II. Summary Judgment Standard.
A trial court may enter summary judgment if, after review of all evidentiary material in the record, there is no genuine issue as to any material facts, and the moving party is entitled to judgment as a matter of law. Lang v. New York Life Insurance Co., 721 F.2d 118, 119 (3d Cir. 1983); Bank of America National Trust and Savings Association v. Hotel Rittenhouse Associates, 595 F. Supp. 800, 802 (E.D.Pa 1984). Where no reasonable resolution of the conflicting evidence and inferences therefrom, when viewed in a light most favorable to the nonmoving party, could result in a judgment for the nonmoving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3d Cir.), cert. denied 454 U.S. 893, 70 L. Ed. 2d 208, 102 S. Ct. 390 (1981); Vines v. Howard, 676 F. Supp. 608, 610 (E.D.Pa. 1987).
The moving party must initially show an absence of a genuine issue concerning any material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). The moving party discharges this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325; Vines, 676 F. Supp. at 610. Once the moving party satisfies this burden, the burden then shifts to the nonmoving party, who must go beyond his pleadings and designate specific facts by the use of affidavits, depositions, admissions and answers to interrogatories showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. Moreover, Fed.R.Civ.P. 56 mandates that when the nonmoving party bears the burden of proof it must "make a showing sufficient to establish [every] element essential to that party's case." Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987) (quoting Celotex, 477 U.S. at 322).
Defendant moves for summary judgment as to all the claims against it. Accordingly defendant asserts that summary judgment should be granted as to the claims arising out of the termination of the employment relationship because plaintiff signed a Release as to all claims Mr. Mashman may have had against the defendant at that time. Plaintiff, for his part moves for summary judgment only as to the issue of the validity of the Release. I shall first address the question of the Release and then the other issues on summary judgment.
A. The Signed Release.
The Release clearly indicates that the plaintiff agreed to the Release as a result of negotiations to settle the back commissions which plaintiff alleged he was owed. And the language of the Release specifically states that its scope includes "all claims, demands, or causes of action arising out of his employment with Universal . . . and termination thereof. . . ." Defendant's Ex. F. The issue before me now is whether the Release precludes the claims plaintiff brings as a result of his termination as an employee of Universal, namely the claims brought pursuant to ADEA and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. I conclude that it does not.
The release of rights under the ADEA is suspect where it is not part of the settlement of an age discrimination claim. Equal Employment Opportunity Commission v. United States Steel Corporation, 583 F. Supp. 1357 (W.D.Pa. 1984). To enforce the waiver of an ADEA claim the court must determine whether the waiver of the age discrimination claim is knowing and wilfully made. Coventry v. United States Steel Corp., 856 F.2d 514 (3d Cir. 1988).
In evaluating the possible release of ADEA claims the trial Court must consider the totality of the circumstances, "necessitating careful evaluation of the release form itself as well as the complete circumstances in which it was executed." Cirillo v. Arco Chemical Co., 862 F.2d 448 (3d Cir. 1988). The Third Circuit has enumerated seven, nonexclusive, factors to be considered:
1) the clarity and specificity of the release language;
2) the plaintiff's education and business experience;