The opinion of the court was delivered by: Anita B. Brody, District Judge.
On June 25, 1979, plaintiff Larry Bickings was hired as a
Maintenance Mechanic by defendant Bethlehem Lukens Plate
("Lukens"). Bickings was employed by Lukens until March 7, 1985,
when he voluntarily quit his employment. On September 28, 1987,
Bickings was rehired by Lukens as a Machinist.
On April 28, 1996, Bickings suffered a heart attack and took a
leave of absence from his job at Lukens until June 3, 1996.
During Bickings's leave of absence, Lukens implemented a planned
reduction in its workforce and eliminated certain jobs.
Bickings's job was one of those eliminated under the planned
employment reduction. Bickings was notified of the layoff on June
3, 1996. The effective date of his termination was June 17, 1996.
At the time of his termination, Bickings had a salaried position
as a Lead Order Planner in the Maintenance Planning Department at
Lukens's facility in Coatesville, Pennsylvania.
When Bickings was notified of the termination on June 3, 1996,
Lukens offered him a severance package that included a severance
payment. One requirement of receiving the severance package was
that Bickings sign a General Release Agreement ("Release"). The
Release provided in pertinent part:
Def.Br. Ex. 6, Release, ¶ 1-3. The Release provides one
exception: "provided, however, that this release shall not apply
to benefits payable under the terms of any
employee benefit plan within the meaning of ERISA maintained by
the Company, except that it shall apply to any severance
Lukens gave Bickings 45 days to review the severance package
and the Release. In addition, Lukens permitted its
newly-terminated employees, including Bickings, to apply for new
positions within Lukens for six months after termination. Only
current Lukens employees and the newly-terminated employees were
allowed to apply for these positions.
On June 4, 1996, Bickings applied for the position of Machine
Shop Planner. In applying for this position, Bickings used the
internal application form used by Lukens employees. See
Def.Br., Ex. 4. At the interview for this position, agents of
Lukens asked Bickings about his health and disability and whether
he would suffer any future medical impairments as a result of his
disability. See Compl., ¶ 15. After the interview, Bickings was
told that he interviewed "well" for the position. See Pl.Br.,
Ex. A, Bickings Aff. ¶ 4.
On July 11, 1996, Bickings was notified by Lukens in writing
that he was not selected for the Machine Shop Planner position.
The letter stated that interviewers had rated him "acceptable" or
"more than acceptable" in some competencies. See Pl.Br., Ex. B.
When Bickings inquired about who had been selected for the
position, a Lukens representative told him that it was "someone
more qualified than you." See Tr. of Telephone Conference,
January 28, 2000. On July 22, 1996, Bickings accepted the
severance package offered by Lukens and selected to receive
payment in a lump sum. As required by the severance agreement,
Bickings also executed the Release on July 22, 1996. In August
1996, Bickings learned that an active Lukens employee, who had no
supervisory experience, was selected for the Machine Shop Planner
On March 26, 1999, Bickings brought claims against Lukens
alleging discrimination in failing to rehire him based on his
disability, in violation of the American with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human
Relations Act ("PHRA"), 43 P.S. § 951 et seq. Lukens moves for
partial summary judgment, on the basis that Bickings waived all
claims against Lukens by executing the Release. Bickings opposes
the motion on the basis that (1) the Release bars only claims
that arise out of his employment with Lukens, and that the
failure to rehire claim does not arise out of his employment, and
(2) the Release does not bar his claims because his actions
accrued after the Release was executed. Both parties agree that
(1) the Release is enforceable, and (2) in construing the
Release, Pennsylvania law applies. See Def. Br. at 8; Pl. Br.
Under Pennsylvania law, general releases are interpreted by the
rules of contract construction. See, e.g., Evans v. Marks,
421 Pa. 146, 218 A.2d 802 (1966); Three Rivers Motors Co. v. Ford
Motor Co., 522 F.2d 885 (3d Cir. 1975). In construing a release,
the foremost consideration is the intention of the parties. See,
Three Rivers Motors, 522 F.2d at 892. The intention of the
parties is gathered from (1) the language of the release and (2)
the circumstances surrounding the execution of the release. See,
e.g., Wenger v. Ziegler, 424 Pa. 268, 271, 226 A.2d 653 (1967).
First, a court must look to the language of the release. In
examining the language of a release, the terms of the release
will be given their ordinary meaning unless a different meaning
was clearly intended. See id. In addition, the language of the
release must be viewed in the context of the entire document.
See, e.g., Harrity v. Medical College of Pennsylvania Hosp.,
439 Pa. Super. 10, 21, 653 A.2d 5 (1994). Each part of the release
must be given effect. See id. Therefore, terms in one section
of the contract should not be interpreted to nullify or conflict
with other terms. See, e.g., Flatley v. Penman, 429 Pa. Super. 517,
521, 632 A.2d 1342 (1993).
If one clause appears to conflict with another, the clauses
should be construed, if possible, as consistent with one another.
Next, in determining the intent of the parties, a court must
inquire into the circumstances surrounding the execution of the
release. See, e.g., International Organization Master, Mates and
Pilots of America Local No. 2 v. International Organization
Masters, Mates and Pilots of America Inc., 497 Pa. 102, 112-3,
439 A.2d 621 (1981). The surrounding circumstances clarify the
intention of the parties and identify "matters which may be
fairly said to have been within the contemplation of the parties
when the release was given." Vaughn v. Didizian, 436 Pa. Super. 436,
648 A.2d 38 (1994). Only those matters within the
contemplation of the parties will be covered by the release.
See, e.g., Jordan v. SmithKline Beecham, Inc., 958 F. Supp. 1012,
1019 (E.D.Pa. 1997) (citing Restifo v. McDonald, 426 Pa. 5,
230 A.2d 199 (1967)). Generally, a release will not bar a
claim that accrued after the execution of the release. See,
e.g., Jordan, 958 F. Supp. at 1019; Restifo, 426 Pa. at 11,
230 A.2d 199.
Although the effect of a release will be limited to those
matters within the contemplation of the parties at the time the
release was executed, "a party cannot evade the clear language of
the release by contending that he did not subjectively intend to
release the claim at issue." Id. at 1020. Furthermore, a
release that bars unknown claims will be enforced, even if a
party claims that it was unaware of the matter at the time the
release was executed. See id.
1. The language of the Release
In analyzing the effect of the Release, my first order of
business is to construe the language of the Release. The Release
provides in pertinent part:
I [Larry Bickings] waive, release and forever
discharge Lukens, Inc. . . . of and from any and all
claims . . . of any kind . . . whether known or
unknown, whether suspected or unsuspected, including
without limitation, any and all claims for . . .
discrimination based on . . . handicap and/or
disability . . . or otherwise (including any claims
under . . . the Americans with Disabilities Act, . .
. and the Pennsylvania Human Relations Act), or any
other claim based on my employment or the termination
thereof that I ever had, now have or may have or
claim to have in the future against [Lukens] for or
by reason or any cause, matter or event whatsoever,
from the beginning of time to the date of this
General Release Agreement.
Release, ¶ 3.
Reading the plain meaning of the language of the Release, the
parties intended a general settlement of all of Bickings's claims
against Lukens. The scope of the Release includes "any and all
claims" against Lukens. The Release then specifically includes
claims for discrimination based on handicap and/or disability,
and violations of the ADA and the PHRA. Moreover, the Release
specifies that these claims were waived "without limitation." The
Release also includes all "unknown" and "unsuspected" claims
against Lukens. Claims "for or by . . . any cause, matter, or
event whatsoever" are also barred. The only exception to the
broad scope of the Release concerns claims for Bickings' employee
benefit plan under ERISA. The ordinary meaning of the language of
the Release reveals that the Release was intended to be a general
settlement of all of Bickings's non-ERISA claims against Lukens,
including, of course, Bickings's claims for discrimination for
failure to rehire.
2. The circumstances surrounding the execution of the Release
The circumstances surrounding the execution of the Release also
evidence that the parties contemplated a general settlement of
all of Bickings's claims against Lukens, including a claim for
discrimination for failure to rehire based on disability.
At the time Bickings executed the Release, he was already aware
that he had been rejected for the new job. At the interview for
the new position, he had been questioned about his health and
disability. Also, he was asked whether he would suffer any future
medical impairments as a result of the disability. There is
nothing in the record to suggest that Lukens withheld any
information or failed to respond to any inquiries about who was
hired in lieu of Bickings before the release was signed. All we
know is that at some time Bickings was told that someone more
qualified than he was hired although Bickings had been rated well
for the position. At the time he signed the Release, Bickings
knew that he had been rejected for the job, that inappropriate
inquiry had been made about his health, and that he had been
rated well for the position. Thus, when the Release was executed,
Bickings was in a position to know that Lukens may have
improperly based its decision on his disability. The language of
the Release and the circumstances surrounding the execution of
the Release establish that the Release precludes a claim by
Bickings against Lukens for discrimination for failure to rehire.
3. Bickings's contention that the Release waives only his claims
against Lukens that are based on his "employment or
Bickings contends that the Release does not bar his claims
against Lukens because the Release bars only claims that are
based on Bickings's employment with or termination from Lukens
and that the failure to rehire claim was not based on his
employment or termination. Bickings construes the phrase "based
on my employment or the termination thereof" to limit the scope
of all the claims listed in Paragraph 3 of the Release and states
that "[t]he plain language of the release indicates that the
Plaintiff agrees to `release and forever discharge Lukens
Incorporated . . . of and from any and all claims . . . based on
[his] employment or the termination thereof . . .'." Pl.Br. at 9.
Under this construction, the Release would only preclude his
claims against Lukens under the ADA and the PHRA if they were
based on his prior "employment or termination." According to
Bickings, his claim is not based on his "employment or
termination," but for Lukens's discrimination in failing to
rehire him based on his disability. Therefore, Bickings contends
that the Release does not preclude his claim against Lukens.
Bickings's construction would violate the instruction to
construe clauses, if possible, as consistent with one another and
would impermissibly result in inconsistent terms in the Release.
The Release clearly states that Bickings waived "any and all
claims" against Lukens. The Release also included claims "for or
by . . . any cause, matter, or event whatsoever." Furthermore,
the Release expressly included claims for violations of the ADA
and the PHRA "without limitation." Although claims under the ADA
and the PHRA are expressly waived without limitation, Bickings's
construction would impose a limitation on these waiver.
Construing the phrase "based on my employment or the termination
thereof" to modify only the phrase "any other claim" is more
consistent with the other express terms of Paragraph 3 of the
Release. Therefore, Bickings's claims under the ADA and the PHRA
are waived without limitation.
Furthermore, even granting plaintiff's narrow interpretation of
the Release, there is no reason to conclude that, in the broad
picture of the relationship of the parties, Lukens's decision to
not rehire Bickings did not come within the meaning of his
"employment or the termination thereof." Bickings was permitted
to apply for that position only because he was a recently
laid-off Lukens employee. In applying for the job, Bickings used
the internal application form that is used solely by Lukens for
its employees. See Def.Br., Ex. 4. These facts further support
the conclusion that the failure to rehire claim comes within the
ambit of the Release.
4. Bickings's contention that his claim for discrimination based
on failure to rehire is not barred because it accrued after the
execution of the Release
Bickings also contends that the Release does not bar his claims
for discrimination in failing to rehire based on disability
because his claim did not accrue until after the Release was
executed. According to Bickings, his claims for discrimination
accrued "when he reasonably learned he was injured by the
Defendant's selection of another lesser-qualified employee."
Pl.Br. at 8. Because he learned of the selection of the
lesser-qualified applicant for the Machine Shop Planner position
in August 1996, Bickings argues that his claim for discrimination
accrued after the execution of the Release and, therefore, his
claim for failure to rehire was not barred by the Release. See
As a threshold matter, it is immaterial whether Bickings's
claim accrued before the Release was executed because the Release
precludes claims that are "unknown" and "unsuspected." Release, ¶
3. Under Pennsylvania law, a release that bars unknown claims
will be enforced, even if a party claims that it was unaware of
the matter at the time the release was executed. See, e.g.,
Three Rivers Motors, 522 F.2d at 895-96; Jordan, 958 F. Supp.
at 1019 (citing Restifo v. McDonald, 426 Pa. 5, 230 A.2d 199
(1967)). In Three Rivers Motors, the Third Circuit determined
that a general settlement can waive all claims, even when the
releasing party is not aware of a particular claim. See id. The
plaintiff in Three Rivers Motors was the operator of a failing
Ford automobile franchise. Ford agreed to repurchase the
inventory of the failing dealership if the plaintiff executed a
general release of claims against Ford. In signing the release,
the plaintiff waived "all manner of action . . . whatsoever in
law . . . (which the plaintiff) . . . ever had, now have or which
they . . . hereafter can, shall or may have, upon or by reason of
any matter, cause or thing whatsoever" against Ford. Three years
later, the plaintiff brought antitrust claims against Ford,
alleging illegal price-fixing that injured his business. Ford
moved to dismiss the plaintiff's complaint on the basis that the
plaintiff had waived all of his claims against Ford by executing
the release in the repurchase of Three Rivers' assets. The
district court found that, prior to signing the release, (1) the
plaintiff was unaware that Ford had engaged in alleged
price-fixing, and (2) the parties did not discuss the possibility
of any antitrust violation. Furthermore, the district court found
that the release did not specifically include "known and unknown
claims." From these findings, the district court went on to hold
that the plaintiff's antitrust claim was not waived by the
release because the parties did not intend that the release bar
an antitrust action.
The Third Circuit accepted the district court's finding that
plaintiff did not know of the specific possibility of an
antitrust action when he signed the release and declared that
"[t]his alleged lack of knowledge is not sufficient, however, to
modify clear and unambiguous terms of a written contract." Id.
at 894. Citing Pennsylvania law, the Third Circuit stated:
[G]eneral words of a release will not usually be
construed to bar a claim which had not accrued at the
date of the execution of the release , nor a claim,
the existence of which was not known to the party
giving the release . But, the rule is merely one of
construction, and is never applicable to bar a claim
where the very language used by the parties excludes
its use for that purpose.
Id., at 896 (citing Rapp v. Rapp, 6 Pa. 45; Cockcroft v.
Metropolitan Life Insurance Co., 125 Pa. Super. 293, 189 A. 687).
The Third Circuit then determined that the parties unambiguously
intended that the release was a general settlement of all
accounts and that unknown claims were barred by the terms of the
release, even though the release did not expressly include the
terms "known and unknown" claims. Because the parties intended to
waive all claims between them, the plaintiff's
antitrust claim against Ford was dismissed. See id. at 897.
Like the waiver in Three Rivers Motors, the Release executed
by Bickings is a general settlement of all claims against Lukens.
Bickings's Release is even more explicit than the release at
issue in Three Rivers Motors because it expressly precludes
claims that were "unknown" and "unsuspected." Release, ¶ 3. Under
the express language of the Release, therefore, Bickings's action
for discrimination against Lukens is barred even if Bickings was
unaware of the claim at the time the Release was executed.
Although the determination that Bickings's Release included
unknown claims is dispositive of the issue, I will also address
the issue of when his claim accrued. In determining when
Bickings's claim for discrimination accrued, the Third Circuit's
analysis in Oshiver v. Levin, Fishbein, Sedran & Berman is
instructive. See 38 F.3d 1380 (3d Cir. 1994). In Oshiver, a
female attorney (Oshiver) was employed at a law firm as an hourly
attorney. On April 10, 1990, the firm dismissed her because,
according to the firm, there was insufficient work to sustain her
position. The firm told her that it would contact her if either
an hourly or an associate position became available. On May, 21,
1991, Oshiver learned that the firm had hired a male attorney to
fill her vacant position shortly after her dismissal. In January,
1992, Oshiver learned that the firm had hired a male attorney as
an associate. In December, 1992, Oshiver sued the law firm for
discrimination based on a wrongful discharge and failure to hire,
both in violation of Title VII and the PHRA. The defendant moved
to dismiss the complaint because the statute of limitations on
her claims had expired. The district court granted the
defendant's motion and dismissed the claims.
On appeal, the Third Circuit noted that the accrual of a claim
is governed by the "discovery rule," id. at 1386, and that,
under the discovery rule, a claim accrues upon "awareness of
actual injury, not upon awareness that this injury constitutes a
legal wrong." Id.; see also, Dixon v. Dalton, 985 F. Supp. 584,
586 (E.D.Pa. 1997); Cada v. Baxter Healthcare Corp.,
920 F.2d 446 (7th Cir. 1990); Merrill v. Southern Methodist Univ.,
806 F.2d 600 (5th Cir. 1986). The awareness of an injury for accrual
purposes occurs when a plaintiff knew or should have known of the
injury and that the injury had been caused by another party's
conduct. See id. at 1386. In determining whether a party
"should have known" of an injury, the discovery rule requires
that the party exercise reasonable diligence in discovering the
injury. See id. Applying the discovery rule, the Third Circuit
held that Oshiver's claim for wrongful discharge accrued when the
law firm informed her of her discharge on April 10, 1990. See
id. at 1391. The Third Circuit emphasized that "[whether]
Oshiver was deceived regarding the underlying motive behind her
discharge is irrelevant for purposes of the discovery rule."
Although Oshiver's claim for wrongful discharge accrued on
April 10, 1990, the Third Circuit remanded the claim to determine
whether the statute of limitations for her claim was extended
under the doctrine of equitable tolling. According to the
equitable tolling doctrine, the statute of limitations stops
running after the accrual of a claim when a defendant actively
misleads the plaintiff regarding the plaintiff's cause of action.
See id. at 1387. By giving the plaintiff more time to file suit
when a defendant has actively misled the plaintiff, equitable
tolling prevents the defendant from benefitting from its own
wrongdoing. In Oshiver, the court identified three factual
issues that must be resolved to determine whether Oshiver should
benefit from the equitable tolling doctrine: "(1) whether the
firm effectively misled Oshiver with respect to her
discriminatory discharge cause of action; (2) if so, whether a
person such as Oshiver, with a reasonably prudent regard for her
rights, would have been misled by the firm's communication; and
(3) if so, whether
a person in Oshiver's position with a reasonably prudent regard
for her rights would have learned of the firm's deception
For Oshiver's failure to hire claim, the Third Circuit held
that Oshiver did not exercise reasonable diligence in discovering
that she was not selected to be an associate.
Had Oshiver exercised reasonable diligence — had she,
for example, telephoned the law firm periodically to
monitor the status of her own outstanding associate
application, or checked with the firm in May of 1991
after learning that it had hired an hourly attorney
shortly after discharging her — she would almost
certainly have discovered the associate hiring much
Id. Because Oshiver did not investigate whether an associate
had been hired, "the discovery rule affords Oshiver no relief in
connection with the timing of the filing of her failure to hire
Under the discovery rule applied in Oshiver, Bickings's claim
for discrimination for Lukens's failure to rehire based on
disability accrued on July 11, 1996. On July 11, 1996, Bickings
became aware that he had been injured because he learned that his
application was rejected. In addition, on that date he was aware
that Lukens caused that injury. Therefore, Bickings's claim for
discriminatory failure to rehire accrued on July 11, 1996.
Because his claim accrued before the Release was executed on July
22, 1996, the Release precludes Bickings's claim for
discrimination based on failure to rehire.*fn2
I have determined that the ordinary meaning of the language of
the Release and the circumstances surrounding its execution
require a finding that Bickings and Lukens intended to preclude
Bickings's claim for discrimination for failure to rehire based
on disability. Therefore, I will grant defendant Lukens's motion
for partial summary judgment.
AND NOW, this 31st day of January, 2000, I ORDER that
defendant Lukens's motion for partial summary judgment (Docket
Entry # 9) is GRANTED.