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KOPROWSKI v. WISTAR INST. OF ANATOMY & BIOLOGY

December 29, 1992

HILARY KOPROWSKI, M.D.
v.
THE WISTAR INSTITUTE OF ANATOMY AND BIOLOGY, et al.



The opinion of the court was delivered by: CLARENCE C. NEWCOMER

 Newcomer, J.

 December 29, 1992

 Presently before the court are defendants' Motion for Summary Judgment on Counts I, III, and IV of plaintiff's Complaint and plaintiff's Motion to Compel Discovery. For reasons that follow, I shall grant defendants' motion in part and deny it in part and I shall grant plaintiff's motion.

 I. Factual Background:

 Defendant Wistar Institute of Anatomy and Biology ("Wistar" or "the Institute") is a nonprofit corporation engaged in biomedical research. Defendant Robert A. Fox is the President of the Board of Managers of Wistar. Defendant Giovanni Rovera, M.D. is the current Director of Wistar. Dr. Koprowski, the plaintiff, continues his employment at Wistar as an Institute Professor and Director Emeritus.

 On January 24, 1957, the Board of Managers of Wistar appointed Dr. Koprowski to be Director of the Institute. On the same day the President of the Board of Managers sent a letter to Dr. Koprowski announcing his appointment and outlining his duties, responsibilities, salary, and tenure rights as well as other conditions of his employment. Dr. Koprowski served as Director from 1957 until his removal in 1991.

 Each employee of the Institute shall continue to be reviewed in accordance with the Institute's employee performance evaluation procedures until the date of the employee's retirement, and any termination of employment will be on the basis of the provisions of such procedures and not on the basis of the employee's age.

 Dr. Koprowski asserts that beginning in November, 1990, Robert A. Fox began a campaign to remove Dr. Koprowski as Director of the Institute in violation of The Age Discrimination Act ("ADEA"), the Institute's written policy against termination on the basis of age, and his rights to tenure.

 On March 22, 1991, 16 members of the Board of Managers voted to remove Dr. Koprowski as Director of the Institute. The Board of Manager met again on April 5, 1992 to "ratify and confirm" the previous meeting's resolution to remove Dr. Koprowski. Fourteen members of the Board were present in person at the April 5th meeting. Seven members allegedly attended by telephone conference. Dr. Koprowski contends that the April Meeting was necessary because the March vote was improper as there was an insufficient number of members present to pass a resolution to remove him as Director. Dr. Koprowski further argues that the April 5, 1992 vote was also improper in that there was not a majority of the whole present for the vote as required by the Institute's Second Deed of Trust. Although defendants contend that seven members attended by telephone conference, Dr. Koprowski contends that there were not seven members who attended by phone and that those who did attend by phone were not on the phone during the requisite time frame or were not able to hear "each other" as required under Pennsylvania's Nonprofit Corporation Law, 15 Pa. Cons. Stat. Ann. § 5708.

 Defendants seek summary judgment on Count I of plaintiff's Complaint, which asserts a violation of the ADEA, on the grounds that Dr. Koprowski's position as director exempts him from the protections that the ADEA offers. Defendants seek summary judgement on Count III of plaintiff's Complaint, which asserts a cause of action for improper removal from office, on the grounds that the Board of Managers' vote removing plaintiff was in compliance with the requirements of the Second Deed of Trust. Finally, defendants seek summary judgment on Count IV of plaintiff's Complaint, which asserts a claim for breach of contract, on the grounds that Dr. Koprowski has received the same tenure rights due full professors at the University of Pennsylvania to which he has argued he is entitled.

 II. Summary Judgment Standard:

 A reviewing court may award summary judgment where there are no genuine issues as to any material fact, and one party is entitled to judgment as a matter of law. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 450 (3d Cir. 1981); Cousins v. Yaeger, 394 F. Supp. 595, 598 (E.D. Pa. 1975). "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must, as a matter of law, prevail over the other." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the moving party has established that the complaint presents no material issue of fact, the burden is then on the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 III. Discussion:

 A. Count I -- The ADEA ...


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