963 F.

2d 611
60 USLW 2741, 121 Lab.Cas. P 56,894,
122 Lab.Cas. P 57,001,
7 IER Cases 698, 7 IER Cases 800, 7
IER Cases 977

Sarah BORSE, Appellant,

v.
PIECE GOODS SHOP, INC.
No. 91-1197.

United States Court of Appeals,

Third Circuit.
Argued July 31, 1991.
Decided May 13, 1992.
As Amended May 29, 1992.
Order on Denial of Rehearing July 6, 1992.

Hyman Lovitz (argued), Sidney L. Gold, Philadelphia, Pa., for appellant.

Richard E. Santee, Jr. (argued), Bethlehem, Pa., for appellee.
Before BECKER, SCIRICA, and ROTH, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.

Plaintiff Sarah Borse brought suit against her former employer, Piece Goods
Shop, Inc. ("the Shop"), in the district court for the Eastern District of
Pennsylvania. She claimed that, by dismissing her when she refused to submit
to urinalysis screening and personal property searches (conducted by her
employer at the workplace pursuant to its drug and alcohol policy), the Shop
violated a public policy that precludes employers from engaging in activities
that violate their employees' rights to privacy and to freedom from unreasonable
searches. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the district
court dismissed her complaint for failure to state a claim on which relief could
be granted. This appeal requires us to decide whether an at-will employee who

is discharged for refusing to consent to urinalysis screening for drug use and to
searches of her personal property states a claim for wrongful discharge under
Pennsylvania law.
2

Because we predict that, under certain circumstances, discharging a privatesector, at-will employee for refusal to consent to drug testing and to personal
property searches may violate the public policy embodied in the Pennsylvania
cases recognizing a cause of action for tortious invasion of privacy, and
because the allegations of Borse's complaint are not sufficient for us to
determine whether the facts of this case support such a claim, we will vacate
the district court's order and remand with directions to grant leave to amend.

I. THE ALLEGATIONS OF THE COMPLAINT

3

Because of the procedural posture of this case, we begin with a summary of the
allegations of the complaint. Borse was employed as a sales clerk by the Piece
Goods Shop for almost fifteen years. In January 1990, the Shop adopted a drug
and alcohol policy which required its employees to sign a form giving their
consent to urinalysis screening for drug use and to searches of their personal
property located on the Shop's premises.

Borse refused to sign the consent form. On more than one occasion, she
asserted that the drug and alcohol policy violated her right to privacy and her
right to be free from unreasonable searches and seizures as guaranteed by the
United States Constitution. The Shop continued to insist that she sign the form
and threatened to discharge her unless she did. On February 9, 1990, the Shop
terminated Borse's employment.

The complaint alleges that Borse was discharged in retaliation for her refusal to
sign the consent form and for protesting the Shop's drug and alcohol policy. It
asserts that her discharge violated a public policy, embodied in the First and
Fourth Amendments to the United States Constitution, which precludes
employers from engaging in activities that violate their employees' rights to
privacy and to freedom from unreasonable searches of their persons and
property. Plaintiff seeks compensatory damages for emotional distress, injury to
reputation, loss of earnings, and diminished earning capacity. She also alleges
that the discharge was willful and malicious and, accordingly, seeks punitive
damages.

6II. OVERVIEW OF THE PUBLIC POLICY EXCEPTION TO THE

EMPLOYMENT-AT-WILL DOCTRINE IN PENNSYLVANIA

A. Choice of Law and Scope of Review

7

The district court's subject-matter jurisdiction was based on diversity of

citizenship pursuant to 28 U.S.C. 1332. The jurisdiction of this court is
founded upon 28 U.S.C. 1291.

Federal courts sitting in diversity must apply the substantive law of the state
whose laws govern the action. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78,
58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Our review of the district court's
prediction and application of Pennsylvania law is plenary. Smith v. Calgon
Carbon Corp., 917 F.2d 1338, 1345 (3d Cir.1990), cert. denied, --- U.S. ----,
111 S.Ct. 1597, 113 L.Ed.2d 660 (1991). Because the Pennsylvania Supreme
Court has not addressed the question whether discharging an at-will employee
who refuses to consent to urinalysis and to searches of his or her personal
property located on the employer's premises violates public policy, we must
predict how that court would resolve the issue should it be called upon to do so.
Smith, 917 F.2d at 1341; Robertson v. Allied Signal, Inc., 914 F.2d 360, 364
(3d Cir.1990). Although decisions by Pennsylvania's intermediate appellate
courts are not conclusive in predicting how the state's highest court would
decide an issue, they suggest how that court might decide and may constitute
presumptive evidence of state law in appropriate circumstances. McGowan v.
University of Scranton, 759 F.2d 287, 291 (3d Cir.1985).

9B. Recognition of the Exception by the Pennsylvania Supreme Court

10

Ordinarily, Pennsylvania law does not provide a common-law cause of action

for the wrongful discharge of an at-will employee. Rather, an employer "may
discharge an employee with or without cause, at pleasure, unless restrained by
some contract." Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21
A. 157, 157 (1891) (quoted in Smith, 917 F.2d at 1341).

11

In Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974),
however, the Pennsylvania Supreme Court recognized the possibility that an
action for wrongful discharge might lie when the firing of an at-will employee
violates public policy. Geary, a salesperson, complained to his immediate
superiors about the safety of his employer's product. After being told to "follow
directions," Geary took his complaints to the vice-president in charge of the
product. As a result, the company withdrew the product from the market, but
discharged Geary.

12

Geary argued that an exception to the at-will doctrine was warranted in his case

because his dismissal was contrary to public policy. The Pennsylvania Supreme
Court disagreed, relying upon two factors to decide that Geary's case did not
merit an exception. First, the court observed that Geary was not responsible for
monitoring product safety and that he did not possess expertise in that area. 319
A.2d at 178-79. Second, the court noted that Geary had violated the internal
chain of command by pressing his concerns before the vice-president. Id. at
179-80.
13

Summarizing its decision, the court stated:

14may be granted that there are areas of an employee's life in which his employer
It
has no legitimate interest. An intrusion into one of these areas by virtue of the
employer's power of discharge might plausibly give rise to a cause of action,
particularly where some recognized facet of public policy is threatened.... [However,
w]e hold only that where the complaint itself discloses a plausible and legitimate
reason for terminating an at-will employment relationship and no clear mandate of
public policy is violated thereby, an employee at will has no right of action against
his employer for wrongful discharge.
15

Id. at 180. Courts construing Pennsylvania law have interpreted this language
as implicitly recognizing that a cause of action for wrongful discharge exists in
appropriate circumstances, even though the court refused to uphold such an
action on the facts in Geary. See, for example, Woodson v. AMF Leisureland
Centers, Inc., 842 F.2d 699 (3d Cir.1988) (upholding cause of action). See also
Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989)
(same); Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419
A.2d 631 (1980) (same); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28,
386 A.2d 119 (1978) (same).

16

The Pennsylvania Supreme Court did not revisit the validity of the public
policy exception to the employment-at-will doctrine until fifteen years after
Geary. In Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d
917 (1989), a married couple employed by the same company alleged that they
were fired because the wife rejected the sexual advances of a company
manager. The court held that their claims were barred because they had failed
to seek recourse under the Pennsylvania Human Relations Act, which provides
a statutory remedy for wrongful discharges based upon sexual harassment. The
court did not deny that it had recognized a public policy exception to the
employment-at-will doctrine in Geary, but it did stress the narrowness of that
exception. The court stated:

[A]s a general rule, there is no common law cause of action against an employer for
17

termination of an at-will employment relationship.... Exceptions to this rule have

been recognized only in the most limited of circumstances, where discharges of atwill employees would threaten clear mandates of public policy.... Nevertheless,
inasmuch as appellees failed to pursue their exclusive statutory remedy for sexual
harassment and discrimination in the workplace, they are precluded from relief.
Id. at 918-19 (citations omitted).1
18

One year later, the Pennsylvania Supreme Court returned to the issue again. In
Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), a doctor alleged
that a hospital had forced him to resign because he removed five refrigerators,
which he claimed that he was authorized to take. He argued that because he had
permission to remove the refrigerators, the hospital was estopped from
discharging him for taking them. The court held that the doctrine of equitable
estoppel is not an exception to the employment-at-will doctrine. Id. 569 A.2d at
348. The court also appeared to question the validity of the public policy
exception, but it did not expressly inter it. Regarding Geary, the court stated:

19 majority in a 4-3 decision held that while some exceptions to the at-will
The
employment doctrine might exist, especially in public policy areas, "this case does
not require us to define in comprehensive fashion the perimeters of this privilege,
and we decline to do so." ... The Court specifically answered in the negative to the
central question of "whether the time has come to impose judicial restraints on an
employer's power of discharge."
20

Id. at 348 (citations and footnote omitted). The Pennsylvania Supreme Court
has not addressed the public policy exception since Paul.

C. Application of the Exception by the Pennsylvania Superior Court

21
22

The Pennsylvania Superior Court first upheld a wrongful discharge cause of

action based on the public policy exception in Reuther v. Fowler & Williams,
Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978). Reuther alleged that he was
discharged for missing work for a week in order to serve jury duty. The court
first observed that "[t]he jury system and jury service are of the highest
importance to our legal process." 386 A.2d at 120. As evidence of the strong
public policy encouraging jury service, the court then cited the Pennsylvania
constitution's guarantee of the right to trial by jury, a Pennsylvania statute
providing that summonses for jury service shall be deemed summonses of the
court, another Pennsylvania statute providing that persons who fail to appear
for jury duty when summoned may be fined, and the United States Supreme
Court's identification of trial by jury as "fundamental to the American scheme

of justice." Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20
L.Ed.2d 491 (1968). The court thus concluded that "the necessity of having
citizens freely available for jury service is just the sort of 'recognized facet of
public policy' alluded to by our Supreme Court in Geary. " 386 A.2d at 121.
Accordingly, the court held that Reuther had stated a cause of action.
23

The Superior Court also upheld a cause of action for wrongful discharge in
Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631
(1980). Hunter alleged that the Port Authority had denied his application for
employment as a bus driver because of a thirteen-year old assault conviction for
which he had since been pardoned. The court noted that the federal courts had
held that banning a person convicted of past misconduct from public
employment violates federal law unless the ban is rationally related to a
legitimate governmental objective. The court also observed that the
Pennsylvania legislature had recently enacted a statute limiting an employer's
reliance upon criminal records when making employment decisions. The court
then turned to Pennsylvania Supreme Court decisions interpreting Article I,
section 1 of the Pennsylvania constitution2 as prohibiting the government from
interfering with the "right to engage in any of the common occupations of life"
without a reasonable relationship to a legitimate governmental objective. 419
A.2d at 635. In reliance upon those decisions and " 'the deeply ingrained public
policy of this State ... to avoid unwarranted stigmatization of and unreasonable
restrictions upon former offenders,' " id. at 636 n. 5 (quoting Secretary of
Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d 358, 362 (1973)), the
court held that Hunter had stated a cause of action under Article I, section 1 of
the Pennsylvania Constitution.

24

Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989), is
the most recent Superior Court decision upholding a wrongful discharge cause
of action based on the public policy violation. Plaintiffs, a married couple
employed by companies that provided services to the Philadelphia Electric
Company ("PECO"), alleged that they were discharged because the husband
had notified the Nuclear Regulatory Commission that PECO had violated the
Commission's regulations. The court held that the alleged discharge
contravened public policy because federal law required Field to report the
violations, nothing in the complaint indicated that he had bypassed the internal
chain of command, Field was an expert in the area, and the public potentially
was endangered by the violations. Specifically, the court reasoned:

25 a statutory duty to act is present, since discharge was based on performance of

Since
that statutory duty, and since performance of that duty directly and clearly protects
public safety, we believe a cause of action for wrongful discharge exists in this case.

26

565 A.2d at 1180.

27

The Superior Court's first statement of general principles for determining

whether a cause of action for wrongful discharge exists (in contrast to the caseby-case application of Geary ) came in a decision in which it rejected the
plaintiff's claim. In Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d
611 (1980), the court explained that the employer's interest in running its
business as it sees fit must sometimes yield to the employee's interest in making
a living and to the public's interest in ensuring that the employer does not act
abusively. 422 A.2d at 617. The court then analogized the wrongful discharge
action to an action for intentional interference with the performance of a
contract and reasoned that in determining whether a discharge is wrongful, it
should consider the same factors that courts consider in assessing whether an
intentional interference with the performance of a contract is improper. Id. at
618.3 Specifically, the court stated that the "employer's interest in running its
business, its motive in discharging [the employee] and its manner of effecting
the discharge, and any social interests or public policies that may be implicated
in the discharge" must be "balanc[ed] against [the employee's] interest in
making a living." Id. at 620.

28

Yaindl appeared to expand the public policy exception dramatically. When an

employer arbitrarily discharges an employee, the employee's interest in earning
a living will usually outweigh the employer's interest. Therefore, because
Yaindl requires the court to balance the employee's interest in earning a living
against the employee's interest, it could be read as establishing a just cause
requirement for discharging an at-will employee. See Comment, The Role of
Federal Courts in Changing State Law: The Employment at Will Doctrine in
Pennsylvania, 133 U Pa L Rev 227, 251 (1984) (reading Yaindl in this
manner).

29

The Yaindl test proved short-lived, however; the court reformulated it only four
years later in Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 476
A.2d 1340 (1984). See Rinehimer v. Luzerne County Community College, 372
Pa.Super. 480, 539 A.2d 1298, 1301 (1988) (Cisco "redefined the Yaindl
balancing test"). Rather than balance the individual employee's right to earn a
living against the individual employer's interests, Cisco restored the focus on
public policy. It stated:

30 we must discern whether any public policy is threatened [by the discharge of
First,
an at-will employee]; second, even when an important public policy is involved, an
employer may discharge an employee if he has separate, plausible and legitimate
reasons for doing so.

31

476 A.2d at 1343.

32

In addition to retaining the focus on public policy, subsequent decisions by the

Superior Court have stressed that the public policy allegedly violated by the
discharge must be clearly stated. For example, in Turner v. Letterkenny Federal
Credit Union, 351 Pa.Super. 51, 505 A.2d 259 (1985), the court explained that
Geary

33 that where no clear mandate of public policy is violated by a termination, an

held
employee has no right to action against his employer. The [Geary ] court made clear
that an essential element in permitting a cause of action for wrongful discharge was
a finding of a clearly defined mandate of public policy.
34

505 A.2d at 260 (emphasis added). The court further stated that Geary and
subsequent cases

35
demonstrate
a pattern of favoring the employer's interest in running its business....
[T]o overcome the employer's interest in running a business, the employee must
show a violation of a clearly mandated public policy which "strikes at the heart of a
citizen's social right, duties, and responsibilities."
36

Id. at 261 (emphasis added) (quoting Novosel v. Nationwide Ins. Co., 721 F.2d
894, 899 (3d Cir.1983)). See also Rinehimer, 539 A.2d at 1302 (Turner noted
that employee had to show a violation of a clearly mandated public policy)
(emphasis in original); id. at 1304 (specificity and clarity necessary to sustain
wrongful discharge action); McGonagle v. Union Fidelity Corp., 383 Pa.Super.
223, 556 A.2d 878, 884 (1989), appeal denied, 525 Pa. 584, 575 A.2d 115
(1990) ("[W]here the public policy claimed to be violated is not 'clear,' a cause
of action for wrongful discharge has not been recognized."); 556 A.2d at 885 ("
[U]nless an employee identifies a 'specific' expression of public policy violated
by his discharge, it will not be labelled as wrongful and within the sphere of
public policy.").

37

In sum, the Superior Court continues to interpret Pennsylvania law as

recognizing the public policy exception, but its most recent decisions
emphasize that the exception is a narrow one. See Burkholder v. Hutchison,
403 Pa.Super. 498, 589 A.2d 721, 723 (1991) (characterizing exception as
"extremely narrow"); Yetter v. Ward Trucking Corp., 401 Pa.Super. 467, 585
A.2d 1022, 1025 (1991) (exception recognized in "only the most limited of
circumstances") (quoting Paul, 569 A.2d at 346). The public policy violated
must be clear and specific before the court will uphold the cause of action.

D.
38 Third Circuit Opinions Applying the Public Policy
Exception under Pennsylvania Law
39

In a series of cases decided after Geary, but before Clay and Paul, this court
read Geary as recognizing a public policy exception to the employment-at-will
doctrine. Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699 (3d
Cir.1988); Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir.1983);
Bruffett v. Warner Communications, Inc., 692 F.2d 910 (3d Cir.1982); Perks v.
Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir.1979). In our most recent
case on the issue, Smith v. Calgon Carbon Corp., 917 F.2d 1338 (3d Cir.1990),
cert. denied, --- U.S. ----, 111 S.Ct. 1597, 113 L.Ed.2d 660 (1991), we
acknowledged that Clay and Paul cast some doubt on interpreting Geary as
recognizing the public policy exception, but we concluded that

40 the absence of a clear statement by the Pennsylvania Supreme Court to the

in
contrary or other persuasive evidence of a change in Pennsylvania law, we are bound
by the holdings of previous panels of this court.
41

Id. at 1343 (emphasis in original).

42

As we have noted above, the Pennsylvania Supreme Court has not addressed
the public policy exception since its decision in Paul. We are aware of no
"persuasive evidence of a change in Pennsylvania law." As we have also
explained, the Pennsylvania Superior Court continues to interpret Pennsylvania
law as recognizing the public policy exception. Accordingly, we continue to
interpret Geary as recognizing a cause of action for wrongful discharge when
dismissal of an at-will employee violates a clear mandate of public policy.

III. SOURCES OF PUBLIC POLICY

43

In order to evaluate Borse's claim, we must attempt to "discern whether any

public policy is threatened" by her discharge. Cisco, 476 A.2d at 1343. 4 As
evidence of a public policy that precludes employers from discharging
employees who refuse to consent to the practices at issue, Borse primarily
relies upon the First and Fourth Amendments to the United States Constitution
and the right to privacy included in the Pennsylvania Constitution. As will be
seen, we reject her reliance on these constitutional provisions, concluding
instead that, to the extent that her discharge implicates public policy, the source
of that policy lies in Pennsylvania common law.

A. Constitutional Provisions

1. The United States Constitution

44

Although the Supreme Court has made clear that the Constitution proscribes
only the government from violating the individual's right to privacy, and to
freedom from unreasonable searches, Skinner v. Railway Labor Executives
Association, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989)
(Fourth Amendment does not apply to searches by private party), Borse argues
that our decision in Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d
Cir.1983), permits us to consider the public policies embodied in the First and
Fourth Amendments despite the lack of state action. In Novosel, defendant
Nationwide instructed its employees to participate in its effort to lobby the
Pennsylvania House of Representatives, which was then considering an
insurance reform act. Specifically, Nationwide directed its employees to clip,
copy, and obtain signatures on coupons bearing the insignia of the
Pennsylvania Committee for No-Fault Reform. Novosel alleged that he was
discharged for refusing to participate in the lobbying effort and for privately
stating opposition to his employer's political stand.

45

In response to Novosel's claim, Nationwide argued that a wrongful discharge

action depends upon the violation of a statutorily recognized public policy. We
disagreed. We observed that "both Reuther and Hunter allowed causes of action
to be implied directly from the Pennsylvania Constitution." Id. at 898. We also
pointed out that "Hunter further noted that Pennsylvania courts allow direct
causes of action under the Constitution regardless of legislative action or
inaction." Id. (citation omitted). After noting that the public policy exception
applies only in the absence of statutory remedies, we reasoned:

46
Given
that there are no statutory remedies available in the present case and taking
into consideration the importance of the political and associational freedoms of the
federal and state Constitutions, the absence of a statutory declaration of public policy
would appear to be no bar to the existence of a cause of action. Accordingly, a
cognizable expression of public policy may be derived in this case from either the
First Amendment of the United States Constitution or Article I, Section 7 of the
Pennsylvania Constitution.5
47

Id. at 899.

48

In deciding not to extend Novosel to Borse's claim, the district court remarked
upon the Pennsylvania Superior Court's reluctance to rely upon constitutional
provisions as sources of public policy. According to the district court, the
Superior Court has never upheld such an action. The district court also noted
that, although the Superior Court "has formulated a list of appropriate sources

of public policy," its list does not include constitutional provisions. Moreover,
the district court observed that in Booth v. McDonnell Douglas Truck Services,
Inc., 401 Pa.Super. 234, 585 A.2d 24, appeal denied, 528 Pa. 620, 597 A.2d
1150 (1991), the Superior Court refused to uphold a wrongful discharge action
that relied upon a constitutional provision as a source of public policy because,
among other reasons, plaintiff made no allegation of state action. The district
court reasoned that the Superior Court's requirement of state action in Booth "is
no less applicable to [Borse's] cause of action under policies manifested in the
First and Fourth Amendments of the United States Constitution." [Mem Op at
39]
49

To the extent that the district court's opinion suggests that a constitutional
provision may never serve as a source of public policy in Pennsylvania
wrongful discharge actions, we disagree. Although the Superior Court has
never upheld a wrongful discharge cause of action that depended upon a public
policy stated solely in a constitutional provision, two of its three cases
upholding wrongful discharge causes of action relied upon constitutional
provisions as evidence of public policy. See Hunter, 419 A.2d at 635 (relying
upon Pennsylvania constitution); Reuther, 386 A.2d at 121 (looking to United
States Constitution). Moreover, unlike the district court, we do not read an
intent to proscribe reliance on constitutional provisions from the "list of
appropriate sources of public policy" quoted in Cisco.6 As the district court
observed, that list does not explicitly include constitutional provisions. Yet
nothing in Cisco indicates that the Superior Court intended it to serve as an
exhaustive enumeration of the sources that courts may consider as evidence of
public policy. In contrast, a more recent decision by that court expressly
contemplates the use of constitutional provisions as sources of public policy. In
Scott v. Extracorporeal Inc., 376 Pa.Super. 90, 545 A.2d 334 (1988), the court
stated: "It is generally accepted that to be actionable, the asserted public policy
must be one which is already articulated in law or a constitutional provision."
545 A.2d at 342.

50

Even though the district court may have overestimated the Superior Court's
hostility to reliance upon constitutional provisions as sources of public policy, it
correctly refused to extend Novosel to Borse's claim. As the district court
observed, the Superior Court has refused to extend constitutional provisions
designed to restrict governmental conduct in the absence of state action. One
year after Novosel was decided, the Superior Court refused to import
constitutional principles into a wrongful discharge action against a private
employer. In Cisco, a worker employed by United Parcel Services ("UPS") to
deliver packages was charged with theft in connection with a routine delivery.
While the charges were pending, UPS insisted that Cisco resign. Even though

Cisco was later acquitted by a jury, UPS refused to reinstate him.

51

Cisco identified the public policy allegedly violated by the discharge as a

criminal defendant's right to a presumption of innocence. Specifically, he
argued that the presumption becomes meaningless if an individual may be
discharged merely because of an accusation. The court observed:

52
While
the full panoply of rights incident to a criminal defendant were entitlements of
[Cisco] in his trial experience, including the right to be presumed innocent until
proven guilty, these rights which are ensured by both the United States and
Pennsylvania Constitutions are not necessarily meant to, nor can they[ ] be[,]
superimposed onto an accused's remaining life experiences.
53

476 A.2d at 1344. Thus, Cisco refused to apply constitutional restrictions on

state action to a discharge by a private employer.

54

The court took the same approach in Martin v. Capital Cities Media, Inc., 354
Pa.Super. 199, 511 A.2d 830 (1986), in which a newspaper fired an employee
for placing a classified advertisement in a competing newspaper. The employee
argued that the discharge violated public policy because it penalized her for
exercising her right to free speech under the Pennsylvania Constitution. The
court disagreed, reasoning that "while the constitutional right of free speech is
accorded a person who advertises, these rights are not meant to be, nor can they
be, superimposed and extended to all other aspects of his life." Id. at 844. See
also Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986) (relying on
same reasoning to reject wrongful discharge claim of newspaper editor fired for
publishing article criticizing judge).

55

The Superior Court reiterated the importance of the state action requirement
just last year. In Booth, plaintiff alleged that his employer discharged him in
order to avoid paying a commission due him. He argued that the discharge
violated the public policy enunciated in Article I, section 17 of the
Pennsylvania Constitution, which prohibits laws impairing the obligations of
contracts. The Superior Court disposed of the argument on the ground that the
constitutional provision did not apply because no allegation of state action had
been made. Id. at 28.

56

The Pennsylvania Supreme Court has not considered the propriety of applying
constitutional principles to wrongful discharge actions against private
employers. Its most recent decisions regarding the cause of action admonish us,
however, that the public policy exception applies "only in the most limited of

circumstances," Paul, 569 A.2d at 348 (quoting Clay, 559 A.2d at 918).
Moreover, even though Cisco, Martin, Veno, and Booth did not explicitly
address Novosel's reliance upon a constitutional provision in the absence of
state action, the clear trend of those cases indicates that the Pennsylvania courts
would be highly unlikely to extend Novosel.
57

Novosel's holding (i.e., that using the power of discharge to coerce employees'
political activity violates public policy) is not at issue here and thus we need
not decide whether the recent Pennsylvania cases constitute such "persuasive
evidence of a change in Pennsylvania law" that we are free to disregard it. See
Smith, 917 F.2d at 1343. Instead, we need only decide whether to extend the
approach taken in Novosel. In light of the narrowness of the public policy
exception and of the Pennsylvania courts' continuing insistence upon the state
action requirement, we predict that if faced with the issue, the Pennsylvania
Supreme Court would not look to the First and Fourth Amendments as sources
of public policy when there is no state action. Accordingly, we decline to
extend the approach taken in Novosel to this case.
2. The Pennsylvania Constitution

58

Although Borse's complaint did not rely upon the Pennsylvania Constitution as
a source of public policy, the parties submitted supplemental briefs on this issue
at our request. Article I, section 1 of the Pennsylvania Constitution explicitly
protects the right of privacy.7 See In re June 1979 Allegheny County
Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73, 77 (1980) ("Allegheny
Grand Jury "). On two occasions, the Pennsylvania Supreme Court has held
that court-ordered disclosure of personal information implicates the right of
privacy protected by the Pennsylvania Constitution. See Allegheny Grand Jury,
415 A.2d at 77-78 (disclosure of medical information); In re "B", 482 Pa. 471,
394 A.2d 419, 425 (1978) (disclosure of psychiatric records).

59

That court has not specifically decided whether the right of privacy protected
by the Pennsylvania Constitution extends to private actors. The court has
observed, however, that:

60
Article
1 is entitled "Declaration of Rights" and all of the first twenty-six sections of
Article 1 which state those specific rights, must be read as limiting the power of
government to interfere with the rights provided therein.... [T]he first twenty-six
sections of Article 1 ... merely contain a limitation on the powers of government.
61

Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193,

311 A.2d 588, 592 (1973). Accordingly, we predict that if faced with the issue,
the Pennsylvania Supreme Court would hold that the right of privacy protected
by the Pennsylvania Constitution does not encompass invasions of privacy
committed by private actors. Therefore, we also predict that the Pennsylvania
courts would not look to that constitutional provision as evidence of public
policy in a wrongful discharge action against a private employer.
B. Pennsylvania Common Law
62

Although we have rejected Borse's reliance upon constitutional provisions as

evidence of a public policy allegedly violated by the Piece Goods Shop's drug
and alcohol program, our review of Pennsylvania law reveals other evidence of
a public policy that may, under certain circumstances, give rise to a wrongful
discharge action related to urinalysis or to personal property searches.
Specifically, we refer to the Pennsylvania common law regarding tortious
invasion of privacy.

63

Pennsylvania recognizes a cause of action for tortious "intrusion upon

seclusion." Marks v. Bell Telephone Co., 460 Pa. 73, 331 A.2d 424, 430
(1975). The Restatement defines the tort as follows:

64 who intentionally intrudes, physically or otherwise, upon the solitude or

One
seclusion of another or his private affairs or concerns, is subject to liability to the
other for invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person.
Restatement (Second) of Torts 652B. 8
65

Unlike the other forms of tortious invasion of privacy,9 an action based on

intrusion upon seclusion does not require publication as an element of the tort.
Harris by Harris v. Easton Publishing Co., 335 Pa.Super. 141, 483 A.2d 1377,
1383 (1984). The tort may occur by (1) physical intrusion into a place where
the plaintiff has secluded himself or herself; (2) use of the defendant's senses to
oversee or overhear the plaintiff's private affairs; or (3) some other form of
investigation or examination into plaintiff's private concerns. 483 A.2d at 1383.
Liability attaches only when the intrusion is substantial and would be highly
offensive to "the ordinary reasonable person." Id. at 1383-84.

66

We can envision at least two ways in which an employer's urinalysis program

might intrude upon an employee's seclusion. First, the particular manner in
which the program is conducted might constitute an intrusion upon seclusion as
defined by Pennsylvania law. The process of collecting the urine sample to be

tested clearly implicates "expectations of privacy that society has long

recognized as reasonable," Skinner v. Railway Labor Executives Association,
489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989).10 In
addition, many urinalysis programs monitor the collection of the urine
specimen to ensure that the employee does not adulterate it or substitute a
sample from another person. See, for example, 109 S.Ct. at 1413 (noting that in
some cases, visual or aural observation of urination is required). See also
National Treasury Employees Union v. Von Raab, 489 U.S. 656, 660, 109 S.Ct.
1384, 1388, 103 L.Ed.2d 685 (1989). Monitoring collection of the urine sample
appears to fall within the definition of an intrusion upon seclusion because it
involves the use of one's senses to oversee the private activities of another.
Restatement (Second) of Torts 652B, comment b. See also Harris, 483 A.2d
at 1383.
67

As the United States Supreme Court has observed:

68
There
are few activities in our society more personal or private than the passing of
urine. Most people describe it by euphemisms if they talk about it at all. It is a
function traditionally performed without public observation; indeed, its performance
in public is generally prohibited by law as well as social custom.
69

Skinner, 109 S.Ct. at 1413 (quoting National Treasury Employees Union v.

Von Raab, 816 F.2d 170, 175 (5th Cir.1987), aff'd in part, vacated in part, 489
U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)). If the method used to
collect the urine sample fails to give due regard to the employees' privacy, it
could constitute a substantial and highly offensive intrusion upon seclusion.
See Mark A. Rothstein, Drug Testing in the Workplace: The Challenge to
Employment Relations and Employment Law, 63 Chi-Kent L Rev 683, 729
(1987) (public policy exception to employment-at-will doctrine most likely to
be applied when employer requires direct observation of urination). See also
Kelley v. Schlumberger Technology Corp., 849 F.2d 41 (1st Cir.1988)
(upholding jury verdict that employer's urinalysis program involving direct
observation of urination invaded common-law right of privacy under Louisiana
law).

70

Second, urinalysis "can reveal a host of private medical facts about an

employee, including whether she is epileptic, pregnant, or diabetic." Skinner,
109 S.Ct. at 1413. A reasonable person might well conclude that submitting
urine samples to tests designed to ascertain these types of information
constitutes a substantial and highly offensive intrusion upon seclusion.

71

The same principles apply to an employer's search of an employee's personal

property. If the search is not conducted in a a discreet manner or if it is done in

such a way as to reveal personal matters unrelated to the workplace, the search
might well constitute a tortious invasion of the employee's privacy. See, for
example, K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632
(Tex.App.1984) (search of employee's locker). See also Bodewig v. K-Mart,
Inc., 54 Or.App. 480, 635 P.2d 657 (1981) (subjecting cashier accused of
stealing to strip search).
72

The Pennsylvania courts have not had occasion to consider whether a discharge
related to an employer's tortious invasion of an employee's privacy violates
public policy. The district court for the Western District of Pennsylvania has
addressed this question in applying Pennsylvania law, however. In Rogers v.
International Business Machines Corp., 500 F.Supp. 867 (W.D.Pa.1980),
plaintiff argued that IBM's decision to discharge him violated public policy
because it was based upon an investigation of a personal matter (an alleged
affair with a co-worker) that invaded his right of privacy. The court examined
the record to determine whether the investigation intruded upon plaintiff's
seclusion. After determining that IBM had confined its investigation to
interviewing other employees and examining company records, the court
concluded that IBM's procedures were reasonable and did not violate public
policy.

73

We predict that the Pennsylvania Supreme Court would follow the approach
taken in Rogers. In other words, we believe that when an employee alleges that
his or her discharge was related to an employer's invasion of his or her privacy,
the Pennsylvania Supreme Court would examine the facts and circumstances
surrounding the alleged invasion of privacy. See Cisco, 476 A.2d at 1343
(emphasizing necessity of examining all the circumstances in wrongful
discharge cases). If the court determined that the discharge was related to a
substantial and highly offensive invasion of the employee's privacy, we believe
that it would conclude that the discharge violated public policy.11 Indeed, the
following language in Geary might well be considered to presage such an
approach:

74may be granted that there are areas of an employee's life in which his employer
It
has no legitimate interest. An intrusion into one of these areas by virtue of the
employer's power of discharge might plausibly give rise to a cause of action,
particularly where some recognized facet of public policy is threatened.
75

319 A.2d at 180.

76

The Pennsylvania Superior Court's decision in Hershberger v. Jersey Shore

Steel Co., 394 Pa.Super. 363, 575 A.2d 944 (1990), appeal denied, 527 Pa. 601,
589 A.2d 691 (1991), does not foreclose the possibility of a wrongful discharge
action based upon an employer's urinalysis program. In Hershberger, the
employer discharged plaintiff after his urine tested positive for drugs. Two
weeks later, plaintiff underwent another urinalysis on his own initiative and
also arranged for the specimen from the first test to be analyzed by a more
technically sophisticated method. Even though both latter tests were negative,
the employer refused to rehire plaintiff.
77

The sole issue before the court was whether a clear mandate of public policy
prohibits a private employer from discharging an employee on the basis of a
positive drug test without confirming the results of the initial drug test by
another, scientifically distinct test. As evidence that such a public policy exists,
plaintiff argued that: (1) other states had enacted legislation requiring
confirmatory testing; (2) Pennsylvania was then considering similar legislation;
and (3) the federal and state courts had criticized the use of unconfirmed tests.
In addition, plaintiff presented expert testimony regarding the desirability of
confirmatory testing.

78

The court refused to rely upon the legislation requiring confirmatory testing
because the bills before the Pennsylvania legislature were still pending.
Moreover, the court concluded that the expert testimony was not dispositive
regarding the unreliability of the test the employer used. Therefore, the court
held that plaintiff had failed to establish the existence of a public policy
requiring employers to perform confirmatory testing.

79

According to the district court, Hershberger "implicitly holds, sub silentio, that
no public policy, constitutional or otherwise, inhibits a private employer from
requiring its employees to submit to urine testing for the presence of drugs and
alcohol." [Mem Op at 38] It may be that Hershberger implicitly assumes that
public policy does not preclude a private employer from requiring its employees
to undergo urinalysis for drug use per se, but to us it is not clear that it does. The
court may have elected to dispose of the case adversely to the plaintiff on the
basis of the sole question presented without reaching a more difficult issue (the
one before us now) that may or may not have been presented. Thus, we do not
read Hershberger as foreclosing the possibility that, under some circumstances,
an employer's urinalysis program may violate public policy.

80

Only a handful of other jurisdictions have considered urinalysis programs

implemented by private employers.12 The majority of these decisions balance
the employee's privacy interest against the employer's interests in order to
determine whether to uphold the programs. See, for example, Luedtke v.

Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). In Luedtke, two
employees challenged their employer's urinalysis program, alleging violation of
their state constitutional right of privacy, common-law invasion of privacy,
wrongful discharge, and breach of the covenant of good faith and fair dealing.
(Under Alaska law, the public policy exception to the employment-at-will
doctrine is "largely encompassed within the implied covenant of good faith and
fair dealing." 768 P.2d at 1130, quoting Knight v. American Guard & Alert,
Inc., 714 P.2d 788, 792 (Alaska 1986)). After determining that the relevant
provision of the Alaska constitution did not apply to private action, the Alaska
Supreme Court concluded that a public policy protecting an employee's right to
withhold private information from his employer exists in Alaska and that
violation of that policy "may rise to the level of a breach of the implied
covenant of good faith and fair dealing," 768 P.2d at 1130.
81

As evidence of public policy, the court looked to the state's statutes, 13

Constitution,14 and common law.15 The court concluded:

82
Thus,
the citizens' rights to be protected against unwarranted intrusions into their
private lives has been recognized in the law of Alaska. The constitution protects
against governmental intrusion, statutes protect against employer intrusion, and the
common law protects against intrusions by other private persons. As a result, there is
sufficient evidence to support the conclusion that there exists a public policy
protecting spheres of employee conduct into which employers may not intrude.
83

Id. at 1132.

84

The court then turned to the question "whether employer monitoring of

employee drug use outside the work place is such a prohibited intrusion," id. at
1133. The court reasoned that the boundaries of the employee's right of privacy
"are determined by balancing [that right] against other public policies, such as
'the health, safety, rights and privileges of others.' " Id. at 1135-36 (quoting
Ravin v. State, 537 P.2d 494, 504 (Alaska 1975)). Because the Luedtke
plaintiffs performed safety-sensitive jobs, the court concluded that the public
policy supporting the protection of the health and safety of other workers
justified their employer's urinalysis program. 768 P.2d at 1136.

85

The West Virginia Supreme Court also applied a balancing test in Twigg v.
Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990). The case arose when
the District Court for the Northern District of West Virginia certified the
following question to the court:

Can the discharge of an employee for refusing to submit to urinalysis as part of a

86

random drug test violate a substantial public policy of West Virginia and subject the
employer to damages under [West Virginia law] when the employer has no
individualized suspicion of drug usage and the drug test is not prohibited by state
statute?
87

In response, the court observed that it had previously held that requiring
employees to submit to polygraph tests violated the state's public policy of
protecting individual privacy rights. The court then reasoned:

88 is unquestionable that since we do recognize a "legally protected interest in

[I]t
privacy" and have previously found that requiring employees to submit to polygraph
examinations violates public policy based upon this privacy right, we likewise
recognize that it is contrary to public policy in West Virginia for an employer to
require an employee to submit to drug testing, since such testing portends an
invasion of an individual's right to privacy.
Id. at 55.16
89

Even some courts that have held that urinalysis programs conducted by private
employers do not violate the public policy exception to the employment-at-will
doctrine have balanced the employee's interests against the employer's.
Hennessey v. Coastal Eagle Point Oil Company, 247 N.J.Super. 297, 589 A.2d
170, certif. granted, 126 N.J. 340, 598 A.2d 897 (1991), provides an example of
this approach. After refusing to apply federal and state constitutional
prohibitions against unreasonable searches to private employers, the Hennessey
court conceded, for the sake of argument, that the right of privacy may serve as
a source of public policy. The court opined, however, that the intrusion upon
privacy implicated by urinalysis had been "overstated." 589 A.2d at 177. The
court also observed that the urinalysis program served public policy by
deterring drug use and that the employer had a legitimate interest in eliminating
drug use in the workplace. Because the court considered the invasion of privacy
minimal and the employer's interests substantial,17 it concluded, on the basis of
this balancing, that the employer had not violated a clear mandate of public
policy and hence that discharging an employee who tested positive for drugs
did not fall within the public policy exception to the employment-at-will
doctrine.

90

The court in Hennessey was much more reluctant than the Luedtke and Twigg
courts to recognize the privacy interest raised by the employer's urinalysis
program. We find it significant, however, that in Hennessey it was clear that the
particular program at issue did not constitute a substantial and highly offensive
invasion of privacy. First, the urine specimens were tested solely for drugs. 589

A.2d at 173. Second, although monitors were present during the collection of
the specimens, the monitors stood behind the employees and were specifically
instructed "not to look at any of the employees' genitalia or private parts." Id.
We suspect that given these circumstances, a reasonable person would not find
the program highly offensive.
91

Although most other jurisdictions have applied a balancing test to urinalysis

programs conducted by private employers, not all have done so. In Jennings v.
Minco Technology Labs, Inc., 765 S.W.2d 497 (Tex.App.1989), for example,
the Texas Court of Appeals upheld an employer's random urinalysis program
without balancing the employee's interests against the employer's. The court
upheld the program for two reasons. First, the court reasoned that although the
Texas Supreme Court had on one occasion recognized an exception to the
employment-at-will doctrine based on public policy, see Sabine Pilot, Inc. v.
Hauck, 687 S.W.2d 733 (Tex.1985), the "lower courts are not free to create
additional exceptions," 765 S.W.2d at 501, particularly in the absence of a
statute explicitly recognizing the public policy allegedly violated by the
discharge, id. at 501 & 501 n. 3. Second, the court reasoned that the employer's
urinalysis program would not violate plaintiff's privacy because her urine
would be tested only if she consented. Id. at 502. Jennings argued that her
consent would be ineffective because if she did not consent, she would lose her
job, which she could not afford to do. The court rejected her argument,
however, because "[t]here cannot be one law of contracts for the rich and
another for the poor." Id.

92

The balancing test is more consistent with Pennsylvania law than the approach
taken by the Texas court in Jennings. Unlike the Texas courts, Pennsylvania's
intermediate appellate courts have recognized a public policy exception to the
employment-at-will doctrine on three occasions and have emphasized the need
to examine all the circumstances in a wrongful discharge action, Cisco, 476
A.2d at 1343. Moreover, although two of those cases in part relied upon public
policies expressed in statutes, the Pennsylvania courts have also recognized
other sources as competent evidence of public policy. See page 619. More
importantly, under Pennsylvania law an employee's consent to a violation of
public policy is no defense to a wrongful discharge action when that consent is
obtained by the threat of dismissal.18

93

In view of the foregoing analysis, we predict that the Pennsylvania Supreme

Court would apply a balancing test to determine whether the Shop's drug and
alcohol program (consisting of urinalysis and personal property searches)
invaded Borse's privacy. Indeed, determining whether an alleged invasion of
privacy is substantial and highly offensive to the reasonable person necessitates

the use of a balancing test. The test we believe that Pennsylvania would adopt
balances the employee's privacy interest against the employer's interest in
maintaining a drug-free workplace in order to determine whether a reasonable
person would find the employer's program highly offensive.19
94

We recognize that other jurisdictions have considered individualized suspicion

and concern for safety as factors to be considered in striking the balance, see,
for example, Twigg, 406 S.E.2d at 55 (allowing urinalysis based on
individualized suspicion or when employee's job implicates safety concerns).
We do not doubt that, in an appropriate case, Pennsylvania would include these
factors in the balance, but we do not believe that the Pennsylvania Supreme
Court would require private employers to limit urinalysis programs or personal
property searches to employees suspected of drug use or to those performing
safety-sensitive jobs.20

95

This precautionary note springs from two sources. First, these limitations
originated in cases applying constitutional principles to urinalysis programs
conducted by government employers. See Skinner, 489 U.S. 602, 109 S.Ct.
1402, 103 L.Ed.2d 639 (1989); Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103
L.Ed.2d 685 (1989). We do not believe that the Pennsylvania courts would
transfer the jurisprudence of the cases involving government employers to
actions against private employers because the standard applied in cases
involving government employers differs significantly from that applied in the
tortious invasion of privacy cases. In the cases involving government
employers, courts have asked whether the urinalysis program is reasonable
under Fourth Amendment principles. In contrast, in order for an invasion of
privacy to be tortious, it must be both substantial and highly offensive to the
reasonable person. See Fogel, Kornblut, & Porter, 42 U Miami L Rev at 667
(comparing Fourth Amendment claim to tortious invasion of privacy claim).
Therefore, even though our analysis at page 621 reasons that if a private
employer's drug and alcohol program tortiously invaded its employees' privacy,
the Pennsylvania Supreme Court would hold that discharges related to that
program violated public policy, we do not believe that the Pennsylvania
Supreme Court would simply transpose Fourth Amendment limitations on
public employers to urinalysis programs or personal property searches
conducted by private employers.

96

Second, the case law concerning the public policy exception reflects "a pattern
of favoring the employer's interest in running its business," Turner, 505 A.2d at
261, and a willingness to define that interest broadly. See, for example, Cisco,
476 A.2d at 1344 (discussing employer's interest). Given this backdrop, we find
it unlikely that Pennsylvania would impose the strict limitations of the Fourth

Amendment cases.
97

In sum, based on our prediction of Pennsylvania law, we hold that dismissing

an employee who refused to consent to urinalysis testing and to personal
property searches would violate public policy if the testing tortiously invaded
the employee's privacy. The sketchy nature of Borse's complaint makes it
difficult for us to ascertain whether the Shop's drug and alcohol program would
constitute a substantial and highly offensive intrusion upon Borse's privacy,
however. Although she alleges that the program violates her right of privacy,
she fails to allege how it does so. Because we can envision at least two ways in
which an employer's drug and alcohol program might violate the public policy
protecting individuals from tortious invasions of privacy by private actors, see
page 622, we will vacate the order of the district court dismissing the
complaint, and we will remand the case to the district court with directions to
grant Borse leave to amend.21

SUR PETITION FOR PANEL REHEARING

WITH SUGGESTION FOR REHEARING IN BANC
July 6, 1992.
98
99

Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,

GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO
and ROTH, Circuit Judges

100 The petition for rehearing filed by Appellant, having been submitted to the
judges who participated in the decision of this Court and to all the other
available circuit judges in active service, and no judge who concurred in the
decision having asked for rehearing, and a majority of the circuit judges of the
circuit in regular active service not having voted for rehearing by the court in
banc, the petition for rehearing is DENIED.
101 Judges Greenberg, Hutchinson, Nygaard and Alito would grant rehearing.
STATEMENT SUR DENIAL OF
REHEARING IN BANC
102 HUTCHINSON, Circuit Judge.
103 I respectfully dissent from the order denying rehearing in banc for the following

reasons. In this diversity case, it is our duty to follow the substantive decisions
of the highest court of the forum state, much as we are duty bound to follow the
decisions of the Supreme Court of the United States. I believe the Court's
conclusion that the Supreme Court of Pennsylvania would create a public
policy exception to the employment-at-will doctrine in favor of private sector
employees who refuse random drug tests is contrary to the decisional law of
that state's highest court on employment at will. The Court concedes that the
public policy on which it relies is not expressed in either the Pennsylvania
Constitution, Pennsylvania's statutory law or in existing Pennsylvania Supreme
Court or Superior Court decisions concerning employment at will. This is a
diversity case. Therefore, this Court is bound by state law. Judicial notions of
public policy are no substitute for law. I am therefore unable to reconcile the
Court's opinion with the requirement that federal courts follow state law in
deciding diversity cases. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
104 Pennsylvania case law demonstrates strict adherence to the doctrine of
employment at will despite occasional dictum that there may exist undefined
but narrow exceptions to that doctrine. Indeed, the Supreme Court of
Pennsylvania has only recently reiterated its view that any public policy
exception to the employment-at-will doctrine is extremely narrow. See Paul v.
Lankenau Hosp., 569 A.2d 346, 348-49 (Pa. 1990). Its statement to that effect
leads me to believe that specific exceptions should be created and defined by
the Supreme Court of Pennsylvania. Until that court does so, I do not believe it
is appropriate for a federal court to create an exception as important as the one
announced here on a questionable analogy to the tortious invasion of privacy.
That an employer may be liable in tort for invasion of privacy is not a basis for
making it liable for wrongful discharge. the abstract existence of an action for
invasion of privacy does not demonstrate that Pennsylvania would treat random
drug testing in the private workplace as an invasion of privacy.
105 I see no indication anywhere in Pennsylvania's decisional law from which a
strong policy favoring employee privacy over random drug testing could be
infereed in the context of employment at will. No Pennsylvania court has even
considered whether an employer's tortious invasion of an employee-at-will's
privacy precludes discharge.
106 The decision of the United States District Court fot the Western District of
Pennsylvania in Rogers v. International Bus. Machines Corp., 500 F.Supp. 867
(W.D.Pa. 1980), relied on by the court is not to the contrary. There, an at-will
employee was discharged because his relationship with a subordinate employee
exceeded normal or reasonable business associations and the employee's
conduct negatively affected the duties of his employment. On the wrongful

discharge claim, the court rejected Rogers' argument that:

107 decision to terminate was improper because it was predicated on an
IBM's
investigation of a personal matter in which the Company has no legitimate interest
and therefore invaded his right of privacy.
Id. at 869. It said:
108 employer has a legitimate interest in "preserving harmony among its employees
[A]n
and in preserving its normal operational procedures from disruption."
109 Id. (quoting Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974)). I
believe an employer has an unquestionably legitimate interest in monitoring and
investigating its employees' use of illegal drugs.
110 I also believe that the Court gives an overly narrow reading to Hershberger v.
Jersey Shore Steel Co., 575 A.2d 944 (Pa.Super. 1990), the case that is most
analogous to the one before us. There, Hershberger argued that a public policy
exists in Pennsylvania that precluding discharge of an employee who tests
positively for illegal drugs unless drug use is confirmed by a second test. The
Superior Court held that public policy did not provide a reason to recognize a
cause of action for wrongful discharge based on positive results in a drug
screening test that were not confirmed by a second testing procedure. Id. at 947.
Hershberger relied on pending state legislation concerning confirmatory drug
tests and federal and state decisions outside of Pennsylvania condemning the
use of unreliable testing procedures. Id. at 947 & nn. 1 & 2. The state court
nevertheless held, after considering the decisions from sister courts, that the
pending legislation did not establish a " 'clear' mandate" strong enough to
permit a common law court to create a cause of action for wrongful discharge
by an employee at will.
111 Though Hershberger did not consider whether the public policy against
invasion of privacy precluded an employer from discharging an employee at
will who tested positive for drugs, it did emphasize the necessity for a clear,
strong expression of public policy before it would be appropriate to create a
cause of action for wrongful discharge in the face of the Supreme Court of
Pennsylvania's strict adherence to the doctrine of employment-at-will. I do not
believe any such clear strong policy has been demonstrated here. Indeed, one
'might argue that there is a policy in favor of a drug-free workplace that is at
least as strong as the right of privacy involved in random drug testing of private
employees. Absent any federal or state constitutional or statutory prohibition
against such testing, it seems to me it is the task of the Supreme Court of

Pennsylvania, not this Court, in regulating employment practices within that

state and to decide what relative strength these two competing public policies
have.
112 The Supreme Court of Pennsylvania has historically been a strict enforcer of the
right of an employer to discharge an employee at will for any reason, or no
reason at all. It has recently restated its adherence to that view. Its insistence on
the narrowness of any hypothetical exception to that right and the fact that no
Pennsylvania case has granted relief from wrongful discharge to an employee at
will convinces me that the Court's decision in this case that a private employee
at will who is discharged for refusing a random drug test has a state cause of
action for wrongful discharge because the test violated a public policy in favor
of privacy that is not found in either federal or state constitutional law or any
decision of a Pennsylvania state court conflicts with Erie. Similarly, this Court's
ability to "envision at least two ways in which an employer's urinalysis program
might intrude upon an employee's seclusion," slip op. at 25, does not, in my
judgment, demonstrate the kind of strong public policy that permits us to
overlook Pennsylvania's strong adherence to the doctrine of employment at
will. Accordingly, I would grant the petition for rehearing in banc. Judges
Greenberg and Alito join in this statement.

Chief Justice Nix wrote separately to indicate that he did not read Geary as
creating a cause of action for wrongful discharge, however. He stated:
[T]his Court did not announce a cause of action for wrongful discharge in
Geary. The language relied upon by the Superior Court in its analysis of Geary
was gratuitous dicta and could not possibly have created a tort cause of action
for wrongful discharge. Indeed, the language in Geary clearly states that a
cause of action for wrongful discharge in an at-will employment relationship
does not exist.

559 A.2d at 923 (Nix concurring)

2

Article I, section 1 provides:

All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.

Those factors include:

(a) the nature of the actor's conduct,

(b) the actor's motive,
(c) the interests of the other with which the actor's conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the
contractual interests of the other,
(f) the proximity or remoteness of the actor's conduct to the interference and
(g) the relations between the parties.
Id. at 618 (quoting Restatement (Second) of Torts 767 (1979)).
4

The second prong of the Cisco test, determining whether the employer has a
separate plausible and legitimate reason for discharging the employee, is not at
issue here. See Field, 565 A.2d at 1182

Article I, section 7 states in pertinent part:

The free communication of thoughts and opinions is one of the invaluable
rights of man, and every citizen may freely speak, write and print on any
subject, being responsible for the abuse of that liberty.

In Cisco, the court stated:

A clear statement of what public policy actually consists is hindered by its
varying manifestations. As the Supreme Court of New Jersey observed:
The sources of public policy [which may limit the employer's right of
discharge] include legislation; administrative rules, regulation, or decision; and
judicial decision. In certain instances, a professional code of ethics may contain
an expression of public policy.... Absent legislation, the judiciary must define
the cause of action in case-by-case determinations.
Id. at 1343 (quoting Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417
A.2d 505, 512 (1980)).

We set forth the text of Article I, section 1 in note 2

In Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974), the
Pennsylvania Supreme Court adopted the definition of tortious invasion of

privacy as stated in a tentative draft of the Restatement (Second) of Torts 652

(Tent Draft No 13, 1967). Although the Pennsylvania Supreme Court has not
expressly adopted the final version of section 652, our analysis of Pennsylvania
law in O'Donnell v. United States, 891 F.2d 1079 (3d Cir.1989), led us to
predict that it would do so if presented with the issue. See id. at 1082 n. 1. See
also Vernars v. Young, 539 F.2d 966 (3d Cir.1976) (upholding invasion of
privacy claim under Pennsylvania law when corporate officer opened and read
personal mail addressed to fellow employee)
9

The action for invasion of privacy encompasses four analytically distinct torts.
In addition to intrusion upon seclusion, the tort also includes (1) appropriation
of name or likeness; (2) publicity given to private life; and (3) publicity placing
a person in a false light. See Marks, 331 A.2d at 430

10

At pages 627-28, we caution against the wholesale application to private

employers of the limitations imposed on public employers by the Fourth
Amendment. We find the cases involving government employers helpful,
however, in defining the individual privacy interest implicated by urinalysis

11

The Sixth Circuit recently rejected an invasion of privacy claim challenging an

employer's urinalysis program. Baggs v. Eagle-Picher Industries, Inc., 957 F.2d
268 (6th Cir.1992) (applying Michigan law). Michigan law permits an
employer to use "intrusive and even objectionable means to obtain employmentrelated information about an employee." Id. at 275. In contrast, Pennsylvania
has not exempted employers from the principles ordinarily applied in actions
for tortious invasion of privacy

12

Several of these cases are inapposite because they involve state law that differs
significantly from Pennsylvania's. For example, some state constitutions
include a right of privacy that applies to private action. See, for example, Luck
v. Southern Pacific Transportation Co., 218 Cal.App.3d 1, 267 Cal.Rptr. 618,
627-28, cert. denied, --- U.S. ----, 111 S.Ct. 344, 112 L.Ed.2d 309 (1990). Other
states have passed legislation regulating urinalysis programs implemented by
private employers, see generally Morgan, Lewis & Bockius, eds, Drug Testing
in the Work Place: State-by-State Drug and Alcohol Testing Survey, 33 Wm &
Mary L Rev 189 (1991) (collecting statutes). Finally, some cases have rejected
challenges to urinalysis programs for the reason that state law does not
recognize a public policy exception to the employment-at-will doctrine. See, for
example, Greco v. Halliburton Co., 674 F.Supp. 1447 (D.Wyo.1987). Our
discussion in the text focuses on selected cases typifying the various
approaches taken in the remaining cases. We are unaware of any case
considering whether the dismissal of an at-will employee who refuses to
consent to personal property searches violates public policy

13

The court observed that a statute prohibiting employers from requiring

employees to take polygraph tests as a condition of employment supports "the
policy that there are private sectors of employees' lives not subject to direct
scrutiny by their employers." 768 P.2d at 1132. The court also noted that a
statute prohibiting employment discrimination on the basis of, among other
things, marital status, changes in marital status, pregnancy or parenthood,
demonstrates "that in Alaska certain subjects are placed outside the
consideration of employers in their relations with employees." Id

14

The court reasoned that although Alaska's constitutional right of privacy does
not proscribe private action, the inclusion of a specific clause protecting the
right "supports the contention that this right 'strike[s] as the heart of a citizen's
social rights.' " Id. at 1132-33 (no citation given)

15

The court observed that the action for tortious intrusion upon seclusion
evidences the existence of a common-law right of privacy. Id. at 1133

16

Although the court held that discharging an employee who refused to submit to
urinalysis violated public policy, it recognized two exceptions: when the
urinalysis is based upon "reasonable good faith objective suspicion" of an
employee's drug use or when the employee's job involves public safety or the
safety of others. 406 S.E.2d at 55

17

The court noted that in his job as a "lead pumper" at a refinery, Hennessey
worked with combustible materials, some of which are also toxic

18

In Leibowitz v. H.A. Winston Co., 342 Pa.Super. 456, 493 A.2d 111 (1985),
plaintiff was fired after a polygraph test indicated that he lied about stealing
money from his employer. Because plaintiff had signed a release prior to taking
the polygraph test, however, his employer argued that he could not maintain a
cause of action for wrongful discharge. The court disagreed. It noted that
Pennsylvania law prohibits employers from requiring polygraph tests as a
condition of employment and that discharging an employee for refusing to
submit to a polygraph test violates public policy, see Perks v. Firestone Tire &
Rubber Co., 611 F.2d 1363 (3d Cir.1979) (upholding wrongful discharge action
of employee fired for refusing to take polygraph test). The court then reasoned
that although "mere economic or financial pressure [usually] does not suffice to
invalidate a release," that rule does not apply when an employer requires an
employee to sign a release as a condition of continued employment. 493 A.2d at
115. Under those circumstances, the release is invalid. Accord Polsky v. Radio
Shack, 666 F.2d 824 (3d Cir.1981) (applying Pennsylvania law). See Stephen
M. Fogel, Gerri L. Kornblut, & Newton P. Porter, Survey of the Law on
Employee Drug Testing, 42 U Miami L Rev 553, 669 (1988) (criticizing

contrary result as creating Catch-22 for employee)

19

We note that this test differs from the test set forth in Yaindl (and later
restricted in Cisco ). See page 617. The Yaindl test balances the employee's
interest in earning a living against the employer's interest in running its business
as it sees fit in order to determine whether the discharge violates public policy

20

We note that these factors are not present in this case: there is no suggestion in
any of the papers that Borse was suspected of using drugs or alcohol, or that her
job as a salesperson implicated safety concerns

21

Federal Rule of Civil Procedure 15(a) provides that "leave [to amend] shall be
freely given when justice so requires." The Rule is construed liberally in order
to further a basic purpose behind the Federal Rules--"that pleadings are not an
end in themselves but are only a means to assist in the presentation of a case to
enable it to be decided on the merits." 6 Charles Alan Wright, Arthur R. Miller,
& Mary Kay Kane, Federal Practice & Procedure: Civil 1473 at 521 (West,
1990). An appellate court faced with an inadequate record may direct the
district court to allow amendment on remand. See, for example, National Post
Office Mail Handlers v. United States Postal Service, 594 F.2d 988, 991 (4th
Cir.1979). Although leave to amend is rarely granted once a suit has reached an
appellate court, we are particularly reluctant to foreclose a potentially
meritorious claim where, as here, the law is unsettled