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JOHNSON v. TOWNSHIP OF BENSALEM

April 12, 1985

HARRIET JOHNSON
v.
TOWNSHIP OF BENSALEM



The opinion of the court was delivered by: POLLAK

 POLLAK, J.

 This action arises out of the premature retirement of Sergeant William L. Johnson from the Bensalem Township Police Department. Sergeant Johnson retired on January 31, 1981, at the age of fifty-four, pursuant to his employer's mandatory retirement policy. On May 11, 1981, Sergeant Johnson died. On January 27, 1983, Sergeant Johnson's widow brought this action, seeking damages for wrongful discharge and violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.

 On May 23, 1984, I ruled on the parties' cross-motions for summary judgment. I found, inter alia, that (1) defendant is liable under the ADEA for all properly provable damages arising out of Sergeant Johnson's premature retirement, Memorandum/Order at para. 1 (May 23, 1984); (2) defendant is also liable for liquidated damages for willfully violating the statute, id. at P 5; and (3) defendant may deduct from plaintiff's damages "any payment made to Mr. Johnson upon his retirement which he would not have received during his employment or at his death had he remained employed until his death." Id. at P 4. With regard to the damages set-off issue, I specifically found that "payments made to Mr. Johnson on his retirement for accrued sick leave in the amount of $8602.01" were to be deducted from plaintiff's damages. Id.

 Plaintiff has moved to reconsider my ruling that defendant may deduct Sergeant Johnson's accrued sick leave from plaintiff's damages. In addition, plaintiff has moved to compel officers and employees of the township to answer questions concerning sick pay benefits. Both motions are opposed.

 I. MOTION TO RECONSIDER THE SET-OFF OF ACCRUED SICK LEAVE

 In granting defendant's motion for summary judgment on the question whether defendant should receive a set-off for accrued sick leave, I necessarily found as a matter of law that plaintiff would not have received such benefits had her husband remained an employee of the township until his death. This finding was based on the language contained in the applicable collective bargaining agreement, the relevant portion of which reads:

 
Upon retirement, but only in the event the employee has worked twenty-five (25) years of full-time service with the DEPARTMENT and has attained the age of fifty (50) years minimum, the retiring member of the DEPARTMENT shall receive pay at his then current daily rate for all accumulated and unused sick leave credited to him on the date of retirement, not to exceed one hundred (100) days.

 Agreement, Article IV, para. B (attached as Exhibit S to Defendant's Motion for Summary Judgment). In addition to the contract, I had before me the affidavit of Natalie Strange, Bensalem Township Manager. Ms. Strange states in her affidavit that Sergeant Johnson's estate would not have received any accrued sick pay benefits had Sergeant Johnson died while still an employee of the township. Strange Affidavit (Feb. 14, 1984).

 Plaintiff argues that this conclusion was error, and submits the affidavit of Detective Kenneth Hopkins, who signed the collective bargaining agreement on behalf of the township's police officers. Mr. Hopkins' affidavit states that "the estate of a Bensalem Township Police Officer who dies while employed is entitled to receive pay for the deceased officer's accumulated and unused sick leave credited to him on the date of his death." Hopkins Affidavit (Oct. 10, 1984).

 At the outset, there is a good deal of confusion in the briefs as to the standard I must apply to plaintiff's motion to reconsider. Plaintiff assumes her motion falls within Rule 60(b), the relevant portion of which provides:

 
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); . . .

 Fed. R. Civ. P. 60(b). As the text of the Rule makes clear, however, the Rule applies only to challenges of final judgments. Laffey v. Northwest Airlines, Inc., 206 U.S. App. D.C. 173, 642 F.2d 578, 583-84 (D.C. Cir. 1980); Campos v. Puerto Rico Sun Oil Co., 536 F.2d 970, 972 n.6 (1st Cir. 1976); 7 J. Moore & J. Lucas, Moore's Federal Practice para. 60.20, at 60-170 to 60-172 (2d ed. 1983). Interlocutory orders, such as the one at issue here, "are left within the plenary power of the court that rendered them to afford such relief from them as justice requires." 7 J. Moore & J. Lucas, Moore's Federal Practice para. 60.20, at 60-170 (2d ed. 1983). Accord Campos v. Puerto Rico Sun Oil Co., supra; Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970). See also John Simmons Co. v. Grier Bros., 258 U.S. 82, 90-91, 66 L. Ed. 475, 42 S. Ct. 196 (1922) ("if an interlocutory decree be involved, a rehearing may be sought at any time before final decree, provided due diligence be employed and a revision be otherwise consonant with equity"); Moore & Rogers, Federal Relief from Civil Judgments, 55 Yale L.J. 623, 641-42 (1946) (discussing Simmons). Thus, the stringent requirements of Rule 60(b) do not apply in this case. *fn1"

 I therefore proceed to consider whether revision of my May 22, 1984 Order is warranted on the record before me. Plaintiff appears to argue that the affidavits of Mr. Hopkins and Ms. Strange create a stand-off: representatives of labor and management have directly contradicted each other with regard to the interpretation of the relevant contract provision. The results of this swearing contest, plaintiff argues, raise a genuine issue of material fact as to whether accrued sick ...


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