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March 8, 1988

Marvin Weibley, Plaintiff
Westinghouse Electric Corporation, Defendant

The opinion of the court was delivered by: TROUTMAN


 Defendant Westinghouse Electric Corporation has moved to dismiss plaintiff's federal claim (Count I) under the Age Discrimination in Employment Act, (ADEA, 29 U.S.C. §§ 626(b),(c),(e)), as untimely filed and his pendent state law claims (Counts II -- IV) based upon federal preemption of the claims by the Employee Retirement Income Security Act of 1974 (ERISA, 29 U.S.C. § 1001, et seq.).

 Plaintiff further alleges that he was aware of various available positions for which he was qualified but which were filled by younger employees.

 During September and October, 1984, plaintiff was counselled regarding early retirement by a Westinghouse Benefits Administrator who explained his pension benefit options and calculated his expected monthly payment based upon the option he selected. He was given a copy of her calculations, which included a monthly early retirement incentive bonus, to help him make his decision. The Benefits Administrator also allegedly told him that he would be laid off if he did not choose retirement.

 After requesting verification of the calculations from the Benefits Administrator on several occasions and from her supervisor and the personnel manager and being assured that the calculations were accurate, plaintiff ultimately decided to retire. His first benefit check, however, was some $ 400 less than he expected based upon the calculations he had been given.

 Upon inquiry, plaintiff was informed by the company's Manager of Pension Administration that the estimate with which he was provided before retirement was erroneous and that the amount of his check was the correct amount due him.

 In May, 1985, plaintiff filed an EEOC complaint and was issued a right to sue letter on September 30, 1986. This action was filed on October 28, 1987.

 I Statute of Limitations

 In support of its motion to dismiss Count I of the complaint, defendant contends that plaintiff has not stated a claim for a willful violation of ADEA and hence is subject to a two year statute of limitations. Since the latest date that the plaintiff's cause of action could have accrued is November 1, 1984, the date his retirement took effect, and the complaint was not filed until October, 1987, defendant contends that the ADEA claim is now barred.

 Plaintiff responds that under Dreyer v. Arco, 801 F.2d 651 (3d Cir. 1986), in which the Court of Appeals applied the willfulness analysis and standards set forth by the Supreme Court in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985), he has sufficiently alleged a willful violation of the ADEA and is thus entitled to the benefit of the three year statute of limitations.

 The thrust of the Thurston and Dreyer cases is that allegations of a willful violation of the ADEA must amount to something more than what is necessary to state a prima facie case under the statute. As the Court of Appeals for the Third Circuit explained in Brock v. Richland, 799 F.2d 80, 82 (3d Cir. 1986), another case decided after Thurston, "A willful act requires a deliberate effort, more than mere negligence. Webster's New Collegiate Dictionary 1331 (1979) defines 'willful' to mean 'done deliberately: intentional." That definition, however, must be read in light of the court's conclusion in Dreyer that where a discrete employment decision is involved, a showing of outrageous conduct on the part of the employer is required to sustain a finding of willfulness.

 At this stage of the proceedings, the Court must determine whether the allegations, if proven at trial, would support a jury finding of willfulness. Plaintiff has alleged that, in his case, the company refused to implement its usual repatriation policy and filled positions for which he was qualified with younger employees. Those allegations are sufficient to state a prima facie case under the ADEA but would not support the finding of a willful violation under the Thurston and Dreyer standards. Plaintiff also alleges, however, that he was induced to choose retirement rather than risk lay-off by the company's deliberate misrepresentation of his monthly pension benefit. Thus, it appears from the allegations of the complaint that the defendant wished to avoid taking overt action which might result in an obvious violation of the ADEA by laying off a worker in the protected class. Instead, it sought to make the termination of the employment relationship a voluntary act on the part of the employee by orchestrating a course of conduct calculated to deceive him into ...

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