Judgment. There is no direct proof that Hayden's decisions with respect to plaintiff were motivated by the fact that he was Jewish. Nonetheless, even without considering Hayden's actions, a jury could find that defendants constructively discharged plaintiff by continuously refusing his requested transfers.
4. Claim of Age Discrimination
Plaintiff claims that Prudential-Bache constructively discharged him because he was too old to rebuild his clientele after the stock market "crash" on October 19, 1987, in violation of 29 U.S.C. § 623. At the time that plaintiff left Prudential-Bache and went to work for Butcher and Singer, he was sixty-three (63) years old. Defendants contend that plaintiff has not met his burden of proving discrimination on the basis of age.
Plaintiff correctly states that the three-step method of proof set forth in McDonnell Douglas is inapplicable when a plaintiff presents direct evidence of discrimination. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985). In Trans World Airlines, the Court noted that the "shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.'" Id. Therefore, when a plaintiff presents direct evidence of discrimination, the McDonnell Douglas test is not applicable. Id.
Unlike his other discrimination claims, plaintiff has direct evidence in support of his age discrimination claim. Prudential-Bache's interim manager of the Philadelphia office, Robert Hayden, told plaintiff at a meeting in December 1987 that he was too old to rebuild his client base after the "crash" on October 19, 1987, that he was burned out, and that it would be better if he found employment with another company. See Sherman Deposition at 150, 477-78. During this same meeting, Hayden also told plaintiff that Prudential-Bache would be discontinuing many of the perquisites that he had earned because he was a top producer. In particular, Hayden informed plaintiff that, at the end of December 1987, Prudential-Bache would discontinue plaintiff's additional gross commissions to cover part of the salary of his assistant; that it would no longer be paying him a $ 200 per month housing allowance; and that the secretarial support time that he was receiving would be reviewed and most likely cut back. See Sherman Deposition at 114-15.
Based on this evidence, I conclude that a jury could find that Prudential-Bache discriminated against plaintiff on the basis of his age.
B. STATE CLAIMS
1. Claim of Breach of Contract
Plaintiff claims that, by refusing to transfer him to the Reading office after initially promising to do so, Prudential-Bache breached its contract with him. Defendants contend that this claim should fail because there was no consideration underlying the contract.
Defendants may be correct in stating that there was no consideration underlying the agreement between Prudential-Bache and plaintiff. A jury, however, could find that there was detrimental reliance, which is a substitute for consideration. See Restatement (Second) of Contracts §§ 79 & 90. A promise which would otherwise be unenforceable becomes enforceable if (1) the promisor should reasonably expect to induce action or forbearance on the part of the promisee and (2) the promise does induce such action or forbearance. Id. at § 90.
Prudential-Bache made a promise that it would transfer plaintiff from the Philadelphia office to the Reading office. See Sherman Deposition at 56. Upon reaching that agreement, plaintiff informed his clients that he would be transferring to Reading. See Exhibit Y at para. 13 of Plaintiff's Memorandum Contra Defendants' Motion for Summary Judgment. Plaintiff also announced his intended transfer to KYW-Radio, which began to arrange a special hook-up that would permit him to record regularly from the Reading office. See Exhibit Y at para. 15 of Plaintiff's Memorandum Contra Defendants' Motion for Summary Judgment. Based on Prudential-Bache's agreement that plaintiff could transfer to Reading, plaintiff turned down the offer of Judge Eugene Wisniewski to share an apartment in Philadelphia. See Exhibit Y at para. 14 of Appendix to Plaintiff's Memorandum Contra Defendants' Motion for Summary Judgment. Moreover, plaintiff refrained in September 1987 from looking for employment with other Reading brokerage firms. See Exhibit Y at para. 16 of Appendix to Plaintiff's Memorandum Contra Defendants' Motion for Summary Judgment. Prudential-Bache did not inform plaintiff that he would not be permitted to transfer until late October or early November 1987.
I conclude that there is ample evidence in the record from which a jury could find that plaintiff relied to his detriment upon Prudential-Bache's promise that he would be permitted to transfer to the Reading office.
2. Claim of Tortious Interference With an Employment Relationship
Plaintiff claims that defendants Reppert and Thomas tortiously interfered with his employment relationship with Prudential-Bache. Defendants contend that this claim should fail because (1) there was no contract and (2) the actions of Reppert and Thomas did not affect the regional manager's decision to not permit plaintiff to transfer to Reading.
In Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), the Pennsylvania Supreme Court approved of Section 766 of the Restatement (Second) of Torts which sets forth the elements of the tort of intentional interference with contract.
393 A.2d at 1183. Section 766 states:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.
In September 1987, Prudential-Bache agreed that plaintiff would be permitted to transfer to Reading. In late October 1987, after plaintiff had finalized the arrangements for his intended transfer, the manager of the Reading office informed him that three stockbrokers had threatened to resign if plaintiff was transferred to Reading. Thereafter, Regional Manager Salzman told plaintiff that he could not transfer to the Reading office because the brokers who opposed his transfer produced 50% of the business in the Reading office. See Sherman Deposition at 87.
I conclude, as with the breach of contract claim, that there is ample evidence from which a jury could find that an agreement or contract existed between Prudential-Bache and plaintiff with respect to his transfer to the Reading office. I further conclude that there is evidence in the record from which a jury could find that Regional Manager Salzman denied plaintiff's transfer as a result of the actions of defendants Reppert and Thomas.
3. Claim of Tortious Interference with Business Relationships
Plaintiff also claims that Prudential-Bache tortiously interfered with his business relationship with many of his clients. Defendants contend that this claim should fail because plaintiff cannot prove that he suffered any harm as a result of defendant's allegedly wrongful conduct.
There is both documentary and testimonial evidence of harm caused to plaintiff by the conduct of Prudential-Bache after he became employed by Butcher & Singer. According to Regional Manager Salzman, a client's request to have his account transferred from Prudential-Bache to Butcher & Singer is executed electronically and should be completed within one week to ten days. See Salzman Deposition at 81-82. Plaintiff, however, experienced significant delays in the transfer of his clients' accounts. See Sherman Deposition at 129. Assistant Manager Spilove was made aware of the problems involving the transfer of plaintiff's clients' accounts as early as March or April 1988. See Spilove Deposition at 116. Spilove contends that, although she did not look into plaintiff's claims, she took steps to straighten out the problem. See Spilove Deposition at 117. Nevertheless, the business records of Butcher & Singer reflect that the transfer of accounts belonging to plaintiff's clients were delayed as much as seven months. See Exhibits AA-HH of Appendix to Plaintiff's Memorandum Contra Defendants' Motion for Summary Judgment. As to each account transfer which was delayed, plaintiff was prevented from conducting business and, thus, deprived of potential commissions.
Therefore, I conclude that there is evidence from which a jury could find that plaintiff was harmed as a result of Prudential-Bache's conduct after he resigned.
4. Claim of Defamation
Plaintiff claims that defendants Prudential-Bache and Richard Hevner defamed him by falsely accusing him of misconduct in connection with his work as a stockbroker. Defendants make two contentions with respect to this claim. First, defendants allege that mere opinion cannot form the basis of a defamation claim and that nothing in the record suggests that Hevner offered anything more than his opinion about plaintiff's skill as a stockbroker. Second, defendants contend that the defamation claim cannot stand because plaintiff did not sustain any damage as a result of Hevner's statements.
Under Pennsylvania law, opinion statements may be defamatory. In Burns v. Supermarkets General Corp., 615 F. Supp. 154 (E.D.Pa. 1985), the court cites with approval section 566 of the Restatement (Second) of Torts which defines when an opinion may be defamatory. Id. at 158. Section 566 provides:
A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed facts as the basis for the opinion.
In Redco Corp. v. CBS, Inc., 758 F.2d 970 (3d Cir. 1985), the Third Circuit Court of Appeals also cites section 566 of the Restatement (Second) of Torts when explaining the circumstances in which statements of opinion may be the basis for an action in defamation:
Although there may be no such thing as a false opinion, an opinion which is unfounded reveals its lack of merit when the opinion-holder discloses the factual basis for the idea. If the disclosed facts are true and the opinion is defamatory, a listener may choose to accept or reject it on the basis of an independent evaluation of the facts. However, if an opinion is stated in a manner that implies that it draws upon unstated facts for its basis, the listener is unable to make an evaluation of the soundness of the opinion. In such circumstances, if the underlying facts are false, the Constitution does not protect the opinion.