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BROWN v. PEOPLES SEC. INS.

May 19, 1995

PHILIP C. BROWN, Plaintiff
v.
PEOPLES SECURITY INS., Defendant



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 Pending before the Court is Defendant Peoples Security Insurance Company's Motion for Summary Judgment. *fn1" Pro se Plaintiffs Philip C. Brown ("Plaintiff" or "Mr. Brown") and his wife, Rosalie A. Brown, filed a complaint that, construed liberally, appears to set forth claims based on breach of contract, negligent and intentional infliction of emotional distress, and loss of consortium. Defendant Peoples Security Insurance Company's ("Defendant's) motion is GRANTED.

 I. Background

 In August 1992, Defendant hired Mr. Brown. *fn2" His duties included servicing existing clients, which included making name or beneficiary changes, updating and explaining provisions, and processing death claims; collecting premiums and remitting them to Defendant; delivering and explaining a new way of payment; and selling Defendant's products. It is undisputed that Mr. Brown signed an employment agreement which provided as follows:

 
Either party may, at any time, with or without cause terminate this agreement by giving the other party notice of termination. The agreement shall automatically terminate upon the death of Representative or should Representative cease to be duly licensed. Upon termination, however occurring, Representative shall be entitled to receive no further compensation of any kind and no further benefits except those required by law.

 Answer Ex. A (Account Representative's Employment Agreement). In August 1993, Mr. Brown's employment was terminated. *fn3" Mr. Brown believes he "had no choice but to be terminated" because Defendant failed to take action to respond to his complaints that his supervisor, Gerry Steigerwalt, "was using unethical and illegal practices to advise, sell, and replace life insurance and related products." Compl. PP10, 15.

 Based on the complaint, Mr. Brown appears to seek recovery in three areas. First, he alleges that after his termination, his former clients continued to call him because Defendant never notified them of his termination. Mr. Brown believes he is entitled to compensation for answering telephone calls from September 1993 to May 1994. In his motion for summary judgment, he argues for the first time that instead of being terminated as an employee in August 1993, he was actually reclassified or given different duties. Pl.'s Mot. for Summ. J. at 2. The Court considers these allegations to support a breach of contract claim. *fn4" Second, Mr. Brown appears to claim he suffered emotional distress because he was required to engage in illegal and unethical conduct as a condition of his employment, because Defendant failed to respond to his complaints concerning these practices, particularly the practices of Gerry Steigerwalt, and because Defendant failed to notify his former clients of his termination, which lead to telephone calls to his home. The Court considers these allegations to raise claims for the torts of intentional and negligent infliction of emotional distress. The Court also considers Plaintiff's apparent claims for pain and suffering and punitive damages as part of the tort claims. Finally, Mrs. Brown seeks damages for her loss of consortium. These claims are discussed in turn.

 II. Discussion

 A. Summary Judgment Standard

 Summary judgment is proper when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The court's role is to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993). The moving party has the burden of demonstrating that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Further, all reasonable inferences that can be drawn from the record must be viewed in the light most favorable to the non-moving party. Connors v. Fawn Min. Corp., 30 F.3d 483, 489 (3d Cir. 1994); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). However, if the non-moving party fails to adduce sufficient evidence in connection with an essential element of the case for which it has the burden of proof, the moving party is entitled to summary judgment as a matter of law. Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552.

 B. Breach of Contract

 Defendant is entitled to judgment as a matter of law on Mr. Brown's breach of contract claim. First, it is undisputed that his employment agreement states that upon termination of employment, he was not entitled to compensation or benefits except as required by law. Plaintiff has identified no law which would require him to be paid. Second, there is no evidence on the record that Mr. Brown was not terminated and that he remained an employee with different duties. The only evidence on the record is that his employment was terminated. His termination form states, "I, Philip C. Brown wish to terminate my employment with the company effective 8-27-93 for the following reason(s): not compatible with duties and expectations of job description." Def.'s Mot. for Summ. J. Ex. C2. Mr. Brown's allegations in his memorandum asserting otherwise are insufficient to create a material issue of fact. In fact, in his complaint, he admits that he was terminated on August 27, 1993. Compl. P 7. Finally, there is no evidence of any other implied or express contract ...


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