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LEVITT v. BILLY PENN CORPORATION (09/21/71)

decided: September 21, 1971.

LEVITT, APPELLANT,
v.
BILLY PENN CORPORATION



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, No. 2196, in case of David Levitt v. The Billy Penn Corporation and Continental Bank and Trust Company.

COUNSEL

Bernard J. Smolens, with him Dennis R. Suplee, and Schnader, Harrison, Segal & Lewis, for appellant.

Milton S. Lazaroff, with him Martin Techner, and Techner, Rubin and Shapiro, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding and Cercone, JJ. (Hoffman, J., absent.) Opinion by Spaulding, J.

Author: Spaulding

[ 219 Pa. Super. Page 500]

Appellant David Levitt appeals from an order of the Court of Common Pleas of Philadelphia, en banc, denying him funds which he claims to be due under the Profit Sharing and Retirement Plan of appellee, The Billy Penn Corporation.*fn1 The order reversed a prior judgment in appellant's favor, after a trial without a jury before the late Judge Joseph D. Burke.

Appellant was employed by appellee continuously from July 1946 to April 1967 in an executive position.

[ 219 Pa. Super. Page 501]

He decided to leave after being warned by his doctor in 1966 that unless he "slowed down" or changed jobs he would risk irreparable harm to himself.*fn2 He was then 60 years of age and a vice-president of the corporation.

Appellant communicated his decision to Alexander Silberman, president of Billy Penn. The latter suggested that he consult other doctors, which he did. They advised an extended vacation, and he spent a month in Florida. Before appellant left for Florida, Silberman urged him to reconsider his decision and offered to let him "write his own ticket" if he remained with Billy Penn. He again refused and by letter dated March 13, 1967, notified appellee he was leaving, effective March 31, 1967.

After his return, appellant requested his share in the company plan. He told Silberman that he was thinking of working for Corell Steel Company, a steel warehousing company and a dealer in steel products. It is in limited competition with appellee, which also manufactures and sells steel products.

Silberman expressed concern over appellant's proposed departure and repeated his offer of less work and higher remuneraton. At their next meeting Silberman asked appellant to sign a non-competition agreement which appellee was presenting to all of its executives. Neither appellant's general employment arrangement wth appellee nor the terms of the retirement plan required such an agreement. Silberman told appellant that his failure to sign would cast reflections upon his loyalty. Appellant refused to sign.

On May 16, 1967, Silberman wrote appellant stating that his request for "early retirement" had been disapproved, that appellant was discharged for acts injurious to the ...


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