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CLARKE v. WHITNEY

August 22, 1997

GEORGE C. CLARKE, Plaintiff,
v.
JANI B. WHITNEY and TRI-STAR PACKAGING, INC., Defendants.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 AUGUST 22, 1997

 On February 27, 1995, Plaintiff George C. Clarke ("Plaintiff") filed a three-count Complaint against Defendants Jani B. Whitney and Tri-Star Packaging, Inc. ("Whitney" and "Tri-Star" respectively or "Defendants" collectively) alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951 et seq., and the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 Pa. Cons. Stat. Ann. § 260.1 et seq. We dismissed the ADA and PHRA claims against Defendant Whitney by Order dated December 12, 1995, see 907 F. Supp. 893 (E.D. Pa. 1995), and awarded summary judgment to Defendant Tri-Star on the ADA claim by Order dated July 25, 1996. See, Clarke v. Whitney, 934 F. Supp. 148 (E.D. Pa. 1996). On September 9, 1996, Plaintiff filed a Second Amended Complaint pleading subject matter jurisdiction pursuant to 28 U.S.C. § 1332. The Second Amended Complaint asserts the PHRA claim against Tri-Star in Count I and the WPCL claim against both Defendants in Count II.

 On December 16, 1996, after Whitney failed to appear for her deposition in compliance with this Court's orders dated October 30, 1996, and November 26, 1996, we granted a default judgment against Defendants on the Second Amended Complaint pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure. See, Clarke v. Whitney, 169 F.R.D. 623 (E.D. Pa. 1996). We also granted Defendants' initial counsel leave to withdraw his appearance by Order dated this same day. On January 8, 1997, Lawrence S. Markowitz, Esq., entered his appearance as Defendants' counsel and on February 6, 1997, we allowed Defendants to file out of time a Motion for Reconsideration of the entry of default judgment. We denied the Motion for Reconsideration on April 15, 1997, finding that Defendants had failed to offer an adequate explanation for Whitney's refusal to appear for her deposition. All well-pleaded allegations of the Second Amended Complaint are therefore deemed admitted and the only issue that remains for our decision is damages. On April 21, 1997, this Court held a hearing to determine the damages to be awarded for Plaintiff's PHRA and WPCL claims. *fn1" The parties submitted their proposed findings of fact and conclusions of law on June 5, 1997, and June 17, 1997, thus this issue is ripe for our decision.

 FINDINGS OF FACT

 The Parties

 1. Plaintiff is an adult individual who resides in Lancaster, Pennsylvania. He was born on February 6, 1935, and is married to Anne B. Clarke ("Mrs. Clarke"). Rec. at 9, 115.

 2. Defendant Whitney is an adult individual who resides in Jupiter Island, Florida. She is the owner of Lionel Industries of South Florida ("Lionel") and Tri-Star. Id. at 130. She is married to Joel Goldberg ("Goldberg"). Id. at 131.

 3. Defendant Tri-Star is a Florida corporation with its principal place of business in Palm Beach Gardens, Florida. Defs.' Ex. 10-13, 15. Tri-Star began operating in 1990 as a distributor of corrugated products such as egg cartons to businesses and farms in the northeast and mid-Atlantic region. Id. at 131, 133, 153. Lionel engages in the same business in states south of Virginia. Id. at 131.

 Tri-Star's Business Record

 4. Tri-Star commenced operations in logo. That year, it earned gross sales of $ 1,030,740, but suffered a net loss of $ 94,455. Id. at 135; Defs.' Ex. 10.

 5. Despite an increase in gross sales to $ 3,908,178 in 1991, Tri-Star's net profit was only $ 19,318 for the year. Rec. at 135-36; Defs.' Ex. 11.

 6. In 1992, Tri-Star reported gross sales of $ 3,730,114 and a net profit of $ 27,588. Rec. at 137; Defs.' Ex. 12.

 7. In 1993, despite a decrease in gross sales to $ 2,318,670, Tri-Star reported a profit of $ 223,441. Rec. at 138; Defs.' Ex. 13. Only $ 277,011 of the sales and $ 2,227 of the profit were realized in the fourth quarter of 1993, after Plaintiff had been discharged. Rec. at 139; Defs.' Ex. 14.

 8. In 1994, Tri-Star reported gross receipts in the amount of $ 989,960 and a net loss of $ 78,291. Id. at 140; Defs.' Ex. 15.

 9. At some point Whitney became convinced that Tri-Star was not a profitable enterprise and decided that Tri-Star would cease operating as a distributor of corrugated packaging products and begin doing business as a freight hauler. Rec. at 141-42, 152. Tri-Star is currently engaged exclusively in the business of hauling freight. Id. at 155.

 10. Lionel, which continues to operate as a distributor of corrugated products in the southeast, has also taken over some of Tri-Star's accounts in other areas of the country. Id. at 143, 170. Plaintiff would not have accepted a position with Lionel in Florida. Id. at 143, 196.

 Plaintiff's Employment at Tri-Star

 11. Plaintiff was hired by Tri-Star in 1990 as a salesman. Id. at 132. By 1993, Plaintiff was spending four days a week on the road doing outside sales and one day a week at Tri-Star's Lancaster warehouse completing paperwork and other administrative tasks. Id. at 48-49.

 12. On August 30, 1993, Plaintiff suffered a heart attack in the course of a business meeting, though he did not realize this fact until he entered Lancaster General Hospital the following day. Plaintiff remained in the hospital for a week to ten days. Id. at 23-24.

 13. Plaintiff returned to work in the last week of September and began working one hour per day. Id. at 26.

 14. On September 30, 1993, Plaintiff signed and filed an application for unemployment benefits with the Lancaster City Job Center in which he declared under penalty of perjury that he had been fired. Id. at 46-47; Defs.' Ex. 1.

 15. By October 5, 1993, Plaintiff was working up to two or three hours per day for Tri-Star. Rec. at 26.

 16. On October 5, 1993, Whitney informed Plaintiff by telephone that his employment at Tri-Star ...


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