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Home My WebLink About03-1175 HARMON & DAVIES, P.C. ATI'ORNEYS-AT-LA W 2306 COLUMBIA AVENUE LANCASTER, PA 17603 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LA W LESTER R. GRIEST, Plaintiff, ~~ ./ : No. 0.1- /17'~ v. PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice, are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 HARMON & DAVIES, P.C. 2306 Columbia Avenue ~..t203 ~ By: ..~ Thomas R. Davies, ID #35260 Attorneys for Plaintiff pl\lester griest\notice to defend-cumberland county HARMON & DAVIES, P.C. ATIORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 !l IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LESTER R. GRIEST, 53 Ladnor Lane Carlisle, Pennsylvania 17013, Plaintiff, ~~ v. No. 0.1 - //76/ PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, 150 S. College Street Carlisle, Pennsylvania 17013-2899, Defendant. COMPLAINT 1. Plaintiff Lester R. Griest is a resident of Cumberland County, Pennsylvania. 2. Defendant Pennsylvania State University, the Dickinson School of Law is located in Carlisle, Pennsylvania. 3. The acts giving rise to this lawsuit occurred in Cumberland County. 4. Plaintiff began employment at Dickinson School of Law on October 11, 1993, when he was hired as Director of the Plants and Grounds Department. 5. Plaintiff performed capably, receiving raises and commendations in each successive year of his employment. 6. Plaintiff was terminated on May 2, 1997, by Peter Glenn, Dean ofthe Law School, purportedly because of a merger with Penn State. At the time of his termination, HARMON & DAVIES, P.C. AITORNEYS-AT-LA W 2306 COLUMBIA AVENUE LANCASTER, PA 17603 I' Plaintiff was 57 years old. 7. The services the Plaintiff performed continued to be needed by Dickinson. 8. Plaintiffs duties were subsequently assumed by an individual younger than 40. 9. Other, younger employees were retained instead of Plaintiff. to. When Plaintiff was terminated, he was offered and accepted a severance package that required him to waive his right to file for and receive unemployment insurance. A true and correct copy of this Agreement is attached hereto as Exhibit A and incorporated herein. COUNT ONE Ae:e Discrimination 11. The allegations of paragraph 1-10 of the Complaint are incorporated herein as if fully set forth. 12. Defendants violated the Pennsylvania Human Relations Act by discriminating against Plaintiff because of his age in that: a) Plaintiff was over 40 years old when he was terminated; b) Plaintiff was performing his job capably; c) Plaintiff was terminated; d) The services that Plaintiff performed continued to be needed by Dickinson; e) Plaintiffs duties were assumed by a substantially younger employee; and f) Other, younger employees were retained while Plaintiff was let go. HARMON & DAVIES, P.C. ATTORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, P A 17603 13. Defendant discriminated against Plaintiff because of his age willfully and intentionally and in flagrant violation of and disregard for the law. 14. Plaintiff fulfilled all jurisdictional prerequisites by filing a complaint with the Pennsylvania Human Relations Commission, and exhausting all administrative remedies. 15. The above-described conduct of Defendant was wanton, outrageous, reckless, willful and oppressive and justifies the imposition of punitive damages. WHEREFORE, Plaintiff Lester R. Griest respectfully requests that judgment be entered in his favor in an amount in excess of $25,000 together with punitive damages, interest, costs of suit, including reasonable attorneys' fees and any other remedy this Court deems just and proper. COUNT TWO Violation of 43 P.S. 861 16. The allegations of paragraphs 1-15 of the Complaint are incorporated herein as if fully set forth. 17. By requiring Plaintiff to waive his right to unemployment compensation benefits as a condition of receiving severance pay, Defendant violated 43 P.S. Section 861, which makes it unlawful for an employer to require employees to waive unemployment benefits. 18. The above-described conduct of Defendant was wanton, outrageous, reckless, willful and oppressive and justifies the imposition of punitive damages. 3 HARMON & DAVIES, P.c. AITORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 11603 " . I WHEREFORE, Plaintiff Lester R. Griest respectfully requests that judgment be entered in his favor in an amount in excess of $25,000 together with punitive damages, interest, costs of suit, including reasonable attorneys' fees and any other remedy this Court deems just and proper. Respectfully submitted, Dated:~ />3 ~~@ Thomas R. Davies, PA ID #35260 HARMON & DAVIES, P.C. 2306 Columbia Avenue Lancaster, PA 17603 (717) 291-2236 Attorneys for Plaintiff, Lester R. Griest pl\lester griest\complaint - dickinson HARMON & DAVIES, P.e. ATTORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 " VERIFICA nON I, Lester R. Griest, hereby verify that I am an adult individual, that I am authorized to make this Verification, and that the statements contained in the herein Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements therein are made subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities. Dated: /17a r- /,J- I 0 3 / p:- R. kJ~-I- Lester R:'" Griest pl\lester griest\lester griest verification .MAY-08-1998 11:43 PHRC HBG REG 7837703 P.07 APPENDIX A THE DICKINSON SCHOOL OF LAW Peter.G. Glcrm Dan ~crrFlbtrmAL. . . May 2, 1997 . (71712,aU..5::m:t Fax; (1Ii) ;:JO-5:1D Int.:mec pa;IL"ftn..Jlil..:du Mr. Lester Griest The DickiDson School of Law Dear Les: The purpose q(this leuer is to confirm our Conversation of this afternoon in which we lnt'onned you that ~I'se oCthe Law School's affiliation with Penn State, the position or Director olPIant and ~Grounds will be eliminated. In the course of conversations with Penn State, it has become clear ttmt Penn State wiD be able to give us at no cost the expenise and leadership in the area of consblICdon -and project management that you have provided tor the past four years. Consequendy.:the job you now occupy win be eliminated. Y cu have do~ a very good jot> for us at Dickinson and we greatly appreciate your work. As we discussed this ,aemoon. we propose the foDowing program for your separation from scrviQ: with the Law $cbool: I. We will promptly supply you with a very favorable letter ofrecommendation explaining that the reason you are looking for a job is that your job was eliminated in the course ofa merger' betwe;n Dickinson and Penn State. The letter wiD recite that we are pleased with your cxpen~ and with the effectiveness of your work in connection with your responsibiliti~ for construction and maintenance project manasemem and planning. 2. Although you are free, mediately. to look for and accept another position. we will pay your saJ8Ijy through lURe 3D, 1997 whether or not you are re-employed before June 30. If you sh~uld not find employment. betWeen now and 1une 30. 1997. we win pay your fun salary an~ benefits for the period altime you are not employed between now and June 30. On lune 30 you also wiD be paid for unused vacation time. You may treat the months ofMaj ana JUn~ _ OOmpct4aled'1cave tunc. 3. With respect to the period following June JO. 1997 we suggest the following options: Option A On Ju~e 3D, 1997 we wouJd make a single payment to you of your salary for a lofO SOUTH COllEPE STREET.. CARLISLE. PENNSYLVANIA 17013.2899 (717) 240-5000 . MAY-08-1998 11 : 44 PHRC HBG REG 7837703 P.08 four month period. nus payment would be made without deduction of taxes, .etc., for w~ch you -.yowd, of course. be responsible. At the same time you would . bccoD!'e eligible to continue for a period or time your hcaJth insurance benefits under:the so-called COBRA provisions. The payment offour months salary refemKI to here would be made to you regardless whether you obtain new emplOyment between now and June 30, 1997. and. of course, would be yours to I . keep ~ spend even if you were re.employed in. say, AuSUSt, 1997. A condition of this Option A would' be that you would sign a letter indicating your unequivocal and irrcvO<:able waiver of any rights you might have to unemplo)'l1lent compensation insurance. Option B The IfFCOnd option would involve payment of your salary and benefits through June ~O, 1997 (or salary alone iryou are re-employed between now and June 30) but w;'uld not involve any lump-sum payment of salay to you on June 30. If you were unemployed on July 1. you would be eliJl"b1e to apply for unemployment compCnsation benefits (which we understand to amount to 60'.4 of the income in your IUt employment). Moreover, we understand that you would be eligible for such ~nemp1oymcnt compensation for not more than six months dwins 1997 and. perhaps,. fot a similar period of time in 1998. Your eligibility for unemptoymeru compensation benefits obviously ceases when you become re.emplQyed. The costs to the Law School of Option A and Option B are approximately equal. Althaush we believe ,that Option A, stated above. is likely to be more beneficial to you than is Option B. the choice !is youn alone and we urge you to give careful consideration to this question and, in the course of ihatconsideration, we suggest that you seek the advi~ of a professional who is knowledgeabl~ about unemployment eliiibility. Vice.Oean Kutulakis can refer you to several such people, iryou wish. We rqvet. thalt tbe eJfect of the DickinsonIPenn State merger is to eliminate the necessity for your, position. We wish that we had been cenain Oflhis several weeks ago so that we might have ,given you more:notice and warning. We. wish you weU in YO\lr tulUre endeavors and we will be vr:ry ready to help:you by making recommendations or serving as references in the course of any jOb search you ~y wish to undertake. VCfrJ truly yours, {\ "b L1 Peter G. Glenn PGG:tmt ~ MRY-08-1998 11: 45 PHRC HBG REG 7837703 P.09 SEPARATION AGREEMENT AND GENERAL RELEASE THIS SEPARATION AGREEMENT AM> GENERAL RELEASE is made by and betweon THE DICIdNsON SCHOOL OF LAW, a Pamsylvmia nonprofit ~ratiOD with an office and princi~al place ofbusiDcss at Carlisle, PennsylvaDia ~der aonic'kitl~j -AND- . I !i li !! LESTER R. c;mmsT of S3 Ladnor Lane, Carlisle, PedJ2Sylv;mia (hereinafter "Employee"). . ~: A. Bmploya Is cmrent1y employed by Dickinaon as D.ircctor ofBuildiDgs and Grounds at Carlisle, PczmsYIV8Dia. . B. Employee cle8ire8 to resign fi:om his position as Director ofBuild-ings and Grounds in accordance with ~e terms cxmtained herein. Emp10ycc acknowledges thIt beeaUge of Diekinsonl's :tfFiliatiqu with The Peamylvania State UDivasi~, the position ofDUectDr of Buildings and Gromids wiD be eJjmmucd as oflwy 1, 1997. C. DickiDson and Employee desire to settle alul release any and an differenc~ claims and ~uses of action which Employee may have against Dir.kinson in ~ with the terms contained. herein. . NOW THEREFO~ for and in cODSidemtian of the mutUal promises heR:in containecL and intending to be ~gaJly bound herebyl' the parties hereto represent, wman4 covenant and aar= as follows: <tI 1. Employ~ acknowledges tbat the position ofDirec1Dr of Buildings and Grounds will be ~JjJl';nS'l,ted as of Jiuy I, 1997. 2.J:!ffective May 2 1997, through JUDe 30t 1997 t Employee sbaIl be on an ad1rtinistrative leave :ofabsence, with 1W1 current pay and benefits. during which time Employee shall not be l'etJUired!o:r expcdcd to fulfill or perform any ~ duties or r=&ponsibilities as t Director of BuildingS and Grounds. or otherwise, on behalf ofDicldnsoa. 3. Emplpyee has been offered two optioDS (A and B) regarding benefits paymentS by Dickinson duriPg the period. following June 30, 1997. in a letter dated May 2. 1m. a copy : . Page 1 of3 Pages . MRY-08-1998 11:45 PHRC HBG REG 7837703 P.10 (. . . of which letter is ana.cbld heIeto as Appendix A and Uicorporated herein by 'reference. Employee, with the sipiDg of this Agreement, chooses Option A and hereby waives his right to file for and receive tinemploymcnt compensation insurance. 4. DickiDSon. agrees that in response to any requests for an employment reference by prospective employers~ it sbaU issue a letter of rcfcrcDCe for Employee. ,5. Employee. shall have such rights to health iDsuraJJce for him and his family at the couclusion of his admiDisuative leave of absence on J1inc 30. 1~97. 01' earlier, as are provided. by COBRA coverage aIa4.Dictimon policy. . 6. Employee and Dic1dDSon shall keep the terms of this Agreement completely confideDtial ~ccpt fOf:(a) disclosure required by law or in coDD.eCtion with legal proc;ecdings between the parties, OJ! (1)) disclosure by Employee to member8 alms immediate family or to his aaomeys, ~ or tax advisors. 7. Employ~ represents that be has not filed ;my complaiDts. charges or claims against Dic1dDson witb u.. Equal Employment Opportunity ComJDjssion. the Pennsylvania Human Relations eouimi8sioD or with my other local, state or federal agency or court, that Employee will not' do ~o at any time hctcaftcr, and that if any such agency or court assumes jurisdiction of any complaint, charge or claim against Dickinson OIL behalf of Employee, he will request sucb a~ or court to withdraw from the matter. 8. As a ~ inducement to Dickinson to enter Ulto this Agreement, Employee hereby irrevocably anfl unconditionally releases, acquits and forever discharges Dickinson and each of Dickillson's tiustecs. officers. predecessors, successors, assipst agents, employees, representatives, ~. divisions. subsidiaries, affiliates, and aU persous actin& by, through, UDder, of, in COJJCert with any of them (collectivdy "Dickinson"). or any of them, from any and aU charges. eomplaints. claims, liabilities, obligations, promises.. agreements. conuoversics, damages, actious. causes ofacuoD. suits. rigbt.s. dernal'lcls, Costs, losses, debts and expenses (includiPg attomeys' fees and costS a,ctI1AI1y incurred). of any natUre whatsoever, excepting ODly those rights granted to Employee UDder this Agreement. which B1Dploycc may have acaiDst Dickinson. includingt but not limited to, any and all claims under TIdo vn of the Civil Rights Act of l~64. the Civil Riahts Act of 1991. the Pennsylvania Human Relations Act. the Amcriams with Disabilities Act, the Age DiscrimiIIation in Employment, the Fair Labor Standards Ad; the Wale Payment and Collection Law, any and aD claims for defamation 01' other personal injury. any ami all claima for breach of CODttaCt or violation of procedural due process under federal. state or local statutory or common la~. as wcI1 as any aDd aU claims UDder ~ederal. stare, local or Dickinson regulations. For purpose of implementing a fun and complete release aDd discharge of D1C!1dDsm\, Employee exprcsaly ~Wledges tbat this Agreement is intended to include in its effect. without limitation. ~ claims which Employee does not know or suspect to exist in Employee's Page 2 of3 Pa.ges _ . MRY-08-1998 11:46 PHRC HBG REG 7837703 P.ll ~ I favor at the time of ~OD hereof. and that this Agreement ContemplateS 1hc extinguis1uD.eD of any such claim or c1aia1s. including, but not limbed to. my aad all matters related to or . arising out of Dickinson"s employment and his resiguatioD therefrom. This re1casc of claims sballl10t apply to claims ;ansmg after the date of Employee's execution of this AgreeIDept. , 9. Employee UDdetstands and certifies that he bas carefWly read and fully understands all the pmviSioll5 and effects of this Agreement. that he has been advised in writing to coDSUlt witb . attorney regarding this Agreement. tbat be has had tho opportuDity . to consider this A~ for a period. of at least fourteen (14) days prior to eucnrion- that he is voluntarily entetinIlnto this Agreement, and that neither Dickinson nor its trUSteeS, officers. agents. cmploy~ or attorneys bave made any representatinus concerning the termS. eonditious or effects of ~ Agreement other tbaJI those conta;nl'!d herein.. 10. This A~ may be revoted by Employee within five (5) workdays foUowing cxceutioD ~f. by sendinl written notice of revocation via certified mail to Peter N. KtmlIUi~. The Didtinson School of Law. 150 South College Street, Carlisle, peuusylvama 17013. . . 11. This AgremDeot consti1DteS the sole UI1derstand.iDI of the parties hereto and supersedeS auy prior ~ contemporaneous understandings, whether written or oral, of the parties respectb\g the Within subject matter. IN WITNESS WHEREOF, the parties have set their hands and seals the day and year set forth below. . WITNESS: ::? ..... . ,.r J.. .... "' tt..t-<.(,~. cJ ....."n ~t;fAc.".A.. THE DICKINSON SCHOOL OF LAW By: /fi;:V; tt&E~Jt~ PETER. N. iaJTULAIQS Vice Dean ~ted onttlllJ1 917, 1991- ., . WITNESS: ~~-Ufll'~~~J e {J~ ~:f:. R..G T Executed. on 'I J 7 . 1"99.!l1 Page 3 of3 Pages ~(\ ,~ ~ 0 C. tl('. \ 6' €' ~\ .......... ~ 1: .titt- V \",\ . \ (j.. C)l 'b ~ 0-'" c: '0' -;.;~ ~'T. n,. c - ~>' ~ ~ ......- ( y.; r. .) .,.~ , '0 ~ :~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVll... ACTION - LA W LESTER R. GRIEST, Plaintiff, No.: 03-1175 v. PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, THE PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW in the above-captioned matter. Weare authorized to accept service on behalf of Defendant. McQUAIDE, BLASKO, SCHWARTZ, FLEMING & FAULKNER, INC. Date: 4/3/0"L { Janine C. Gismondi, Esqui e J.D. No. 31225 Attorney for Defendant 811 University Drive State College, PA 16801 By: ::ODMAIPCDOCSIDOCSUB21260116\1 0 0 C":i C. (..J .-. i ~ 2" ~ -0 (;~, 'J ml-: :"!..j , i ;-~ :~ 2~C- . ~-~ _I . !-'1 C\ -V ~'~-~ ~- "J:>- ::i~ (") Z(. --- ( ; i9 ::=;{il ):" C. :2 :? ~ (,.) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVlL ACTION - LA W LESTER R. GRIEST, Plaintiff, No.: 03-1175 v. PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant, The Pennsylvania State University, Dickinson School of Law, by and through its undersigned attorneys, hereby files the following Preliminary Objections to Plaintiff's Complaint. I. BACKGROUND 1. Plaintiff Lester R. Griest was terminated from his employment with the Dickinson School of Law ("the Law School") effective June 30, 1997. (Complaint Exhibit A). 2. At the time of his termination, Plaintiff was offered two alternative severance packages by the Law School. (Id.). 3. One severance package, referred to as "Option A," offered PlainJtiff a severance payment of four months' salary and provided that he would not be entitled to collect unemployment compensation benefits. (Id.). 4. The other severance package, Option B, did not contain any limitations on Plaintiff's ability to receive unemployment compensation benefits. (Id.). 5. Plaintiff elected to take Option A. (Id.). ::ODMA IPCDOCSIOOCSLIB2\260493\1 6. On or about March 15,2003, Plaintiff initiated this lawsuit by filing a Complaint asserting two causes of action arising out of his termination. 7. Plaintiff's Complaint fails to state a claim on which relief can be granted in the following respects. II. DEMURRER TO PLAINTIFF'S DEMAND IN COMPLAINT C@UNT I FOR PUNITIVE DAMAGES UNDER THE PENNSYL VANIA HUMAN RELATIONS ACT. 8. In his first cause of action, Plaintiff alleges that his termination resulted from age discrimination in violation of the Pennsylvania Human Relations Act, 43 P.S. ~951 et. seq. ("PHRA"). 9. Plaintiff's Complaint includes a request for punitive damages with respect to his PHRA claim. (See Complaint Count I prayer for relief). 10. The Pennsylvania Supreme Court has held that the Pennsylvania Human Relations Act does not provide for or permit a recovery of punitive damages. Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 751 (1998). 11. For this reason, a viable punitive damages claim does not exist and cannot be stated under the PHRA. Defendant therefore demurs to punitive damages demand set forth in Count I of Plaintiff's Complaint. WHEREFORE, Defendant requests that its demurrer to the punitive damages request set forth in Complaint Count I be granted and that the Court enter an Order striking Plaintiff's punitive damages demand from Count I of the Complaint. III. DEMURRER TO COMPLAINT COUNT II. 12. Plaintiff's second cause of action is asserted under a provision of the Unemployment Compensation Act, 43 P.S. ~861. : :ODMA IPCDOCSIDOCSLIB21260493\1 13. 43 P.S. ~861 provides as follows: No agreement by an employe to waive, release, or commute his rights to compensation, or any other rights under this act, shall be valid. No agreement by an employe or by employes to pay all or any portion of an employer's contributions, required under this act from such employer, shall be vallid. No employer shall, directly or indirectly, make or require or accept any deiduction from the remuneration of individuals in his employ to finance contributions required from him under this act, or require or accept any waiver by art employe of any right hereunder. Any employer or officer or agent of an employer who violates any provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced for each offense to pay a fine of not less than one hundred dollars nor more than one thousand dollars, or be imprisoned for not more than six months, or both. 14. Plaintiff contends that by offering him the severance package identified as Option A, Defendant violated 43 P.S. ~861. 15. Plaintiff requests that as a result of this asserted violation, he be awarded judgment in excess of $25,000, along with punitive damages, interest, costs of suit and reasonable attorneys fees. (See Complaint Count II prayer for relief). 16. Plaintiff's claim under 43 P.S. ~861 is legally insufficient on several grounds. 17. First, there is no private cause of action created or permitted under 43 P.S. ~861. Enforcement of this and other provisions of the Unemployment Compensation Act is vested with the Department of Labor and Industry of the Commonwealth of Pennsylvania. 43 P.S. ~761. 18. Second, there is no civil remedy for a violation of 43 P.S. ~861. If a violation occurs, the only remedy allowed by the statute is criminal in nature. 19. Third, 43 P.S. ~861 does not prohibit a "waiver" of unemployment benefits in the situation asserted here, i.e., where a terminated employee may elect, at his sole option, a severance package that includes a lump sum payment coupled with an agreement that the employee will not be entitled to receive unemployment benefits. In circumstances of this sort, the employer has not "required" a waiver of unemployment rights in violation of 43 P.S. ~861. ::ODMA\PCDOCSIDOCSLm2\260493\1 20. Finally, Plaintiff does not and cannot allege that the "waiver" on which he relies was accepted or enforced by Defendant or that it in any way affected Plaintiff's eligibility for or receipt of unemployment compensation benefits. 21. For these reasons, Count II of Plaintiff's Complaint fails to stale a claim on which relief can be granted and Defendant therefore demurs to Count II in its entirety. WHEREFORE, Defendant requests that its demurrer to Complaint Count II be granted and that the Court enter an Order dismissing Count II with prejudice. Respectfully submitted, McQUAIDE, BLASKO, SCHWARTZ, FLEMING & FAULKNER, INC. Date: 4/'$(03 , . ~ B anine C. Gismondi, Esqui I.D. No. 31225 Attorney for Defendant 811 University Drive State College, P A 16801 ::ODMAIPCDOCSIDOCSUB21260493\1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LESTER R. GRIEST, Plaintiff, No.: 03-1175 v. PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. CERTIFICA TE OF SERVICE I hereby certify that true and correct copies of my Praecipe for Entry of Appearance, Defendant's Preliminary Objections and Praecipe to List for Argument in the above-captioned matter were served via First Class Mail on this the 3rd day of April, 2003, on the attorney of record: Thomas R. Davies, Esquire HARMON & DAVIES 2306 Columbia A venue Lancaster, PA 17603 McQUAIDE, BLASKO, SCHWARTZ, FLEMING & FAULKNER, INC. By' Janine C. Gismondi, Esqu. e lD. No. 31225 Attorney for Defendant 811 University Drive State College, PA 16801 ::ODMA IPCDOCSlDOCSLIB2125976O\1 () --. ~~,..~ C (..,:J <~' -0 ~j,:' .. d rn 1" 'J "7 Z ~ I ~i -- , C) ~\.. -a pr ~ ~(~, -'~1 --~.r. (~ _,J;"" >' F3 :..:)...-n c. -\ .,,'_~f -I> -~ :::> ~ -< (...,.) PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: please list the within matter for the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) LESTER R. GRIEST ( plaintiff) vs. PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW ( Deferx3ant ) No. 1175 Civil xm 2003 1. State matter to be argued (Le., plaintiff' s rrotion for new trial, defendant' 5 denurrer to canplaint, etc.): DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff: THOMAS DAVIES ~s: 2306 COLUMBIA AVENUE LANCASTER, PA 17603 (b) for defen:iant: J AN I NE C. G I SMOND I ~s: 811 UNIVERSITY DRIVE STATE COLLEGE, PA 16801 3. I will notify all parties in writing wi thin bilo days that this case has been listed for argtment. 4. ArglInent Court Date: MAY 21, 2003 ~(J~ Attorney for DEFENDANt IBted: 4/9/03 (") C :?". -0 i:2i nlry: Z:..,- zr ell. . -?' r::: '~ ~~~'. J>C: -"? L_. =< o (,: .~ .~, ~r; ~ -:::1 :;;::) i'_) " <1'\ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION - LAW LESTER R. GRIEST, Plaintiff, No.: 03-1175 v. PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. CERTIFICA TE OF SERVICE I hereby certify that a true and correct copy of Praecipe for Listing Case for Argument in the above-captioned matter was served via First Class Mail on this the 9th day of April, 2003, on the attorney of record: Thomas R. Davies, Esquire HARMON & DAVIES 2306 Columbia A venue Lancaster, P A 17603 McQUAIDE, BLASKO, SCHWARTZ, :MmG & FAillXNER(C. Janine C. Gismondi, Esquire ID. No. 31225 Attorney for Defendant 811 University Drive State College, PA 16801 ... : :ODMA IPCDOCSIDOCSUB2\25976011 (") c: ::t"'" --oi..f; rn\\' ";2','-; :;21::: (II. It; ~.:2 "-f'~ -:"J :'~.J .'0 r'\~) '0 <1' :).'1 -~ SHERIFF'S RETURN - REGULAR CASE NO: 2003-01175 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GRIEST LESTER R VS PENNSYLVANIA STATE UNIVERSITY CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to lqw, says, the within COMPLAINT & NOTICE was served upon PENNSYLVANIA STATE UNIVERSITY DICKINSON SCHOOL OF LAW the DEFENDANT , at 1418:00 HOURS, on the 21st day of March , 2003 at 150 S COLLEGE STREET CARLISLE, PA 17013 by handing to SUZANN WILSON, ADMIN ASSIST. ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 3.45 .00 10.00 .00 31.45 __,?"Y2"'f::';'~~,~>.~. >.r~:~~ A .r ~......".;.~,~'I';.......~.._ ",,,,, J~~~ t~ .',.;1 .~->#"-- R. Thomas Kline 03/24/2003 HARMON & DAVIES PC Sworn and Subscribed to before By: i~~ De ty Sheri f -- me this It)- day of Of~ r2btD . A.D. qt" t2 1vu.l~"J ~ P othonotary HARMON & DAVIES. P.C. ATI'ORNEYS-A T-LA W 2306 COLUMBIA AVENUE LANCASTER, PA 17603 Ij IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LESTER R. GRIEST, Plaintiff, :CIVIL TERM : NO. 03-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LA W, Defendant. NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended Complaint and Notice, are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed \Vlthout you and a judgment may be entered against you by the court without further notice for any money claimed in the Amended Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Assoc.iation 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 HARMON & DAVIES, P.C. 2306 Columbia Avenue Lancaster, P A 17603 By: ~~ ;{Oc--.. Thomas R. Davies, ID #35260 Attorneys for Plaintiff pl\lester griest\notice to defend-cumberland county . . HARMON & DAVIES, P.C. AITORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 11 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LA W LESTER R. GRIEST, 53 Ladnor Lane Carlisle, Pennsylvania 17013, CIVIL TERM Plaintiff, v. No. 03-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, 150 S. College Street Carlisle, Pennsylvania 17013-2899, Defendant. AMENDED COMPLAINT 1. Plaintiff Lester R. Griest is a resident of Cumberland County, Pennsylvania. 2. Defendant Pennsylvania State University, the Dickinson School of Law is located in Carlisle, Pennsylvania. 3. The acts giving rise to this lawsuit occurred in Cumberland County. 4. Plaintiff began employment at Dickinson School of Law on October 11, 1993, when he was hired as Director of the Plants and Grounds Department. 5. Plaintiff performed capably, receiving raises and commendations in each successive year of his employment. 6. Plaintiff was terminated on May 2, 1997, by Peter Glenn, Dean ofthe Law School, purportedly because of a merger with Penn State. At the time of his termination, HARMON & DAVIES, P.C. ATTORNEYS-AT.LA W 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II Plaintiff was 57 years old. 7. The services the Plaintiff performed continued to be needed by Dickinson. 8. Plaintiffs duties were subsequently assumed by an individual younger than 40. 9. Other, younger employees were retained instead of Plaintiff. 10. Plaintiff has requested and expects to receive aN otice of Right to Sue from the Equal Employment Opportunity Commission in connection with his charge of age discrimination under the Federal Age Discrimination in Employment Act of 1967. After receipt of said Notice, Plaintiff reserves the right to further amend the Complaint to add an appropriate claim under federal law . COUNT ONE A~e Discrimination 11. The allegations of paragraph 1-10 of the Complaint are incorporated herein as if fully set forth. 12. Defendants violated the Pennsylvania Human Relations Act by discriminating against Plaintiff because of his age in that: a) Plaintiff was over 40 years old when he was terminated; b) Plaintiff was performing his job capably; c) Plaintiff was terminated; d) The services that Plaintiff performed continued to be needed by Dickinson; e) Plaintiff s duties were assumed by a substantially younger employee; 2 HARMON & DAVIES, P.C. ATIORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II i I and t) Other, younger employees were retained while Plaintiff was let go. 13. Defendant discriminated against Plaintiff because of his age willfully and intentionally and in flagrant violation of and disregard for the law. 14. Plaintiff fulfilled all jurisdictional prerequisites by filing a complaint with the Pennsylvania Human Relations Commission, and exhausting all administrative remedies. WHEREFORE, Plaintiff Lester R. Griest respectfully requests that judgment be entered in his favor in an amount in excess of $25,000, together with interest, costs of suit, including reasonable attorneys' fees and any other remedy this Court deems just and proper. Respectfully submitted, Dated: ~ -~-c) 3 ~~/I~~ Thomas R. Davies, PA ID #35260 HARMON & DAVIES, P.c. 2306 Columbia Avenue Lancaster, P A 17603 (717) 291-2236 Attorneys for Plaintiff Lester R. Griest pl\lester griest\amended complaint ~ dickinson 3 HARMON & DAVIES, P.C. ATIORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II VERIFICATION I, Thomas R. Davies, hereby verify that I am an adult individual and the attorney for Lester R. Griest, that I am authorized to make this Verification, and that the statements contained in the herein Amended Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements therein are made subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities. Dated: tj- t/-d7 (~ /l~~ Thomas R. Davies ! : pl\lester griest\verification for tom HARMON & DA VlES, P.C. ATIORNEYS.AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LESTER R GRIEST, CIVIL TERM Plaintiff, v. No. 03-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy of the Amended Complaint upon the persons and in the manner indicated below, which service satisfies the requirement ofPa. RC.P. 440: Service by First Class Mail Addressed as Follows: Janine C. Gismondi, Esquire McQuaide, Blasko, Schwartz, Fleming & Faulkner 811 University Drive State College, P A 16801-6699 HARMON & DAVIES, P.C. Dated: V-zr -07 By: ~ /t. 1- Thomas R Davies, ID #35260 Attorneys for Plaintiff Lester R Griest pl\lester griest\certificate of service 8 :1J :5.;- ai ci ':'> [ (, ~-.. ~C" -<~_:_-- r-:'O-: ~. ~c ;?c" ;gr-: "j ~ < ::< '-- -...... .-.~; '-, -..) ()~ .~..... ::'e-! r\) '. :".17 (J) .' '", ~ '-) ~::~i ::'jj "" THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Hanisburg, P A 17108 Paul J. Dellasega, Esquire Attorney I.D. 23146 (717)255-7602 Attorneys for Defendant LESTERR. GRIEST, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. : NO.03-CV-1175 PENNSYLVANIA STATE UNNERSITY, DICKINSON SCHOOL OF LAW, Defendant CNIL ACTION - LAW JURY TRIAL DEMANDED TO THE PROTHONOTARY: Please enter my appearance for Defendants, Pennsylvania State University, Dickinson School of Law, in the above-captioned case. Respectfully submitted, Date: ~/'2r/ 0 3 By: Paul J. De Attorney . # 23146 P.O. Box 999 305 North Front Street Harrisburg, P A 17108-0999 (717) 255-7602 OMAS & HAFER, LLP CERTIFICATE OF SERVICE I, Paul J. Dellasega, Attorney for Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Janine C. Gismondi, Esquire McQuaide Blasko, Schwartz, Fleming & Faulkner, Inc. 811 University Drive State College, PA 16801-6699 Thomas R. Davies, Esquire Harmon & Davies 2306 Columbia Avenue Lancaster, P A 17603 DATED: ~/3j,.3 () c:: C Lt.> ~~ <0 -on }"J,"oJ; 1"'1'11 :. ,< Z""-' Z\.... c; ~(~: t .. "'- .' d;;C $(" . .----~ L. Z :.,,) ~j~ _..-l! .> 0.) ...... --.. - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNS"'t'L VANIA CNIL ACTION - LAW LESTER R. GRIEST, Plaintiff, No.: 03-1175 v. PENNSYLVANIA STATE UNNERSITY, DICKINSON SCHOOL OF LAW, Defendant. CERTIFICA TE OF SERVICE I hereby certify that a true and correct copy of my Withdrawal of Appearance in the above-captioned matter was served via First Class Mail on this the 6th day of May, 2003, on the attorney of record: Thomas R. Davies, Esquire HARMON & DAVIES 2306 Columbia A venue Lancaster, PA 17603 McQUAIDE, BLASKO, SCHWARTZ, FLEMING & FAL'LKNER, INC. By:/l~ ( ~rismondi, Esquire J.D. No. 31225 Attorney for Defendant 811 University Drive State College, PA 16801 ::ODMA \PCDOCSIDOCSLlB2\2597601! () c) C) C L~, 'on $: '-1 fP m!~1 '"-~:... Z 0,- , :z Co I (J) 0) ~r"-- ......,,'-.~ ::::: "--' )>,., -~-'~ Z"< j>'-' c: ::::~j Z =<1 r::- S en -< " THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 Paul J. Dellasega, Esquire Attorney 1.0. 23146 (717) 255-7602 Attorneys for Defendant LESTER R. GRIEST, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, NO. 03-CV-1175 CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED NOTICE TO: Plaintiff and his couusel: You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMA nON ABOUT HIRING A LAWYER " IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue, Carlisle, Pennsylvania Respectfully submitted, THOMAS, THOMAS & HAFER, LLP U 5/D4- By: Attorneys for Defendants, THE DICKINSO:-.! SCHOOL OF LAW OF THE PENNSYLVANIA STATE UNIVERSITY 2 THOMAS, THOMAS & HAFER, LLP 305 North Front Street p.o. Box 999 Harrisburg, P A 17108 Paul J. Dellasega, Esquire Attorney J.D. 23146 (717)255-7602 Attorneys fOf Defendant LESTER R. GRIEST, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, NO. 03-CV-1175 CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER TO AMENDED COMPLAINT, NEW MATTER AND COUNTERCLAIM 1. Admitted. 2. Admitted, 3. Admitted, 4. Admitted. 5. Admitted, 6. Denied as stated. Plaintiff was not terminated "purportedly because of a merger with Penn State". To the contrary, Plaintiffs position was te:rminated because of the merger with Penn State resulted in Penn State providing to the law school, at no additional cost, essentially the same services that were being performed by the Plaintiff. 7. Admitted in part. Defendant admits that the services performed by Plaintiff continued to be performed at Dickinson after Plaintiffs termination. Defendant does not admit 3 that Dickinson "needed" those services to be performed. To the contrary, those services were provided to the law school by the University without charge to the law school. 8. Denied. Plaintiff was not replaced by Mr. Swarner. To the contrary, Mr. Swarner continues to perform essentially the same duties he had perfi)rmed prior to the elimination of Plaintiffs job. By way of further answer, Defendant incorporates its answer to Paragraph 7, supra. 9. Admitted and denied. Admitted that when Pemlsy1vania State University merged with Dickinson School of Law, the merger made possible the elimination of some positions that had become redundant. It is admitted that not every employee younger than the Plaintiff was discharged. It is denied, however, that younger employees were retained in lieu of Plaintiff. 10. Defendants are without knowledge or information sufficient to form a belief as to whether or not Plaintiff expects to receive a notice of right to sue from the EEOC. The second sentence of Paragraph 10 is denied. 11. Defendant incorporates its answers to Paragraphs 1 through 10 of the Complaint as if fully set forth herein. 12. Defendant denies that it violated the Pennsylvania Human Relations Act by discriminating against Plaintiff because of his age. (a) Defendant admits that Plaintiff was over forty years old when his position was eliminated. (b) Defendant admits that Plaintiff performed his job capably. (c) Defendant admits that Plaintiffs position was eliminated for the reasons previously stated in this answer. 4 (d) Defendant answer subparagraph (d) by incorporating by reference its answer to Paragraph 7 of the Complaint. (e) Defendant answers this subsection (e) by incorporating by reference its answer to Paragraph 8 of the Complaint. (f) Defendant answers this subsection (f) by incorporating by reference its answer to Paragraph 9 of the Complaint. 13. Defendant specifically denies they discriminat(:d against Plaintiff because of his age in any manner contrary to law. 14. Defendant admits that Plaintiff filed a Complaint with the PHRC. The remaining allegations of Paragraph 14 are conclusions oflaw to which no answer is required. NEW MATTER - AFFIRMATIVE DEFENSES 15. On or about June 17, 1997, Plaintiff executed a "Separation Agreement and General Release" that had previously been executed by Vice Dean Peter Kutulakis on behalf of the Dickinson School of Law. A true and correct copy of the Separation Agreement and General Release are attached hereto and marked "Exhibit A". 16. Pursuant to the terms of the Separation Agreement and General Release, Plaintiff received severance pay that he would not have received had he not executed the Separation Agreement and General Release. 17. Paragraph 8 of the Separation Agreement and General Release states as follows: "As a material inducement to Dickinson to enter into this Agreement, employee hereby irrevocably and unconditionally releases, acquits and forever discharges Dickinson and each of Dickinson's trustees, officers, predecessors, successors, assigns, 5 agents, employees, representatives, attorneys, divisions, subsidiaries, affiliates, and all persons acting by, through, under, of, in concert with any of them (collectively "Dickinson"), or any of them, from any and all charges, complaints" claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of actions, suits, rights, demands, costs, losses, debts and expenses (including attorneys' fees and costs actually incurred), of any nature whatsoever, excepting only those rights granted to employee under this Agreement its employee may have against Dickinson, including, but not limited to, any and all claims under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Pennsylvania Human Relations Act, the Americans with Disabilities Act, the Age Discrimination and Employment [Act], the Fair Labor Standards Act, the Wage Payment and Collection Law, any and all claims for defamation or other personal injury, any and all claims for breach of contract or violation of procedural due process under federal, state or local statutory or common law, as well as any and all claims under federal, state, local or Dickinson regulations. For purpose of implementing a full and complete release and discharge of Dickinson, employee expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all claims which employee does not know or expect to exist in employee's favor at the time of execution hereof, and that this Agreement contemplates the extinguishment of any such claim or claims, including, but not limited to, any and all matters related to or arising out of Dickinson's employment and his resignation therefrom. This release of claims shall not apply to claims arising after the date of employee's execution of this Agreement." 18. Paragraph 7 ofthe Separation Agreement and General Release stated as follows: "Employee represents that he has not fikd any complaints, charges or claims against Dickinson with the Equal Employment Opportunity Commission, the Pennsylvania Human Relations Commission or with any other local, state or federal agency or court, that employee will not do so at any time hereafter, and that if any such agency or court assumes jurisdiction of any complaint, charge or claim against Dickinson on behalf of employee, he will request such agency or court to withdraw from the matter." 19. Contrary to the provisions of Paragraph 7 of the Separation Agreement and General Release, and in breach thereof, Plaintiff has filed complaints, charges or claims against 6 Dickinson with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. 20. The Complaint is barred by the doctrine of accord and satisfaction. 21. The Plaintiff, by virtue of having executed the Separation Agreement and General Release is estopped from bringing an action alleging the violation of the Pennsylvania Human Relations Act. 22. Any claim for monetary damages or injunctive relief is barred by the release entered into by the Plaintiff in the Separation Agreement and General Release. 23. Plaintiff has waived any right to bring this suit by entering into the Separation Agreement and General Release. COUNTERCLAIM BREACH OF CONTRACT - COUNT I 24. Defendant incorporates Paragraphs 1-23 by reference as if fully set forth herein at length. 25. As noted above, Paragraph 7 of the Separation Agreement and General Release stated as follows: "Employee represents that he has not filed any complaints, charges or claims against Dickinson with the Equal Employment Opportunity Commission, the Pennsylvania Human Relations Commission or with any other local, state or federal agency or court, that employee will not do so at any time hereafter, and that if any such agency or court assumes jurisdiction of any complaint, charge or claim against Dickinson on behalf of employee, he will request such agency or court to withdraw from the matter." 7 26. Moreover, in Paragraph 8 of the Separation Agreement and General Release, Plaintiff agreed to the following: "As a material inducement to Dickinson to enter into this Agreement, employee hereby irrevocably and unconditionally releases, acquits and forever discharges Dickinson and each of Dickinson's trustees, officers, predecessors, successors, assigns, agents, employees, representatives, attorneys, divisions, subsidiaries, affiliates, and all persons acting by, through, under, of, in concert with any of them (collectively "Dickinson"), or any of them, from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of actions, suits, rights, demands, costs, losses, debts and expenses (including attorneys' fees and costs actually incurred), of any nature whatsoever, excepting only those rights granted to employee under this Agreement its employee may have against Dickinson, including, but not limited to...any and all claims under... the Pennsylvania Human Relations Act... For purpose of implementing a full and complete release and discharge of Dickinson, employee expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all claims which employee does not know or expect to exist in employee's favor at the time of execution hereof, and that this Agreement contemplates the extinguishment of any such claim or claims, including, but not limited to, any and all matters related to or arising out of Dickinson's employment and his resignation therefrom. This release of claims shall not apply to claims arising after the date of employee's execution of this Agreement." 27. In consideration for such waiver of his rights, P1aintiffreceived full compensation and benefits for from May 1997 through the end of August 1997 and health insurance as provided by COBRA. 8 28. Plaintiffs conduct in instituting, continuing, and refusing to withdraw this action constitutes a material breach of Paragraph 8 of the Separation Agreement and General Release. As a consequence, Defendant has been denied the benefit of its bargain with the Plaintiff, and the Defendant is entitled to a restitution of the compensation of benefits Plaintiff received from March 1997 through the end of August 1997 and the cost of the health insurance premiums paid for by Defendant for the benefit of Plaintiff during the same period of time. 29. As a foreseeable consequence of Plaintiff s material breach of the Settlement Agreement and General Release, Defendant has been forced to retain counsel to defend an action which Plaintiff promised to never bring and in doing so has and continues to incur attorneys' fees which will continue until this action is resolved. 30. Plaintiff has been unjustly enriched by the benefits he received as outlined in Paragraph 27 for which Defendant demands restitution. 31. Defendant has been materially damaged by the eost ofthe attorneys' fees it is expending to defend this action. WHEREFORE, Defendant prays the Court to enter judgment in its favor and to require Plaintiff to return to Defendant those benefits by which he has been unjustly enriched and to pay to Defendant the damages it sustains as a cost of defending the action brought by Plaintiff. COMPLAINT FOR SPECIFIC PERFORMANCE - COUNT II 32. Defendant incorporates the allegations of Paragraphs 1-28 of this Answer and Counterclaim as though set forth fully herein. 9 WHEREFORE, Defendant prays the Court to order specific performance of the Separation Agreement and General Release and thereby dismiss the Complaint with prejudice. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP - By: Paull. l~uire LD. No. 3146 305 North Front Street, 6th Floor P.O. Box 999 Hanisburg., PAl 71 08-0999 (717) 255-7602 Dated: I \ /" ~ \. \ V /1\1I. r ,,,",,, . -1 ..\ J \J ", Attorney for Defendant 10 VERIFICATION I, fhil,~ IT. ('r1eC.M4~as a duly authorized representative of the Defendant, Dickinson School of Law ofthe Pennsylvania State University, hereby verify that the averments made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. iJ/lNUIl~V /3, z.oo'i Date O~/'~~~ 11 CERTIFICATE OF SERVICE I, Paul J. Dellasega, Attorney for Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas R. Davies, Esquire Harmon & Davies 2306 Columbia Avenue Lancaster, P A 17603 THOMAS, THOMAS & HAFER, LLP , By:' , 'V 1M DATED !154 1asega, Esquire 12 (") ,--' (") C';;) C-'::;' "T1 c_ --, .. T ~n . fll , ._~ 111 j',> ? CJ C) -[) . ;~ ) :n Co) -', f".) .U -~ (,>1 -< HARMON & DAVIES, p,c. ATIORNEYS-AT.LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LESTER R. GRIEST, Plaintiff, PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. : NO, CV-03-1175 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Plaintiff s Response to Defendant's New Matter, Answer to Counterclaim and New Matter to Defendant's Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. Date: f--Y-cJ1 dma-C:\Documents and Senings\OwnerlMy Documents\data\PL\Lesler Griest\Notice Plead,wpd HARMON & DAVIES, P.C. 2306 Columbia Avenue Lancast.:r, PA 17603 (717) 291-2236 By:-L~ 'i. '/ .... Thomas R. Davies, PAID #35260 Attorney for Plaintiff, Lester R. Griest HARMON & DAVIES, P,c. ATIDRr>I"EYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW LESTER R, GRIEST, Plaintiff, : NO. CV-03-1175 .: CIVIL ACTION - LAW PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. : JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER, ANSWER TO COUNTERCLAIM AND NEW MATTER TO DEFENDANT'S COUNTERCLAIM 15. Admitted 16. Admitted. Plaintiff admits that he rec(~ived severance pay upon the termination of his employment and that he would not have received the severance pay without signing the Separation Agreement and General Release. 17. Plaintiff admits that the quoted sections are contained in the document referred to. Any inferences drawn therefrom are deni(~d, 18. Plaintiff admits that the quoted sections are contained in the document referred to, Any inferences drawn therefrom are denie:d. By way of further answer, Plaintiff contends that the terms of this paragraph are void as against public policy. 19. It is admitted only that Plaintiff filed the referenced claims. The remaining averments are denied. 20. Denied as Defendant's claim states a conclusion of law to which no response is required. To the extent that a response is T1~quired, Plaintiff avers that "when an HARMON & DAVIES, p,c. ATTORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II employer requires an employee as part of a separation agreement to give up her [or his] right to file a charge with the Equal Employment Opportunity Commission in exchange for separation benefits, the employer violates the anti-retaliation provisions ofthe laws enforced by EEOC." (See EEOC v, SunDance Rehab Corp" N.D. Ohio, No.1 :01 CV 1986, 7/26/04) The Separation Agreement and General Release is facially retaliatory and may not be used to bar Plaintiffs claims. Plaintiff further submits that such restrictions are void as against public policy. 21. Defendant's claim states a conclusion of law to which no response is required. The Separation Agreement and General Release is facially retaliatory and void as against public policy and therefore may not be used to bar Plaintiffs claims. 22. Defendant's claim states a conclusion of law to which no response is required. To the extent to which a response is requir.:d, Plaintiff reasserts his argument in Paragraph 20, above, and avers that his claim for monetary damages or injunctive relief is not barred by the release entered into by Plaintiff in the Separation Agreement and General Release. 23. Defendant's claim states a conclusion of law to which no response is required. To the extent to which a response is required, Plaintiff reasserts his argument in Paragraph 20, above, and avers that he has not waived his right to bring this suit by entered into the Separation Agreement and General Release. PLAINTIFF'S ANSWER TO DEFENDANT'S COUNTER CLAIM _ BREACH OF CONTRACT - COUNT I 24. Plaintiff incorporates paragraphs 15 to 23 by reference as if fully set forth 2 HARMON & DAVIES. p,c. ATIORNEYS-AT.LAW 2306 COLUMBIA AVENUE LA.~CASTER, PA 17603 II I herein at length. 25. It is admitted only that the language quoted by Defendant does appear in the Separation Agreement and General Release. Plaintiff avers, however, that these provisions are clearly in violation ofthe Pennsylvania Human Relations Act and Title VII of the Civil Rights Act of 1964. 26. It is admitted only that the language quoted by Defendant does appear in the Separation Agreement and General Release. Plaintiff avers, however, that these provisions are clearly in violation of the Pennsylvania Human Relations Act and Title VII of the Civil Rights Act of 1964. 27. Admitted and denied. Plaintiff admits only that he received compensation equal to four months of his salary and benefits, and health insurance as required under COBRA. It is denied that Plaintiff was fully compensated for the loss of his job. 28. Defendant's claim states a conclusion of law to which no response is required. To the extent to which a response is requir<:d, Plaintiff reasserts his argument in response to Defendant's Paragraph 20, above, and avers that the bargain Defendant required Plaintiff to sign is void, invalid, illegal and unenforceable under Pennsylvania law and, therefore may not be used as a bar to this claim. Therefore, Plaintiff has not waived his right to bring this suit by entering into the Separation Agreement and General Release. 29, Plaintiff is without knowledge or information sufficient to form a belief as to this claim. 30. Denied. 31. Plaintiff is without knowledge or infonnation sufficient to form a belief as 3 HARMON & DAVIES, p,c. ATTORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 " to this claim. COUNT II 32. Plaintiff incorporates paragraphs 15 to 31 above by reference as if fully set forth herein at length. PLAINTIFF'S NEW MATTER IN RES))ONSE TO DEFENDANT'S COUNTERCLAIM 33. Plaintiff incorporates paragraphs 15 to 32 above by reference as iffully set forth herein at length. 34. Defendant's Answer to Amended Complaint, New Matter and Counterclaim introduces the fact that on or about June 17, 1997, Plaintiff executed a "Separation Agreement and General Release." Defendant relies on the release language in an argument to deny Plaintiff the ability to seek damages for the discrimination alleged in the Complaint. 35. Subsequent to the termination of Plaintiffs employment with Defendant, Plaintiff filed for unemployment insurance benefits. Defendant objected, stating that the Release waived Plaintiffs right to unemployment benefits. 36. Plaintiff brought Defendant's objection to the Pennsylvania Human Relations Commission (PHRC) as a violation of the Pennsylvania Human Relations Act and of the federal Older Workers' Benefit Protection Act. On June 28, 1998, the PHRC issued an Interlocutory Order stating that, among other things, "(U)nder Pennsylvania law, a release agreement which is contrary to public policy is void. Shades v, Beal, F.2d 824 4 HARMON & DAVIES, P.c. ATIORNEYS.AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 II (3rd Cir. 1982). We consider the policy behind the wngressional enactment of the OWBPA to be sound and wholly consistent with the public good, and therefore hold that the failure of the present release to comply with OWBPA provisions renders that agreement void as against public policy with respect to the present PHRC claim." A copy of the PHRC Order is attached hereto and marked "Exhibit A," 37, Plaintiff respectfully avers that the Sfiparation Agreement and General Release is void, invalid, illegal and unenforceable under Pennsylvania law, WHEREFORE, Plaintiff prays the Court to deny Defendants Counterclaim and enter judgment in his favor as requested in his favor as stated in the Amended Complaint in an amount in excess of $25,000.00, together with imerest, costs of suit, including reasonable attorneys' fees and any other remedy this Court deems just and proper. Respectfully submitted, Date: cf--'f -o~ il~ /[ ~ c..- Thomas R. Davies, PA ID #35260 HARMON & DAVIES, P.C. 2306 Columbia Avenue Lancaster, P A 17603 (717) 291-2236 Attornt:y for Plaintiff, Lester R. Griest dma-C:lDocuments and Settings\Owner\My Oocuments\data\PL\Lester Griest\PI's answer to Defs AnsWlf to Amended Complaint. New Matter & Counterc1aim,wpd 5 HARMON & DAVIES, p,c. ATTORNEYS-AT-LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 If VERIFICATION 1, Thomas R. Davies, the attorney for P1aintifJ'Lester R. Griest hereby verify that I am an adult individual, that I am authorized to make this Verification, and that the statements contained in the herein Pleading are true and correct to the best of my knowledge, information, and belief. I am making this Verification because most of the statements in this Pleading concern legal, rather than factual, matters. I understand that false statements therein are made subject to the penalties of 18 Pa. C.S.A. g 4904 relating to unsworn falsification to authorities. Dated: J- l.f -0 Y ~ /( ~~ homas R, Davies dma-C:\Document.'l and Seltings\Owner\My Documents\data\PLILester Griest\verification for tom,wpd COMMONWEALTH OF I)ENNSYLVANIA GOVERNOR'S l:)FFICE PENNSYLVANIA HUMAN REUmONS COMMISSION - LESTER R. GRIEST, Complainant v. DOCKET NO. E.84946-A PENN STATE UNIVERSITY, THE DICKINSON SCHOOL OF LAW, PLANTS & GROUNDS DEPARTMENT, Respondent INTERLOCUTORY ORDER AND NOW, this ;;l % day of ~rl..1.N e.. , 1998, upon consideration of the Respondent's motion to dismiss, and both the Pennsylvania Human Relations Commission ("PHRC') Harrisburg regional office's response and the Complainant's response thereto, it is hereby ORDERED pursuant to 16 Pa. Code 942.131 (c)( 1), that the Respondent's motion to dismiss is denied. Generally, the Respondent's motion asserts that the Complainant should be barred from this PHRC action because he waivEid his PHRC claim when he knowingly and voluntarily executed a Separation Agreement and General Release on June 17, 1997. In' response, the Complainant submits that "the options provided to [him] and contained in the severance proposal were done so illegally. . . and are therefore void, invalid, illegal and unenforceable under Pennsylvania Law," The Complainant also argues that the agreement violates public policy. Finally, the Complainant argues that the agreement violates the Older Workers Benefit Protection Act ('OWBPA') because it does not adhere to the act's minimum requirements. The PHRC regional office's opposition to the motion generally asserts that there remains a fact dispute regarding the "vcllidity" of the agreement. The PHRC regional response observes that there are generally three levels of evaluation to assess whether a release was knowingly and voluntarily executed. These three levels are: (1) state law - common law principles apply; (2) a pre-OWBPA federal analysis of the totality of the circumstances. See Cirillo v. Arco Chemical Co., 862 F.2d 448 (3rd Cir. 1988); and (3) OWBPA's standards with respect to ADEA releases. Here, it is readily apparent that the release in question does not meet the minimum requirements under the OWBPA. For example, the agreement (a) does not specifically refer to the ADEA. 29 USC s626(f)(1)(B); (b) did not give the Complainant twenty-one days to consider the agreement if he was the only employee discharged, or forty-five days if there had been a group termination. s626(f)( 1 )(F); (c) did not provide the Complainant wiith seven days after signing to revoke the agreement. s626(f)(1 )(G); and (dl is unclear regarding whether the Complainant was furnished with appropriate information about who was eligible and who was selected for termination, as well as the ages of those in the organizational unit considered and not selected for termination. s626(f)(1 )(H). Of course, this matter arises under state! law where common law principles are generally applicable to the issue of whether a release was knowingly and voluntarily entered. However, the Complainant has asselrted that the agreement violates public policy. 'Under Pennsylvania law, a release agree,ment which is contrary to public policy is void. Shades v. Beal, 685 F.2d 824 (3rdl Cir. 1982). We consider the policy behind the congressional enactment of th4~ OWBPA to be sound and wholly consistent with the public good, and therefore hold that the failure of the present release to comply with OWBPA provisions renders that agreement void as against public policy with respect to the present PHFiC claim. For this reason, the Respondent's motiion to dismiss is denied. PENNSYLVANIA HUMAN RELATIONS COMMISSION By: ~~~5R.-I{t.J(J Russell S. How4~1I Motions Commissioner HARMON & DAVIES, p,c. ATIORNEYS-AT.LAW 2306 COLUMBIA AVENUE LANCASTER, PA 17603 " IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LESTER R. GRIEST, CIVIL TERM Plaintiff, v. No. 03-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a tlUe and correct copy of Plaintiff s Response to Defendant's New Matter, Answer to Counterclaim and New Matter to Defendant's Counterclairn upon the persons and in the manner indicated below, which service satisfies the requirement ofPa. R.C.P. 440: Service by UPS Overnight Mail Addressed as Fo11lows: Paul J. Dellasega, Esquire THOMAS, THOMAS & HAFER, LLP 305 N. Front Street PO Box 999 Hanisburg, PA 17108 HARMON & DAVIES, P.C, Dated: r-'1-u ~ By: ~-11 /}..-. Thomas R. Davies, ID #35260 Attorneys for Plaintiff Lester R. Griest dma-C:\Documents and Settings\Owner\My Documents\data\PL\Lester Griest\Cenificate of Service,wpf (') ,,~ 0 c:;:.? C" =-2 ." ,.,.. .... ;T :r: ~n (:'.-: f;l G) r". ~c j"Tl I So '-.' (J1 C) "i"i ..., -no (~) S.{ in ~~ (.l ~. ".1:-" ::J ..t:"" 'J:J CD "".< THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717)237-7100 Paul J. Dellasega, Esquire Attorney LO, 23146 Crystal H. Williamson, Esquire Attorney I.D. 91069 Attorneys for Defendant LESTER R. GRIEST, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, I:>ENNSYL VANIA v. NO.03-CV-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant CIVIL ACTION- LAW JURY TRIAL DEMANDED DEFENDANT'S REPLY TO PLAINTIFF'S NEW MATTER 33. No response is necessary as this is a paragraph of incorporation. By way of further response, Defendant incorporates Paragraphs 1-32 of its Answer, New Matter and Counterclaim by reference as if fully set forth herein at length. 34. Admitted in part, denied in part. It is admitted that Defendant's Answer, New Matter and Counterclaim introduced the Separation Agreement and General Release, the terms of which Agreement bars the Plaintiff from bringing suit seeking damages for any claims the Plaintiff may have against the Defendant. 35. Admitted. 36. It is admitted that Plaintiff brought Defendant's objection to the PHRC alleging that such objection violated the PHRA and the Older Workers' Benefit Protection Act ("OWBP A"). It is admitted that only that the language quoted by the Plaintiff does appear in the PHRC's Interlocutory Order dated June 28, 1998. Defendant avers, however, that the PHRC's decision is inconsistent with Pennsylvania law on the validity of such releases. The PHRC Interlocutory Order is not binding precedent nOT is it the law ofthe case. In fact, as an Order which is not final, it is without meaning or effect. Moreover, it is contrary to appellate determinations of Pennsylvania Courts. 37. Denied as Plaintiff s claim states a conclusion of law to which no response is required. To the extent that a response is required, Defendant respectfully avers that the Separation Agreement is valid, legal, and enforceable under Pennsylvania law. WHEREFORE, Defendant prays the Court to enter judgment in its favor and to require P1aintiffto return to Defendant those benefits by which he has been unjustly enriched and to pay to Defendant the damages it sustains as a cost of defending the action brought by Plaintiff. Defendant further prays the Court to order specific performance of the Separation Agreement and General Release and thereby dismiss the Plaintiff's Complaint with prejudice. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ~ Paul J! ellasega, Esquire LD. 0.23146 Crystal H. Williamson, Esquire 305 North Front Street, 6th Floor P.O. Box 999 Hanisburg, P A 17108-0999 (717) 255-7602 Dated: 0/10/04-- I Attorneys for Defendant 2 VERIFICATION The undersigned, being duly sworn according to law, deposes and says that he is counsel for the parties indicated on the preceding page as being represented by said counsel; that he has examined the pleadings and the entire investigative file made on behalf of said parties; that he is taking this Verification to assure compliance with the pertinent rules pertaining to timely filing of pleadings and other documents described by said rules; and, that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information, and belief. This verification is made by counsel as the appropriate representative for Defendant is outside the jurisdiction of the Court and/or his/her verification cannot be obtained within the time allowed for filing of the pleading. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S. !l4904 relating to unsworn falsification to authorities. 8/; it /61/ Date I ' ~ <. / Williamson, Esquire CERTIFICATE OF SERVICE I, Crystal H. Williamson, Attorney for Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas R. Davies, Esquire Hannon & Davies 2306 Columbia Avenue Lancaster, P A 17603 THOMAS, THOMAS & HAFER, LLP ~Jc .' illiamson, Esquire DATED: ~Lt /D~ 4 <-.> c:_~) C".:) .J,~- _J f.:.I r',,) -...J THOMAS, THOMAS & HAFER, LLP 305 North Front Street P,O, Box 999 Harrisburg. PA 17108 Crystal H. Williamson, Esquire Attorney 1.0, 91069 717-237-7103 Attorneys for Defendant LESTER R. GRIEST, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.03-CV-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION To the Prothonotary: Please substitute the attached Verification for the Attorney Verification attached to the Reply to Plaintiff's New Matter which was filed on August 16, 2004, Respectfully submitted, AS, THOMAS & HAFER, LLP w.x~ Williamson, Esquire I.D. Nu er: 91069 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 (717) 237,7154 ------ Attorney for Defendant VERIFICATION 1, Phillip J. McConnaughay, as a duly authorized represcntlltive of the Defendant, Dickinson School ofLa:w of the Pennsylvania State University, he:reby verify that the averments made in the foregoing document are true and co=t. I understand. that false statements herein are made subject to the: penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. ~ 2 f(;.. ?ooz( Dat e~~ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Thomas R. Davies, Esquire Harmon & Davies, P.C. 2306 Columbia Avenue Lancaster, PA 17603 S, THOMAS & HAFER, LLP ~Lfl' Crystal . illiamson, Esquire 305 Nort Front Street P.O. Box 99B Harrisburg, PA 17101 (717) 237-7154 ~. Dated: ~I 72ce{ :$ , " '" "'" = ..,.. </) n'l -0 , CO .." :;;: i:i? :;1 nif!J tJ[T1 :'.JO ") . ~'I(~ ~;J (;]J (jll1 /6/ -<;: t;? C o THOMAS, THOMAS & HAFER, LLP 305 North Front Street P,O, Box 999 Harrisburg, PA 17108 (717) 237.7100 Paul J. Dellasega, Esquire Attorney 1.0, 23146 Crystal H. Williamson, Esquire Attorney 1.0, 91069 Attorneys for Defendant LESTER R. GRIEST, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.03-CV-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION FOR SUMMARY JUDGMENT OF DEFENDANT. PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW AND NOW, comes Defendant Pennsylvania State University, Dickinson School of Law ("Defendant"), by and through its attorneys, Thomas, Thomas & Hafer, LLP, and files this Motion for Summary Judgment and asserts the following reasons therefor: 1. This is an action arising under the Pennsylvania Human Relations Act, and involves allegations of age discrimination. 2. Specifically, Plaintiff alleges in his Complaiint that he was terminated by the Defendant in violation of the PHRA because at the time of his termination he was performing his job capably, yet he was in fact terminated while his job responsibilities were assumed by a substantially younger employee. 3. Defendant has brought counterclaims agaiinst the Plaintiff for breach of contract and specific performance of the Settlement Agreement and General Release discussed below, which are not the subject of this Motion for Summary Judgment. 4. At the time of the Plaintiff's termination, thl3 Dickinson School of Law was undergoing a merger with the Pennsylvania State University which resulted in that University providing to Dickinson, at no extra cost, essentially the same services as were being performed by the Plaintiff. 5. At the time of the Plaintiff's separation from the Defendant, Plaintiff signed a Separation Agreement and General Release, a true and correct copy of which is attached hereto as Exhibit "A". 6. Under the terms of that Agreement, Plaintiff agreed to the following language contained in Paragraph 8: As a material inducement to Dickinson to enter into this Agreement, Employee hereby irrevocably and unconditlionally releases, acquits, and forever discharges Dickinson and each of Dickinson's trustees, officers, predecessors, successors, assigns, agents., employees, representatives, attorneys, divisions, subsidiaries, affiliates, and all persons acting by, through, under, of in concert with any of thElm (collectively "Dickinson"), or any of them, from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses (including attorneys' fees and costs actually incurred), of any nature whatsoever, excepting only those ri9hts granted to Employee under this Agreement, which Employee may have against Dickinson, including, but not limited to, any and all claims under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the P,ennsylvania Human Relations Act, the Americans with Disabilities Act, thEl Age Discrimination in Employment, the Fair Labor Standards Act, the Wage Payment and Collection Law, any and all claims for defamation or other personal injury, any and all claims for breach of contract or violations of procedural due process under federal, state or local statutory common law, as well as any and all claims under federal, state, local or Dickinson regulations. For purpose of implementing a full and complete release and discharge of Dickinson, Employee expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all claims which employee does not know or suspect to exist in Employee's favor at the time of execution hereof, and that this Agreement contemplates the extinguishment of any such claim or claims, including, but not limited to, any and all matters related to or arising out of Dickinson's employment and his resignation therefrom. This release of claims shall not apply to claims arising after the date of Employee's execution of this Agreement. 7. Releases are construed according to tradillional principles of contract law. Clark v. Philadelphia Colleoe of Osteopathic Medicine, ()93 A.2d 202, 207 (Pa.Super. 1997), appeal granted, 550 Pa. 697, 705 A.2d 1303 (199~r), appeal dismissed as improvidently granted, 557 Pa. 487,734 A.2d 859 (1999). 8. Under Pennsylvania law, a contract is valid if both parties has manifested an intent to be bound, the terms of the agreement are set forth with sufficient clarity, and there has been an exchange of consideration. Presbyterian Medical Center v. Budd, 832 A.2d 1066 (Pa. Super. 2003). 9. In this case, both parties signed the release after negotiation and discussion, the release was supported by valid consideration, and specifically released any claim the Plaintiff might have had under the Pennsylvania Human Relations Act, and is therefore valid and binding on the parties. WHEREFORE, Defendant, Pennsylvania State University, Dickinson School of Law, respectfully requests this Honorable Court to grant its Motion and enter judgment in its favor and against Plaintiff on all claims. Respectfully submitted, '- ,. "'- Paul J lellasega, Esquire 1.0. N .23146 Crystal H. Williamson, Esquire 1.0. No. 91069 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7602 Attorney for Defendants Dated: September 20, 2004 EXHIBIT "A" .." pj;,;':"0S:t9S8 -tl'4;3---"-PHRCHEffREG . ';'c:i..1'j'"'i''i13 ',:r::l"j'" ~.~ " '-' APPENDIX A THE DICKINSON' SCHOOL OF LAW Pcrw.c;. Gkll1l Dean tdmbmilAL ' ' May 2, 1997 . 171 'n 2~1~~~1l!j FIl/C17l'l:.llJ..llI3 Im~l: ~JlSln..Jit.i:lJu Mr. Lester Gri= . TIm Dickinson Seboo~ af'Law Ilear t.es: The purpose qt'this letter i.I to confirm our eonvmlluotl otmis a1\amlon in whidl we informed you that bec;ause af'the Law Sohoc!' s B1filiatioft willi :PI:llIl State. the pallitlcn of' DiRctar ofPlallt IllIl !Otaunds will be llIiminatlld. 1n the ecII1I'Stl oCCOlMll'l&tiOJlS with Penn Slllte, it ba$ 'oec:omc dell: ,*1 !leM State wiU be able to ilw \lllat 110 GOat th,e ~penisc: and leadership in thl! area. of" amstruetlOll ~d project manasemenlwl )'OIl h8~ pl'ClYid1:ll fbr the past four years, COllSequeruly.'chl!jab you now occupy will be eliminated. , You have clone I very good Jap far IU lit Plc1dasoll.oo. we ~ appreelate your work. As. we dlsl:1lsseO tIlls ~0Il, we propose 11Ic fbUowin; proSr-m for your I8pan1tiOl1ItOl'll .service with the Law lic:hClal: " ".; 1. We wilI Prcll1lPt!y supply you with II wry fawl1lb1elettll' ofn:commenda&ion exp\aiJ;ling that the reason )'QI1 an looking fgr II job is that yau1' job Willi c1imln.ted b1 the course Of'1I merger b~ Dickinslm and PeM Scale. The letter ,IlIiU -'te lhal we are pleased with your "CI1~ IDd with the ~ivl\:11ll5S of your work in COlllltc:UOIl with your respollSibili~ fCll' comt\1Ictian and mail1tllllllll= proJl!llt mll\llgemem afId planning. Z. Although you l!Ifl: tree, immediately, to (ggk for and ~t III10Chcr position. WI; will pay your sall1li;y tIlroush JlIIIe 30, 1997 wllether or IIOt:~ arc re-employed befare ]\lae 30. If you sh,u1d l'Iotliml empklyrncnt between flaw and ]\lne 30,1997, we will ~y your full sallll'Y ~ blll1eftts for the period of time you are al3t employl!d betwtll!tl naw 1Ulc1 IUIIII 30. On lila' 30 )'011 also will be paid for UIlUS= vaea1ioa lime. Ygu ll1s.y treat the months orMaY ana .I~Jllf ~ ....U41l"~....L~ lca.'VO tame. , I 3. With resp~ to the period FoUowS Juno 30, 1997 we stlpeSl the foUowinS options: Optian A On JU!lc 30, 1991 we would lMke II. single pa)'llllent to you Qfycwr sallUY for a . , 140 SOUTH COLlElJE STREET.. CA.R.LlStE, PENNSYLVANIA 17013.1899 (711l 240-5000 r-trr::.. l:?..,C.:OIO...:Jl.::I',J.~" .:.J}..!"1I-';4 1-'.......~ur-t~.v.17...EL:-';1.~''':''"EG "":"~:-='::::'13 r;o.t..';:..L""t tQur lllOtlUl period.. This pa~nt would be made withgut ded~~on oft~1lS, ,etc., fot" wllich '01,1 ~uld. of cou~e. be responsibl.. At tlle same lime you would . bccoll!lc eli81'blc to continlJo for II period of time y<3Ut h~\h insuranCll benefilll undcr:thll so-called COBRA prllvi!ions, The payment offcut' months salary referred to IlWl WQ\Ild be macle to yol.l rogardless whether YOII obtain new emplciymcnt between !lOW and Jl.lne 30, 1997. and. O{gDUI'SII, would be yours to \ . keep ~d spend lJ\I1lII if you were te.emploYed In, say. AIlSUlt. 1m. A condirion of tills Op~on A. would be that YOIl woulcl sisn a totter indicating yaur uneqllivoQ! and irrovoQ&blc waiver of illlY riiht5 you might m,ve to unemplO)'l1\1lII1 c.ompen98.tion lnsut1nee. . " Oplion B The JIFCCllld option would involve payment Of'YOILf ,.\uy anel bcncfilS tI1raush Jl.lnll :to, 11197 (or II3.!ary alone if'you are re-emplt~ between llOW and June 30) but \liQuid" not inVCllve lU1Y lump-SlIm payment of' ailllllY to YOII on JUDe 30. Ii'you wore i1nemployecf on 1uly 1. you wculd be ellgl'ble to .Pply fbr unemp10ymetlt campilllsatiaft bl!l1e!ts (which we understand to IlllIOunt to 150% of'the income in your last IIDIpJo)'JMIU). Moreover, _ undersw1d Ihat yau would be 1Ilig\b1e for SllGh llnc:mplClym~t compensation tilt net mare llwl six mOllths during 1997 and, perha,s, rei' a similar period of time 1111998. YO\lr eIlslbill1y for unc:mployment c:ompCtlllatioll benefits obviously _"$ when yoi~ became re-emplgyild. . . . Tho costs tel the Law SdlooI af Option A and Opllon B llI'e approximately equal. A1~lIgh wo beUc:'\Ie ~hat Option A. Ntcd above. is likely to be more beneficial tIl )IClIl tMn Is OplSCln B. tluI eholc:e iis yours llane and wo urge you to siYll carefi11 consideratiol\ to tills ql!estion and, in the course arcMt l:onsideralion, we SIlaest tMt you 1l:C~~ the advice ora probiODal who is Icnowtcdaeablj; ~lIt IlnemplO)'lllcnt eUgibUity. VicOoP~:an Kwulalds ClIll rder you to several such people. if )lllU wisll. , ", '.. . I' " We rqret thin thl: llff'ec:t orine Dic:klnson/Pann Slate ml:rpr is tel eIimina11S the n~ty fcr your. position. We wish tU.1 we had beel1 eBI1ain oflhis S1l\I1Iral wee\(s lI80 SO that we might hayc given you more;riotice and warning. We. wish you weD in your mMll elldllllvors and we will bll vl:l')' rAdy 10 hdp:)'ou by malcing realmmendalions or serving lIS re{erencc$ in t\ul e<l\ll'lliO of any job search you ~y wisll to unclenalce. Vrs:y mlly yours, <\6'&lJ PetCl' G. Glenn POO:tmf , t1rj"l;,. riH~~~-l~~~ .::l.Lrn 45 "L-""'UI'"1.LUl:- DLM~t"\.V 14"lI<t.: Hlll.i REG I~V."tOC. '1'8"';'1'7\13 r. J.C/J.'-+ F'.11l'3 SEPARATION AGlU1EMENr AND GENI!\BAL RELEASE I 'IBIS SEPARATION ACiREEMENT AWl GENERAL p.m,; 4~ fa made by :wi . bc:tWOCD THE DIa.tNSON SCHOOL OF u..:W, a Pet:mSJI'm:aia UJ:llIP1'llfit CClEpClradcm, with an ofl1= and principal P1~ ofbusiDc:ss at Cdsk. pen:asylvd~ ~ "Dick:illso;ni . . ! g .AND- LES'I'ER:a. Q1U'EST of S3 Lad11or:t.a.c. 0IdisI., p=msylvallia ~ ''Bmployee"). . ~; A. &l>plDyeeis =nntly llIllPloyed byDi~cm 1Il&Di:ccW' ~ md GfOmu:Is at Carllillc, l'caD8ylvllllia. . B. Bmpl~ clcUa to =iSJI from hill position as ])h-..:h.q; oflkliJdingll an4 (kQ1JIIds in aeeordancc with . tmDlI ""fllol-d herein. E=p1oyl= d:nowlcdgDs that becaUSe of DiGkiMcm's ..a;lbti'1'" with Tho P0IlMY1'1alliaStatc Ulliveamy. the plllitlcmof~ of BlIll<M'np and G:.o...Jdo, will be I:1jmm~ llll of:raly 1. 1m. , . c- nickiDsOll'lQ1d Employee dc:she to aet1le 3:ld ~clllSe aJlY and aD ~....c-=,Il1aims I:Illl causes of action M.lir:h 1il:Ilp1oyell ma:y have a.gainn Dil:k!i:Dson in aw;m:IaDce with the m=s contaiDacl.lulreiu. . , " NOW THElUiFORE. fer l1:IlIl. in eadcaLicm of the zautllll1 prmnisllS bcm:in contained. . Qld mW.I;" & to bft ~Ybol11ld h=by. the partill$ hereto 1'1~_ warram,IlOVllll3l1t w1. sjtl:l: 85 follows: ... 1. Emplo~ ackDDwledp; t1l:at the po&i1iPn oCDi:r1~ofBui11ti:Jlgs IIIld arounds will be etitt'i''''''1:d lIS oIJbly 1. 1997.', i 2. Bff'cttiW May 11997. tbrough 1m:: 30. 1997. Elql~ sII2I1 be 011 an ..tltriMhn:rative 1_ :of atIsa=, witb full CUlT!ftt Pllf and bllILmts, duriug wbic:h tbne Employee ahaJll10t be mqui:l:dj or expcctc:d to fi1IfiJ1 or per1ll:= Ifl1Y i1m~J1I. dIJties or respOIlB11rllitle& a:l Di:redar ofBuiIdinp and ~ds, or Cllh~ llIl beba1fofDidcimon. , . 3,' ~lpyell has been ...!ft;....! tw\) oplips:lS (A 3lld B) r~g belll!filll payments by Dick:iwion d\ltUlg tbe pc:riod. follilwini Jlllle 30, 1997, la, a 1ettm' lIl\tlll1 May 2. 1997. a !;oPY I . 1?a.ge 1 of3 Pages Ht-'~. l:j.C::1!:J\~:J.,j- .11;..=ilHI~~'''''''''' \~Il..ldUHIUI:... t:iLH:::'K.U 1"(1:.1.:1 NU',4bC:"(W 1-'.1;1::14 (. o'f which letter is anacbed hereto as App=dix A and blc:olpOtlltl:d heteIn by'refer=u:e. . EmplDyee, with the 9igjm1g of t1\i5 AJreemcnt. cbrJgses Oplicn .", amd hl:reby waives IUs right to file fer and reeeiVll Wl=Iplaym=.t eompIllll>lltWn i:IlsunI1Ce. 4, Dicll:il1:llll1.~ thll!: iu resps= to a#;/ requasts ibr <m employment ..:fe(.a= by PfllllpCCtiVe IlllUplcyers" it stIalI issue a letll;r of ~ for ellplcyee. . ,S. Employee shall have such righ1s tll be;I1th ~e for biDi aad his family at the COI1Ilhlsion of bis I'rIm~rive leaVll ofabsem;e W11~ 30, 1!1!l7, or cartier, as are provided b)' COBR.A coverage .'PickiDscm polley. 6. Etnployee and Dickitll1011 shal1 keep the termS af tlds A~F"f compl.lBly ~ rp::i:ept for:(a) discklSUfIl xeqWrc4 by law pr in c:um1eClicm with legal ~s between the pPrties, OI! (b) 4illclOSOfll by Emplllyee to n=nben of his ..........iIo"" family or to his attcrIUl)IS. ~ or lax advbors. 7. EmptayCll represents tbln be has !lOt filed ~ COlIIplai:D!3, c:IlafFl or cW.tl:l:I a~ Di"pnootl. witb lbe, ~ Emplo~ 0ppgnwUl.Y eaalDlissiol1, the l'ennsylwnia EumlUl RelaIiQI1S ~ion or with m!Y other local, slate or ~ agClllCY or court, tbIlt limployn WilJ,not' do :~ at lIl1Y timco hetcaftc.T, and !bat if BDY !W allll1CY en: Cllurt as~ jurlBQictio\111f arry comp!lW:lt. cbarge at claim against DickiJlSCln on bcba1f of Ell:lpl~e. I1c will reqDtlSt suc:b ~ pr l:lNtt 10 withdmW frlltl1ll1. matter. S. As a marFriatl:lldue=eI1t tD DiclciDson to enter iII,tD thls Agr=-=t, Employee llccby ix:reYacably &nl1 unconditiolllllly Id=Ses. acqldts and ibreyer clisdmtlCll Dickinson and each of DiI;kimcn's tIQSteCll. oftlcers, ptedecessors, SDCCtSSots, assig!:Is, agi:ll1Cl, empIoyel:S, tePresentat:iVt:5, att0r4eys, divisiml$. IiIlbsidlaries. RfflJ;~t..~. mill all-petllDEIS IICtil1& by. ~. under. of, iu CQlIl:crt witI:l any ofthcm (eaI1ecti~ .Dic~"""n"). or ~ of them. fL'em any ami aU ~. comp~, cIaIms, 1iabUi:lies, obligatlOllS, ~e$, agrcemelltS. ClIl1t1'Dv=mil::s, damages, KIiollS, causes ofaclicm. suiTS, rigbtll. dw'''''''', costs, losses, dclbls alld.l!XPense!I (iIIl::l.udiPJ atto!'l1C)'s' = and ~ aeumI1y inctI:n:ed). of any natUtC wb=ocver, ~dng aIlly thesIS rights granted to Bmployce IlIIder Ibis Al~ which EInploy= may have asaimt Di~cn, im:ludiDg, but not IiI:aited to. 811Y ami aU c1aim11 Wlder 11110 vn of me CiYil Bights Act of 1~64, tile Ci'iil RiahIS Ai:t of 1991, me Pe~lvllJ1ia. Humall Relations ACt, me Am~ \!ilh Disabililies Aa., the Apl DiscriuLitla>tlon ill EtnpIoymcnl., the Fair Labar S~ A.ct, th; Wap Payment lU:ld CaUectiDJI Law, ~ and all. cI.abDs ftlr de:flIvI..tiol!. or other pcrsoMI illj\ltY. any ami aU c:lahtla ftlr brl:ach of cotltr:ICt or vIolal1an of procedutal due process 1.lIlller federal. stem or local statUtory .~ ~DJl]ll:\OD. la~, U well lIS my and lIl1 c1llims lllXIer rederal, sTate, 1oQ1 or Did;inl!on regWl1~lcms. Fill' puxpose ?f itnpl~g a full and complete telcllSe'lJIlll ~ oC DlakiJJ:;cJ1, Employee ~ly ~Wlec:\ges tbat tbi:I Agre=nt is illtandcd 10 blgludc in il>l effect, witbout limitation. ~ cllIims wbich Employee doeS not klmw llf Sll:lpcct to ClWt in Employee's Pase 2 af3 Pages , HI'"'t'(. tj.C::l!:l\!J.:I'l~ll:-=lC:Hrl~ \YILt;,!UHll:J~. l:lLI-;l::t~UaEG r'iU.4bC::~3 1""'.14/14 '.- favor at ~ time of exeaitiol1llereOf. and U1at this A~ contl:mp)ateS me ~ of IJJ,'j ~ claim Dr c1ailPs. including, b11l-Dllt 1il"fl'Pd to. <UlY m1 all UJlIUf:tS tdatl:d 10 or ' arlsiug out of IliCkillSOl1", emplopnent ;md hill teSigxaaUol1 ~On1. 'I'JU$ te~ of c1aiJllS shalll10t apply to claimS ~ after the date of Employee's ~Ition of this J\.greem@P!:. , . 9. Employee \ll1d!lrSfallCI and cettifies dI.at ~ ball c:mfqny ~ and fully l3Jldentmlds ell tha pttlVi'siOJl5 a1lI1 cffe;Tll of tI1iJ A.greemeDt. duLt llrl )wll been adVised In 'lVl"itine; to ~nauk witb all ~ regardlnll: thi.I ~ lhat 11e bas had. tbc oppQt\UDiQ' 'to QODS!,der this A~ fQr a ~od. of at least fo1u1=1 (14) dll)'S ptior to ~11an, tba1: he is vollll1tllIi1Y enteriaIlDtD this J\.SW""~. mc1 mat -peitber Dtc\l:mllOl1I1Cf its tfgllL'llllS. ofliem. agents. cnnplo~ ar attDtlUlYS have made allY repteSlIlTlldlU\S o:onccmltlg the ~, I:ODIIiliODS or: effects of ibis J\.greem=nt otbeL' il1IlJl those COIItained, 11ef~ , 10. TIIis Ap~DI&1U lII8,Y be revokl:d by Emp1o~ witllill fiw (5) WQtkdayl! foUg~ ~ ~f. by segrlmi wtit= notice of rl:-YoCllli~11 via ;ertific:4 J:DIlil to P\ltel' N. !t\ItU1akiS, The DidWl3an SduJol of I.aW, 150 SouTh College Street, car1lsle. Pemis)'lVllllia 1701~. . ' 11. Thls A~ CQIlStitAte5 the sole ~ of !he pm'lics h=tO m:l ~3ed!lli atlY prior DJI co1\blltlp~~' wbcl:b=- wrineD or oral. of !he patties respealnJ the Wid1ill sul:ljec:t~. IN wrrNESS ~F. ~ p~ have set their hlI11ds and seals the clay III1d JCU Kt fctth be1aw. ' wrrNESS: :::? _ . A" I. . .~. I!....{,~.i" ~ . [) ~ ~...-t.... nm DlCIONSON sClIOOL OF LAW ~: ~LU4C'kJt:.- b.l:EaN.~ Vu:cDcan . . ' ~Ol1VJ;l/lt"'t t7.q.l~1- ., , . wrrNESS: ~j''''It.J J'r<l~lfl" J ~i~' :.:1-:- ExIlCl1teQ on "I J 7 . 1:99.!l1 . . page::l of] pages CERTIFICATE OF SERVICI;, I, Crystal H. Williamson, Attorney for Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, by first class mail, postage prepaid: Thomas R. Davies, Esquire Harmon & Davies 2306 Columbia Avenue Lancaster, PA 17603 THOMAS, THOMAS & HAFER, LLP ~ . Williamson, Esquire Dated: September 20,2004 ,. , c;> .--> ~;;;-::~ ..c C) -n -'- -..-\ -~: fl-, -C' (0 ", o 1"',) r,,;, :~:~ PRAECIPE FOR LISTING CASE lfOR ARGUMENT (Must be 1:ypewtitten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: --------------------------------------------------------------------------------------- Please list the within matter for the llext Argunent Court. CAPTION OF CASE (entire caption must be stated in full) LESTER R. GRIEST vs. (PlaintiIf) PENNSYLVANIA STATE UNIVERSITY , DICKINSON SCHOOL OF LAW ( Defendant) No, 1175 Civil 2003 Ja.j 1. State matter to be argued (i.e.. PlaintiIf's lTI)tion for new triaL defendant's danun-er to COIIllaint. etc.): Motion for Summary JUdgment 2. Identify counsel who will argue case: (a) for PlaintiIf: Address: Thomas R. Davies, Esquire, Harmon & Davies 2306 Columbia Avenue, Lancaster, PA 17603 (b) for defendant: Crystal H. Williamson, Esquire Address: 305 North Front Street, Harrisburg, PA 17108 3. I will notify all parties in writing within n.o days that this case has been listed for argt.rrent. 4. Argunent Court Date: November 10, 2004 Dated: September 22, 2004 UIjJW .u Attorney for Defendant c:\ r;:; ...., c:;:::'1o c"" .;.:- en ;";--, r<J G' -c' -~... <~, 0', Edward E. Guido, J. LESTER R. GRIEST : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. PENNSYLVANIA STATE : NO. 2003-1175 CIVIL TERM UNIVERSITY, DICKINSON SCHOOL OF LAW: CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.L OLER, GUIDO, JJ. AND NOW, this ORDER OF COURT 7'"' day of JUNE, 2005, Defendant's Motion for Summary Judgment is GRANTED, ~mas R. Davies, Esquire ~ul J. Dellasega, Esquire J Crystal H. Williamson, Esquire ~ ~oS OVa \j'l:NI\\)S~\{jC\ I \ ;',\f'\.rn r,'.' ,-,.~;;"1':c\\'J fWo\,,-,.e 9 \ :(, W.J 9- ~l,\\nUU1. }."tI'il.O\~O\-\l.()\:ld ~'r\1.10 :P\,,~o-a:f\1:I , LESTER R. GRIEST IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENNSYLVANIA STATE NO. 2003-1175 CIVIL TERM UNIVERSITY, DICKINSON SCHOOL OF LAW CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER P.L OLER. GUIDO. n. OPINION AND ORDER OF COURT The instant action was brought under the Pennsylvania Human Relations Act (PHRA).l Plaintiff alleges that he was dismissed from employment because of his age. Currently before us is defendant's Motion for Summary Judgment. For the reasons hereinafter set forth, we will grant the motion. Pennsylvania Rule of Civil Procedure 1035.2 provides, in relevant part, as follows: After the relevant pleadings are closed, but within such time as not unreasonably delay trial, any party may move for summary judgment in while or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. In determining whether to grant a motion for summary judgment we must view the record in the light most favorable to the non-moving party. Ertel v. Patriot News Co" 544 Pa. 93.674 A.2d 1038 (1966), Summary judgment may only be granted in cases that are clear and free from doubt. JH Ex Rei. Hoffman v, Pellak, 764 A.2d 64 (Pa.Super. 2000). '43 P,S, Ii 951 el seq, 2 NO, 2003 - 1175 CIVIL In the instant case the material facts are not in dispute. Plaintiff had been employed by defendant's predecessor, the Dickinson School of Law, as Director of the Plants and Grounds Department. He was asked to resign his position shortly before the employer's merger with the Pennsylvania State University. His resignation was effective June 30, 1997. However, pursuant to a "Separation Agreement and General Release" Plaintiff was placed on "administrative leave" with full salary in May and June. Furthermore, the agreement called for him to receive an additiona11ump sum payment equal to four months of his salary on June 30,1997. Paragraph 8 of the Agreement contained the. following language. As a material inducement to Dickinson to enter into this Agreement, Employee hereby irrevocably and unconditionally releases, acquits and forever discharges Dickinson and each of Dickinson's... successors, assigns, . , . or any of them, from any and all charges, complaints, claims, liabilities, obligations, . . . of any nature whatsoever. excepting only those rights granted to Employee under this Agreement, which Employee may have against Dickinson, including, but not limited to, any and all claims under. . . the Pennsylvania Human Relations Act, It is clear from the above language that the current action is barred by the terms of the Agreement. Plaintiff does not allege that the release was ambiguous or that it was procured by fraud, duress or mutual mistake2 Rather, he contends that it is void as against public policy because it does not comply with the requirements of the Older Worker's Benefits Protections Act. (OWBPA)3 He relies upon the decision rendered in his case by the Pennsylvania Human Relations Commission (PHRC), Holding the release to be against public policy, the PHRC stated: 2 "The effect of a release is determined by the ordinary meaning of the language contained therein, A release not procured by fraud, duress, or mutual mistake is binding between the parties," Strickland v. University of Scranton, 700 A.2d 979, 986 (Pa.Super. 1997) (citations omitted), 329 US,C, ~ 625 (b), 3 NO, 2003 - 1175 CIVIL Under Pennsylvania law, a release agreement which is contrary to public policy is void. Shades v. Deal, 685 F.2d 824 (3'd Cir. 1982). We consider the policy behind the congressional enactment ofthe OWBP A to be sound and wholly consistent with the public good, and therefore hold that the failure ofthe present release to comply with OWBP A provisions renders that agreement void as against public policy with respect to the present PHRC c1aim.4 There are no Pennsylvania cases which have addressed the issue before us. However, the Third Circuit has clearly held that the failure to comply with the technical release requirements of the OWBP A only voids the release as to claims made under the Age Discrimination in Employment Act (ADEA).5 See Long v. Sears and Roebuck, 105 F 3d 1529 (3d Circuit 1997) and Wastak v, Lehigh Valley Health Network, 342 F 3d 281 (3d Circuit 2003). In Wastak the Court specifically discussed the statutory policy behind the enactment of the OBW A and concluded that it did not apply to a release which only waived the "right to bring a lawsuit." 342 F3d at 293. The Wastak Court went on to say: the statutory provisions ofthe OWBPA apply only to ADEA claims, and thus, the effect of the Release with regard to the state PHRA claims is "determined by the ordinary meaning of the language contained therein." Strickland v, Univ, of Scranton, 700 A.2d 979, 986 (1997). 342 F2d at 295. Prior to the enactment of the OWBPA common law contract principles were applied to determine the validity of releases involving federal age discrimination claims, See Long and Wastak, supra. The OWBP A supplanted the common law. As the Long Court stated: . . ' Congress, after grappling with the question of whether to permit ADEA waivers at all, stated unequivocally that unless the enumerated requirements are met, an individual "may not waive" ADEA rights. 29 U.S.C. 9 626(f)(1) (emphasis added). 4 See Exhibit A to "Plaintiff's Response to Defendant's New Matter, Answer to Counterclaim and New Matter to Defendant's Counterclaim." s 29 USe. g 621 ej seq, NO. 2003 - 1175 CIVIL 105 F 3d at 1539. The instant cause of action was created by the Pennsylvania Legislature with the passage of the PHRA. We can see no reason why the failure to comply with the technical requirements of the OWBP A should void the release of claims in this case. Since the cause of actio') was created by the Pennsylvania Legislature it is the prerogative of that body, not Corgress or the Courts, to limit or abolish the ability to waive the claims created by it. Absent any legislative indication to the contrary, we are of the opinion that the common law should apply. Applying the common law principles enunciated in Strickland, supra, defendant's right to relief's clear and free from doubt. The plaintiff received adequate consideration i,e, six monthj of his salary. There are no allegations of fraud, duress (financial or otherwise), or ;nutua1 mistake. The language of the contract is clear. Defendant "irrevocably and unconditionally" released defendant from "any and all claims" under "the Pennsy1vmia Human Relations Act." Therefore, we will grant the defendant's By the Court, motion for summary judgment. ORDER OF COURT AND NOW, this 7TH day of JUNE, 2005, Defendant's Motion for Summary Judgment is CRANTED. Isl Edward E. Guido Edward E, Guido, J. Thomas R. D~!vies, Esquire Paul 1. Dellasega, Esquire Crystal H. Wiiliamson, Esquire 4 LESTER R. GRIEST IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENNSYLVANIA STATE UNIVERSITY DICKINSON SCHOOL OF LAW NO. 2003 - 1175 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 7TH day of JULY, 2005, Plaintiff's Counsel is directed to file a concise statement of matters complained of on appeal within fourteen (14) days of today's date in accordance with Rule of Appellate Procedure 1925(b). By the Court, ~l Edward E. Guido, J. ~omas R. Davies, Esquire ~ul J. Dellasega, Esquire :sld Court Administrator . ... . V:i\~V/\l}'':::~S ~:3d I '>If',,.." n' '- ",,-,.,,\,~", ^-i..l\l 1,_l"j .,..,-, ;"";~:,','\I( IJ lj ~ ;2 t~d L - lflf SOOZ AWlONOHlOUd 31-U .:10 381:l:10--G311::J " " [7' , - _..",,+,J"; 4:16.P.M, Appeal Docket Sheet Docket Number: ~ Page 1 of 3 July 11, 2005 ,^ i:,.;;.=- ~ - ~~ ~ ~- - ...:.r; 1 ' . Superior Court of Pennsylvania - Lester Griest, Appellant v, PA State University & Dickinson School of Law Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: July 7,2005 Journal Number: Case Category: Civil Consolidated Docket Nos.: Awaiting Original Record CaseType: Related Docket Nos.: Civil Action Law Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received 7/11/2005 SCHEDULED EVENT Next Event Due Date: July 25, 2005 3023 4:16.P,M, Appeal Docket Sheet Docket Number: 1104 MDA 2005 Page 2 of 3 July 11, 2005 Superior Court of Pennsylvania - Appellant Pro Se: IFP Status: Appellee ProSe: IFP Status: COUNSEL INFORMATION Griest, Lester Appoint Counsel Status: No Appellant Attorney Information: Attorney: Davies, Thomas Richard Bar No,: 35260 Law Firm: Harmon & Davies, P,C, Address: 2306 Columbia Avenue lancaster, PA 17603 Phone No,: (717)291-2236 Fax No.: (717)291-5739 Receive Mail: Yes E,Mail Address: Receive E-Mail: No PA State University & Dickinson School of Law Appoint Counsel Status: Appellee Attorney Information: Attorney: Dellasega, Paul J, Bar No,: 23146 Law Firm: Thomas, Thomas & Hafer, LLP Address: 305 N Front St 6th FI PO Box 999 Harrisburg, PA 17108-0999 Phone No,: (717)255-7602 Fax No,: (717)237-7105 Receive Mail: Yes E-Mail Address:pdellasega@tthlaw.com Receive E-Mail: No FEE INFORMATION Fee Date 7/7/05 Fee Name Notice of Appeal Fee Amt 60.00 Paid Amount 60,00 Receipt Number 2005SPRMD000568 TRIAL COURT/AGENCY INFORMATION ::ourt Below: Cumberland County Court of Common Pleas ;ounty: Cumberland )ale of Order Appealed From: June 7,2005 late Documents Received: July 7,2005 )rder Type: Order Entered ludge: Division: Civil Judicial District: 9 Date Notice of Appeal Filed: July 5, 2005 OTN: Guido, Edward E. Judge Lower Court Docket No,: 03.1175 '/1112005 ORIGINAL RECORD CONTENTS 3023 4:16.P.M. . Appeal Docket Sheet Docket Number: 1104 MDA 2005 Page 30f3 July 11, 2005 Superior Court of Pennsylvania - Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS Filed Date DOCKET ENTRIES Docket Entry/Document Name Party Type Notice of Appeal Filed Filed By July 7, 2005 Appellant Griest, Lester July 11, 2005 Docketing Statement Exited (Civil) Middle District Filing Office '/11/2005 3023 """Cl ;: ,~" tr-"!,, % v'- ~<' 1,::::'- -~ o ~; ..... = = cJ' <- CO r ,.( (..) o --n "'-:\ :_\:; -n r. '1":: -om --:JC-: ~-';-;(1' :rc"" C)-c.:. co. (j ;::-::,;"\'1 '--:::i !}j -<: u:> IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA CIVIL ACTION - LAW LESTER R. GRIEST, Plaintiff CIVIL TERM v. No. 03-1175 PENNSYLVANlASTATEUNIVERSITY DICKINSON SCHOOL OF LAW, Defendant. CONCISE STATEMENT OF MATTERS COMPLAINED OF AND NOW, this 20th day of July, 2005, the Plaintiff, Lester Griest, by and through his counsel, Hannon & Davies, P.c., hereby presents his Concise Statement of Matters Complained Of, pursuant to the Court's Order in this matter dated July 7,2005. L That the decision to grant Defendant's Motion For Summary Judgment was incorrect for the reasons explained below. 2. The Court relied on the Settlement Agreement and General Release (Settlement Agreement) signed by the Plaintiff upon the telmination of his employment. 3. The Settlement Agreement is clearly in violation of the minirnum requirements of the Older Worker's Benefits Protection Act, 29 D.S.C. ~621 et seq. (OWBPA). 4. Because of its failure under the OWBP A, the Settlement Agreement is void on its face. 5. The Court relied on federal case law to support its decision that the Settlement Agreement will only be held void as it applies to the federal Age Discrimination in Employment Act, and does not void the Settlement Agreement as it applies to Plaintiffs state claims. 6. The federal case law does not govern Plaintiffs state claim. 7. The Court is not bound by the federal courts' d,ecisions. 8. It was incorrect for the Court to grant Defendarlt's Motion for Summary Judgment based on the federal case law cited. HARMON & DAVIES. p,c. ATI'OIl.NE'{~A.l-LAW 2306 COLUMBIA AVENUE LANCASTER. PA 17603 IlARMON & DAVIES. p,c. Al'fORNEYS-AT.LAW 2306 COLUMBIA AVENUE LANCAS1ER, PA 17603 II i' 9. Further, the Settlement Agreement should be held void under Pennsylvania's prohibition of waivers of rights to claim unemployment benefits under 43 P.S. ~861, and as against public policy. 10.lt was incorrect for the Court to grant Defendant's Motion for Summary Judgment and not allow these issues to go forward to trial. Respectfully submitted, Dated: /. 'U:1-(.)J o~ ;-1/:/ c-... Thomas R. Davies, ID# 35260 HARMON & DA vms, P.C. 2306 Columbia Avenue Lancast(:r, P A 17603 (717)291-2236 C'\lloou_ODd_"'~~Doounoob'C);ooW-G<iaoll/li'_Il<IIooI.fl.Owc..;..S"_ofMo""'C""1'l""".("'" 2 !ARMON & DAVIES. P,C, ATIORNEYS.AT-LAW 23Q6COLUMBlAAVENUE LANCASTER, PA 17603 II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LESTER R. GRIEST, Plaintiff CIVIL TERM v. No. 03-1175 PENNSYLVANIA STATE UNIVERSITY DICKINSON SCHOOL OF LAW, Defendant. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy Plaintiffs Concise Statement of Matters Complained Of upon the persons and in the manner indicated below, which service satisfies the requirement ofPa. R.A.P. 906: Service by First Class Mail Addressed as Follows: Crystal H. Williamson, Esquire THOMAS, THOMAS & HAFER, LLP 305 North Front Street PO Box 999 Hanisburg, PA 17108 The Honorable Edward Guido CUMBERLAND COUNTY COURT OF COMMON PLEAS One Courthouse Square, Room 3 Carlisle, PA 17013 Taryn N. Dixon Court Administrator CUMBERLAND COUNTY COURT OF COMMON F'LEAS One Courthouse Square Carlisle, P A 17013 Dated: ',' z. 0 . z.o tX6- ~-...). ~ ~ike, ill #9252 HARMON & DAVIE, . Attorneys for Plaintiff, Lester R. Griest (',\Do<_..w~__~y~......""o,;.~...._~w\C....fSotV7_:ro.O~_o.pd g ....> 0 = = "" cJ' t.- c-;:l C. _.~ -1""'i r rnp ", :"110='\ - 3t) --r. -::J (:-, :!-~! '.~ r:-) <:.~l,'n c: '-:? ~--::~~, ......- ~E ::2. t>O .0:- .-<:, - LESTER R. GRIEST : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. PENNSYLVANIA STATE : NO. 2003 - 1175 CIVIL TERM UNIVERSITY, DICKINSON SCHOOL OF LAW : CIVIL ACTION - LA W IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925 Guido, J., August S- , 2005 Plaintiff has filed this timely appeal from our order of June 7, 2005, granting Defendant's Motion for Summary Judgment. The reasons for our order were fully set forth in the opinion which accompanied it. .~J.6-.\e..a 2.",,-\\.::., [~~ Thomas R. Davies, Esquire ~u1 J. Dellasega, Esquire Edward E. Guido, J. ..efystal H. Williamson, Esquire :sld D~'O \/iNV^lASNN3d 1l~lno:-.i i1"rrc:'.i::'JQ'^'n" NJ" i _ ., ~,__ ~,1'\f1 ...; 91 :~ \old 9- ~nv SOOl AtNIONOHlOc:d 3HI. :10 3:J1:l.:Kr031l:l ", , LESTER GRIEST, ~- 03- J17~ 2006 PA Supe, 78 .____ ~ IN THE SUPERIOR COURT OF PENNSYLVANIA J. A05001/06 Appellant v. PENNSYLVANIA STATE UNIVERSITY & DICKINSON SCHOOL OF LAW, Appellee No, 1104 MDA 2005 Appeal from the Order Entered June 7, 2005 In the Court of Common Pleas of Cumberland County Civil Division at No. 03-1175 BEFORE: BENDER, BOWES and PANELLA, JJ. OPINION BY BENDER, J.: FILED: April 4, 2006 ~ 1 Lester Griest appeals from the order entered on June 7, 2005, that granted the summary judgment motion filed by Pennsylvania State University (PSU) and Dickinson School of Law (DSL) (collectively Appellees) in a suit filed by Mr. Griest wherein he sought damages from Appellees for age discrimination in employment. For the reasons that follow, we affirm. ~ 2 We begin with a brief recitation of the facts that the parties agree are not in dispute. Mr. Griest was an employee of DSL as the Director of the Plants and Grounds Department. Shortly before the merger of DSL and PSU, Mr. Griest was asked to resign his position. Pursuant to a "Separation Agreement and General Release" (Agreement/Release), which the parties entered into, Mr. Griest's resignation became effective on June 30, 1997, although during the months of May and June of that year he was placed on administrative leave at full salary and with full benefits. Prior to Mr. Griest's . J. AOS001/06 signing of the Agreement/Release, DSL suggested two options for his consideration: Option A provided for a lump sum payment on the condition that Mr. Griest waive his right to seek unemployment compensation benefits, and Option B provided that Mr. Griest would not receive the lump sum payment but was free to apply for unemployment compensation benefits for which he was eligible. See Letter dated May 2, 1997, Exhibit A attached to Mr. Griest's original complaint, Certified Record at 8. Mr. Griest chose Option A, which specifically provided for the lump sum payment equal to four months salary to be paid on June 30, 1997, which was over and above the two months' paid administrative leave. Both parties agree that the plain language of the Agreement/Release prevents Mr. Griest from making any claims under the Pennsylvania Human Relations Act. ~ 3 Despite having entered into the Agreement/Release, Mr. Griest, who was over the age of 40 at the time he was separated from his employment with DSL, filed charges with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Rights Commission (PHRC) alleging age discrimination. Then on March 14, 2003, Mr. Griest filed suit against Appellees alleging in Count I violations of the Pennsylvania Human Relations Act (PHRA), 43 Pa.C.S. 9 9SS(a) ("Unlawful Discrimination Practices"), and in Count II violations of the Unemployment Compensation Law (UCL), 43 Pa,C.S. 9 861 ("Certain agreements void; penalty"). Following the filing of preliminary objections by Appellees, Mr, Griest amended his complaint to - 2 - J. A05001/06 eliminate Count II, i.e., the allegation of the UCL violation. Next, in addition to an answer, Appellees raised counterclaims, alleging breach of the Agreement/Release and requesting specific performance. ~ 4 Then, on September 20, 2004, Appellees filed a motion for summary judgment, asserting that because traditional principles of contract law apply to a release, Appellees were entitled to have judgment entered in their favor. Appellees relied on the fact that both parties signed the Agreement/Release after negotiations and discussion, that the Agreement/Release was supported by valid consideration, and that the Agreement/Release specifically released Appellees from any claim that Mr. Griest may have had pursuant to the PHRA. Following oral argument and after reviewing the parties' briefs, the trial court entered an order granting Appellees' motion for summary judgment. ~ 5 From that order Mr. Griest filed the present appeal to this Court, raising two issues for our review: A. Did the trial court err when it held that a separation agreement and general release is valid, despite it being in conflict with both state law, 43 P.S. 9 861, and federal law, 29 U.S.C. 9 626(b)? B. Did the trial court err when it granted [Appellees'] motion for summary judgment? Mr. Griest's brief at 5. - 3 - J. A05001/06 ~ 6 Where a trial court has granted a motion for summary judgment, we are guided by the following: As an appellate court, we are bound to consider certain principles when and under what circumstances a trial court may properly enter summary judgment. The trial court must accept as true all well-pleaded facts relevant to the issues in the non- moving party's pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court's conclusion[,] no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The court must ignore controverted facts contained in the pleadings and restrict its review to material filed in support of and in opposition to a motion for summary judgment and to those allegations in pleadings which are uncontroverted. We will overturn a trial court's entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Porro v. Century 111 Assocs., 846 A.2d 1282, 1284 (pa. Super. 2004) (quoting Millard v. Osborne, 611 A.2d 715, 717 (Pa. Super. 1992)). ~ 7 Mr, Griest argues that the Agreement/Release fails to meet the requirements of the Older Worker's Benefits Protections Act (OWBPA) and also violates the statutory provisions prohibiting waiver of rights to benefits under the UCL. Based on these assertions, Mr. Griest contends that the Agreement/Release is invalid, that the trial court erred by not concluding that the Agreement/Release is void as against public policy, and that as a result summary judgment should not have been granted. ~ 8 Initially, we look to the trial court's explanation as to the basis for its decision. The court first recognized that the terms of the - 4 - J. A05001/06 Agreement/Release itself barred Mr. Griest's actions in bringing the age discrimination charge to the PHRC, and then explained its decision to grant Appellees' motion for summary judgment as follows: [Mr. Griest] does not allege that the release was ambiguous or that it was procured by fraud, duress or mutual mistake. Rather, he contends that it is void as against public policy because it does not comply with the requirements of the Older Worker's Benefits Protections Act (OWBPA). He relies upon the decision rendered in his case by the Pennsylvania Human Relations Commission (PHRC). Holding the release to be against public policy, the PHRC stated: Under Pennsylvania law, a release agreement which is contrary to public policy is void. Shad[i]s v. Beal, 685 F.2d 824 (3rd Cir. 1982). We consider the policy behind the congressional enactment of the OWBPA to be sound and wholly consistent with the public good, and therefore hold that the failure of the present release to comply with OWBPA provisions renders that agreement void as against public policy with respect to the present PHRC claim. [PHRC's Interlocutory Order, 6/28/98, Exhibit A attached to Mr. Griest's Response to DSL's New Matter, Certified Record at 55.] There are no Pennsylvania cases which have addressed the issue before us. However, the Third Circuit has clearly held that the failure to comply with the technical release requirements of the OWBPA only voids the release as to claims made under the Age Discrimination in Employment Act (ADEA). See Long v. Sears and Roebuck, 105 F.3d 1529 (3rd Cir. 1997), and Wastak v. Lehigh Valley Health Network, 342 F.3d 281 (3rd Cir. 2003), In Wastak the Court specifically discussed the statutory poliCY behind the enactment of the [OWBPA] and concluded that it did not apply to a release which only waived the "right to bring a lawsuit." 342 F.3d at 293. The Wastak Court went on to say: The statutory provisions of the OWBPA apply only to ADEA claims, and thus, the effect of the Release with regard to the state PHRA claims is "determined by - 5 - J. A05001/06 the ordinary meaning of the language contained therein." Strickland v. Univ. of Scranton, 700 A.2d 979, 986 ([Pa. Super.] 1997). 342 F.3d at 295. Prior to the enactment of the OWBPA[,] common law contract principles were applied to determine the validity of releases involving federal age discrimination claims, See Long and Wastak, supra. The OWBPA supplanted the common law. As the Long Court stated: ...Congress, after grappling with the question of whether to permit ADEA waivers at all, stated unequivocally that unless the enumerated requirements are met, an individual "may not waive" ADEA rights. 29 U.S.C. 9 626(f)(1) (emphasis added). 105 F.3d at 1539. The instant cause of action was created by the Pennsylvania Legislature with the passage of the PHRA. We can see no reason why the failure to comply with the technical requirements of the OWBPA should void the release of claims in this case. Since the cause of action was created by the Pennsylvania Legislature it is the prerogative of that body, not Congress or the Courts, to limit or abolish the ability to waive the claims created by it. Absent any legislative indication to the contrary, we are of the opinion that the common law should apply. Applying the common law principles enunciated in Strickland, supra, [Appellees'] right to relief is clear and free from doubt. [Mr. Griest] received adequate consideration i.e. six months of his salary. There are no allegations of fraud, duress (financial or otherwise), or mutual mistake. The language of the contract is clear. Defendant "irrevocably and unconditionally" released [Appellees] from "any and all claims" under "the Pennsylvania Human Relations Act." Therefore, we will grant [Appellees'] motion for summary judgment. Trial Court Opinion (T.C.O.), 6/7/05, at 2-4 (footnotes omitted), - 6 - J. A05001/06 ~ 9 We first note that the trial court only addressed whether a failure to comply with OWBPA requirements should void the Agreement/Release. It makes no mention of any allegations that a violation of the UCL occurred, This is appropriate since Mr. Griest's UCL claim set forth in Count II of his original complaint was not included in his amended complaint.1 Thus, having deleted Count II, any argument as to whether a violation of the UCL occurred is not an issue in this case. ~ 10 Specifically, with regard to the alleged failure of the Agreement/Release to comply with the provisions of the OWBPA, Mr. Griest argues that the trial court's reliance on Wastak and Long contradicts "Pennsylvania decisions relating to the basics of contract interpretation." Mr. Griest's brief at 11. Mr. Griest relies on section 178(1) of the Restatement Second of Contracts (1979), which provides that "a promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly 1 In response to Count II of Mr. Griest's original complaint, Appellees filed preliminary objections, asserting inter alia that "no private cause of action [is] created or permitted under 43 P.S. 9 861," and that "[e]nforcement of this and other provisions of the Unemployment Compensation Act is vested with the Department of Labor and Industry of the Commonwealth of Pennsylvania. 43 P.S. 9 761." Appellees' Preliminary Objections, ~ 17. Appellees also asserted that the only remedy allowed for a violation of 43 P.S. 9 861 is criminal in nature, not civil. Id. at ~ 18. Appellees additionally asserted that a "waiver" of unemployment benefits is not prohibited where an employee is given an option, i.e., the employer did not "require" the employee to waive unemployment benefits in violation of 43 P.S. 9 861. Id. at ~ 19. Obviously, Mr. Griest agreed with Appellees' averments and filed his amended complaint deleting Count II. - 7 - J. A05001/06 outweighed in the circumstances by a public policy against enforcement of such terms." Mr. Griest also relies on Shadis, which states "that a contract which is injurious to the public interest may be held void even in the absence of express legislative mandates contrary to the provisions of the agreement." Shadis, 685 F.2d at 833 n.15 (emphasis added). ~ 11 Mr. Griest has not convinced this Court that the trial court's reliance on Wastak and Long is misplaced. The Wastak court's language could not be clearer, and as noted by the trial court "the statutory provisions of OWBPA apply only to ADEA claims, and thus, the effect of the Release with regard to the state PHRA claims is 'determined by the ordinary meaning of the language contained therein.''' Wastak, 342 F.3d at 295. Moreover, just as the release in the Wastak case prohibited the pursuit of PHRA claims, the Agreement/Release in the instant matter likewise prohibits such claims, and without evidence of fraud, duress or other circumstances sufficient to invalidate the Agreement/Release, it is binding upon the parties. Id. See also Davis v. Government Employees Ins. Co., 775 A.2d 871, 875 (pa. Super. 2001) (stating that "a release not procured by fraud, duress, or mutual mistake is binding between the parties"). Since Mr. Griest makes no such claims, we are compelled to conclude that the Agreement/Release is binding on the signatories. ~ 12 Also, in response to Mr. Griest's contention that section 178(1) of the Restatement Second of Contracts (1979) should control, we are not aware of - 8 - J. AOS001/06 any provisions in the PHRA that prohibit the type of contract term at issue here. Thus, section 178(1) is not applicable. We further note that the Shadis decision does not mandate that a contract, even if contrary to public policy, must be held void in the absence of legislation that is contrary to the agreement's specifications. Rather the Shadis decision employs the word "may," allowing in effect for discretion under the circumstances of the individual case. Here, the parties negotiated and agreed to the terms of the Agreement/Release, and Mr. Griest does not allege fraud, duress or mutual mistake. ~ 13 Accordingly, we conclude that Mr. Griest has failed to show that the trial court committed an error of law. The waiver of rights to file a claim under the PHRA as contained in the Agreement/Release is valid. Therefore, summary judgment entered in favor of Appellees was proper. ~ 14 Order affirmed. Judgment Entered: ~01C~ '{i'uty Proth~notary April 4, 2006 Date: - 9 - (") c ~7?;' ...,." ,_'OJ "'.> (~~~ 'i~>; j.;:~~~. :2 r-> = = cr' :;r. ~ OJ ~ :C1"\ n'F -oi,", ""1]Y (:--~ (-) -:::-'-;-"1 . ',..-n ~:~O ""-rn S~ ~ """" :1 r:-? (J1 c:> .. ...- THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg,PA 17108 (717) 237-7100 Paul J. Dellasega, Esquire Attorney I.D. 23146 Crystal H. Williamson, Esquire Attorney I.D. 91069 Attorneys for Defendant LESTER R. GRIEST, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.03-CV-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE COUNTERCLAIMS TO: PROTHONOTARY Please mark the counterclaims filed on behalf of the Defendant, Pennsylvania State University, Dickinson School of Law, in the above case settled, discontinued and ended without prejudice. Respectfully submitted, S, THOMAS & HAFER, LLP L .. . --- Crystal . Williamson, Esquire I.D. No. 91069 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PAl 71 08-0999 (717) 255-7602 Dated: r&jo~ Attorney for Defendant .. ---- CERTIFICATE OF SERVICE I, Crystal H. Williamson, Attorney for Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, by first class mail, postage prepaid: Thomas R. Davies, Esquire Harmon & Davies 2306 Columbia Avenue Lancaster, PA 17603 AS, THOMAS & HAFER, LLP Dated: Sf =3 aj Ou, ."..,. 0 1"'-:) 0 c:::> C c:::> -T1 ~~~; <:7"\ L ~ ! c: '"\1 ....1 I f= I -Orn ::nCJ U) ) ~~.J I :! " c.'J ::=4 )> W :::0 .4,.- -< ..... . THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7100 Paul J. Dellasega, Esquire Attorney LD, 23146 Crystal H. Williamson, Esquire Attorney LD, 91069 Attorneys for Defendant LESTER R. GRIEST, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.03-CV-1175 PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED TO THE PROTHONOTARY: Kindly enter judgment in favor of Defendant Pennsylvania State University, Dickinson School of Law, and against Plaintiff on the entry of summary judgment on June 7, 2005 in favor of Defendant Pennsylvania State University, Dickinson School of Law. This Order having been affirmed by the Pennsylvania Superior Court, judgment being entered on April 4, 2006. Final judgment in favor of Moving Defendant is proper as no tirne1y appeal was taken to the Pennsylvania Suprerne Court by Plaintiffs. Respectfully subrnitted, THOMAS, THOMAS & HAFER, LLP L illiamson, Esquire J.D. N 1069 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, P A 17108-0999 (717) 237-7103 Dated: Sf 3D/Oft.; Attorney for Defendant - CERTIFICATE OF SERVICE I, Crystal H. Williamson, Attorney for Thornas, Thornas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, by first class mail, postage prepaid: Thomas R. Davies, Esquire Hannon & Davies 2306 Columbia Avenue Lancaster, PA 17603 THOMAS, THOMAS & HAFER, LLP I .J H, Williamson, Esquire Dated: o/~~~ 2 \ ~ ~ 1- ~ C> () ......, 0 () c, C ~ ~n ~~,,-, ..,:- ::;! ~ - - -J ,- ~ l~'- -'-.11 ~ rnp co. .co"'.' -rJ l"~ ~ ~ I :{~c;) ~ ~ V> ~" -; ,--, - ~ .- 0 - ?:~: ::). ~~~ \IJ .-"'- 2) ;.-) , "f-- , '.:::\ fI',' r ;0 ---.. 0) (' ..r." '-< l'