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October 29, 1982

EDMOND J. DuSESOI, Plaintiff

The opinion of the court was delivered by: WEBER

 This matter is before the court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint.

 On May 5, 1981, plaintiff Edmond DuSesoi (DuSesoi) filed a five count complaint in this court against the United Refining Company and its President, Harry A. Logan. DuSesoi had been discharged from his employment with United in early 1981. The complaint alleged that United breached a written three year employment contract with the plaintiff (Count I); that United breached a three year oral employment contract (Count II); that Logan breached his warranty of authority to contract on behalf of United (Count III); that United and Logan fraudulently misrepresented the terms of the plaintiff's employment contract (Count IV); and that Logan tortiously interfered with the plaintiff's employment relationship (Count V).

 On June 9, 1982, following defendants' motion for summary judgment, this court issued an extensive opinion and an order dismissing all counts, except Count IV. This court granted plaintiff leave to replead this count in accordance with Rule 9(b) which requires averments of fraud to be stated with particularity. Rule 9(b), Fed.R.Civ.P. The court, in addition, granted plaintiff leave to amend his pleadings to allege circumstances which would remove the oral contract claim from the bar of the statute of frauds. The court's Opinion and Order, and a detailed factual account of the events precipitating this lawsuit are set forth in DuSesoi v. United Refining Company, 540 F. Supp. 1260 (W.D.Pa. 1982).

 On July 1, 1982, plaintiff filed the First Amended Complaint in three counts. Defendants thereupon filed a Motion to Dismiss. Plaintiff, in an apparent effort to rectify defects, filed the Second Amended Complaint, also in three counts. *fn1" Again, defendants filed a Motion to Dismiss and the court now considers this motion. Accordingly, we will proceed with a consideration of the corresponding arguments asserted in defendants' current Motion to Dismiss.

 It should be noted that the defendants have filed their motion captioned as a "Motion to Dismiss the Second Amended Complaint." The defendants do so pursuant to Rule 9(b), 12(b) (6) and 56, Fed.R.Civ.P. The defendants have attached affidavits to their motion and the plaintiff has responded by relying on affidavits. This court will therefore treat defendants' motion as one for summary judgment. Carter v. Stanton, 405 U.S. 669, 92 S. Ct. 1232, 31 L. Ed. 2d 569 (1972); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 348, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971).

 In Count I of the Second Amended Complaint, plaintiff asserts three distinct allegations of fraud. First, plaintiff maintains that defendants knowingly misrepresented the term of DuSesoi's employment as one for at least three (3) years. Second, defendants represented that they were looking for a qualified back-up to Logan. And third, defendant Logan assured DuSesoi that United was not going to be sold to Coral Petroleum Company. Plaintiff provides various dates and locations asserting respectively where and when the alleged misrepresentations took place.

 We turn first to that portion of plaintiff's fraud count, part one, dealing with the alleged misrepresentation of plaintiff's term of employment. DuSesoi asserts in paragraph 23 of the Second Amended Complaint that at the Warren, Pennsylvania, meetings of June 10th and 11th, Logan misrepresented to him that the term of his employment contract would be for a minimum of three (3) years. DuSesoi filed a supplemental affidavit consistent with paragraph 23 of the amended complaint.

 The court recognizes from the outset that the plaintiff has met the pleading requirements of Rule 9(b) with respect to the amended version of the first fraud allegation, and further notes that defendants have made no objection to this portion of plaintiff's complaint based upon Rule 9(b).

 The defendants ask the court to dismiss this fraud allegation and contend that the facts and the prior findings of the court demonstrate that no agreement as to the term of DuSesoi's employment was made at the Warren, Pennsylvania, meetings. Defendants rely on plaintiff's original affidavit and the prior opinion and order of this court.

 A series of letters written between DuSesoi and Logan are relevant to this portion of Count I. On June 25, 1980, Logan wrote to DuSesoi confirming the terms of the purported agreement reached by them to that date. The letter was silent as to DuSesoi's term of employment. Two weeks later, on July 11, 1980, DuSesoi responded by letter to this communication from Logan noting that topics discussed in Logan's letter required clarification including the term of employment. Four days later, on July 15, 1980, Logan responded to this letter indicating "that there may be some misunderstanding." Logan said it was his intention that DuSesoi would receive a salary commensurate with his responsibilities and participate in employment benefits granted to executives of the parent company. Logan stated, in addition, that "an employment contract and a severance agreement goes beyond this."

 In paragraph 18 of his original affidavit, DuSesoi states that after receipt of the second letter from Logan, which receipt occurred on July 15, 1980, they (DuSesoi and Logan) held further discussions which resulted in an agreement with respect to a three year term of employment. Defendants suggest that paragraph 18 of plaintiff's affidavit flies in the face of the assertion contained in paragraph 23 of plaintiff's second amended complaint since the meetings referred to in the complaint occurred in early June, and the later discussions and purported agreement did not occur until July or later. The defendants read agreement and representation synonymously and conclude that plaintiff's original affidavit setting the date for an agreement in July or later precludes the allegation of misrepresentation relating to meetings held in June. We do not agree and need only refer to the supplemental affidavit filed by DuSesoi accompanying the Second Amended Complaint which avers specifically that the fraudulent misrepresentations were made June 10th and 11th at the Warren, Pennsylvania, meeting.

 The court in its prior opinion concluded that if an agreement existed as to a three-year contract of employment, it existed only after the meetings held in Warren, Pennsylvania. The court, similarly, had relied largely upon the affidavit of DuSesoi to resolve a choice of law question that considered the import of the Warren meetings.

┬áDefendants, in another line of argument, assert that even if Logan had misrepresented the term of DuSesoi's employment at the Warren meetings, in the absence of an actual agreement between the parties, DuSesoi would not be justified in relying on such a representation since he received Logan's letter two weeks later which was silent as to the term of employment. Justifiable reliance is required to sustain a cause of action for fraud under both Pennsylvania and Missouri law. See, e.g., Shane v. Hoffmann, 227 Pa.Super. 176, 324 A.2d 532 (1974); American Metal Fabricators Co. v. Goldman, 227 Pa.Super. 284, 323 A.2d 891 (1974); Oshia v. E.A. Strout Realty Agency, Inc., 418 S.W. 2d 99 (Mo. 1967); Hereford v. Unknown Heirs of Tholozan, 315 S.W. 2d 412 (Mo. 1958); Restatement, Second, Torts ┬ž 537 (1977). We do not feel, however, that the letter of June 25th standing alone forecloses the possibility that DuSesoi could rely on alleged representations made at an earlier time. Representations may have been made to DuSesoi and not included in Logan's letter. The court cannot decide this ...

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