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KARR v. TOWNSHIP OF LOWER MERION

December 14, 1983

KARR
v.
TOWNSHIP OF LOWER MERION, et al.



The opinion of the court was delivered by: KELLY

KELLY, District Judge: --

 This is a civil action brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") and 42 U.S.C. § 1983 and § 1985 for redress of harm to rights privileges and immunities secured by the fifth and fourteenth amendments to the Constitution of the United States. In addition to these alleged statutory violations, plaintiff advances claims grounded in tort and contract. Plaintiff seeks damages and injunctive relief ordering defendant to reinstate him in his former position. The jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 626.

 Defendants, the Township of Lower Merion ("Township") and Keith E. Frederick ("Frederick"), the Township Manager, have moved to dismiss Counts II and III of the Complaint, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

 Count II of the Complaint seeks liquidated, compensatory and punitive damages under the ADEA as well as compensatory and punitive damages for a claim based on defamation. Count III is for breach of an express or implied contractual obligation to deal with plaintiff fairly and in good faith. *fn1"

 FACTS

 Plaintiff was an employee of the Township for over 14 years. From August, 1968 through July, 1972 plaintiff held the position of Deputy Superintendent of Fire. From July, 1972 until his discharge in February, 1982, plaintiff was the Superintendent of Fire. Plaintiff alleges that throughout his period of employment he did an outstanding job and regularly received favorable comments concerning his performance from his superiors and from the Board of Commissioners.

 Plaintiff, who was 60 years old at the time of his discharge, asserts that he was terminated because of his age. Plaintiff alleges that his discharge was part of a new policy and practice, implemented by the Township subsequent to the appointment of Keith E. Frederick, age 34, as Township Manager in December, 1978, of terminating all department heads who were either 60 years of age or older. *fn2"

 The circumstances immediately related to plaintiff's termination may be summarized as follows: On January 29, 1982, plaintiff met with Deputy Superintendent of Fire, Thomas Hayden ("Hayden"), who told him that he had received a wrapped gift from a third party. This third party was a good friend of Hayden's and Hayden did not know how to handle the matter. Plaintiff told Hayden that he should not have accepted the gift, since Hayden was leaving himself open to criticism. Later that day, Hayden showed plaintiff a small black and white TV and radio combination and told plaintiff that Hayden's wife had opened the wrapped gift. Hayden then asked plaintiff to help him. Plaintiff agreed to help Hayden, and at Hayden's insistence, plaintiff took the TV set in the box from Hayden, brought it home, and put it in his bedroom closet. Because of other pressures *fn3" and the fact that Hayden was due to leave on vacation the following week, plaintiff felt that he did not need to give this matter immediate attention or top priority.

 On February 9, 1982, plaintiff met with Police Superintendent Patrick J. Joyce ("Joyce") and Township Personnel Director, Ernest Florio ("Florio") and was asked about the gift of a television set. Plaintiff explained how the TV set came into his possession and where the set was. Joyce then asked plaintiff to make a written statement which plaintiff did.

 On February 23, 1982, plaintiff received a memorandum from Frederick announcing plaintiff's dismissal as of February 24th. Plaintiff was further told by Frederick at this meeting that plaintiff's wife's position as administrative assistant for the defendant would not be affected "provided there were no problems."

 Plaintiff avers that on the day when Hayden accepted the TV gift, Hayden advised the Director of Personnel, Florio, whereupon Florio told Hayden to give the TV gift to plaintiff. Plaintiff avers that Florio advised Frederick of the matter and Frederick instructed Florio: "Give the set to Karr and you sit on it and do nothing." Plaintiff believes and avers that Frederick, Joyce and Florio, on behalf of the Township, used the TV gift received by Hayden and given to plaintiff under Florio's direction as an excuse to dismiss plaintiff, while the genuine reason for the dismissal was age discrimination.

 DISCUSSION

 A. Damages Recoverable Under ...


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