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GREEN v. MEDFORD KNITWEAR MILLS

February 24, 1976

SOLOMON GREEN, HARRIET GREEN and JAY GREEN
v.
MEDFORD KNITWEAR MILLS, INC. and WARNACO, INC. a/k/a WARNER BROTHERS CO.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Plaintiff, Solomon Green, ("Green") seeks to recover substantial compensatory and punitive damages for breach of an alleged oral contract of permanent or lifetime employment. His wife and child, also named plaintiffs, seek to recover additional damages for breach of the same alleged contract. The plaintiffs further claim that the defendants, Medford Knitwear Mills, Inc. and Warnaco, Inc. (both defendants hereinafter called "the Company") fraudulently and deceitfully entered into the contract never intending to perform their obligations. The action is now before us on the Company's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 Green argues that the motion for summary judgment is premature because he has not completed discovery. The completion of discovery is not relevant in connection with a motion for summary judgment. When faced with a summary judgment motion, the non-movant "cannot withhold his evidence until the date of trial . . . plaintiff cannot rest on an ignorance of the facts . . .." Berry Bros. Buick, Inc. v. General Motors Corp., 257 F. Supp. 542, 545 (E.D. Pa. 1966). Rule 56(b) provides that a party against whom a claim is asserted may "at any time" move for summary judgment. Rule 56(c) provides that the non-movant may serve opposing affidavits and that judgment may be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The Company has agreed, for the purposes of this motion, to accept as true all the facts which have emerged by way of Green's deposition and his answers to interrogatories. Green has not filed any affidavits setting forth additional facts. The Court has, therefore, accepted as true all of Green's factual allegations set forth in his deposition and answers to interrogatories and considered them in a light most favorable to him. This Court concludes that there is no genuine issue as to any material fact and that the Company is entitled to judgment as a matter of law.

 Green's deposition and answers to interrogatories set forth the following relevant facts upon which the Court has based its determination that the Company is entitled to summary judgment. Approximately eight months after an initial interview with representatives of the Company, which occurred in May of 1971, Green was asked to return to meet with Mr. Felcoff, a vice president of the Company, and Mr. Rennett, the manager of one of its manufacturing plants. At that meeting, he was offered a position as the cutting supervisor of the firm's plant in Lebanon, Pennsylvania. Green told the Company's representatives that he "wanted a permanent job for the rest of his days" (N.T. 69) and that he "... didn't want to go from town to town. [He] wanted this to be [his] permanent job." (N.T. 70). Mr. Felcoff, a vice president, responded that "there's no reason why you're not the man for us." (N.T. 71). Green states in his answers to the Company's interrogatories that his position was to be a permanent one that would continue for life. In his deposition he also states that he was being hired "indefinitely." (N.T. 60). *fn1" After some discussion concerning salary at the meeting with Mr. Felcoff and Mr. Rennett, the Company agreed to pay Green $250.00 per week, enroll him in various benefit plans maintained by the Company, and pay his living and moving expenses during the period of his move from Allentown, Pennsylvania to Lebanon, Pennsylvania, prior to his reporting for work. Green commenced working for the Company in January of 1972 and was discharged by the Company approximately two years later.

 Green stated in his deposition that the parties did not discuss: (a) the amount or the basis for salary increases; (b) whether Green would be paid if he were unable to work or if there were no work available; (c) whether Green could seek other or additional employment; and (d) whether Green would be obliged to move if the Company relocated its cutting room.

 The law in Pennsylvania which governs the case at bar was stated in Cummings v. Kelling Nut Co., 368 Pa. 448, 451, 84 A.2d 323, 325 (1951) and quoted by our Third Circuit Court of Appeals in Jackman v. Military Publications, Inc., 350 F.2d 383, 385 (3d Cir. 1965) as follows:

 
The general rule is that when a contract provides that one party shall render services to another . . . but does not specify a definite time or prescribe conditions which shall determine the duration of the relation, the contract may be terminated by either party at will . . .. The burden is on the plaintiff in such cases to overcome the presumption by showing facts and circumstances establishing some tenure of employment. . .. The intention of the parties governs. One relying on the contract as providing for a reasonable length of time must establish something in the nature and circumstances of the undertaking which could create the inference that a definite or reasonable period of employment was actually contemplated by the parties. (Emphasis added).

 Accordingly, under Pennsylvania law, in the absence of a specific term or duration, a presumption is raised that the employment is at will and can be terminated by either party at any time. See Mayerson v. Washington Manufacturing Company, 58 F.R.D. 377 (E.D. Pa. 1972); Weir v. Hudson Coal Co., 99 F. Supp. 423 (M.D. Pa. 1951); Gillian v. Consolidated Foods Corp., 424 Pa. 407, 227 A.2d 858 (1967); Lubrecht v. Laurel Stripping Co., 387 Pa. 393, 127 A.2d 687 (1956); Slonaker v. P.G. Publishing Co., 338 Pa. 292, 13 A.2d 48 (1940); 4 Williston Contracts ยง 1027A(3) (rev. Ed. 1938).

 The contract as stated by Green does not establish a definite period of time for its duration. In response to the Company's interrogatory asking for the exact terms of the contract of employment, Green replied:

 
Solomon Green and Harriet Green agreed that Solomon Green would terminate his employment, move themselves and their son to Lebanon, Pa. and take all necessary steps; that Solomon Green would work for Defendants permanently for the balance of his normal working life and in consideration thereof, Defendants agreed they would employ Solomon Green permanently for the rest of his normal working life at a salary of two hundred and fifty dollars per week with periodic and inflation raises and participation in their other employee benefit plans.

 In his deposition, Green testified:

 
. . . they weren't hiring me just for a year or so, he was hiring me indefinitely for work because I'd be working -- exactly what he said, so that the salary'd be two fifty or two seventy-five, it was immaterial because he expected me to stay with him for many many years . . .. And he said to me, showed me that the plan -- the money at the beginning wasn't that important, that if I was looking for ...

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