Sacks v. Bell Tel. Laboratories, Inc.

• Decision Date: 19 April 1979
• Docket Number: No. 57089,57089
• Citation: 256 S.E.2d 87,149 Ga.App. 799
• Parties: SACKS v. BELL TELEPHONE LABORATORIES, INC.
• Court: Georgia Court of Appeals

Page 87

256 S.E.2d 87

149 Ga.App. 799

SACKS v. BELL TELEPHONE LABORATORIES, INC.

No. 57089.

Court of Appeals of Georgia.

Argued Jan. 8, 1979.

Decided April 19, 1979.

Rehearing Denied May 8, 1979.

Certiorari Denied June 20, 1979.

Robert C. Sacks, Lilburn, for appellant.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, George B. Haley, Joseph P. McGuire, Robert E. Shields, Deborah A. Brian, Atlanta, for appellee.

SHULMAN, Judge.

The appellant, plaintiff below, brought a declaratory judgment action to have his sickness disability benefits under the appellee's Plan for Employees' Pensions, Disability Benefits and Death Benefits restored, following the termination of those benefits by appellee. Motions for summary judgment were filed for both sides. After a hearing, the trial judge granted summary judgment for the appellee-defendant. Appellant appeals.

1. Appellant's first enumeration of error submits that the trial judge granted the motion for summary judgment "without considering all of the evidence in the case."

At the hearing appellant moved the court to defer its decision until a deposition could be filed. The deponent, an employee of the appellee, had been deposed the week before the hearing on the summary judgment motion and had refused to waive signature. The court did not grant appellant's motion to defer its decision, and judgment was rendered without consideration of the deposition. It is urged that on authority of Union Circulation Co. v. Trust Co. Bank, 146 Ga.App. 612, 247 S.E.2d 197, this case should be remanded to the trial court. We disagree.

Code Ann. § 81A-156(c) requires, in part, that summary judgment "be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions On file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . ." (Emphasis supplied.) In Union Circulation Co., we held that " '. . . the court is obliged to take account of the entire setting of the case on a Rule 56 motion. In addition to the pleadings, it will consider All papers of record, as well as any material prepared for the motion that meets the standard prescribed in Rule 56(e).' (Cit.)" Id., p. 614, 247 S.E.2d p. 198. In other words, a trial judge should always Search the entire record before granting a motion for summary judgment, and should not limit himself to the evidence introduced at the hearing. Thompson v. Abbott, 226 Ga. 353, 355, 174 S.E.2d 904, overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 208 S.E.2d 459. Here, however, the deposition was not filed and thus was not a matter of record at the time of the motion for summary judgment. That being the case, Union Circulation Co. is not authority for reversing and remanding the grant of summary judgment in this case.

The record reveals that appellant filed his petition on February 4, 1977. Discovery was made for several months thereafter. The appellee filed its motion for summary judgment on May 16, 1978. The appellant did not take the deposition in question until July 26, 1978, or nine days before the hearing on the summary judgment motion. There was no showing by the appellant as to why the taking of the deposition was so long delayed that the requirements of Code Ann. § 81A-130(e) could not be met before the scheduled hearing on the motion. Under this set of facts, we are constrained to hold that the appellant failed to demonstrate diligence in this matter and that the trial judge did not abuse his discretion in ruling on the motion without waiting for the deposition to be filed. See generally Smith v. Davis, 121 Ga.App. 704(2), 175 S.E.2d 28.

2. The appellee's motion for summary judgment was brought on several grounds. We deal first with whether the petition of appellant failed to state a claim for declaratory relief.

While Code Ann. § 110-1101(c) provides that one is not precluded from obtaining relief by declaratory judgment merely because he has other adequate legal or equitable remedies, the " 'object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.' (Cit.)" Pinkard v. Mendel, 216 Ga. 487(2), 117 S.E.2d 336, 339.

The appellant's petition alleged that his employment and medical disability benefits were terminated on or about October 27, 1976. The obligations, if any, which were owed to appellant by appellee under its Plan were repudiated at that time; the appellant's rights, if any, to disability benefits were violated at that point. See generally Scott v. Employees' Retirement System, 113 Ga.App. 295, 147 S.E.2d 821. The appellant had an adequate remedy with which to seek redress for the alleged wrongful termination of his disability benefits. See generally 56 C.J.S. 835 Master and Servant, § 169(e); Atlantic Steel Co. v. Kitchens, 228 Ga. 708, 187 S.E.2d 824 (retirement benefits); Winkler v. Burns, 222 Ga. 574, 151 S.E.2d 130 (pension rights). The appellant, however, filed his petition on February 4, 1977, some three months After his benefits had already been terminated.

Were the appellant's claim for relief Solely for a declaratory judgment, we would be compelled to affirm the grant of summary judgment, the only uncertainty facing the appellant, under the circumstances, being the outcome of an action to reinstate his disability benefits, provided such an action were brought. See generally Pinkard v. Mendel, supra. However, our pleading requirements, have been liberalized since Pinkard was decided. "It is now well established under the CPA that (a) a complaint is not required to set forth a cause of action but need only set forth a claim for relief; (b) that a complaint is no longer to be construed most strongly against the pleader; and (c) that a motion to dismiss for failure to state a claim for relief should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any set of facts which could be proved in support of this claim. (Cits.)" Mathews v. Greiner, 130 Ga.App. 817(4), 204 S.E.2d 749, 753. The appellant's petition seeks, in addition to declaratory relief, "(t)hat all benefits that accrue as an employee of Defendant under the Plan be restored . . ." The appellant's petition thus sets out a claim for the executory or coercive relief that would be proper under the circumstances, i. e., restoration of the benefits. Therefore, while the petition may fail to state a claim for declaratory relief, it is sufficient to state a claim for the restoration of the appellant's benefits.

3. We therefore turn to the merits of the motion for summary judgment. However, preliminary to deciding whether summary judgment was properly granted, we must first determine the applicable standard for testing the appellee's liability. The Plan in question provides that "(t)he Employees' Benefit Committee, or the Review Committee when it reviews a denial of a claim, shall determine conclusively for all parties all questions arising in the administration of the Plan." We find no Georgia cases which construe the legal effect of such grants of discretion, but, after careful study of the decisions of other jurisdictions, we concur in the standard established thereby and hold that an employee whose benefits under a noncontributory benefit plan have been denied by a designated discretionary authority may not recover absent a showing that the adverse decision was arbitrary, fraudulent or made in bad faith. See...