UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 27, 1985
STECK, BETTY, APPELLANT
THE JEWISH EXPONENT
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 84-0235) District Judge: Honorable Clarence C. Newcomer
Before: ALDISERT, Chief Judge, SLOVITER, Circuit Judge, and MANSMANN, District Judge.*fn*
MEMORANDUM OPINION OF THE COURT
ALDISERT, Chief Judge.
The major question for decision in this appeal by Betty Steck from an adverse summary judgment entered in favor of the Jewish Exponent is whether the district court properly determined that her employment discrimination claim in the district court was barred by a release. We conclude that the district court did not err and affirm the summary judgment.
Steck was editor of Inside Magazine, one of the Jewish Exponent's publications. Contending that she was fired from her position because she was not Jewish, she sought redress in the district court pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and the Pennsylvania Human Relations Act § 5(a), 43 Pa. Cons. Stat. Ann. § 951 et seq. As an affirmative defense, the Jewish Exponent argued that the suit was barred by a valid release signed by Steck and, alternatively, that it is a religious organization exempted from the religious discrimination provisions of Title VII and the Pennsylvania statute. Like the district court, we do not find it necessary to reach the exemption contention.
Appellant argued below that the release is invalid because it was executed as a result of fraud and under duress, and further that it is unenforceable because it was not supported by consideration. On appeal she raises three contentions: that the district court erred in applying Pennsylvania law rather than federal law in evaluating the efficacy of the release, that the release of Title VII rights was not voluntary and knowing as required by federal case law, and that under federal precepts, releases unsupported by adequate consideration are voidable.
As a preliminary matter we adhere to our practice of not noticing on appeal issues and contentions raised for the first time on appeal and not presented to the district court. Newark Morning Ledger Co. v. United States, 539 F.2d 929 (3d Cir. 1976). The reason for this is obvious: The district court should always have the first opportunity to pass on legal arguments; it would be improper for an appellate court to contend that the district court erred on a legal contention when that contention was not before it. Included in the record before us is the memorandum of law presented to the district court by the appellant in answer to the appellee's motion for summary judgment. See Exhibit A attached to Appellee's Brief. Our review of that memorandum reveals that appellant's argument to this court that federal law is controlling in evaluating the release was not made to the district court. Indeed, appellant made clear in that memorandum that she was relying on Pennsylvania law. See id. at 14-15.
Specifically, regarding her contention that the release is invalid because it was obtained by fraudulent misrepresentation and through duress, appellant argued below:
Under the Pennsylvania rule, one who attacks the validity of a written release has the burden of sustaining that allegation by clear, precise and indisputable evidence and if the document is knowingly and voluntarily accepted, an employee will be permitted to waive his rights under Title VII as part of a voluntary settlement. Moreover, it has been accepted in Pennsylvania that a challenge to a valid and voluntary settlement under applicable Civil Rights provisions will be upheld if executed through fraud, duress, accident or mutual mistake. Duress has been defined by the Pennsylvania Supreme Court as "that degree of restraint or danger either actually inflicted or impending which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness." The duress, however, need not be physical duress and a release will be invalidated if the terms of the release would violate Pennsylvania's public policy.
Id. at 14 (citations omitted) (emphasis added).
She now argues on appeal that federal law controls and that a release of an action under the federal discrimination laws cannot be valid unless the waiver was "voluntary and knowing." Appellant's Brief at 16-21. To the extent that appellant attempts to establish on review the proposition that federal concepts of "voluntary and knowing" are different from the state concepts of "misrepresentation and duress" urged below, we take alternative positions. First, if any difference does exist, we cannot notice it because it was not presented to the district court. Alternatively, we could easily hold that no difference exists in these concepts and therefore we can sustain the district court on this issue for its stated reasons.
Appellant was not a person of limited education. She was a professional writer and held a position as a responsible, sophisticated magazine editor. The district court found that she did not dispute that she had sat down with the controller of the Jewish Exponent and carefully decided upon the language of the release. We believe the record clearly indicates that she made an intelligent decision at that time, and subsequently has changed her mind. Hence, the district court did not err.
Regarding the consideration issue, the district court applied Pennsylvania law and noted that a release does not require consideration "if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound." 33 Pa. Cons. Stat. Ann. § 6. Steck does not dispute that the instrument she signed includes the language "intending to be legally bound." Moreover, our review of the record indicates that the release is not rendered invalid for a lack of consideration. Appellant cannot support the assertion that she received nothing by signing the release to which she would not normally be entitled. In return for her signing the document, her employer agreed to pay her severance and vacation pay, to waive the requirement of two weeks' notice of termination, not to contest any receipt of unemployment compensation, and to provide her with positive letters of recommendation. She received these benefits not by imposition of law but as a result of negotiation and bargaining. Accordingly, even if we were to hold that the Pennsylvania statute is inapplicable, we conclude that there was sufficient consideration to enforce the release under any view of contract law.
We have carefully considered all the contentions of the appellant.
The judgment of the district court will be affirmed.