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March 2, 1984

William J. ADAMS

The opinion of the court was delivered by: BRODERICK

This is a diversity action in which the plaintiff, a New Jersey resident, claims breach of contract and wrongful discharge. The defendant, Budd Company (Budd), a Pennsylvania corporation with its principal place of business in Michigan, has moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff, William J. Adams (Adams) seeks to recover damages for breach of an alleged oral contract of employment.

Specifically, Adams contends that as a result of Budd's representations regarding his employment in a management capacity, he changed his position within the company and was thus no longer able to rely on the provisions of the company's collective bargaining agreement. Adams further claims that he was wrongfully dismissed without cause for his role in reporting safety and quality control violations in Budd products. He sets forth counts of breach of an oral contract and wrongful discharge. Budd denies making assurances or promises to plaintiff regarding the term of employment. Budd responds that Adams was not terminated in bad faith or in violation of Pennsylvania law. For the reasons which follow, summary judgment will be entered for Budd on both counts of the complaint.

 In deciding Budd's motion for summary judgment, we must determine whether any disputed issues of material fact exist which would preclude entry of judgment. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). As to issues of fact, all reasonable inferences from the underlying facts contained in the affidavits and depositions submitted to us must be drawn in favor of the party opposing the motion. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). Whenever Budd relies upon affidavits, depositions, and answers to interrogatories to show that there is no genuine issue of material fact, Adams must come forward with affidavits, depositions, or answers to interrogatories sufficient to contradict Budd's showing. Adickes v. S.H. Kress and Co., 398 U.S. 144, 160-61, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Fed.R.Civ.P. 56(e).

 On the basis of the affidavits and depositions submitted by the parties, the uncontested facts may be summarized as follows:

 Adams was hired into an apprenticeship program at Budd's Hunting Park plant on June 11, 1956. Upon completion of the program, he was employed as a tool and die maker. With Budd's encouragement, he attended classes at Camden City College and Glassboro State College in New Jersey, completing a Bachelor of Arts degree between September 1970 and June 1974, for which he was partially reimbursed by Budd through a tuition-refund provision in the collective bargaining agreement.

 On September 5, 1973, Adams accepted an offer to join Budd's management as a supervisor in quality control. Between September 1973 and April 1979, he acted as quality control supervisor in the auto division of Budd's Red Lion plant. He was subsequently transferred to the machine shop in April 1979, and then to the railway division in August 1980.

 As quality control supervisor of the railway division, Adams' duties included implementing controls necessary to insure the quality level of parts and material received, manufactured, and shipped by Budd. To carry out these duties, Adams designed and redesigned major record forms to be used by the company's safety inspectors.

 On or about September 1981, Adams was given a special assignment as the Miami-Baltimore specialist giving him exclusive responsibility for the quality control of railcars manufactured by Budd under its contract with the cities of Miami and Baltimore. Plaintiff found numerous defects with the railcars which he reported to his immediate supervisor, Thomas Headley. In December 1981, Headley removed Adams from the Miami-Baltimore assignment. However, in January, 1982, at the request of John Darrah, Headley's supervisor, Adams was reinstated as the Miami-Baltimore specialist. Shortly thereafter, Adams distributed a form, enumerating the large number of uncorrected defects in the railcars, to management personnel. Adams also wrote a letter in March 1982 to Headley and Darrah informing them that the first completed car contained defects which would require stripping of the railcars' interior. The car was subsequently stripped.

 After this, in May or June of 1982, Adams was transferred to the quality assurance department as supervisor of vendor control. On October 14, 1982, Adams was told that he was being discharged "without cause." He received four months severance pay.

 Budd asserts that it is entitled to summary judgment on the contract claim because the material facts, concerning which there are no genuine issues, show that no oral contract for a specified term of employment existed between Adams and Budd. Pennsylvania law presumes that an employee serves at the pleasure of an employer and the relationship may be terminated by either party and at any time, absent a specific term of duration. Jackman v. Military Publications, Inc., 350 F.2d 383, 385 (3d Cir. 1965); Cummings v. Kelling Nut Co., 368 Pa. 448, 451, 84 A.2d 323, 325 (1951). The plaintiff may overcome this presumption by showing the parties intended the contract to be for some definite period of time or by showing that the plaintiff-employee gave the defendant-employer consideration in addition to the employee's normal services. McNulty v. Borden, Inc., 474 F. Supp. 1111 (E.D. Pa. 1979). An employer's "custom, practice or policy" can also create a contractual just cause requirement or contractual procedures by which the employer must abide. Novosel v. Nationwide Mutual Ins. Co., 721 F.2d 894, 902-03 (3d Cir. 1983).

 The evidence fails to establish a contract for any definite term or duration. Adams is unable to point to a single promise or representation for lifetime employment by Budd. By his own admission, Adams was "ecstatic" with the management offer, and accepted it without any discussion as to the terms or benefits of the position. Reliance on the bare supposition that the position was expected to last until retirement does not establish a specific term of employment. Under Pennsylvania law such vague and conclusory statements are not sufficient to overcome the presumption of employment at will. Green v. Medford Knitwear Mills Inc., 408 F. Supp. 577, 582 (E.D. Pa. 1976).

 Nor does the fact that Adams changed his position within the company so as to no longer be able to rely on Budd's collective bargaining agreement constitute sufficient consideration to overcome the presumption. McNulty, supra, 474 F. Supp. at 1119. Adams acknowledges that he sought a management position because it offered better benefits, a higher wage, and earlier retirement. He admitted that he knew before he accepted the position that management was not part of the collective bargaining unit, and that he accepted the offer of promotion knowing he would no longer be able to rely on the provisions of the collective bargaining agreement. Merely foregoing other activities and interests cannot ...

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