by HHS, Oliver B. Tomlin, President of HHS and Augustus Robbins, an officer of HHS. Potomac, a wholly owned subsidiary of HHS, was to be general partner to the limited partnerships. Greenberg entered into a written employment agreement with HHS that was modified in writing on several occasions, although its substance remained essentially the same. In addition, Greenberg alleges that he received certain oral promises from Tomlin.
Greenberg alleges that the defendants failed and refused to meet their obligations to pay him wages, stock and cash distributions due him from his ownership/equity interest in the corporate general partners. Additionally, he contends that the defendants charged numerous expenses to Potomac, over and above that which had been represented, which significantly reduced its overall profitability, and therefore, Greenberg's ownership interest in Potomac.
In January, 1992, Dr. Greenberg commenced his first lawsuit (Greenberg I) against HHS and Tomlin to recover the damages which he allegedly sustained in September, 1991 as the result of a purported breach of his employment contract and an improper termination from his employment relationship as Vice President of Business Development with HHS. He alleged that Tomlin's oral promises were supplemental to the written contract, and were not performed. Under the amended complaint in Greenberg I, he sought relief under theories of fraud, misrepresentation, estoppel, breach of written contract and civil RICO.
This Court partially granted the defendants' motion for summary judgment in Greenberg I as to the civil RICO claims and as to claims seeking damages arising out of Tomlin's failure to honor his alleged oral promises. As to the breach of contract claims, we held that evidence of the oral promises was barred by the parol evidence rule. On the fraud and misrepresentation claim we held that Greenberg had failed to produce sufficient evidence to show reasonable reliance. The case went to a jury on the remaining claims, and the jury returned a verdict in favor of Greenberg in the amount of $ 123,901.
Greenberg sought reconsideration of our grant of summary judgment, sought a new trial, and appealed both denials to the Third Circuit, which affirmed our decisions.
In this litigation, Greenberg alleges that Tomlin's oral promises constituted a separate contract with Potomac. He has sued only Potomac for breach of this oral contract, as well as for fraud and misrepresentation. Tomlin and Robbins are both officers of Potomac, wholly owned by HHS. Greenberg acknowledges that the facts in each lawsuit are the same and asserts that no additional discovery is necessary because the witnesses and evidence are identical.
SUMMARY JUDGMENT STANDARD
In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).
Potomac asserts that this litigation is ripe for summary judgment because there are no genuine issues of material fact and because there are three legal bases for disposing of the litigation. First, it argues that Greenberg's claims are barred by claim preclusion (res judicata). Second, that Greenberg's claims are barred by issue preclusion (collateral estoppel). Third, that Greenberg's claims are barred by the statute of limitations.
First, Potomac argues that the complaint against it is barred under the doctrine of claim preclusion because Greenberg's suit against it is virtually identical to a complaint earlier brought against two parties allegedly in privity with Potomac. According to the United States Supreme Court, a "fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a 'right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies.'" Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979) (citation omitted). Claim preclusion also bars claims that could have been, but were not, brought in the first suit. Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir. 1991).
The test whether claim preclusion applies has four parts:
1) whether there has been a final judgment on the merits in a prior suit;
2) whether the prior suit involves the same parties or their privies; and