Ross v. Montour R. Co.

• Decision Date: 24 October 1986
• Citation: 357 Pa.Super. 376,516 A.2d 29
• Parties: , 107 Lab.Cas. P 55,772 Charles A. ROSS, Appellant, v. MONTOUR RAILROAD CO. and Pittsburgh Lake Erie Railroad.
• Court: Pennsylvania Superior Court

Page 29

516 A.2d 29

357 Pa.Super. 376, 107 Lab.Cas. P 55,772

Charles A. ROSS, Appellant, v. MONTOUR RAILROAD CO. and Pittsburgh Lake Erie Railroad.

Superior Court of Pennsylvania.

Argued June 25, 1986.

Filed Sept. 8, 1986.

Reargument Denied Oct. 24, 1986.

[357 Pa.Super. 378] Charles W. Robinson, Pittsburgh, for appellant.

Richard D. Klaber, Pittsburgh, for appellees.

Before ROWLEY, McEWEN and TAMILIA, JJ.

OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order refusing to take off a compulsory non-suit entered at the close of appellant's case before the jury.

On April 27, 1983, appellant filed a complaint in assumpsit and trespass against appellees, Pittsburgh and Lake Erie Railroad (P&LE) and Montour Railroad, a subsidiary of P & LE, alleging breach of an employment contract and wrongful discharge from employment. At the conclusion of appellant's case on liability at trial, the court granted appellee's Motion for a compulsory Non-Suit. Appellant's Motion to Remove Compulsory Non-Suit and Grant a New Trial was denied.

The factual background of this case is as follows. Appellant worked for Montour for a total of 22 years, during which time he was admittedly a productive and competent employee. Appellant was successively promoted, having started as a mechanic, and eventually rising to assistant superintendent in 1981. Unfortunately for appellant, business began to steadily decline, resulting in a massive employee reduction. In February of 1983 appellant was furloughed as assistant superintendent and bumped back into a union position as a machinist-welder. Appellant's employment with Montour ended in September of 1984 when he walked off the job and did not return.

The controversy in this case concerns events which commenced in December of 1980, when appellant, then Trainmaster-General Foreman of Montour, had a meeting with T.C. Netherton, President of Montour and Vice-President of P & LE. At that meeting, Netherton informed appellant that the superintendent of the Montour railroad was resigning and that Robert Costello, an employee of P & LE in Ohio, was being transferred in as superintendent. Netherton told appellant that Costello's position as superintendent was temporary, perhaps 3 to 5 months, after which Costello would move on to another position with P & LE and appellant would become superintendent. At the same time, appellant was promoted to assistant superintendent, a newly created position, and given a $3,000 a year raise. However, events did not go as planned, and Costello remained as superintendent from 1981 until at least the time of trial. In February of 1983 appellant was furloughed from his position as assistant superintendent. After his furlough, appellant "bumped" back to a position as machinist-welder. He continued to work as a welder until September of 1983 when he left his job following a dispute over the quality of his work.

On appeal, appellant raises six issues for review. In brief, appellant argues that Netherton's promise of promotion was an enforceable employment contract for a specified duration. In the alternative, appellant argues that the rule of at-will employment should not apply here, and that he has a cause of action in tort for wrongful discharge.

Our scope of review is such that the entry of a non-suit will be upheld only in a clear case where the facts and circumstances have as the only conclusion the absence of liability. McKenzie v. Cost Bros., 487 Pa. 303, 409 A.2d 362 (1979). The appellant must be given the benefit of every fact and reasonable inference arising from the evidence. Id.

I.

In appellant's first issue he argues that an enforceable, "unilateral" contract was created when, in December of 1980, Netherton promised that he would be promoted to superintendent. He claims that in consideration for that promise he fully performed certain activities. Appellant alleges that: 1) he performed activities additional to his employment, such as teaching Costello the Montour operation and assuming greater responsibility over general operations and 2) he forbore seeking other employment in reliance on the promise of promotion.

The law is clear that where there is a promise of an additional benefit in return for the performance by the promisee of a contractual duty which the promisee is already under obligation to the promisor to perform, the promise is without consideration and therefore legally unenforceable. Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968). In reviewing the record and appellant's own account of his meeting with Netherton, we find no evidence that the activities appellant performed, which he now claims were consideration, were distinct from or additional to the duties required of him in his position as assistant superintendent. The position was new and had no definite job description. The trial court's finding that appellant's enhanced activities, being performed concomitant with his appointment to assistant superintendent, were really activities entailed in that position, for which he was compensated by a $3,000 raise is fully supported by the record.

Appellant further contends that his forbearance from seeking other employment constitutes sufficient consideration for the promise of promotion. Appellant correctly states that forbearance in exercising a right may be deemed consideration; however, to be such the forbearance must be bargained for and given in exchange for the promise made by the promisor. Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978) (The court held that forbearance from instituting a legal action was not consideration to make an agreement a binding contract where appellant did not intend or desire to elicit appellee's forbearance.) In the instant case, appellant presented no evidence that his forbearance was intended by Montour or bargained for in exchange for the promise of promotion. Appellant was at all times free to exercise his right to leave; therefore, his forbearance was not consideration which would make the promise a binding contract. ¹ We affirm the trial court's conclusion that as a matter of law, appellant did not present a case for submission to the jury on his claim for breach of contract.

II.

In his second issue, appellant argues that the non-suit was improper because it is the exclusive function of the jury to determine the terms of an employment contract. Appellant is apparently arguing that the jury could have inferred an implied-in-fact contract term that appellant, as superintendent or in another position, would be employed until he retired or resigned. The obvious intent of this argument is to establish a definite term of employment with Montour, in some capacity, thereby excepting him from the rule applicable to at-will employees. We have reviewed the record and find no evidence meriting a submission of this question to the jury.

First, ...