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BUTLER v. GIANT MKTS.

April 10, 1997

JOHN P. BUTLER, ANTHONY BARONE, THOMAS POLACHECK, Plaintiffs,
v.
GIANT MARKETS, INC., TOWN & COUNTRY, INC., AFFILIATED FOOD DISTRIBUTORS, INC., JOSEPH S. HODIN, WILLIAM HODIN, and JACK HODIN, Defendants.



The opinion of the court was delivered by: VANASKIE

 On March 15, 1996, the plaintiffs, John P. Butler, Anthony Barone and Thomas Polacheck, instituted this action under the Workers Adjustment and Retraining Act (WARN), 29 U.S.C. § 2101 et seq., against Giant Markets, Inc., Town and Country Markets, Inc., Affiliated Food Distributors, Inc., Joseph S. Hodin, William Hodin, and Jack Hodin, alleging that the defendants failed to give the plaintiffs sixty days notice of the closing of the stores in which they worked. The closings occurred in connection with the sale of the stores to either Town & Country or Affiliated Food. WARN requires, inter alia, that employers of more than 100 persons provide a minimum of sixty (60) days written notice before "the permanent or temporary shut down of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any thirty-day period for fifty or more employees excluding any part-time employees." 29 U.S.C. § 2101(a)(2).

  On May 28, 1996, defendant Giant *fn1" moved to dismiss the plaintiffs' complaint, asserting that (1) this action is time-barred; (2) plaintiff Polacheck was not an employee of Giant when the store in which he worked was sold, and (3) the various stores involved were not a "single site of employment" under WARN. (Dkt. Entry 7.) In support, Giant submitted the affidavit of Joseph S. Hodin, Giant's president. (Dkt. Entry 8, Exhibit A.) On the same day, defendants Town & Country and Affiliated Food moved to dismiss the plaintiffs' complaint for all of the same reasons as Giant, as well as contending that neither Town & Country nor Affiliated Food employed sufficient employees to fall under the provisions of WARN. (Dkt. Entry 12.) On July 18, 1996, I issued an Order advising the parties that their motions to dismiss would be treated as motions for summary judgment. (Dkt. Entry 23.) The parties were ordered to submit any evidentiary materials they deemed relevant to the issues raised in the defendants' motions. (Id.) The parties have made their respective submissions.

 Because I find that the plaintiffs instituted this action is a timely manner, I will deny the motions based on the limitations defense. As to Giant's claim that plaintiff Polacheck was terminated for cause and not protected under WARN, I will deny the motion for summary judgment as there is a genuine issue of fact as to whether Polacheck had been laid off or terminated for cause. As to Giant's claim that the stores were not a "single site of employment," I will deny the motion for summary judgment as there is a genuine issue of material fact as to whether a "single site of employment" existed. As to Town & Country's motion, I will grant the motion for summary judgment as plaintiff Butler admitted that he continued in his employment with Giant after the sale and there were no other plaintiffs affected by the closing of the one store bought by Town & Country. As to Affiliated Food's motion, I will deny their motion as a genuine issue of material fact exists on the "single site of employment" issue.

 I. BACKGROUND2

 Giant had been the owner of a substantial chain of grocery stores. At its zenith, Giant had twenty-one stores in operation. By 1993, Giant's business had declined to six grocery stores.

 On or about March 24, 1993, Giant sold its store located at 30 Hanover Street, Wilkes-Barre, Pennsylvania (Hanover store) to defendant Town & Country. Giant closed the Hanover store on or about April 17, 1993. There were fifteen persons employed at the Hanover store at the time of the closure.

 Pursuant to an agreement dated May 11, 1993, Giant sold four of its remaining stores to defendant Affiliated Food. The stores sold to Affiliated Food and the number of persons employed at each store were as follows: Honesdale Store 33 employees Route 6 Mall, Honesdale, PA Keyser Oak Store 22 employees Keyser Oak Plaza, Scranton, PA Kingston Store 27 employees 750 Wyoming Avenue, Kingston, PA Dunmore Store 19 employees 320 S. Blakely Street, Dunmore, PA

 The Dunmore, Honesdale, Kingston, and Keyser Oak facilities were closed on or about May 12, 1993. Because of the geographic distances between the stores, in order to attain the 50 terminated employees at a single site requirement under WARN, it is necessary to aggregate stores separated by a distance of at least 20 miles. *fn3"

 Each of the stores in question was included under a single collective bargaining agreement, with Giant's unionized employees being represented by the United Food & Commercial Workers Union, Local 72. Since 1965, the terms and conditions of employment for Giant's unionized employees have been negotiated by Giant's centralized management group, and have not been negotiated by individual store managers.

 Plaintiff Barone had worked for Giant for approximately 37 years, the last 17 of which as store manager of Giant's Dunmore store. *fn4" Presumably, his employment with Giant terminated on May 12, 1993 with the sale of the Dunmore store to Affiliated Food. Plaintiff Polacheck had worked for Giant for approximately 26 years, the last 18 of which as a store manager. *fn5" His employment with Giant was terminated on May 1, 1993, at which time he was working in Giant's Kingston store. Giant did not close the Kingston store until May 12, 1993. Plaintiff Butler was also a Giant employee who was covered by the collective bargaining agreement. Butler was working as the manager of Giant's Hanover store when it was sold to Town & Country in March of 1993. Thereafter, he served as store manager at the Kingston location until it was sold by Giant on May 12, 1993.

 It is undisputed that Giant is an "employer" as that term is defined in WARN. 29 U.S.C. § 2101(a)(1). It is also undisputed that Giant did not provide sixty days advance written notice of the closures of the five stores in question.

 II. DISCUSSION

 Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 130 L. Ed. 2d 503, 115 S. Ct. 590 (1994). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

 Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 329, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57. The affirmative evidence must consist of verified or documented materials. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

 A. Statute of Limitations under WARN

 There are no disputes as to the relevant dates in this action. On or about March 24, 1993, Giant sold its store located at Hanover Street, Wilkes-Barre, Pennsylvania to defendant Town & Country. On April 17, 1993, the Hanover store was closed. On May 11, 1993, Giant sold its remaining four regional stores to Affiliated Food. Those stores were closed on May 12, 1993. The plaintiffs filed this action on March 15, 1996, nearly three years later.

 While agreeing that Pennsylvania's limitation scheme is applicable to the WARN Act claims, see North Star Steel Co. v. Thomas, 515 U.S. 29, 132 L. Ed. 2d 27, 115 S. Ct. 1927 (1995), the parties dispute which Pennsylvania statute of limitations should be applied. The defendants argue that Pennsylvania's two year statute of limitations, which covers both personal injury and statutory penalty claims, applies to actions under WARN. *fn6" In this regard, the defendants argue that the most analogous cause of action is one for wrongful discharge, to which Pennsylvania has applied the two year limitation period. See Monkelis v. Scientific Sys. Servs., 653 F. Supp. 680, 683 (W.D. Pa. 1987); see also Mazzanti v. Merck & Co., Inc., 770 F.2d 34, 36 (3d Cir. 1985) (finding a two year statute of limitations applicable for claims of intentional ...


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