Opinion
CIVIL ACTION NO. 01-CV-854
March 22, 2004
MEMORANDUM ORDER
Plaintiff Robert E. Auerbach, M.D. ("Plaintiff) has filed the instant lawsuit alleging that his former employers, Defendants Kantor — Curley Pediatric Associates, P.C. ("KCPA"), James G. Kantor, D.O. ("Kantor") and John F. Curley, D.O. ("Curley") (collectively "Defendants"), breached his employment contract when they fired him on November 17, 2000. Plaintiff's Complaint seeks remedies for failing to provide plan documents in violation of ERISA (Count I), loss of benefits in violation of ERISA (Count II), common-law breach of contract (Count III), and common-law fraud (Count IV). Presently before the Court is Defendants' Motion for Summary Judgment (Doc. 26). For the following reasons, we will grant Defendants' Motion for Summary Judgment.
Plaintiff's Complaint also alleged that his pension benefits had not been paid (Count I). However, after those benefits were paid in full, Plaintiff's attorney, Steven Petersen, consented to the dismissal with prejudice of Plaintiff's pension benefits claim. (Def. Appendix II, Ex. 1, May 7, 2002 Eetter).
The parties agree that there is no material dispute of fact and that we should be able to interpret the contract at this stage of the proceeding. See Pl. Resp. 3 and n. 1 (While Plaintiff did not file a Motion for Summary Judgment, in his brief, he stated that there were sufficient undisputed facts for the Court to enter summary judgment on his behalf and urged the Court to do so.). As we are considering Defendant's Motion for Summary Judgment, we have interpreted any of the disputed facts in favor of Plaintiff. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255(1986).
Plaintiff was employed as a pediatric physician by Defendant KCPA, which at all times relevant hereto was a corporation owned by Defendants Kantor and Curley. Plaintiff commenced his employment pursuant to a written Employment Agreement, which was signed by the parties on August 27, 1993. (Compl., Ex. A, Employment Agreement.) Under the Employment Agreement, Plaintiff's employment period was to start on September 15, 1993, and end on September 14, 1994. (Id. at 1.) Plaintiff was entitled during that time period to receive an annual salary of $125,000 and to participate in health and pension benefit plans. (Id. at 5.) The Employment Agreement included the following integration clause, requiring all modifications and amendments to be in writing:
Modifications and Amendments.
This Employment Agreement in writing represents the complete and full agreement and understanding of the parties hereto with respect to the subject matter set forth herein or necessarily implied hereby and supercedes all prior Employment Agreements or arrangements by and between the parties hereto. There are no promises, undertakings or representations other than as set forth herein. This Employment Agreement and any exhibits hereto shall not be modified, including the Annual Salary, unless in writing signed by both parties hereto.
(Id. at 14 (emphasis added).) The Employment Agreement also stated that the agreement "shall terminate immediately upon the occurrence of any of the following events." The first listed event is "(a) As provided in Paragraph 2 hereof." Paragraph 2 refers to the termination of the employment period on September 14, 1994. (Id. at 8.)
The parties extended Plaintiff's employment by entering into a series of eight separate written amendments that were signed by Plaintiff and Kantor, on behalf of KCPA. (Pl. Resp. Exs. F, H, L, N, P, R, U, W, Y.) It is undisputed that these amendments were often signed after the Employment Agreement contract period related to each amendment had expired, although the parties are unsure which amendments or how many of the amendments were signed after such a hiatus. Most of the amendments extended Plaintiff's contract for one-year periods, although one amendment was for six months and two amendments were for three months each. Several of these amendments changed Plaintiff's rate of pay. (Def. Memo. of Law at 8; Pl. Resp. at 7 and Ex. B, Kantor Dep. at 95-96.) All of these amendments were prepared by KCPA's lawyers. (Answer ¶ 3.) Generally, after a conversation with an employee, Kantor would request that the attorney prepare a draft amendment. (Pl. Resp. Ex. B, Kantor Dep. at 25.) After Kantor approved the draft, the parties would sign the amendment. (Id. at 52.) When KCPA's lawyers drafted the amendments, instead of leaving a blank for the parties to insert the date when they signed the document, the lawyers filled in a date. (Pl. Resp. at 6-7.) Therefore, the dates on the signed amendments that state that they were "made this" date or were "made as of some date are incorrect. There is no exact information about when the amendments were actually signed. (Id.) The amendments were backdated so that they would retroactively cover a period of time that always started with the termination of the previous agreement regardless of when the amendment was signed. (Pl. Resp. Ex. B, Kantor Dep. at 30-1.) During the interim period between the termination of one written agreement and the signing of the next amendment, the parties continued to conduct their activities under the terms of the previous contract, including the rate of compensation. (Id. at 78-79.) Employee Barbara Thomson testified in her deposition that Kantor had told office personnel that "just because the contract wasn't issued, a new contract wasn't issued, didn't mean that their contract wasn't enforced." (Def. App. II, Ex. 6 at 25.) Plaintiff's last three amendments each extended the contract for a period of one year, the last one ending on September 14, 2000. While the parties did not recall the length of time between the explanation of the agreements and the written contract amendments, there is documentary evidence that suggests that there were gaps with the last three amendments as follows: in the fall of 1997, a gap of more than six months, in the fall of 1998, a gap of 15 days, and in the fall of 1999, a gap of almost two months. (Pl. Resp. Exs. T, V, X.) In addition, the 1997-1998 amendment altered the language of the contract time period and that alteration was adopted by the later amendments, which resulted in the final amended written contract stating: "The employment period has continued uninterrupted since September 15, 1993 and shall terminate on September 14, 2000 unless extended by the parties." (Pl. Resp. Exs, U, W, Y.)
Defendants have submitted nine amendments, one of which is unsigned, but is referred to within a later signed amendment. (Def. Appendix I, Pl. Dep. Ex. D-6 and D-7.) Plaintiff has noted that the amendment was not executed but he has stated that he finds this fact immaterial to summary judgment. (Pl. Resp. at 4 n. 3.)
Although there is no evidence on the subject, apparently when the rate of compensation increased, the employee was entitled to a payment of the retroactive increase.
Defendants dispute this testimony; however, we will construe this evidence in favor of Plaintiff, the nonmoving party.
In the summer of 2000, Curley and Kantor began discussing the termination of Plaintiff's employment as of September 14, 2000, the date his contract was to expire. (Pl. Resp. Ex. C, Curley Dep. at 38-39.) In those discussions, Curley and Kantor discussed issues regarding Plaintiff's performance and KCPA's financial situation. They also discussed how such a termination would occur and whether they would need to provide Plaintiff with any notice, if they decided to end the relationship. (Id. at 39.) Curley and Kantor made their decision not to present Plaintiff with another contract amendment in October or early in November of 2000. (Id. at 31; Pl. Resp. Ex. B, Kantor Dep. at 103-104.) They made this decision based on financial considerations, because the volume of patients was down and Plaintiff's productivity was not sufficient to cover the cost of his salary. (Id. at 105, 114.) Curley and Kantor decided not to tell Plaintiff that they were considering or had decided to fire him until the day of his termination on November 17, 2000. (Id. at 115-6; Pl. Resp. Ex. C, Curley Dep. at 40.) They decided not to give Plaintiff any advance notice of the termination because they were concerned that Plaintiff might leave immediately after the termination and leave the practice shorthanded. (Id. at 49-50.) During the prior spring, the practice had decided to hire a new doctor, Dr. Montgomery, and Curley and Kantor wanted to coordinate Plaintiff's leaving with Dr. Montgomery's arrival in order to ensure the continuity of services to their patients. (Id. at 50.) Curley was also concerned that if Plaintiff was given notice of his termination, he might not be personable and polite to patients, especially considering some past complaints from patients about Plaintiff's attitude. (Id. at 31, 34-36.)
On November 17, 2000, in his capacity as Vice President of KCPA, Curley terminated Plaintiff's employment, without providing Plaintiff with any explanation. (Pl. Resp. Ex. A, Auerbach Aff. ¶ 7.) Plaintiff's salary and his benefits were terminated as of November 17, 2000, and Defendants gave Plaintiff a check for two weeks salary as "severance pay." (Compl. Ex. C, "Termination of Employment" letter.)
While Plaintiff's memory surrounding his requests for information about his ERISA benefits is somewhat vague, Plaintiff alleges that he made two separate oral requests for this information, one around February 12, 2001, and one around May 11, 2001. Neither of these requests were made in writing and neither of the requests were made to Karen Kantor, the administrator of KCPA's plan who was responsible for providing such documents to the participants. Plaintiff recalls receiving a June 16, 2000 letter from Karen Kantor that provided some information about the pension plan and stated: "As always, if you have any questions about the pension and profit sharing plans, feel free to call me. I'll try to answer your questions on the spot, or will get the answer to you!" (Def. App. I, Pl. Dep. at 109; D-16.) KCPA does not have a procedure for the handling of pension plan documents and has no evidence that it ever provided Plaintiff with a summary plan description before the filing of the instant lawsuit. (Pl. Resp., Ex. D, K. Kantor Dep. at 88-89.)
Plaintiff alleges that around February 12, 2001, approximately two months after he had been terminated, he asked Barbara Thompson, the office manager of KCPA's Memphis Street office, and Kay Burton, KPCA's overall office manager, if they had any documents pertaining to the pension plan. (Def. App. I, Pl. Dep. at 197-8.) Plaintiff does not recall whether he asked this over the telephone or in person. (Id.) Plaintiff filed the instant lawsuit eight days later, on February 20, 2001. On February 24, 2001, Plaintiff received a photocopy of an outdated summary plan description from Ms. Thompson, who had copied her personal copy of the 1996 plan. (Pl. Resp. at 20 and Ex. A, Auerbach Aff. ¶ 10.) On March 15, 2001, KCPA provided Plaintiff with a summary plan description for his pension plan and with the most recent summary annual report for the pension plan. (Def. App. II, Ex. 1, Price Aff.). That summary plan description provided some incorrect information by identifying that James G. Kantor, D.O., P.C. is the plan administrator and by listing a former office address that is no longer used by KCPA. (Pl. Resp. Ex. D, Kantor Dep. at 83-85.) Around May 11, 2001, Plaintiff went to the Warminster office accompanied by his attorney and asked Ms. Burton for a copy of the summary plan description of the pension plan or profit-sharing plan and for annual reports. (Def. App. I, Pl. Dep. at 91, 98, 101-102.) Ms. Burton did not provide any documents to Plaintiff. On May 15, 2001, in response to that request, KCPA's counsel sent to Plaintiff the complete text of the Money Purchase Pension Plan with Amendment No. 1, the complete text of the Profit Sharing Plan, the most recent Annual Returns for the pension plan and profit sharing plan, the Summary Annual Reports for the pension plan (2000) and the profit sharing plan (1999 and 2000), and the Summary Plan Description for the Profit Sharing Plan. (Def. App. II, Ex. 1, Price Aff. May 15, 2001 letter.)
II. LEGAL STANDARD
Summary judgment is appropriate "if 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 that the moving party is entitled to judgment as a matter of law." FED. R. CIv. P. 56(c). A defendant moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the plaintiff's legal claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986). The burden then shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The nonmoving party . . . cannot `rely merely upon bare assertions, conclusory allegations or suspicions to support its claim.'" Townes v. City of Phila., No. Civ. A. OO-CV-138, 2001 WE 503400, at *2 (E.D. Pa. May 11, 2001) (quotingFireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. When deciding a motion for summary judgment, the court must construe the evidence and any reasonable inferences therefrom in the non-movant's favor. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.
III. DISCUSSION
A. Breach of Contract
The primary dispute in the instant case concerns how the Court should interpret the parties' relationship after the last written amendment to the Employment Agreement expired on September 14, 2000. At that time, the parties continued to act pursuant to the terms of their previous written amendment and did not have any conversations about their future relationship. Plaintiff contends that under Pennsylvania contract law, when an employment contract expires and the parties continue their relationship under the terms of that contract, the contract is presumptively renewed for the same period of time as the original contract. Plaintiff argues that because he continued to work after his contract expired on September 14th and because Defendants are unable to produce any evidence to rebut the presumption of renewal, the Court should conclude that the parties renewed their contract for a seven-year period, which was the period of time stated on the amended Employment Agreement. Plaintiff contends that under the Employment Agreement, Defendants could only fire Plaintiff for a one of the reasons specifically listed. Since the Agreement did not permit Defendants to fire Plaintiff due to financial considerations, the termination constitutes a breach of the implied contract.
Defendants argue that because their contract required that all amendments be in writing, at the termination of the last written amendment on September 14, 2000, the parties ended their contractual relationship and Plaintiff became an employee at will. Defendants contend that the contract's integration clause and the parties course of dealing provide evidence that rebuts the presumption that the contract renewed. Defendants contend that because Plaintiff was an employee at will, they were able to fire Plaintiff at any time for any reason and without notice.
Generally, Pennsylvania courts presume that when two parties enter into an employment contract for a fixed period of time and then after the period has expired continue acting within the terms of their contract without any discussion of their relationship, the parties intend to renew their contract for the same period of time as the original agreement on the same terms as the original agreement. Smith v. Shallcross, 69 A.2d 156, 158-59 (Pa.Super. 1949) (citing 1 WILLISTON, CONTRACTS § 90; 35 AM. JUR., Master and Servant §§ 15, 19, and 56; C.J.S. Master and Servant §§ 8-10); 30 C.J.S. Employer — Employee § 29 (2002); see also Burge v. Western Pa. Higher Educ. Counsel. Inc., 570 A.2d 536, 538 (Pa.Super. 1990) (citing Shallcross); Kapustik v. Sch. Dist. of the City of Arnold, 111 A.2d 169, 171-72 (Pa.Super. 1955) (same). Without evidence of contrary intent, courts consider such a contract to be impliedly renewed by the actions of the parties. Id. The Third Circuit has discussed this presumption, as follows:
Thus, general principles of contract law teach us that when a contract lapses but the parties to the contract continue to act as if they are performing under a contract, the material terms of the prior contract will survive intact unless either one of the parties clearly and manifestly indicates, through words or through conduct, that it no longer wishes to continue to be bound thereby, or both parties mutually intend that the terms not survive. The rationale for this rule is straightforward: when parties to an ongoing, voluntary, contractual relationship, which by its nature generally implies that some mutually agreed upon rules govern its configuration, continue to behave as before upon the lapse of the contract, barring contrary indications, each party may generally reasonably expect that the lapsed agreement's terms remain the ones by which the other party will abide.Luden's Inc. v. Local Union No. 6 of the Bakery. Confectionery Tobacco Workers' Int'l Union of Am., 28 F.3d 347, 355-56 (3d Cir. 1994).
This presumption of renewal can be rebutted by showing that the parties did not actually intend to renew the contract. For example, "`evidence that the parties were negotiating a new contract rebuts the presumption by negating the inference that either party believed the contract had been renewed.'" Deutsche Fin. Serv. Corp. v. BCS Ins. Co., 299 F.3d 692, 697 (8th Cir. 2002) (quoting Consol. Bearings Co. v. Ehret — Krohn Corp., 913 F.2d 1224, 1230 (7th Cir. 1990)). Where the facts demonstrate that the parties did not intend to renew their contract, the contract will not be renewed by implication. See, e.g., Muchin v. Lincolnshire Bath Tennis Club. Inc., Civ. A. No. 91-746, 1993 WL 98208, at *8 (N.D. Ill. Mar. 31, 1993) (granting summary judgment for defendants based on undisputed evidence that defendants refused to enter into another contract, which showed that the parties were neither negotiating a new contract nor renewing their old contract and that instead the contract had simply ended).
These cases do not require that negotiations be formal discussions about a new contract. Instead, they consider the term negotiations to refer to any "evidence that a party is on notice that the contract will not be renewed." Consol. Bearings Co. v. Ehret — Krohn Corp., 913 F.2d 1224, 1230 (7th Cir. 1990).
In the instant case, the strongest evidence that the parties did not intend to automatically renew their contract by their inaction is found in the terms of the original written contract itself. The contract had an express, unambiguous term requiring that any further modifications and amendments be in writing and signed by both parties. Not only does Pennsylvania contract law consider such clear contractual language dispositive, the parties in their course of dealing appeared to abide by that language. It is undisputed that the parties amended their contract at least eight times during the seven-year relationship, each time with signed, written amendments.
"Pennsylvania contract law begins with the `firmly settled' point that `the intent of the parties to a written contract is contained in the writing itself.'" Bohler — Uddeholm Am., Inc. v. Ell wood Group. Inc., 247 F.3d 79, 92 (3d Cir. 2001) (citations omitted). However, when a contract, like the present one, is facially unambiguous, Pennsylvania law permits courts to also consider extrinsic evidence, such as the parties previous conduct with each other, to determine whether there is a latent ambiguity in the contract that must be clarified. Id. at 94 (quotingDuquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 614 (3d Cir. 1995).
Plaintiff argues that because those amendments often came sometime after the earlier contract or amendment had expired, the amendments indicate that the parties understood themselves to be bound to the earlier contract after the contract had expired. Under Plaintiffs interpretation, each time the contract expired, the parties understood themselves to be bound to a renewed contract on the same terms. When the written amendments were signed, the parties merely amended the implied contract that they were acting within.
We find that the more plausible interpretation of these same facts yields the conclusion that the parties did not intend to renew their contract. First, the mere fact that the parties repeatedly amended the contract in writing indicates that they did not intend for it to automatically renew. The renewal presumption exists for those employer — employee relationships in which the earlier contract expires and the parties never manifest their intentions to each other and merely continue to act as they had before. In the instant case, while there is a dearth of evidence regarding the parties' discussion of their intentions, they clearly and repeatedly expressed their intentions through the amendments themselves. If the parties intended for the earlier contracts to merely renew upon expiration of the term, there would have been no necessity to go through the process of amending the contracts. Second, the amendments did not simply extend the term of this contract. The amendments changed the financial terms of the contract, sometimes increasing Plaintiff's pay. To create new amendments that change the terms of the contract related to compensation, of necessity the parties had to negotiate the terms. Such a discussion and the change related thereto is sufficient to rebut the presumption of renewal. Third, we note that in each case, the amendments applied retroactively to the date of the expiration of the earlier agreement. The retroactive nature of the agreements indicate that the parties understood that the old contracts had expired and that they were signing a new amendment for the next year, which had already begun. This retroactivity shows that the new agreement was meant to apply to the entire year, and rebuts Plaintiff's argument that the parties by their inaction intended each year to renew the former contract, and then a few months into the renewal, to replace the implied contract with a written one.
Based on the explicit terms of the contract and the parties course of dealing, we conclude that even though Plaintiff continued to work under the terms of the previous amendment after its expiration and without any discussion with Defendants, the intent of the parties at that time was not that the contract automatically renewed itself. Rather, the contract expired subject to negotiation of a new contract when the parties got around to it. In the meantime, Plaintiff's continued employment was as an employee at will, which subjected Plaintiff to being fired for any reason and without any notice. Accordingly, Plaintiff's claim for breach of contract will be dismissed.
B. ERISA Claims
Plaintiff has alleged two ERISA violations. Count II of Plaintiffs Complaint alleges that Defendants' improper firing of Plaintiff also resulted in an improper termination of Plaintiff's ERISA benefits pursuant to 29 U.S.C. § 1132(a)(1)(B). We have determined that Defendants did not improperly fire Plaintiff. Therefore, we will dismiss this claim.
Plaintiff agreed that this claim stands or falls with the breach of contract claim. (Pl. Resp. at 3 n. 2).
Count I of Plaintiff's Complaint requests statutory penalties for Defendants' failure to provide ERISA documents to Plaintiff pursuant to 29 U.S.C. § 1132(c)(1)(B), which permits courts to provide civil penalties against plan administrators who fail or refuse to comply with a request for information as is required under Subchapter 1 of ERISA, including § 1024(b)(4). The decision whether to grant statutory penalties for not furnishing Plaintiff with requested documents is entirely within this Court's discretion. See Hennessy v. Fed. Deposit Ins. Corp., 58 F.3d 908, 924 (3d Cir. 1995); 29 U.S.C. § 1132(c)(1)(B). Other courts have considered factors such as "`bad faith or intentional conduct on the part of the administrator, the length of the delay, the number of requests made, the documents withheld, and the existence of any prejudice to the participant or beneficiary.'" Fox v. Law Offices of Shapiro Kreisman, Civ. A. No. 97-7393, 1998 WL 175865, at *13 (E.D.Pa. Apr. 13, 1998) (citation omitted). In addition, § 1132(c)(1)(B) requires that the request be "in writing." Such ERISA requirements are strictly construed by the Third Circuit. See Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit Pension Plan. 24 F.3d 1491, 1505 (3d Cir. 1994) (explaining that ERISA penalty provisions are strictly construed and finding that a letter from an attorney requesting a meeting was insufficient under § 1025(a) to request that certain materials be supplied).
Section 502(c) of ERISA, 29 U.S.C. § 1132(c)(1)(B), provides:
Any administrator . . . (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such relief as it deems proper.29 U.S.C. § 1132(c)(1)(B). We note that § 1132(c)(1)(B) only provides statutory penalties for plan administrators who fail or refuse to comply with a request for information. Section 1132(c)(1)(B) does not apply to violations of ERISA in which the plan administrators do not furnish participants with regular, unrequested documents pursuant to §§ 1024(b)(1), (2), and (3).
In the instant case, it is undisputed that Plaintiff did not make a request in writing for plan documents until the filing of the Complaint, and that Defendants responded within 30 days to the requests made within the Complaint. While Defendants appear to have problems with their handling of the plan documents and the plan documents apparently contained incorrect information, we conclude that statutory penalties are not warranted. It does not appear that Defendants acted in bad faith and the delay after Plaintiff's oral request was not significant. While we recognize that Plaintiffs requests to an agent of the plan administrator is treated as a request to the plan administrator and that the Plaintiff does not need to show harm in order to receive statutory penalties, we decline to exercise our discretion to fine Defendants for not sending Plaintiff the plan documents that he requested orally from office employees, especially when Plaintiff was not prejudiced in any way by any alleged delay in receiving those documents.See Carney v. Int'l Bhd. of Elec. Workers. Civ. A. No. 00-6270, 2002 WL 1060652, at *7 (E.D. Pa. May 23, 2002) (declining to grant statutory penalties because plaintiff did not vigorously pursue his request for the documents and plaintiff did not allege harm or prejudice by Defendants' § 1024(b) violations).
See Groves v. Modified Ret. Plan for Hourly Paid Employees of the Johns Manville Corp. and Subsidiaries. 803 F.2d 109, 114 n. 5 (3d Cir. 1986) (treating a request made to an agent of a plan administrator as a request made to the plan administrator sufficient to impose statutory liability to the plan administrator).
See Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1148(3d Cir. 1993) (holding that ERISA does not require a plaintiff to demonstrate harm to receive relief).
C. Fraud/Negligent Misrepresentation
In Count IV of his Complaint, Plaintiff alleges that Defendants fraudulently or negligently misrepresented to Plaintiff that they would offer him a contract amendment for an additional year's employment and that Dr. Montgomery's hiring would not affect Plaintiff's employment. (Compl. ¶¶ 57, 58.) Plaintiff also alleges that Defendants breached their duty to inform Plaintiff when they made their decision not to amend his contract. (Id. ¶ 62.) Plaintiff alleges that the false representations and the breach of duty were intended to induce Plaintiff to continue working for Defendants so that Defendants would not be inconvenienced by Plaintiff looking for new employment or leaving his employment before Defendants had replaced Plaintiff. (Id. ¶ 63.) Plaintiff alleges that he relied on the misrepresentations and the failure to disclose and did not seek other employment until after his termination and that he has suffered damages due to that reliance in that his ability to find other employment was impaired. (Id. ¶¶ 64-65.) In addition, in his discovery responses, Plaintiff alleges that his firing without advance notice "may falsely suggest to prospective employers that KCPA terminated Plaintiff's employment for cause and therefore Plaintiff may be a risky or undesirable employee." (Def. App. II, Ex. 8 at 5.)
Under Pennsylvania law, fraudulent and negligent misrepresentation claims require that plaintiff demonstrate that he suffered injury as a proximate result of his justifiable reliance on the misrepresentation. Defendant contends that Plaintiff has not plead and cannot prove any legally cognizable detrimental reliance and resulting injury. We agree.
Under Pennsylvania law, fraudulent misrepresentation requires that a plaintiff establish the following elements: "(1) a misrepresentation, (2) a fraudulent utterance, (3) an intention to induce action on the part of the recipient, (4) a justifiable reliance by the recipient on the misrepresentation, and (5) damage to the recipient as a proximate result." See Pacitti v. Macy's, 193 F.3d 766, 778 (3d Cir. 1999) (citingBanks v. Jerome Taylor Assocs., 700 A.2d 1329, 1333 (Pa.Super. 1997)). Similarly, negligent misrepresentation requires proof of: "(1) a misrepresentation of material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation." Borz v. Noon. 729 A.2d 555, 561 (Pa. 1999).
The injuries alleged by Plaintiff are purely speculative, and Plaintiff has not provided any evidence to show that there is a genuine issue for trial. When a plaintiff claims that he was injured because he refrained to seek other employment due to his reliance on an employer's misrepresentations, courts require that the plaintiff present some evidence to support a finding that if he had known the truth he would have applied for other employment and he would have been hired:
Affidavits from prospective employers, stating that other jobs were available during the period in question and/or that plaintiffs had the qualifications for certain positions, would show a greater probability that plaintiffs would indeed have been hired but for their reliance on the defendant's assurances. Without these affidavits the finder of fact is reduced to speculation — admittedly appealing and sympathetic speculation — about the plaintiffs' harm. Such guesswork is not an adequate basis for a finding of detrimental reliance . . .Panzino v. Scott Paper Co., 685 F. Supp. 458, 462 (D.N.J. 1988) (granting summary judgment in an equitable estoppel/wrongful discharge claim because the plaintiffs were unable to show any support for their allegation of detrimental reliance); See also Jayne v. Archdiocese of Phila., Civ. A. No. 93-4039, 1994 WL 112212, at *4 (E.D. Pa. Mar. 25, 1994) (granting defendant summary judgment because the plaintiff's "failure to seek other employment is not forbearance of a definite and substantial character as a matter of law because there is not sufficient evidence from which a reasonable person could find that [plaintiff] failed to look for other work in detrimental reliance on the alleged promises.") (quotation omitted).
In the instant case, Plaintiff has not provided any evidence that he could have obtained other employment during the period of time at issue. There is no evidence of record that Plaintiff obtained any job offers while he was employed by Defendants or that any prospective employers were willing to hire him during the time that he continued to work for Defendants. Under the circumstances, we are compelled to grant summary judgment on this claim. "A jury cannot be allowed to speculate on whether there were available to plaintiff other suitable employment opportunities, whether he would have obtained some unidentified position, and, if so, how much he would have been paid." Yerger v. Landis Mfg. Sys., Inc., Civ. A. No. 88-7694, 1989 WL 66443, at *6 (E.D. Pa. June 16, 1989).
Similarly, Plaintiff has not provided any affidavits from future employers to support his speculative allegation that his termination without notice caused potential employers to believe that he had been terminated for cause and, therefore, decided not to hire him. Moreover, Defendant testified that whenever employers contacted them, they stated that the reasons for the termination were financial and not based on Plaintiff's abilities. (Def. App. II, Ex. 5, Kantor Dep. at 131-32.)
IV. CONCLUSION
Based upon the forgoing Defendants Motion for Summary Judgement will be granted.
An appropriate Order follows.
ORDER
AND NOW, this 22nd day of March, 2004, upon consideration of the Defendants Kantor-Curley Pediatric Associates, P.C., James G. Kantor, D.O., and John F. Curley, D.O.'s Motion for Summary Judgment (Doc. 26), and all papers filed in support thereof or in opposition thereto, it is ORDERED that Defendants' Motion for Summary Judgment is GRANTED and Plaintiff's Complaint is dismissed.IT IS SO ORDERED.