Barisa v. Charitable Research Foundation, Inc.

• Citation: 287 A.2d 679
• Parties: Lawrence A. BARISA, Plaintiff, v. CHARITABLE RESEARCH FOUNDATION, INC., a Delaware corporation, Defendant.
• Decision Date: 25 January 1972
• Court: Delaware Superior Court

Page 679

287 A.2d 679

Lawrence A. BARISA, Plaintiff, v. CHARITABLE RESEARCH FOUNDATION, INC., a Delaware

corporation, Defendant.

Superior Court of Delaware, New Castle County.

Jan. 25, 1972.

Arthur J. Sullivan and Richard P. Beck of Morris, James Hitchens & Williams, Wilmington, for plaintiff.

Joseph T. Walsh, Wilmington, for defendant.

STIFTEL, President Judge.

Suit for wrongful discharge of employee. Verdict for employee. Defendant Charitable Research Foundation (CRF) moves, pursuant to Superior Court Civil Rule 50(b), Del.C.Ann., for a judgment n.o.v.

Barisa was employed by CRF as an administrator-accountant in July of 1966; the employment contract extended for a period of five years beginning August 15, 1966 and ending July 14, 1971. Barisa's primary areas of responsibility lay in the business aspects of a museum operated by CRF known as 'Project 400'. Those areas were defined in the contract as follows:

'(a) Barisa shall perform such duties of an administrative nature as shall be assigned to him from time to time by the Museum Director, including employment and all other responsibilities for museum personnel in addition to personnel in (b) and (c) below.

'(b) Barisa will be responsible for the fiscal and accounting phases of the museum's operation including preparation of such books, records, reports and other data as the Museum Director or the Board of Directors of the Foundation may require.'

In the event that Barisa's employment was terminated prior to the expiration of the five-year period, the contract provided that:

'6. If Barisa shall fail to properly discharge his duties as Business Administrator, then, in that event, Foundation shall have the option to discharge him, anything to the contrary herein notwithstanding, and in the event of said discharge, Barisa shall forfeit any right to further compensation. Should this contract be terminated by Foundation without cause, Barisa shall be entitled to receive one year's salary as severance pay. Should Barisa resign his employment either during the term of this contract or at any time thereafter, he shall not be entitled to receive any salary or severance pay after the effective date of his resignation.'

From July, 1966, until March, 1968, Barisa worked under the supervision of the Museum Director, Walter Mickle. When Mickle's employment was terminated in March, 1968, Barisa was given an increase in salary and additional duties by the Acting Director of the Museum, Ernest N. May. Mr. May was the donor of all funds for the construction and operation of the museum. One of Barisa's additional duties was the drafting of a set of operating rules for museum personnel known as the 'Administrative Routine and Policies'. These rules contained a section on disposal of surplus property of the museum which was added by Mr. May. The section, title 'Surplus, Salvage and Reclamation', provided for a bidding procedure to be supervised by Barisa as Business Administrator. The provision which plaintiff admittedly violated and for the violation of which he was discharged provided:

'7. It is further understood that the Business Administrator and any person above him (including trustees) are automatically disqualified from bidding on or purchasing anything whatsoever.'

On July 29, 1968, the first sale of surplus property was held under the procedure outlined in the 'Administrative Routine and Policies.' After determining that no other employee wanted one of the items for sale--a garden cart, Barisa arranged for a lower eschelon employee, Reginald Palmer, to submit a bid for him on the cart. Barisa recorded the bid in Palmer's name and recorded the cart as sold to Palmer, and had the cart delivered to Barisa's home.

The next day, Mr. May, upon being told that Barisa had the cart, examined the records of the sale and checked the homes of both Barisa and Palmer for the cart. After finding the cart at Barisa's home rather than at Palmer's, Mr. May confronted Barisa on July 31 and asked him about the cart. Barisa admittedly lied and said he had merely borrowed the cart. May asked for Barisa's keys and told him to take whatever vacation he was entitled to while awaiting the further action of the Board of Directors regarding severance pay. Barisa was later advised that he was discharged for cause without the one year severance pay.

Barisa has admitted that he deliberately and knowingly violated the regulations of CRF regarding disposal of surplus property:

'Q. You were under the impression, were you not, Mr. Baria, that you were disqualified from participating in this (bidding) regardless of the value of the item involved?

'A. That is correct.

'Q. You knew that in advance of submitting this bid through Mr. Palmer, did you not?

'A. That is correct.

'Q. In submitting this bid, you knew that you were deliberately going contrary to the regulations.

'A. That is right.'

His testimony shows that he tried to conceal this violation from his employer by falsifying records concerning the sale of the surplus garden cart and by falsely informing his employer that he had merely borrowed the cart from Palmer:

'Q. When Mr. May confronted you with the bidding situation, did you tell him that you had merely borrowed the cart as a way of trying to keep the incident quiet?

'A. ...