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PETTIBON v. PENNZOIL PRODS. CO.

December 11, 1986

LaVERN A. PETTIBON, Plaintiff
v.
PENNZOIL PRODUCTS COMPANY, and PENNZOIL COMPANY, a Delaware corporation, Defendants



The opinion of the court was delivered by: TEITELBAUM

 TEITELBAUM, Judge

 In this age discrimination action, defendants, Pennzoil Products Company and Pennzoil Company, move for dismissal of a pendent tort claim for alleged intentional infliction of emotional distress. For the reasons stated, defendants' motion will be denied.

 LaVern A. Pettibon has filed a two count complaint naming Pennzoil Company and Pennzoil Products Company as defendants. Pettibon's complaint alleges that he was dismissed from his employment with Pennzoil Products Company solely because of his age. Pettibon further alleges that the actions of Pennzoil Products Company were willful and intentional and performed with the full knowledge and approval of the parent company, Pennzoil Company. In Count I of his complaint, Pettibon alleges a violation of § 623(a)(1) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1), and asks for reinstatement, back pay, and liquidated damages under § 626 of this Act. In Count II of his complaint, Pettibon alleges that defendants' actions were intentional and intended to inflict emotional distress upon him and that therefore he is entitled to punitive and exemplary damages under Pennsylvania tort law. No compensatory damages are alleged in Count II.

 Defendants have filed a Rule 12(b) motion asking this Court to dismiss Pettibon's pendent emotional distress claim. Initially, defendants assert that this claim fails to state a claim upon which relief can be granted. Defendants argue that adjudication of the pendent emotional distress claim would circumvent the scope of remedies available under the ADEA because 1) the recovery of damages for emotional distress is not permitted under the ADEA *fn1" and 2) the award of liquidated damages under the ADEA operates as a penalty for willful violations of the Act and is a legislative substitute for any other punitive award in an age discrimination case.

 Pettibon responds to defendants' argument by stating that the ADEA's preclusion of damages for emotional distress has nothing whatsoever to do with a state tort action. Therefore, Pettibon argues that the defendants' motion is premature and that he should be permitted to proceed with discovery in order to demonstrate the bona fides of his emotional distress claim.

 The ADEA can only operate to bar a state tort claim as a matter of law for the reasons asserted by the defendants if the ADEA preempts state law in the area of age discrimination in employment. Defendants do not argue that the ADEA preempts state law, and no court has held that the ADEA preempts state law. In Cancellier v. Federated Department Stores, 672 F.2d 1312 (9th Cir. 1982), the Court of Appeals for the Ninth Circuit in upholding an award of damages for breach of the implied covenant of good faith and fair dealing *fn2" stated:

 
The ADEA does not preempt the award of tort damages on pendent state claims (citations omitted). . . . While the wisdom of allowing open-ended state claims . . . with ADEA claims, whose financial redress Congress has carefully limited to specific damage elements (citations omitted), is arguable, it is for Congress, not us, to decide whether state common law remedies trench too closely on the federal scheme.

 Id. at 1318.

 The conclusion that the ADEA does not preempt state tort law is further supported by Pennsylvania's Human Relations Act, 43 Pa.S.A. § 951 et seq., which also prohibits age discrimination in employment, see 43 Pa.S.A. § 953, and which has been recognized by the federal courts as a valid exercise of Pennsylvania's power. See e.g. Watkinson v. Great Atlantic & Pacific Tea Co., Inc., 585 F. Supp. 879, 882 (E.D. Pa. 1984); DeGideo v. Sperry-Univac Co., 415 F. Supp. 227, 229 (E.D. Pa. 1976).

 Although the ADEA does not preempt a state emotional distress claim, determining whether to consider the state claim in an action brought under the ADEA is an entirely different matter which is committed to the discretion of the Court. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). The justifications for exercising the discretion to hear a pendent claim are based on judicial economy, convenience and fairness to the litigants. Id. The issue framed therefore is whether these factors warrant exercising the Court's discretion to consider a state emotional distress claim appended to an ADEA claim. *fn3"

 One of the considerations supporting dismissal of a pendent claim is the desire to avoid unnecessary decisions of state law so that the parties can obtain a surer footed reading of state law. United Mine Workers v. Gibbs, 383 U.S. at 727. This factor does not warrant dismissal in the present case. Other courts in the Third Circuit have been presented with intentional infliction of emotional distress claims under Pennsylvania law and have had no difficulty applying this law. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979); Wenzer v. Consolidated Rail Corp., 464 F. Supp. 643 (E.D. Pa. 1979); Beidler v. W. R. Grace, Inc., 461 F. Supp. 1013 (E.D. Pa. 1978), aff'd, 609 F.2d 500 (3d Cir. 1979). In addition, standard jury instructions for claims of intentional infliction of emotional distress under Pennsylvania law are available. Pa. S.S.J.I. (Civ.) § 13.03, June, 1984. This tort is therefore sufficiently defined so that it can be heard in a federal court without causing jury confusion and without requiring an unnecessary decision of state law.

 Defendants also cite Mazzare v. Burroughs for the proposition that the pendent emotional distress claim should be dismissed because this claim introduces additional legal and factual issues into the case. Mazzare, 473 F. Supp. at 421. Specifically, defendants state that in order to prove intentional infliction of emotional distress, Pettibon will be required to show actual physical harm under Jones v. Nissenbaum, 368 A.2d at 772-73. Defendants argue, therefore, that medical testimony and reports as to Pettibon's physical and mental condition will have to be introduced into the case. Defendants further argue that since the ADEA ...


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