Panto v. Moore Business Forms, Inc., 87-197

• Decision Date: 05 August 1988
• Docket Number: No. 87-197,87-197
• Citation: 547 A.2d 260,130 N.H. 730
• Parties: , 57 USLW 2163, 3 IER Cases 1025 Anthony T. PANTO v. MOORE BUSINESS FORMS, INC.
• Court: New Hampshire Supreme Court

Page 260

547 A.2d 260

130 N.H. 730, 57 USLW 2163, 3 IER Cases 1025

Anthony T. PANTO v. MOORE BUSINESS FORMS, INC.

No. 87-197.

Supreme Court of New Hampshire.

Aug. 5, 1988.

Kathleen Laude Kerr, Concord, and Richard M. Howland P.C., Amherst, Mass. (Richard M. Howland on the brief, and orally), for plaintiff.

Shaines & McEachern, Portsmouth, and Goldstein & Manello, Boston, Mass. (Michael R. Brown on the brief, and orally), for defendant.

SOUTER, Justice.

The United States District Court for the District of New Hampshire (Devine, C.J.) has certified the following questions, as amended, for our consideration under Supreme Court Rule 34:

"1. Does plaintiff's amended complaint (1) state a cause of action recognizable under New Hampshire law; (2) which may be maintained despite the factual stipulation that the 'expressed written policy agreement,' as alleged in the amended complaint, was unilaterally promulgated by the defendant?

2. If the answer to the first question is 'yes,' what are the elements of proof which must be established to enable an at-will employee to recover damages for the breach of such contract?"

The plaintiff, Anthony T. Panto, is an erstwhile employee of the defendant, Moore Business Forms, Inc., who seeks enforcement of the "written policy agreement" to the extent that it would entitle a laid-off at-will employee, qualifying under its terms, to a continuation of his salary and to the benefit of Moore's contributions to pension and insurance plans for three months after lay-off.

In answering the district court's questions, we hold that an employer's unilateral promulgation to present at-will employees of a statement of intent to pay and provide such economic benefits may be recognized under New Hampshire law as an offer to modify their existing relationship by means of a unilateral contract, which offer is subject to such an employee's acceptance by continued performance of his duties. The essential elements of such an agreement are not peculiar either to employment contracts, or to contracts formed by an employee's continued discharge of pre-existing duties following his employer's announcement that the relationship will thenceforth carry enhanced remuneration. Our opinion will discuss those standard contractual elements in the course of concluding that the allegations of Panto's amended complaint can be read to permit proof of facts indicating that the parties formed a unilateral contract, entitling Panto to the economic benefits in question for three months after ending his employment with Moore.

The district court's certified questions in this diversity action, see 28 U.S.C. § 1332, comes to us following Moore's motion to dismiss an amended complaint ostensibly stating a claim under State law. The district court ruled against Moore, to the extent that it felt able to respond to the motion without an opinion from us. The court then prepared questions for our determination under Rule 34, in order to obtain a more certain legal basis for a final ruling on the dismissal motion. After these questions had been certified to us, however, Moore once again moved for dismissal in the district court, this time claiming preemption of State law by congressional enactment of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. Panto's response was a second motion to amend, by adding a claim under ERISA. The district court granted Panto's motion to amend, 676 F.Supp. 412, and dismissed the State count previously alleged. Despite the demise of the State law claim, the district court denied Moore's further motion to vacate the certification as moot.

Moore has pursued its mootness claim here as well, and, for the same reasons it first directed to the district court, it now urges us to vacate our acceptance of the questions. This we decline to do. While our decision whether to accept a question is not foreclosed by the district court's decision to send it, we place much weight upon the district court's views in deciding for ourselves whether a transferred question should be answered. In this instance, the district court reasoned that Panto's ultimate entitlement to relief will still depend on the existence of a substantive contractual obligation, so that our answers to the State law questions remain necessary. We will defer to the district court's ruling and will respond to the transferred questions by assuming the truth of the allegations of the complaint as first amended, see Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff'd without opinion, 745 F.2d 43 (1st Cir.1984) (on motion to dismiss, allegations of material fact to be taken as admitted and construed in light most favorable to the plaintiff), and as supplemented by such stipulations as the order of certification contains.

The following factual basis for our answers is so derived. Moore hired Panto in 1974 and for some twelve years employed him at-will, in the sense that either party was free to end the relationship with or without cause at any time. See Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915, 919, 436 A.2d 1140, 1142 (1981). By March, 1986, Panto had come to hold the position of Equipment Engineer in the Manufacturing Engineering Department at Moore's Dover, New Hampshire, factory. In the fall of 1985, operating losses from the Dover plant prompted Moore to plan to reduce the work force there by some ten percent, and in October the company unilaterally promulgated to some or all of the Dover employees a written policy statement entitled "Layoffs and Returns," in preparation for lay-offs the following month. The plaintiff received a copy.

Although Panto was not laid off in November of 1985, the reduction in work force that month led to reorganization of the Manufacturing Engineering Department. Panto has described one incident of that reorganization as the abolition of his job as Equipment Engineer, although the defendant has characterized the change as a mere "revision" of the original position. Whatever the better description may be, by February, 1986, the result for Panto was a job entitled "Senior Production Engineer" with duties different from those formerly required of the "Equipment Engineer." Panto chose not to accept the new position and resigned, claiming to be laid off for purposes of the lay-off and recall policy and therefore entitled to benefits described in Moore's written policy statement.

Although that policy statement is not in all respects a paradigm of draftsmanship, its general structure and specific provisions are reasonably clear. It bears a date of October 30, 1985, and applies, by its terms, "[w]hen a reduction in the work force is necessary...." It provides generally that the order in which any employees are to be laid off will be determined by seniority, subject to the company's reserved "right to retain juniors doing essential jobs" and to respond to "unforeseen situations ... on an individual basis." The policy statement assumes that the elimination of some positions will present their incumbents with a choice to take other jobs with the company or to leave its employment, and the statement provides that "[i]f an employee refuses to accept an available job, he/she will be laid off." It is this provision, Panto claims, that brings him within the class of employees to whom the policy was directed.

The statement proceeds to address benefits, by language that can be read to promise all laid-off employees a three-month continuation of group life, health, and dental insurance coverage on the same terms that obtained during employment. The statement then speaks to the procedure for recalling laid-off employees, by providing generally that "[i]f, within six months of layoff, it is necessary to increase the work-force, employees who have been on layoff for six months or less shall be considered for employment...." After describing administrative procedures for recall, the statement concludes with two attachments referring to salary payments after lay-off. The first includes a provision that can be read to indicate that "exempt employees" with more than five years of service will be entitled to continued salary payments for three months after lay-off. The second attachment concerns "non-exempt" employees with at least one year of service, who will be entitled to "severance pay" based on length of employment, to be made "at the end of the six month recall period--May 23, 1986."

This factual background not only sets the stage for the principal issues raised by the district court's questions, but also foreshadows a threshold problem to be dealt with before going any further. Moore objects that Panto is entitled to nothing, because he could not reasonably be found to be within the class of employees addressed by the written policy, leaving aside the question whether the policy is enforceable by a member of that class.

Moore invokes two quite separate grounds for this position, the first being that the policy was meant to apply only to those who would be laid off in November, not to those who might depart later, as the plaintiff did the following March. There are two answers to this. The first is that the district court seems to have considered the point already and to have held in Panto's favor. As we read the ruling on the motion to dismiss, delivered prior to certifying the questions to us, the district court decided that the pleadings stated a claim for relief on the assumption that New Hampshire law would enforce an employer's unilateral promulgation of employment policy. The district court's determination assumed, then, that the plaintiff had alleged membership in the class to whom the policy was addressed.

Having so said, however, we also admit that the litigation can probably be dispatched more efficiently if we do not try to draw too nice a line between what the district court has implicitly passed upon and what that court wishes us to...