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April 23, 1980


The opinion of the court was delivered by: PLATT


Defendants have moved to dismiss the Second Amended Complaint, in part or whole, pursuant to Federal Rules of Civil Procedure ("FRCP") 8, 9, 10, 12(b) (1), 12(b)(6), 12(e) and 12(f). Defendants urge that plaintiff has failed to satisfy minimal pleading requirements, failed to state a claim upon which relief can be granted, and that the complaint must fail for lack of jurisdiction over the subject matter and for failure to comply with Rules 8, 9, and 10 of the FRCP. Defendants further seek a more definitely stated complaint, and finally, request portions of the complaint be stricken in accordance with Rule 12(f). At oral argument the motions were denied, except the motion pursuant to FRCP 12(b)(6), and plaintiff was granted leave to amend Count Four of the complaint to allege willfulness.

Plaintiff filed his original complaint in this action on January 10, 1978. The gravamen of that complaint is that defendants fired plaintiff after 13 years of service solely because they believed by so doing they could avoid the vesting of, and concomitant payments under, the defendants' employee pension plan. After motions to dismiss, plaintiff filed an amended complaint on May 2, 1978. Defendants again moved to dismiss, and plaintiff cross-moved to file a second amended complaint. By Order of this Court dated October 10, 1978, plaintiff's cross-motion was granted.

 The first three causes of action of the second amended complaint involve application of the Employee Retirement Income Security Act ("ERISA") to the vesting provisions of the defendants' retirement plan, and therefore fall within the primary jurisdiction of the Internal Revenue Service. They are not involved in the present motion as defendants have amended their plan to conform to the IRS's interpretation, which results in granting plaintiff credited service from the beginning of employment with Korvettes. (See defendants' reply memorandum filed Feb. 7, 1980 at p. 2). The fourth, fifth, and sixth causes of action allege age discrimination, breach of implied contract, and tortious conduct of wrongful firing. This opinion is solely concerned with defendants' motion as directed to these alleged claims.


 Morton Savodnik, plaintiff, was born May 29, 1923 and claims to have been continuously employed by defendant Korvettes, Inc. from October 7, 1963 to January 26, 1977, when he received notice his employment was being terminated. Mr. Savodnik contends that during his employment he received frequent promotions, annual increases in pay, and was never fined, demoted, or warned that his job performance was unacceptable. (S.A.C. PP 10-12). At the time of firing, Mr. Savodnik was a participant in The Retirement Plan of Korvettes, Inc. ("Plan") which is subject to regulation by ERISA, and is managed by defendant Trustee of The Retirement Plan of Korvettes, Inc. ("Trustee").

 Savodnik seeks to sue:

"on behalf of the class of all employees of Korvette, Inc., who (a) were participants in any of its (or its predecessors') pension plans, (b) had completed ten or more total years of employment at the time they were fired or resigned from employment, (c) were fired or resigned on or after January 1st 1974; and (d) were deemed by the defendants, jointly and severally, to have forfeited their Employee's Accrued Benefits derived from Employer Contributions (. . . EABDEC) in the (Plan)." (S.A.C. P 5).

 Plaintiff's Fourth claim for relief is denominated "a protective cause of action" arising under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff admits he has not timely exhausted State remedies as set forth in 29 U.S.C. § 633(b), and that in this Circuit such failure is fatal. Due to a conflict between the Circuits on this issue, however, he asserts this claim to preserve his right to actual and liquidated damages should this Circuit's construction of § 633(b) be reversed.

 The Fifth claim asserts, under the common law, that plaintiff's employment was governed by an express or implied contract "pursuant to which discharge could only be had for good and lawful cause." (S.A.C. P 47). Plaintiff alleges that he, and the class he seeks to represent, were not so discharged, but were unlawfully fired "because they were nearing retirement age and because under defendants' understanding of the minimum ERISA standards, management sought to prevent vesting of each class members EABDEC in Plan." (sic) (S.A.C. P 51). Plaintiff contends such discharge constituted a breach of his, and the purported class', employment contract.

 Finally, plaintiff's Sixth claim sounds in tort and is labelled "wrongful firing." Plaintiff claims he suffered a coronary attack as the result of this allegedly tortious conduct.



 Plaintiff's request to amend his complaint again to plead his claim properly under the Age Discrimination in Employment Act of 1967 was granted ...

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