The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
Plaintiff Joseph Violanti alleges in this ADEA
action that he was discharged from his position with defendant Emery Worldwide A-CF Company (Emery)
on the basis of age. 29 U.S.C. § 623(a)(1). Plaintiff is an attorney and was employed in the Corporate Tax Department of Emery's Scranton, Pennsylvania office.
Plaintiff was hired by Emery Air Freight, Inc. on January 4, 1982 to work in Emery's Scranton accounting office. Emery Air Freight, Inc. was purchased by Consolidated Freightways, Inc. on or about February 4, 1998 and the corporate name subsequently changed to the name appearing in the caption.
Following the acquisition, an offer of continuing employment was extended to plaintiff through defendant Jeffrey M. Raider, Manager of Human Relations for Emery's Scranton office. In a letter dated September 19, 1989, Raider asked plaintiff to continue his employment in the tax department with the understanding that he would be guaranteed a job with full benefits until September 11, 1990. A second offer of continuing employment was extended through Howard Young, Emery's Vice-President of Corporate Tax. In a letter dated March 27, 1990, Young offered Violanti a one-year extension of employment with all benefits remaining the same as those stated in the September 11, 1990 offer. The one-year extension of plaintiff's employment began March 1, 1990.
Violanti continued in Emery's employ after his contract of employment expired on March 1, 1991. Personnel changes were made in the Scranton accounting department during the summer of 1991. New employees were hired and certain duties were re-assigned. During that same time frame, Emery reported monthly losses.
Due to Emery's financial problems, it was announced on September 4, 1991 that there would be a twenty-five percent reduction in the work force. On September 5, 1991, plaintiff was advised by defendant Young that he would be laid-off effective September 6, 1991.
Plaintiff alleges that he was unfairly singled out and that his layoff was inconsistent with the work-force reduction procedures previously announced by Emery. Announced company policy was to base lay-offs on company seniority and department seniority. Plaintiff alleges that he was the most senior employee in his department, but he was laid off while younger, less experienced and less qualified members of the department were retained. Plaintiff was fifty-three years of age at the time of the lay-off.
On the basis of these facts, plaintiff asserts claims: 1) under the ADEA (Count I); 2) under the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. Ann. §§ 951-963 (1991) (Count II); 3) for wrongful discharge (Count III); 4) for breach of contract (Count IV); 5) under ERISA
(Count V); and 6) for promissory estoppel (Count VI). All claims are asserted against Emery, and Emery employees Jeffrey M. Raider, Howard Young and Mike Yost.
This case was removed from the Court of Common Pleas of Lackawanna County, Pennsylvania by a notice of removal filed June 4, 1993.
Plaintiff Joseph P. Violanti commenced the state court action on April 14, 1993 by writ of summons.
Before the court is a Rule 12(b) motion filed by the defendants. Defendants Young and Yost seek dismissal of all claims asserted against them for failure to effect proper service and for lack of personal jurisdiction. Defendants Young, Yost and Raider seek dismissal of all counts for failure to state a claim against them. Emery seeks dismissal of Count II as premature and of Counts III, IV, V and VI for failure to state a claim.
For the reasons which follow, we will enter an order: 1) dismissing all claims asserted against defendants Raider, Young and Yost; and 2) dismissing Counts III, IV, V and VI as against Emery. Plaintiff's claims asserted under the ADEA and PHRA against Emery (Count I and II) remain.
Under a Rule 12(b)(6) motion, a complaint may not be dismissed for failure to state a claim upon which relief can be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court must accept all material allegations in the complaint as true and construe them in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Johnsrud v. Carter, 620 F.2d 29 (3d. Cir. 1980); and Truhe v. Rupell, 641 F. Supp. 57, 58 (M.D.Pa. 1985) (Rambo, J.). Although the complaint is to be liberally construed in favor of the plaintiff (See: Fed.R.Civ. 8(f)), the court does not have to accept every allegation it contains as true. Conclusory allegations of law, unsupported conclusions and unwarranted inferences need not be accepted as true. Conley, supra, 355 U.S. at 45-46.
Failure to effect service on defendants
Defendants Young and Yost seek dismissal of the claims against them due to ineffective service. Both defendants have provided affidavits stating that service was never made on them. Plaintiff attempted service by having the sheriff of Lackawanna County, Pennsylvania mail a copy of the summons, by certified mail, to a California address where neither defendant works or resides. Both defendants further state that neither they, nor anyone authorized to act on their behalf, signed the receipt accepting service.
Under the circumstances, service was not effected against either defendant. See: Pa. R. Civ. P. 403 (Service by Mail). Were it not for the incurable defects in plaintiff's claims against these defendants on other grounds, we would give plaintiff leave to attempt to cure the defect. Since the claims asserted against defendants Young and Yost are fatally flawed on other grounds, granting plaintiff leave to attempt to cure the defect would serve no useful purpose.
Personal jurisdiction over defendants Young and Yost
Defendants Young and Yost also challenge plaintiff's complaint on jurisdictional grounds. Defendants argue that they have insufficient contacts with Pennsylvania to justify this court's exercise of personal jurisdiction over them. The service of process rules of the state where the district court sits govern personal jurisdiction issues. Bane v. Netlink, Inc., 925 F.2d 637, 639 (3d Cir. 1991) and Fed. R. Civ. P. 4(e). The Pennsylvania long-arm statute permits state courts to exercise in personam jurisdiction "to the fullest extent allowed under the Constitution of the United States" and to be based on "the most minimum contact with this Commonwealth allowed under the Constitution of the United States." 42 Pa. Cons. Stat. Ann. § 5322(b) (Purdon 1981). The principal inquiry is whether the exercise of jurisdiction is constitutionally proper.
Personal jurisdiction may be based either on the conduct of the non-resident defendant which gave rise to the cause of action (specific jurisdiction), or on the defendant's general contacts with the forum state, provided those contacts are "continuous and systematic", (general jurisdiction). Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 473 n. 15, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) and Helicopteros Nacionales de Colombia, S.A. v. Hall, (Hall), 466 U.S. 408, 414 n. 8, 80 L. Ed. 2d 404, 104 S. Ct. 1868 and 9 (1984).
"General jurisdiction exists when there are sufficient contacts to justify an assertion of 'personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum.'" Covenant Bank for Savings v. Cohen, 806 F. Supp. 52, 55 (D.N.J. 1992), quoting Hall, supra, 466 U.S. at 414 n. 9. "Mere minimum contacts" are not enough to establish general jurisdiction - "The nonresident's contacts to the forum must be continuous and substantial." Provident National Bank v. California Federal Savings & Loan Association, 819 F.2d 434, 437 (3d Cir. 1987). Accord: Hall, supra, 466 U.S. at 415-16.
Specific jurisdiction is based on defendant's "purposefully directing activity toward the forum state, Applied Biosystems v. Cruachem, Ltd., 772 F. Supp. 1458, 1470, such that it could "reasonably anticipate being haled into court there", Burger King, supra, 471 U.S. at 474; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980) and Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). Proof that the defendant has "purposefully directed" its activities at residents of the forum state, "deliberately engaged" in "significant activities" in the state, or created "continuing obligations" with state residents establishes personal jurisdiction over the defendant in litigation arising out of such activities. Burger King, supra, 471 U.S. at 475-76 (Citations omitted.)
If minimum contacts exist, then the court considers whether its exercise of personal jurisdiction over the defendant "accords with the notions of 'fair play and substantial justice.'" Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 481 (3d Cir. 1993), citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). The defendant bears the burden of showing that such is not the case, and the factors relevant to that determination are: 1) the interests of the forum state; 2) the plaintiff's interest in obtaining relief; 3) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and 4) the shared interest of the several States in furthering fundamental substantive social policies." Mesalic v. Fiberfloat Corp., 897 F.2d 696, 701 (3d Cir. 1990), citing Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987). In making this determination, if the requisite minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction may "justify even the serious burdens placed on the alien defendant." Grand Entertainment Group, 988 F.2d at 483.
When personal jurisdiction is challenged, the plaintiff bears the burden of proving that it is proper through affidavits "or other competent evidence". North Penn Gas Co. v. Corning Natural Gas Corp., per curiam, 897 F.2d 687, 689 (3d Cir.), cert. ...