in Shick,” Buchholz said. “But it was a unanimous opinion, so obviously the court felt, as a public policy decision, that it was necessary to do in order to protect the employees that they intended Shick to protect.”

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