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October 11, 1985

David Sugarman Plaintiff
RCA Corporation, Defendant

Richard P. Conaboy, United States District Judge.

The opinion of the court was delivered by: CONABOY

Richard P. Conaboy, United States District Judge

 This is a diversity action in which the Plaintiff, a Pennsylvania resident, was suspected of misusing Defendant, RCA's, long distance telephone system and was discharged. He claims breach of an employment contract, wrongful discharge, defamation and intentional infliction of emotional distress. The defendant, RCA Corporation (RCA), a Delaware Corporation with its principal place of business in New York, has moved for summary judgment pursuant to Fed.R.Civ.P.56.

 In deciding RCA's motion for summary judgment it must be determined 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). Moreover, all reasonable inferences to be drawn from the underlying facts contained in the affidavits and depositions submitted to us are viewed in favor of the party opposing the motion. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). Further, whenever RCA relies upon affidavits, depositions, and answers to interrogatories to show that there is no genuine issue of material fact, Sugarman must come forward with affidavits, depositions, or answers to interrogatories sufficient to contradict RCA's showing. Adickes v. S.H. Kress and Co., 398 U.S. 144, 160-61, 90 S. Ct. 1598, 1609-10, 26 L. Ed. 2d 142 (1970); Fed.R.Civ.P. 56(e). Therefore, on the basis of the affidavits and depositions submitted by the parties, the facts may be summarized as follows.

 Sugarman was employed by the RCA Service Company from 1969 until January, 1984. At the time of the alleged incidents complained of herein, Sugarman served as Recreation Coordinator of the Keystone Job Corps Center (Center) in Hazleton, Pa. His position with RCA entitled him to use a long-distance telephone system "Tacnet". Sugarman was assigned a five-digit code which permitted him to access the system in order to place long distance calls.

 During the summer of 1983, an audit of the Center revealed that non-business calls had been made using Sugarman's Tacnet number. Sugarman's superiors revoked his Tacnet number and directed him to use the Center switchboard for work-related long distance calls until such time as he received a new code. Due to a clerical error, Sugarman received a new Tacnet number in October, 1983. When the error was discovered shortly thereafter, the number was cancelled. Sugarman received a memorandum explaining the reasons for the second cancellation on October 28, 1983. The aforementioned memorandum noted that the change would be temporary.

 Following the cancellation of his Tacnet number, Sugarman found another five-digit number on his phone that would access the Tacnet system. Upon gaining access, Sugarman informed other employees at the Center.

 Subsequently, from November 29 to December 3, 1983, Sugarman's superiors at the Center placed an electronic tracer on the phone in Sugarman's office. The trace revealed that a number of long distance calls were placed using the Tacnet System. Sugarman was then informed at a meeting held January 30, 1984, of the trace and results thereof. In attendance were Sugarman, Elwood L. Petchel, the Acting Center Director, Mary Ann Victor, Employee Relations Manager and, Maxine Rogers, Acting Director of Residential Programs. Sugarman admitted to making 2 personal calls to his brother. After Sugarman was informed of the trace results and admitted his use of the system, he was asked to resign. Sugarman resigned at the meeting, but later attempted to rescind his resignation. Despite Sugarman's attempted rescission of his resignation, RCA considers Sugarman to be involuntarily terminated from his employment on the basis of his conduct.


 As the court in Adams v. Budd, recently stated:

. . . 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. (citations omitted). 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. An employer's "custom, practice or policy" can also create a contractual just cause requirement or contractual procedures by which the employer must abide.

 583 F. Supp. 711, (E.D. Pa. 1984).

 In this case, there is no evidence with respect to an express oral or written contract between the parties. Instead, Sugarman has produced a letter from RCA to him dated November 13, 1968, confirming an offer for employment as an instructor with the RCA Service Company. While conceding that this letter indicates no specific terms of employment, Sugarman infers that references in the letter to "retirement benefits" and a "continuing relationship in the RCA family" may amount to terms of employment sufficient to establish a contract for a definite term or duration. In the alternative, Sugarman contends that the contract itself is in the hands of the Defendant RCA, and that all he can rely upon to demonstrate the existence of a contract for some definite period are his sixteen years of continuous employment and extrinsic facts of the agreement. A review of the affidavits and depositions submitted by the respective parties leads us to conclude that Sugarman's express contract claims, either oral or written, will not survive RCA's motion for summary judgment.

 In support of his position that the parties intended the contract to run for some reasonable time, thus overcoming the presumption of an "at-will" employment contract, Sugarman cites Forman v. BRI Corporation, 532 F. Supp. 49 (E.D. Pa. 1982). The Forman Court, citing McNulty v. Borden, Inc. 474 F. Supp. 1111 (E.D. Pa. 1979), held that the presumption of an "at-will" employment contract may be overcome by demonstrating the "intent of the parties that the contract last for some . . . reasonable time." Sugarman makes no averment as to what constitutes a "reasonable time" in this instance. The Court in Forman was able to ascertain a "reasonable time" because the Plaintiff asserted that Defendant entered into a multi-year employment contract pursuant to its five-year growth plan. In this case, however, Sugarman makes no argument as to what constitutes a "reasonable time", and, in fact, simply refers this Court to his review of RCA's undisputed facts to support his position. In contrast, RCA submitted the affidavit of Howard W. Keys, Manager of Employment Relations wherein Keys set forth two reasons why Sugarman could not have entered into a written agreement with RCA. First, he states that RCA policy does not permit agreements of this nature for employees employed at the Keystone Job Corps Center, and second, [A] thorough search of Sugarman's personnel file reveals that no such agreement ever existed. (Keys Affidavit, Exhibit B of Defendant's Brief). The record establishes that Sugarman did not remember what, if anything, he signed in 1969 and that his only obligation under the agreement was to do his job to the best of his ability. (Sugarman Dep. at 10).

 In short, the evidence fails to establish an express oral or written contract for any definite term or duration. Sugarman is unable to point to a single promise or representation for the "continuation" of his employment with RCA. (Sugarman Dep. at 5). Reliance on the bare supposition that the position was expected to last until retirement does not establish a specific term of employment. Budd, 583 F. Supp. at 714. Under Pennsylvania law such vague and conclusory statements are not sufficient to ...

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