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GERALD M. LEIBOWITZ v. H.A. WINSTON COMPANY AND ROSS BUREAU INVESTIGATION (03/11/85)

argued: March 11, 1985.

GERALD M. LEIBOWITZ, APPELLANT,
v.
H.A. WINSTON COMPANY AND ROSS BUREAU OF INVESTIGATION



No. 394 Philadelphia, 1984, No. 395 Philadelphia, 1984, Appeal from the Judgment entered January 11, and 13th 1984 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 900 January Term, 1978

COUNSEL

George J. O'Neill, Philadelphia, for appellant.

Peter J. Mooney, Philadelphia, for H.A. Winston, appellee.

Richard R. Galli, Philadelphia, for Ross, appellee.

McEwen, Cercone and Trommer,*fn* JJ.

Author: Cercone

[ 342 Pa. Super. Page 457]

From July 1976 until February 1977, plaintiff-appellant Gerald M. Leibowitz was employed by a restaurant, defendant-appellee H.A. Winston and Company. He began his

[ 342 Pa. Super. Page 458]

    employment as a substitute waiter and at the time he was discharged he was an assistant manager. On an evening in January 1976 when appellant reported to work, he was informed by another manager that approximately $250 was missing from a safe to which only appellant and four or five other individuals had access. After a search revealed nothing, appellant reported the fact of the missing money to a general manager.

Approximately two weeks later, on a Sunday night, appellant received a phone call at home from the owner of Winston's, Gerry Spivak. Appellant testified that Spivak told appellant of his concern about the missing money and that he had arranged for appointments for appellant and the other assistant manager to take lie detector tests the next day at Ross Detective Agency, defendant-appellee. Appellant testified that Spivak did not inform him of any rights to refuse the test, nor did appellant protest.*fn1 Assuming that he would pass the test, appellant went to the Ross Detective Agency.

He was given a paper to sign which he was told by the test administrator that he had to sign in order to take the test. This paper was a release of any liability of the appellees arising from appellants being tested.*fn2

Appellant was asked if he read the release.

[ 342 Pa. Super. Page 459]

"Well, I looked over the paper. It was a lot of -- at that time, it was legal jargon. I didn't really know what I was signing, but, I figured: I had nothing to fear. I wasn't concerned, the least bit, so, I ...


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