Olick v. Kearney (In re Olick)

• Decision Date: 30 November 2011
• Docket Number: Bankruptcy No. 07–10880.,Civil Action No. 10cv458.
• Citation: 466 B.R. 680
• Parties: In re Thomas W. OLICK, Debtor.Thomas W. Olick, Plaintiff v. James Kearney, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

466 B.R. 680

In re Thomas W. OLICK, Debtor.Thomas W. Olick, Plaintiff

v.James Kearney, et al., Defendants.

Civil Action No. 10cv458.

Bankruptcy No. 07–10880.

United States District Court, E.D. Pennsylvania.

Nov. 30, 2011.

Thomas W. Olick, Easton, PA, pro se.

Leslie Miller Greenspan, Thomas W. Dymek, Stradley Ronon Stevens & Young LLP, Philadelphia, PA, Frederick P. Santarelli, Kathryn M. Schilling, Elliott Greenleaf & Siedzikowski PC, Blue Bell, PA, for Defendants.

MEMORANDUM

YOHN, District Judge.

Thomas W. Olick, debtor, appeals from the bankruptcy court's disposition of two adversary proceedings (consolidated as Adv. 07–60) that he initiated against his former employer, the Knights of Columbus (“the Knights”); his former health insurer, the Aetna Life Insurance Company (“Aetna”); and two individual Knights employees, James Kearney (“Kearney”) and Thomas Jenkins (“Jenkins”). Olick's claims included breach of contract, employment discrimination and retaliation claims under the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”), and violations of the Employee Retirement Income Security Act (“ERISA”) and the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). On December 19 and 22, 2008, the bankruptcy court held a trial on Olick's COBRA claims against the Knights, an ERISA claim against the Knights, and employment retaliation claims against the Knights and Kearney. On December 28, 2009, the bankruptcy court entered judgment in favor of Olick on his retaliation and COBRA claims against the Knights but against him on his other remaining claims. Olick v. Kearney, 422 B.R. 507 (Bankr.E.D.Pa.2009). Olick appeals from six orders of the Bankruptcy Court in Adversary Proceeding 07–60.¹

I. Brief Factual and Procedural History of Adversary Case No. 07–60

In 1995, Olick signed a contract with the Knights to become an insurance salesman in Pennsylvania. Through his employment, Olick purchased group health insurance for himself, his wife and children from Aetna. In late 2004 or early 2005, after 10 years of employment, the relationship with the Knights, and especially Kearney, his supervising general agent, began to sour. Olick alleges that in 2005, Kearney reduced his sales territory by giving some of Olick's territory to a younger, less experienced agent, and interfered with Olick's ability to meet his sales quotas by withholding information from Olick regarding his sales territory and prohibiting Olick from attending monthly agency meetings.

Olick filed an age discrimination lawsuit against the Knights and Kearney in state court in February 2006. Shortly thereafter, he received a COBRA Notice informing him that his insurance benefits had been terminated retroactively to November 1, 2005. Olick amended his complaint adding Aetna as a defendant. Aetna removed to this court, and Olick again amended his complaint to include his co-worker Jenkins. Olick then filed a second complaint in this court against defendants Knights, Kearney, Jenkins, and Aetna. The court consolidated the complaints.

On February 9, 2007, Olick filed for chapter 13 bankruptcy and on February 13, 2007, voluntarily dismissed the consolidated district court case under Federal Rule of Civil Procedure 41. Olick then refiled his complaints as adversary proceedings in the bankruptcy court, naming the same four defendants and reasserting the same claims, several of which had already been dismissed by the district court.

In an order dated June 26, 2007, (Adv. 07–60, Doc. 73) the bankruptcy court determined there were ten claims within the seven asserted counts in the combined adversary complaints.

1—Count I—Age Discrimination & Retaliation against Aetna, the Knights, Kearney, and Jenkins;

2—Count II—“Job Discrimination” against the Knights and Kearney;

3—Count III.A.—COBRA, Sections 502(a)(1)(A) and 606(a)(4) against the Knights and Aetna;

4—Count III.B.—ERISA, Sections 502(a)(1)(B) against the Knights and Aetna;

5—Count III.C.—ERISA, Sections 502(a)(3)(B) against the Knights and Aetna;

6—Count III.D.—ERISA, Sections 502(a)(2)(B) against the Knights and Aetna;

7—Count IV—“Breach of Contract” against the Knights and Kearney;

8—Count V—“Tortious Interference in Business and Contracts” against the Knights, Kearney, and Jenkins;

9—Count VI—“Breach of Contract” against Aetna; and

10—Count VII—“Breach of Contract and Conversion” against the Knights.

The bankruptcy court then dismissed Counts I, III.A, III.D and VI as to Aetna only. It also dismissed Counts III.B and III.D as to the Knights.² After the June 26, 2007 order there were only two claims remaining against Aetna, Counts III.B and III.C.

On March 17, 2008, the court issued a bench opinion that granted summary judgment in part ³ and concluded that only the following claims remained.

1. Count I for retaliation against the Knights, Kearney, and Jenkins

2. Count III.A. for a COBRA violation against the Knights

3. Count III.B. under ERISA against Aetna; and

4. Count III.C. for equitable claims under ERISA against the Knights for failure to convert life insurance.

On May 21, 2008, the bankruptcy court granted the Knights' “Motion to Reconsider in the Nature of a Clarification” to amend the March 17 order so that summary judgment was granted as to Jenkins as to the Count I retaliation claim. Because of a clerical error, however, the order dismissed the claim against Kearney, not Jenkins. As a result, on May 27, 2008, the court amended the order again, so that the Count I retaliation claim was correctly dismissed as to Jenkins, not Kearney.

On April 23, 2008, Aetna submitted an Offer of Judgment under Federal Rule of Bankruptcy Procedure 7068 (“the Offer”), which Olick countersigned on April 26, 2008. The Offer provided that Aetna would “retroactively deem that the member eligibility status for health benefits coverage under the Knights of Columbus health benefits plan (‘the Plan’) is in place for the period from November 1, 2005 through March 1, 2006” and that the Offer constitutes “full and complete satisfaction of [Olick's] claims against Aetna in this action, including reasonable costs accrued in connection with your claim against Aetna.” Olick “unambiguously accepted” the Offer on the record in a hearing held on May 21, 2008.⁴ Judgment was entered against Aetna on June 3, 2008, in accordance with the Offer, thus resolving all of Olick's claims against Aetna.

Olick and the Knights filed motions to reconsider the summary judgment decision. The bankruptcy court agreed to reconsider dismissal of Olick's age discrimination claim against the Knights and Kearney but ultimately reaffirmed the grant of summary judgment on that claim in an order dated October 2, 2008. As a result only three claims remained for trial:

1—COBRA claim against the Knights;

2—ERISA claim against the Knights; and

3—ADEA, PHRA, and CFEPA ⁵ retaliation claims against the Knights and Kearney.

After a two-day trial held in December 2008, the bankruptcy court entered final judgment on December 28, 2009, against the Knights on Count I (retaliation) and Count III.A (COBRA), and in favor of defendants as to the remaining claims.

Olick filed a timely notice of appeal on December 31, 2009. Olick appeals from an order dated October 26, 2007 granting Aetna's motion for sanctions against Olick; an order dated March 17, 2008, granting partial summary judgment (and an order dated May 21, 2008 clarifying and amending the March 17 order); an order dated August 12, 2008, awarding Olick costs against Aetna pursuant to the Offer; an order dated October 2, 2008 dismissing Olick's age discrimination claim against the Knights and Kearney; and the final order dated December 28, 2009.

II. Subject Matter Jurisdiction

A district court has appellate jurisdiction over a bankruptcy court's final judgments, orders, and decrees. 28 U.S.C. § 158(a). Appeals to district courts are taken in the same manner as appeals from the district courts to courts of appeals. 28 U.S.C. § 1291; Fed. R. Bank. P. 8001. Pursuant to Federal Rule of Bankruptcy Procedure 8002(a), a party seeking to appeal must file a notice of appeal with the clerk of the bankruptcy court within fourteen days of the date of the entry of the judgment or order from which the party is appealing. Under 28 U.S.C. § 158(c)(2) and the Federal Rules of Bankruptcy Procedure, an untimely notice of appeal deprives the district court of jurisdiction over the appeal. In re Caterbone, No. 06–cv–0512 (3d Cir.2011).

The Third Circuit has described a final decision as “one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155 (3d Cir.2004) (citations omitted). Thus, “there is no final order if claims remain unresolved and their resolution is to occur in the district court.” Aluminum Co. of Am. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir.1997). Vitally, “a district court decision dismissing some, but not all, of the claims before the court is not a ‘final’ order that can be appealed.” N.Y. Football Giants, Inc. v. C.I.R., 349 F.3d 102, 106 (3d Cir.2003). Because bankruptcy proceedings often times include several adversarial proceedings, the finality of an order is determined as to each adversarial proceeding, not the entire bankruptcy. In re White Beauty View Inc., 841 F.2d 524 (3d Cir.1988).

Olick filed a timely notice of appeal on December 31, 2009, three days after the final order which disposed of all claims. The notice of appeal is thus timely as to all six orders, and the court has jurisdiction to hear this appeal.⁶

III. Standard of Review

A district court reviews a bankruptcy court's “legal determinations de novo, its factual findings for clear error, and its exercise of discretion for abuse thereof.” In re Am. Classic Voyages Co., 405 F.3d 127, 130 (3d Cir.2005) (quotation and citation omitted); see Fed.R.Bankr.P. 8013 (“On an appeal the...