Masso v. United Parcel Service of America, Inc., Civ. A. No. 94-10753-RCL.

Decision Date31 March 1995
Docket NumberCiv. A. No. 94-10753-RCL.
Citation884 F. Supp. 610
PartiesGerald J. MASSO, Plaintiff, v. UNITED PARCEL SERVICE OF AMERICA, INC., Edward Chip, George Armentano, David Mackey, Al Bethune, Kenneth Brink, Thomas Upton, Mark Vetkevich, John Lacasse, William Murphy and Robert Polito, Defendants.
CourtU.S. District Court — District of Massachusetts


John C. Bryson, JRL., Murphy, McCoubrey, Murphy Gelinas, Stocks & Auth, Chicopee, MA, for plaintiff.

Sharon R. Burger, James N. Boudreau, Nutter, Mc Clennen & Fish, Boston, MA, for defendant.


REGINALD C. LINDSAY, District Judge.

Report and Recommendation Adopted.


March 14, 1995

BOWLER, United States Magistrate Judge.

Defendant United Parcel Service of America, Inc. ("UPS") and defendants Edward Chip ("Chip"), George Armentano ("Armentano"), David Mackey ("Mackey"), Al Bethune ("Bethune"), Kenneth Brink ("Brink"), Thomas Upton ("Upton"), Mark Vetkevich ("Vetkevich"), John LaCasse ("LaCasse"), William Murphy ("Murphy") and Robert Polito ("Polito") (collectively: "the individual defendants"), all UPS supervisory employees in the New England region, move to dismiss the six counts in the complaint filed by plaintiff Gerald J. Masso ("Masso"), a former UPS employee. (Docket Entry # 4). Masso opposes dismissal. (Docket Entry # # 7 & 12). After conducting a hearing (Docket Entry # 13), this court took the motion to dismiss (Docket Entry # 4) under advisement.

The six count complaint alleges that UPS and the individual defendants wrongfully discharged Masso as a result of Masso installing copyrighted software on their home computers at their behest. Inasmuch as UPS and the individual defendants seek dismissal under Rule 12(b)(6), Fed.R.Civ.P., this court shall draw all reasonable inferences in favor of Masso, the nonmoving party, and accept as true the factual allegations contained in the complaint. Vartanian v. Monsanto Company, 14 F.3d 697, 700 (1st Cir. 1994). Dismissal is proper if the plaintiff "cannot recover under any viable theory." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 53 (1st Cir.1990) (legal conclusions not entitled to presumption of truthfulness); accord Vartanian v. Monsanto Company, 14 F.3d at 700. As alleged in the complaint, this court finds the following facts for purposes of the motion to dismiss.


Masso, a Rhode Island resident, formerly worked as Field Support Supervisor for the East New England District of UPS. Plaintiff provided computer training to UPS employees and also installed and repaired computers at UPS in the East New England District. As such, plaintiff served the computer needs of the individual defendants, all of whom had higher positions at UPS than Masso.

In early 1992, Mackey, Controller for the East New England District of UPS, asked Masso to install a computer in Mackey's home. Shortly thereafter, Mackey told Masso that Armentano, Field Support Manager for the East New England District of UPS, would supply Masso with the necessary software. A few days later, Armentano provided Masso with copies of Lotus 1-2-3, Q & A and other disks, all of which constituted software licensed to UPS.

In accordance with Mackey's instructions, Masso installed the software on Mackey's home computer. Masso thereby exposed himself to potential civil liability by the software owners for copyright infringement. See 17 U.S.C. § 109(b)(1)(A); see also Concrete Machinery Co. v. Classic Lawn Ornaments, 843 F.2d 600, 605 (1st Cir.1988) (stating elements for copyright infringement).

Thereafter, Bethune, Division Manager of UPS' Norwood, Massachusetts office, Brink, Center Manager for Customer Service of UPS' Watertown, Massachusetts office, and six other UPS executives asked Masso to negotiate and acquire personal computers from a computer vendor using money provided to Masso by these individuals. Bethune, Brink and the six other UPS executives also asked Masso to install the Lotus 1-2-3 and Q & A copyrighted software on the newly purchased computers in their homes.

In addition to Mackey, Bethune and Brink, Chip, Armentano, Upton, Vatkevich, LaCasse, Polito and Murphy requested that Masso install Lotus 1-2-3 and Q & A on their home computers despite their knowledge that Masso's conduct would violate the software makers' copyrights. Five of these individuals compensated Masso after Masso originally refused such compensation. One individual mailed Masso $50, one individual left a check for $50 underneath Masso's office door, one individual handed Masso $50 while Masso was installing the software, one individual put $20 or $40 in Masso's hand and, finally, another individual placed a case of beer in Masso's automobile.

Armentano, Ronald St. Laurent, an auditor at UPS, and James Fallon, Center Manager at UPS' Norwood, Massachusetts office, told other UPS employees outside the circle of UPS executives who legitimately needed such information, that Masso had received thousands of dollars for his efforts. Armentano also spread the information that Masso had received "kickbacks" from the computer vendor or manufacturer. Such statements were false.

On February 10, 1993, UPS terminated Masso's employment because he installed the copyrighted software on the home computers of the UPS executives thereby committing an integrity violation.


The complaint alleges the following counts: (1) violation of the covenant of good faith and fair dealing against UPS (Count I); (2) negligent misrepresentation against UPS and the individual defendants (Count II); (3) promissory estoppel against UPS (Count III); (4) intentional interference with business relations against Chip, Mackey and Armentano (Count IV); (5) defamation against UPS (Count V); and (6) wrongful discharge against UPS (Count VI). This court addresses the counts seriatim.

I. Covenant of Good Faith and Fair Dealing

The general rule in Massachusetts is that in circumstances involving an employment at will the employer may terminate the employee without reason subject to certain limited exceptions where a covenant of good faith and fair dealing may be implied. Wright v. Shriners Hospital for Crippled Children, 412 Mass. 469, 589 N.E.2d 1241, 1244 (1992); St. Arnaud v. Chapdelaine Truck Center, Inc., 836 F.Supp. 41, 43 (D.Mass.1993). Such exceptions include when an employer terminates an employee to circumvent payment of future expected compensation for past services or expected benefits. Fortune v. National Cash Register Company, 373 Mass. 96, 364 N.E.2d 1251, 1257 (1977); Gram v. Liberty Mutual Insurance Co., 384 Mass. 659, 429 N.E.2d 21, 29 (1981). Another recognized exception is where the employer terminates an at will employee for violating public policy.

The public policy exception, however, does not extend to protect socially desirable duties. Smith-Pfeffer v. Fernald State School, 404 Mass. 145, 533 N.E.2d 1368, 1371 (1989) (discharge due to criticisms of state school of mental retardation did not fall within exception). Instead, the exception protects employees for asserting legally guaranteed rights, for doing what the law requires or for refusing to do what the law forbids. Wright v. Shriners Hospital for Crippled Children, 589 N.E.2d at 1244. The Massachusetts Supreme Judicial Court ("SJC"), however, cautions against creating a new definition of at will employment by extending the exceptions to create "a rule that requires just cause to terminate an employee-at-will." Smith-Pfeffer v. Fernald State School, 533 N.E.2d at 1371; accord King v. Driscoll, 418 Mass. 576, 638 N.E.2d 488, 492 (1994) (quoting Smith-Pfeffer).

Masso acknowledges that he "is not alleging that his discharge violated public policy." (Docket Entry # 7). UPS terminated Masso because his conduct contravened copyright laws, not because Masso was refusing to do what the law forbids. Nor do the facts support a claim for termination to avoid payment of past services or benefits earned but not received.1 Rather, Masso urges this court to extend Massachusetts law to encompass situations beyond a violation of public policy or the discharge of an employee to avoid payment of earned compensation. This court declines to further limit the at will employment doctrine particularly in light of the aforementioned cautionary language in Smith-Pfeffer and, more recently, in King.

II. Negligent Misrepresentation

The tort of negligent misrepresentation provides compensation for pecuniary losses incurred as a result of reasonable negligence on a negligent misrepresentation. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 536 N.E.2d 344, 349, cert. denied, 493 U.S. 894, 110 S.Ct. 242, 107 L.Ed.2d 192 (1989) (to recover for negligent misrepresentation, the plaintiff must show that the defendant falsely represented that the plaintiff would be employed and that the plaintiff reasonably relied on the representation); see Danca v. Taunton Sav. Bank, 385 Mass. 1, 429 N.E.2d 1129, 1133-1134 (1982); Lawton v. Dracousis, 14 Mass.App.Ct. 164, 437 N.E.2d 543, 547, review denied, 387 Mass. 1103, 440 N.E.2d 1177 (1982) (negligently supplying false information may create liability if there is justifiably reliance); see also Craig v. Everett M. Brooks Co., 351 Mass. 497, 222 N.E.2d 752, 754-755 (1967). The above definition generally follows The Restatement (Second) of Torts § 552 (1977) which provides that:

One who, in the course of his business ... or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

See DeMarco v. Granite Savings Bank, 1993 WL 220551 at *2 (Mass.App.Ct. June 11, 1993) (adop...

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