source: Caselaw Access Project

author: COHILL, Chief Judge.

license: Public Domain

text:
    George RUPINSKY, Plaintiff, v. MILLER BREWING COMPANY, subsidiary of Philip Morris, Inc., Defendant.
    Civ. A. No. 83-3167.
    United States District Court, W.D. Pennsylvania.
    Jan. 16, 1986.

      Raymond Radakovich, Pittsburgh, Pa., for plaintiff.
    John P. Edgar, Pittsburgh, Pa., Robert Heim, Philadelphia, Pa., for defendant.
   OPINION

COHILL, Chief Judge.

This case is before us on Defendant’s Motion for Summary Judgment. The basis of the motion is that Plaintiff has no cause of action against Defendant arising out of his termination because he was an at-will employee, and, that consequently, Plaintiff has failed to state a claim against Defendant for which relief can be granted. After careful consideration of the briefs filed and the relevant law, we will grant Defendant's motion.

Facts and Procedural History

Plaintiff, George Rupinsky, is a citizen of Ohio. Defendant, Miller Brewing Co., a Wisconsin corporation with its principal place of business in Wisconsin, is a subsidiary of Philip Morris, Inc., a Virginia corporation, with its principal place of business in New York. Therefore, diversity of citizenship is proper under 28 U.S.C. §§ 1332, 1441. »

On February 19, 1978, while he was employed by Pepsi-Cola Company in Pittsburgh, Pennsylvania, Plaintiff read an employment opportunity advertisement in the Pittsburgh Press which was placed by the Defendant, Miller Brewing Company. Plaintiff responded by sending a letter and resume to Miller, expressing his interest in working for Miller. Rupinsky Dep., pp. 8-9. Shortly thereafter, Miller telephoned Plaintiff, conducted a preliminary interview over the phone, and arranged for Plaintiff to interview at its plant in Eden, North Carolina, completely at Miller’s expense. Id. at 9-10.

Upon arriving at the Miller Brewing Company facility, Plaintiff went through four separate interviews and signed an employment application. Id. at 13. Included in said application was a paragraph which stated that “[t]hese agreements do not, of course, bind either party to any specific period of employment.” Id. at 19-20, 31; Dep.Ex. 2.

Following his interviews, by letter dated March 24, 1978, Plaintiff was formally offered a position with Miller Brewing Co. at its Eden, North Carolina facility as an inventory systems coordinator. Dep.Ex. 3. Plaintiff accepted this offer in a letter dated March 27, 1978. Dep.Ex. 4. Defendant paid for all of Plaintiff’s relocation expenses in order for him to begin work in Eden on April 10, 1978.

Plaintiff worked at Miller for two-and-one-half years; first as an inventory systems coordinator, and was later promoted to warehouse supervisor. Dep., pp. 40-41. However, Plaintiff received a below average performance appraisal in this new position in June of 1980. Id. at 49-50; Dep.Ex. 6. Six months later, on December 10,1980, Plaintiff was discharged from Miller. Dep., pp. 52-53.

After his termination from Miller, Plaintiff received severance pay equal to his base salary of five hundred ($500.00) dollars a week for at least eight weeks. Id. at 74. Immediately following the expiration of these payments, Plaintiff received thirteen (13) weeks of unemployment compensation benefits totaling $1,807.00 ($135.00 a week). Id. Plaintiff received these benefits from February, 1981 until May 26, 1981, at which time he acquired new employment with Packard Electric in Warren, Ohio, where he is presently employed.

In this wrongful discharge action, Plaintiff is seeking to recover damages for the termination of his employment by Miller Brewing Company. Plaintiff’s complaint, which sounds in tort and contract, was initially filed in state court and then removed to this court by the Defendant pursuant to 28 U.S.C. § 1441. At the outset, we must determine which forum’s law governs the instant case. Plaintiff argues that the law of Pennsylvania is controlling while Defendant argues that the law of North Carolina is applicable.

As a federal court sitting in a diversity case, we are bound by the choice of law rules of the state in which we sit. Klaxon v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); McGowan v. University of Scranton, 759 F.2d 287, 290 (3d Cir.1985); DuSesoi v. United Refining Co., 540 F.Supp. 1260, 1268 (W.D.Pa.1982) (wrongful discharge action). Therefore, in the present case, Pennsylvania’s choice of law rules will apply to the issues raised by this motion.

Traditionally, Pennsylvania’s choice of law rule was to apply the law of the jurisdiction where the injury or harm occurred. However, the Supreme Court of Pennsylvania in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), abandoned this strict lex loci delicti rule in favor of a more flexible, hybrid analysis of the policies and contacts of the various concerned jurisdictions. In Griffith, an airplane crashed in Colorado killing the decedent, a Pennsylvania domiciliary. The court refused to automatically apply the law of the place where the accident occurred, but instead analyzed the policies and interests-underlying the particular issue before it. Id. at 21, 203 A.2d at 805.

When doing this, it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than a quantitative scale.

In re Estate of Agostini, 311 Pa.Super. 233, 252, 457 A.2d 861, 871 (1983). See also Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970); Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983).

Moreover, the United States Court of Appeals for the Third Circuit has interpreted Griffith as adopting a “flexible methodology entailing analysis of the policies and contacts of the various concerned jurisdictions.” Melville v. American Home Assur. Co., 584 F.2d 1306, 1311 (3d Cir.1978). “This approach takes into account the contacts establishing significant relationships and the interests and policies that may be asserted by each jurisdiction.” Moser v. Bostitch Division of Textron, Inc., 609 F.Supp. 917, 920 (W.D.Pa.1985).

The flexible approach to choice of law issues, adopted by Griffith in tort actions, has subsequently been applied to breach of contract cases as well. DuSesoi v. United Refining Co., 540 F.Supp. at 1269. Citing the Restatement (Second), Conflict of Laws § 188, this court in DuSesoi reasoned that:

In examining the contact that a jurisdiction has with a transaction one looks to a number of factors including: the place of contracting; the place of negotiation of the contract; the place of performance of the contract; the location of the subject matter of the contract; and the domicile or residence of the parties to the transaction.

Id.

In the instant case, several of these factors weigh strongly in favor of the application of North Carolina law to the Plaintiff’s claims: Plaintiff was interviewed in North Carolina; he signed his employment application in North Carolina; he moved to North Carolina and established a permanent residence there; all of his work for Miller was performed in North Carolina; and the basis for this lawsuit, his discharge, occurred in North Carolina. The only nexus Pennsylvania had with the activity leading to this lawsuit was that Plaintiff read Miller's advertisement in Pittsburgh, Pennsylvania, and that he subsequently signed and mailed his employment contract there. We find these contacts to be incidental when compared to the significant relationship Plaintiff had with North Carolina due to his employment at Miller. When the above factors are coupled with North Carolina’s interest in applying its wrongful discharge law to its businesses and workers, it becomes clear that North Carolina law should apply in determining whether Defendant’s motion for summary judgment shall be granted.

Summary Judgment

Defendant files this Motion for Summary Judgment on the grounds that the uncon-troverted facts and the applicable law preclude recovery on either of Plaintiff’s counts since he was an at-will employee. When considering a motion for summary judgment, the court, viewing the facts- in the light most favorable to the nonmoving party, must determine if there are any genuine issues of material facts. Fed.R.Civ.P. 56. Meyer v. Riegel Products Corp., 720 F.2d 303 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Betz Laboratories, Inc. v. Hines, 647 F.2d 402 (3d Cir.1981). The moving party has the burden of proving that no genuine issue exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1969); Butz v. Hertz Corp., 554 F.Supp. 1178, 1181 (W.D.Pa.1983). Any doubts must be resolved in favor of the nonmoving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985) (quoting Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981). See also Mariani v. City of Pittsburgh, 624 F.Supp. 506 (W.D.Pa.1986) (Cohill, C.J.).

The Tort of Wrongful Discharge

Traditionally, the law of North Carolina did not recognize a cause of action for wrongful discharge unless the legislature explicitly created such a claim by statute. Dockery v. Lamport Table Co., 36 N.C. App. 293, 244 S.E.2d 272, disc. rev. denied, 295 N.C. 465, 246 S.E.2d 215 (1978). Moreover, the general common law rule in North Carolina and other jurisdictions, is that when a contract of employment does not fix a definite term the employment is terminable without cause at the will of either party. Dockery, 36 N.C.App. at 297, 244 S.E.2d at 275; see also Nantz v. Employment Security Commission, 290 N.C. 473, 226 S.E.2d 340 (1976); Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976); Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971); Roberts v. Wake Forest University, 55 N.C.App. 430, 286 S.E.2d 120, disc. rev. denied, 305 N.C. 586, 292 S.E.2d 571 (1982); Humphrey v. Hill, 55 N.C.App. 359, 285 S.E.2d 293 (1982).

In Dockery, the plaintiff alleged that his employer discharged him in retaliation for filing a worker’s compensation claim. Plaintiff argued that allowing employers to discharge employees for filing worker’s compensation claims would discourage other employees from filing similar claims, and thus would violate public policy. Emphasizing that the plaintiff was employed for an indefinite duration, and that the North Carolina General Assembly did not provide relief for “retaliatory discharge” that would create an exception to the general rule for at-will employment relationships, the court in Dockery refused to find a cause of action in tort for wrongful discharge. 36 N.C.App. at 299-300, 244 S.E.2d at 276-277.

However, in its next session, the North Carolina General Assembly overruled Dockery on the specific issue decided there and authorized actions by employees demoted or discharged in retaliation for instituting a worker’s compensation claim. N.C.Gen.Stat. § 97-6.1 (1981). Additionally, in a recent decision, Sides v. Duke Hospital, 74 N.C.App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985), the Court of Appeals of North Carolina, an intermediate appellate court, has further eroded the ironclad rule enunciated in Dockery.

In Sides, the court recognized an important exception to the general rule that an indefinite contract of employment is terminable at will. The plaintiff in Sides alleged that defendant had discharged her from employment as a nurse anesthetist in retaliation for her refusal to perjure herself or withhold information in a malpractice action involving her employer’s medical staff. The court held that she stated a valid claim in both contract and tort for wrongful discharge, emphasizing how the state public policy requiring truthfulness before its courts outweighed an employer’s freedom to discharge employees at will. Id. at 337-342, 328 S.E.2d at 823-826. Further, the Sides court reasoned that an employer’s power to terminate “at will” cannot be absolute, in light of the many other societal obligations shared by employers and employees. Id. at 342, 328 S.E.2d at 826.

Clearly, Sides is in line with the developing case law in other jurisdictions which recognizes a public policy exception to the at-will rule when a clearly defined and well-established public policy is threatened by the defendant’s action. See, e.g., Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir.1983) (employee’s allegations of discharge for refusal to participate in former employer’s lobbying effort and his opposition to company’s political stand stated claim for wrongful discharge under the law); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir.1979) (public policy embodied in Pennsylvania’s anti-polygraph statute made employer’s discharge of employee, who refused to submit to a polygraph exam, actionable in tort); Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 610 P.2d 1330, 164 Cal.Rptr. 839 (1980) (wrongful discharge action sustained against employer who terminated plaintiff for refusing to participate in an illegal scheme to fix retail gasoline prices). See generally, Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception, 96 Harvard L.Rev. 1931 (1983).

However, the Court of Appeals of North Carolina recently qualified its decision in Sides. See Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985). In Walker, the court held that: 1) plaintiff was an employee at will and therefore could be terminated for watching television on work time; and 2) that the evidence did not support plaintiff’s allegation that his discharge was in retaliation for raising complaints about plant safety. Even though North Carolina has a statute which forbids the retaliatory discharge of employees for raising safety concerns, N.C. Gen.Stat. § 95-130(8) (1981), the Walker court hesitated “to establish a general cause of action for wrongful discharge for any employee discharged after raising safety concerns. Id. at 263, 335 S.E.2d at 86. Moreover, the court stated that “[o]ur decision in Sides rested on facts clearly showing a willful violation of the law and was consistent with other jurisdictions’ insistence that the employer’s conduct be in clear violation of express public policy to be actionable.” Id.

Applying the above rationale to the record before us, we believe that Plaintiff has failed to present a sufficient forecast of evidence to survive Defendant’s motion for summary judgment on this question. Unlike the plaintiff in Sides, there is nothing alleged by Mr. Rupinsky which shows that Defendant’s conduct was in clear violation of an express public policy. Dep., p. 56; Dep.Ex. 7. Here, the record supports Defendant’s argument that Plaintiff was terminated solely because of his managerial shortcomings since Plaintiff’s performance appraisal prior to his discharge revealed inter alia that “[h]e has not displayed sufficient effort towards the consistent enforcement of safety procedures,” that there was “no improvement in rail car loading quality,” that he had “a somewhat poor attendance record, and has been less than enthusiastic to volunteer for overtime when necessary.” Dep.Ex. 6. In addition, the appraisal noted that Plaintiff needed “constant ‘reminding’ in order to enforce procedures,” that he maintained a narrow view on priorities and objectives, and that “[t]here is a dangeroús tendency displayed to sometimes ‘cut corners' or bend rules.” Id. Thus, in contrast to the plaintiff in Sides, who was discharged directly for her refusal to commit perjury, in violation of a clear-cut public policy and not because of incompetence or any legitimate cause, Plaintiffs claim must fail.

While there is some inference raised in Plaintiffs brief that he was fired intentionally to keep the warehouse supervisors directly below him from forming a union, we need not address this allegation as it was not properly raised in any pleading, and thus is speculative at best. Dep., pp. 55-56. Alternatively, even if Plaintiff presented a viable claim that he was discharged in retaliation for engaging in union activities, the district court has no jurisdiction over such claim since it is within the exclusive realm of the National Labor Relations Board. 29 U.S.C. § 158(a)(1, 3). See Viestenz v. Fleming Companies, Inc., 681 F.2d 699 (10th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 303, 74 L.Ed.2d 284 (1982); Huge v. Long’s Hauling Co., 442 F.Supp. 1041 (W.D.Pa.1977), aff'd 590 F.2d 457 (3d Cir.1978), cert. denied, 442 U.S. 918, 99 S.Ct. 2840, 61 L.Ed.2d 285 (1979); Friends of Yosemite v. Frizzell, 420 F.Supp. 390 (N.D.Cal.1976) (wrongful discharge claim). Cf. Bruffett v. Warner Communications, Inc., 692 F.2d 910 (3d Cir.1982) (no common-law action in Pennsylvania for discharge of employee on basis of handicap or disability since exclusive remedy was under Pennsylvania Human Relations Act).

Breach of Contract

Count two of Plaintiffs complaint alleges breach of contract. While Plaintiff concedes that there was no definite or fixed duration to his written contact, he alleges that a contract could be implied from oral promises made to him during his interviews regarding job security, promotions, probationary periods, etc. Specifically, at his deposition, Plaintiff testified that during the course of his interview with a Mr. Bo-din, he was told of Miller’s future plans for expansion and what effect it would have on his employment there. Plaintiff described this discussion as follows:

Q And what is it that you recall?
A He said that layoffs, that really they were never even heard of there at Miller Brewing Company at the time because they were growing fairly rapidly, and he said probably for the next five or six years you wouldn’t have to worry about anything like that; and as far as the promotions and job performance, he said as long as you would do your job and do it good, that you would be promoted and more or less taken care of.
Q You didn’t view it as some sort of a personal guarantee to you that you would have employment there in Eden for a certain period of time, did you?
A By the way he was talking, as long as I did my job the way I did do it, I looked at it that way, yes.
Q There at the Eden facility?
A Right.
Q Do you have a specific recollection of Mr. Bodin mentioning a time period? I think earlier you had testified five to six years.
A Right.
Q Do you have a specific recollection of him telling you that you didn’t have to worry for five to six years?
A Well, he just more or less just pulled that number out of a hat, five to six years. They were growing very rapidly, and they had plans for plants in the next five to six years.
Q I believe you also testified that during the course of your interview with Mr. Bodin, he mentioned something about a 90-day probationary period.
How did that issue come up?
A Well, I asked him, okay, say you start a new job and you weren’t doing the job as good as, say, your supervisor thought you should be doing it, I asked him, how do you usually handle something like that. He said, the supervisor more or less will sit down and talk with you, and if you really aren’t doing a good job, you would be put on a 90-day probationary period in order to in that time start getting back into the program or be doing what you are supposed to be doing.
Q Did he indicate to you that that was a practice that would apply to the position for which you were applying?
A That was applied to supervisory personnel, and that would be in the supervision.
Q Did you ask if that practice or policy was in writing anywhere?
A No, I didn’t.
Q Did he indicate whether or not it was in writing?
A No.

Dep., pp. 22, 25, 27-28.

Our review of the record discloses that Plaintiff has failed to demonstrate the existence of a specific oral agreement of a fixed duration of employment. Accepting his deposition testimony as true for purposes of this motion, at best, Plaintiff has only shown that one of four Miller Brewing Co. representatives who interviewed him suggested that Miller had plans to expand for some indefinite period of time and that Plaintiff would be promoted if he performed well. Id. at pp. 25-27. However, we find that this discussion does not rise to the level of a promise of a definite duration of employment under North Carolina law. Nantz v. Employment Security Commission, supra; Still v. Lance, supra.

In the analogous case of Roberts v. Wake Forest University, supra, plaintiff argued that the circumstances surrounding the making of his employment contract revealed that the parties intended it to be for at least six years. Roberts, who was hired as Associate Athletic Director to coach the golf team, alleged that university personnel made statements indicating that they expected him to remain with the university for a substantial time period. Roberts also averred that the university personnel represented that employees were not customarily dismissed without reason and that it was the “custom and usage” for golf coaches to serve for long terms. The court, however, found all of this insufficient to establish the existence of a contract for a fixed term and stated “that this evidence at best reveals the hope by the parties that plaintiff would perform his duties satisfactorily and maintain a good program ...” Id. 55 N.C.App. at 435, 286 S.E.2d at 123.

Another instructive case is Bennett v. Eastern Rebuilders, Inc., 52 N.C.App. 579, 279 S.E.2d 46 (1981), where the plaintiff, like Mr. Rupinsky, was discharged after first being promoted. Bennett alleged her employer promised her that if she did not perform satisfactorily in her new position, she would be able to return to her old job. The court found this promise to be enforceable, as Bennett had relinquished her union representation when she left her prior position. The court, however, stopped short of reinstating her and awarded only nominal damages since Bennett’s status as an employee-at-will enabled her employer to discharge her immediately upon her return to her original job. Id. at 583, 279 S.E.2d at 50.

Plaintiff also alleges that a contract could be implied from the personnel policies included in Miller’s employee benefit handbook as well as those mentioned at a human relations seminar. While we are aware of the growing trend in many jurisdictions to find an express or implied contract from personnel handbooks, company manuals, oral promises, etc., see, e.g., Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Weiner v. McGraw Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982), the general rule in North Carolina remains that a contract of employment which contains no definite term or fixed duration is ordinarily not enforceable. Still v. Lance, supra; Walker v. Westinghouse Electric Corp., supra.

In Walker, which we discussed earlier, plaintiff, a senior electrician for Westinghouse, was fired for watching television on the job. Although Walker had no written contract, he argued that defendant’s personnel manual contained policies which formed the basis for an implied contract. However, the court rejected this argument, holding that “the law of North Carolina is clear that unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.” Walker, supra, 77 N.C.App. at 259, 335 S.E.2d at 83-84. See Smith v. Monsanto Co., 71 N.C.App. 632, 322 S.E.2d 611 (1984); Griffin v. Housing Authority, 62 N.C.App. 556, 303 S.E.2d 200 (1983); Williams v. Biscuitville, Inc., 40 N.C.App. 405, 253 S.E.2d 18, disc. rev. denied, 297 N.C. 457, 256 S.E.2d 810 (1979). But cf. Brooks v. Carolina Telephone and Telegraph Co., 56 N.C.App. 801, 290 S.E.2d 370 (1982) (summary judgment denied for employer on question of whether employee was entitled to termination pay as provided in personnel policy; however, court noted such policy could be cancelled at will by the employer). This result has also been reached by federal courts in their application of North Carolina law. See Watkins v. Milliken & Co., 613 F.Supp. 408 (D.C.N.C.1984); Cote v. Burroughs Welcome Co., 558 F.Supp. 883 (E.D.Pa.1982).

Illustrative of the protection which North Carolina law accords its employers is Williams v. Biscuitville, Inc. where the employer failed to follow its own announced personnel policy, yet the court found no breach of contract. The Williams court stressed that personnel policies are not part of the employment contract when they are unilaterally implemented by the employer, who has complete discretion to change them. Id. at 408, 253 S.E.2d at 20. Therefore, Plaintiffs claim that a contract was created by personnel policies in the benefit handbook or by discussions at a human relations seminar must be denied. Further, there is nothing in the record which reveals any violation of “good faith” on the part of Defendant in discharging Plaintiff. Walker, supra, 77 N.C.App. at 261-262, 335 S.E.2d at 85. This result is buttressed by our earlier finding that Plaintiff’s discharge did not violate any express public policy and that Defendant had a plausible and legitimate reason for terminating Plaintiff.

Finally, Plaintiff contends that his relocation to North Carolina and the resulting expenditures constitutes additional consideration which restricts Defendant’s right to terminate him at will. At first, this position may seem to be supported by Sides v. Duke Hospital, supra, which recognized a claim for breach of an indefinite-term contract where the plaintiff alleged that she had moved from Michigan to Durham in reliance on promises that she would only be terminated for incompetence. However, as we noted earlier, Sides involved conduct on behalf of the defendant which was unlawful and thus called into play the public policy exception. The Sides court explicitly stated:

The additional consideration that the complaint alleges, her move from Michigan, was sufficient, we believe, to remove plaintiff’s employment contract from the terminable-at-will rule and allow her to state a claim for breach of contract since it is also alleged that her discharge was for a reason other than the unsatisfactory performance of her duties.

Id. at 345, 328 S.E.2d at 828 (emphasis added). Here, Plaintiff was discharged for managerial incompetence and the record is devoid of any unlawful behavior by Defendant which would be comparable to the situation in the Sides case.

North Carolina courts have been hesitant to find extra consideration which takes employment contracts beyond this at-will limitations. See, e.g., Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249 (1964) (court found no additional consideration in oral promises to employee that he would have a permanent job as long as his work was satisfactory); Malever v. Kay Jewelry Co., 223 N.C. 148, 25 S.E.2d 436 (1943) (employer had no permanent obligation to employ even though employee moved to Charlotte from Fayettesville on promise of permanent employment). But see Dotson v. F.S. Royster Guano Co., 207 N.C. 635, 178 S.E. 100 (1935) (extra consideration found where employee relinquished accident claim against employer for personal injuries in consideration for lifetime employment); Jones v. Carolina Power & Light Co., 206 N.C. 862, 175 S.E. 167 (1934) (contract for “permanent employment for a term of at least ten years” held supported by plaintiffs leaving another job to come break a strike against employer); Fisher v. John L. Roper Lumber Co., 183 N.C. 485, 111 S.E. 857 (1922) (promise of lifetime employment upheld since plaintiff relinquished his claim against employer for injuries). See generally, Larson, Unjust Dismissal, § 10.34 (Matthew Bender 1985). Applying the rationale of the above cases to this issue, we are constrained in our ability to find additional consideration here, and, therefore, we conclude that Plaintiffs employment contract was terminable-at-will.

In conclusion, we recognize the disparity of power and the potential for unfair results which is inherent in an employment relationship like the present one. We are also cognizant of decisions from courts in the last decade or so which have eaten away at the employment-at-will doctrine in situations where the court can find that contractual-type promises were made or that an express public policy was clearly violated. However, as a federal district court sitting in diversity jurisdiction, we do not write on a clean slate, and we must apply the established precedent of North Carolina, Bruffett v. Warner Communications, Inc., supra, 692 F.2d at 918, which has shown judicial conservatism toward allowing relief for discharged-at-will employees. While it is possible that the law of North Carolina will progressively evolve and follow the lead of those jurisdictions recognized as vanguards in wrongful discharge litigation, our role is not that of a soothsayer and for this reason we decline this invitation to create new law for North Carolina; such a function is solely within the province of the courts and legislature of that state.

Accordingly, we will grant Defendant's Motion for Summary Judgment since Plaintiff has no right to relief under either his tort or contract claim.

An appropriate order will be entered.


author: KANNE, District Judge.

text:
    Edmond J. MINNE, Plaintiff, v. STATE OF INDIANA, Indiana State Police, Hon. Bryce E. Billings and Cloverleaf Garage, Inc., Defendants.
    No. H 83-74.
    United States District Court, N.D. Indiana, Hammond Division.
    Jan. 16, 1986.

      Don G. Blackmond, A. Howard Williams, South Bend, Ind., for plaintiff.
    George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, Ind., for defendant, Hon. Bryce E. Billings.
    Frank J. Parkerson, Kenefick, Brennan & Gilmore, P.C., Michigan City, Ind., for defendant, Cloverleaf Garage, Inc.
   ORDER GRANTING MOTIONS TO DISMISS AND DENYING REQUEST FOR LEAVE TO AMEND THE COMPLAINT

KANNE, District Judge.

Defendant, Judge Bryce E. Billings, has filed a motion to dismiss plaintiff’s complaint pursuant to FED.R.CIV.P. 12(b)(6). Additionally, defendants, State of Indiana and Indiana State Police, seek dismissal of this action pursuant to FED.R.CIV.P. 12(b)(5). Finally, plaintiff has filed a request for leave to amend his complaint in response to defendant’s motions to dismiss.

Plaintiff filed his original complaint on January 31, 1983, alleging that defendants had conspired to illegally extract money from him, thereby depriving him of his constitutional rights under the 4th, 5th, 6th, 8th and 14th Amendments of the Constitution. Specifically, plaintiff alleged that he was falsely arrested and threatened with incarceration until such time as he paid a traffic fine owed by an unrelated third party.

In his complaint, plaintiff states that he owns a 1980 Kenworth semitractor which he leases to various trucking companies. On March 16, 1982, plaintiff was stopped by an Indiana State Police Officer at the Interstate 94 weigh statioscales in Porter County, Indiana. Plaintiff contends that although he was neither charged with an offense nor guilty of any violation of the law at the time he was arrested, his semi-tractor along with the trailer was impounded and he was threatened with incarceration until such time as he agreed to pay certain traffic fines apparently owed by other drivers hauling trailers for the Carl C. Calvert Trucking Company.

According to plaintiff, traffic citations had, in the past, been issued to several other drivers in Calvert’s employ by Indiana State Police. Since those offenses occurred in Porter County, those drivers appeared before Judge Billings who imposed fines on the drivers. However, the fines were never paid and as a result, plaintiff alleges that Judge Billings issued an order directing the Indiana State Police to arrest the next driver hauling a Calvert trailer and to hold him until such time as certain outstanding fines had been paid.

As a result of this alleged illegal conspiracy to extract money, plaintiff contends that he was forced to pay a fine on behalf of a third party to whom he had no relationship. Thus, plaintiff alleges he was arrested without cause, deprived of due process, and illegally detained, all in violation of his constitutional rights.

Plaintiff sought compensatory and punitive damages in his original complaint, but requests leave to amend his complaint to enable him to seek both declaratory and prospective injunctive relief against Judge Billings and compensatory and punitive damages from the remaining defendants.

Defendant Billings filed both a motion to dismiss the original complaint and a response in opposition to plaintiffs motion to amend the original complaint. Judge Billings contends that plaintiffs request for leave to amend the complaint should be denied because plaintiffs complaint is and will remain frivolous, even if amended and, as such, either complaint should be dismissed in accordance with FED.R.CIV.P. 12(b)(6).

Defendants Indiana State Police and the State of Indiana move to dismiss plaintiffs complaint since they were never served with the complaint as required by FED.R. CIV.P. 4(j) and are therefore not parties to this action.

Defendant Billings contends that the amended complaint, like the original complaint, is based on alleged actions undertaken by him in furtherance of his judicial authority and that he cannot be held liable for those actions. Judge Billings argues that the doctrine of judicial immunity renders inappropriate any monetary relief against him for acts performed in the course of his official duties.

Plaintiff responds that defendant Billings acted outside of his jurisdiction and can therefore be held liable for his actions. Moreover, plaintiff contends Judge Billings is not immune from prospective injunctive relief nor does judicial immunity bar an award of attorneys’ fees under the Civil Rights Attorneys’ Fees Awards Act to one who succeeds in obtaining injunctive relief under § 1983 against a state judge. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). Plaintiff states that although the prayer for relief in his original complaint is not as comprehensive as the one in his amended complaint, both complaints state a valid claim for relief and his cause of action should not be dismissed and that leave to amend his complaint should be granted.

Federal Rule of Civil Procedure 15(a) permits a party to amend its pleadings. Courts generally construe Rule 15(a) liberally and permit complaints to be amended to correct insufficiencies in the pleadings or to perfect jurisdictional requirements.

The Seventh Circuit Court of Appeals has held:

If the underlying facts or circumstances relied upon by the plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.

Murphy v. White Hen Pantry Co., 691 F.2d 350, 353 (1982).

However, even though the court is compelled to interpret Rule 15(a) liberally, plaintiff’s motion to amend the complaint will be granted only if the proposed amended complaint states a claim upon, which relief can be granted.

Plaintiff's amended complaint is based on the same factual allegations as the original complaint. However, plaintiff now seeks prospective injunctive relief and attorneys’ fees where he previously requested only damages.

The Supreme Court has ruled that a judge may be liable for his actions only where those actions are extra-judicial or, in other words, acts taken “in clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).

The Sparkman ruling is based on the earlier Supreme Court case of Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872), in which the court set out the distinction between acts taken in total absence of jurisdiction and those taken in excess of jurisdiction.

The Seventh Circuit Court of Appeals adopted the Bradley distinction in Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir.1980). The Lopez court indicated that absolute judicial immunity will protect a judge in § 1983 actions if two conditions are satisfied:

First, the act must not have been taken in the clear ‘absence of all jurisdiction’_ Second, the act must be a ‘judicial act’.

620 F.2d at 1233. A judicial act is defined in Lopez as one that is “normally performed by a judge and to the expectations of the parties.” 620 F.2d at 1233, citing Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107, 55 L.Ed.2d 331 (1978). See also Dykes v. Hosemann, 776 F.2d 942 (11th Cir.1985).

This court finds that defendant Billings’ acts of ordering plaintiff’s arrest and impounding his vehicle were not undertaken in the clear absence of all jurisdiction.

As alleged in the amended complaint, defendant Billings is, and was at the times alleged in the complaint, the judge of Porter County Court. Under Indiana law, a county court judge has original and concurrent jurisdiction of all class D felonies, misdemeanor and infraction cases. I.C. 33-10.5-3-2. Traffic violations, including speeding and weight and size violations, are cases over which the county court judge has jurisdiction since they are infractions. See I.C. 9-4-1-57, I.C. 9-4-1-127.1, I.C. 9-8-1-12, I.C. 9-8-1-13, I.C. 9-8-1-22. Additionally, a county judge is empowered to issue warrants, to punish contempts of court and to enforce all orders of the court. I.C. 33-10.5-2-5. The power to enforce orders and traffic laws also allows a county judge to impound a vehicle in certain instances. See, e.g., I.C. 9-8-1-13.

Defendant Billings was acting within his jurisdiction when he issued an arrest warrant and impounded plaintiff’s vehicle and whether plaintiff actually committed a traffic offense is not relevant in determining defendant Billings was acting within his jurisdiction.

In Stump v. Sparkman, the Supreme Court ruled “a judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of authority; rather he will be subject to liability only when he acted in the ‘clear absence of all jurisdiction.’ ” 435 U.S. at 357-58, 98 S.Ct. at 1105.

The Supreme Court illustrated the difference between “clear absence of jurisdiction” and “excess of jurisdiction” in a footnote in Sparkman, which may appropriately be applied to this case.

[1]f a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. (Emphasis added.)

Sparkman, 435 U.S. at 358 n. 7, 98 S.Ct. at 1105 n. 7, quoting Bradley v. Fisher, 13 Wall. 335 at 352, 80 U.S. at 352.

In this case it is clear that defendant Billings may have been acting in excess of his jurisdiction when he ordered plaintiff arrested but it is also clear that defendant Billings was acting within his jurisdiction as a Porter County judge since he has the authority to issue warrants and in some instances, impound vehicles.

Since defendant Billings was acting within his jurisdiction, he cannot be held liable for his actions. Defendant Billings is immune from plaintiff’s claim for compensatory and punitive damages.

This court notes however, that judicial immunity does not prevent plaintiff from obtaining prospective injunctive relief against a judicial officer acting in his judicial capacity; nor does judicial immunity bar an award of attorneys’ fees. See Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984).

Since the Supreme Court’s interpretation of the legislative histories of §§ 1983 and 1985 requires that both prospective injunc-tive relief and attorneys’ fees be available to citizens whose constitutional rights are placed in jeopardy by a state judicial officer, the court must now determine if plaintiff has standing to seek the injunctive relief requested in his amended complaint.

Defendant Billings asserts that plaintiff has no standing to bring an action for prospective injunctive relief under the ruling in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In Lyons, the plaintiff brought a civil rights action against the city in an effort to obtain an injunction which would prevent Los Angeles police officers from administering a potentially fatal chokehold to minor traffic offenders.

The Court held that the plaintiff failed to allege an actual case in controversy pursuant to Article III Section 2 of the Constitution. The Court stated:

[A] plaintiff [is] bound to demonstrate a personal stake in the outcome, an abstract injury was not enough but, rather, plaintiff was bound to show that he had sustained or was immediately in danger of sustaining some direct injury as a result of the challenged official conduct and the injury or threat of injury [is] required to be both real and immediate, not conjectural or hypothetical.

103 S.Ct. at 1665. The Court, in Lyons, in effect indicated, that unless the plaintiff intended to violate a municipal law in the future, the threat of future harm to him was merely hypothetical. Since the plaintiff did not have a personal stake in an actual case or controversy, the Court found that the plaintiff was without standing to bring a civil rights action against the city. Id. at 1672.

This court has previously addressed the Lyons decision in Zuranski v. Anderson, 582 F.Supp. 101 (N.D.Ind.1984). In Zuranski, we stated:

The plaintiff must have standing to maintain this action. In its constitutional dimension, standing imports justiciability; that is, whether the plaintiff has made out a case or controversy within the meaning of the Constitution. As an aspect of justiciability, the standing question is whether the plaintiff has alleged such a personal stake in the outcome of the controversy to warrant his invocation of federal court jurisdiction and to justify the exercise of the court’s remedial powers on his behalf. Warth v. Seldin, 422 U.S. 490 [95 S.Ct. 2197, 45 L.Ed.2d 343] (1975).
This is not a criminal case and under our federal form of government the Indiana judicial system and ultimately the Indiana Supreme Court, is entitled to correct problems in its own house. Until that system has shown an unwillingness or inability to do so, federal courts should not intervene in the absence of grave and immediate irreparable injury.

Id., at 107-08.

Essentially then, the plaintiff in this case, must show that he will be subject to the same pattern of treatment in the future if he is not allowed to pursue his claim for injunctive relief at the present time. In concluding, as the plaintiff does, that he will be subject to similar treatment in the future, plaintiff assumes three things.

First, plaintiff assumes that if he continues to operate his privately owned tractor, he will once again haul a trailer owned by a company which employs drivers who owe unpaid traffic fines in the Porter County Court. This presumes that the drivers for such companies, for which plaintiff will work, will act in an illegal manner in Porter County and not pay their traffic fines.

Secondly, plaintiff then assumes that he will be traveling in the jurisdiction of the Porter County Court over which Judge Billings presides.

Finally, plaintiff assumes that Judge Billings will issue the same order which he allegedly issued in this case. In other words, plaintiff presumes defendant will engage in a certain pattern of allegedly illegal behavior in the future.

In Lyons, the Supreme Court warned against making the types of assumptions plaintiff seeks to make here, in order to obtain standing.

As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.

103 S.Ct. at 1668. The Court went on to state, “if [plaintiff] has made no showing that he is realistically threatened by a repetition of his experience of October, 1976, then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.” 103 S.Ct. at 1669.

Similarly, in the case at bar, plaintiff’s claim for injunctive relief is based on three-tiered conjecture. Plaintiff assumes he has standing because he will be hauling a trailer, owned by someone who employs drivers who have not paid a traffic fine in the Porter County Court, that he will be operating his vehicle in Porter County, and that defendant Billings will issue an order in the same manner as he allegedly did in this instance. The court now finds such conjecture is too remote and speculative and thus insufficient to provide plaintiff with standing. Thus plaintiff has failed to meet the threshold standing requirements of Article III Section 2. The court therefore finds that defendant Billings' motion to dismiss must be granted and plaintiff’s request for leave to file an amended complaint must be denied.

The court now turns to defendants, State of Indiana’s and Indiana State Police’s motion to dismiss. Defendants contend that plaintiff failed to serve them with a copy of the complaint as is required by FED.R. CIV.P. 4(j) and that they are not parties to this action. The court has reviewed the record and finds that service of a summons and complaint was not perfected with respect to defendants State of Indiana and the Indiana State Police. To the extent that those defendants are not a party to this action, the complaint against them must also be dismissed. FED.R.CIV.P. 4(j).

IT IS THEREFORE ORDERED that plaintiff’s Motion for Leave to Amend the Complaint is DENIED; and that defendant Judge Bryce E. Billings and defendants Indiana State Police and State of Indiana’s Motions to Dismiss plaintiff’s complaint are hereby GRANTED.


author: HADEN, Chief Judge.

text:
    ROXALANA HILLS, LTD., Plaintiff, v. MASONITE CORPORATION, et al., Defendants. and DIAMOND HILL PLYWOOD COMPANY, Plaintiff, v. EMPLOYERS INSURANCE OF WAUSAU, Defendant.
    Civ. A. Nos. 83-2182, 84-2321.
    United States District Court, S.D. West Virginia, Charleston Division.
    Jan. 22, 1986.

      John T. Poffenbarger, Charleston, W.Va., S. Gordon Elkins, Jeffrey A. Luts-key and Georganne Daher Terrill, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for Roxalana.
    John M. Slack, III, Jackson, Kelly, Holt & O’Farrell, Charleston, W.Va., for Masonite and Employers Ins. of Wausau.
    Charles E. Hurt, Charleston, W.Va., for McCoy.
    Charles W. Yeager, Steven P. McGowan, Steptoe & Johnson, Charleston, W.Va., for Diamond Hill.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are several motions requiring consideration prior to trial of this matter. Roxalana seeks yet even more discovery by its motions — all filed after the October 1, 1985, deadline for discovery. Because additional discovery at this juncture would delay the resolution of the action, Plaintiff’s motions for additional discovery are denied as untimely. The Court will next consider Masonite’s motion for judgment on the pleadings.

Roxalana’s complaint asserts causes of action under tort and Uniform Commercial Code theories. In 1975 Roxalana commenced construction of an apartment complex project in Dunbar, West Virginia. After the project began, Masonite approached Roxalana and offered for sale a siding material, tradenamed “Staccato,” which Masonite manufactured. Roxalana agreed to purchase a large quantity of the Staccato board. In its complaint Roxalana claims that Masonite negligently and defectively manufactured the Staccato board and that the condition of Masonite’s product violated warranties relating to the sale. Diamond Hill Plywood Company and McCoy Industries, Inc. also are sued as vendors of the Staccato board charged to be defective.

As noted, the Defendant Masonite raises this motion as one for judgment on the pleadings, and the Court will consider the motion as posed by the Defendant. Initially, the Court considers whether Roxalana’s complaint states an action in tort. Second, the Court will consider whether the cause of action stated under contract for the Uniform Commercial Code is affected by the applicable statute of limitations.

The first question then is whether Roxalana’s complaint, considering the facts which are alleged or could be proved under its second amended complaint, states an actionable tort claim. The West Virginia authority most helpful on this issue is found in Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W.Va.1982). In addressing the question of where contract and tort claims diverge, the Court opined:

“We reject the line of cases begun by Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1964), which has permitted the use of strict liability to recover the difference between the value of the product received and the purchase price in the absence of a sudden calamitous event, [citations omitted.] In West Virginia, property damage to defective products which results from a sudden calamitous event is recoverable under a strict liability cause of action. Damages which result merely because of a ‘bad bargain’ are outside the scope of strict liability.”

297 S.E.2d at 859.

Despite Plaintiffs arguments to the contrary, the Court here is faced with language which fairly clearly indicates that a sudden calamitous event is required to support an action in strict liability in tort. Even if a sudden calamitous event were not required to state a cause of action in tort, the Supreme Court of Appeals of West Virginia expressly excluded tort liability for “bad bargains.”

In considering what distinguishes a tor-tiously manufactured product from a bad bargain, the Third Circuit in Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir.1981) considered (1) the type of risk involved, (2) the nature of the defect, and (3) the manner in which the injury arose. With respect to the risks involved and the nature of the defect, an ordinary malfunction — among those risks ordinarily contemplated by a purchaser — is distinguished from those which pose a distinctly and unreasonably dangerous condition.

Actions regarding merely ineffective products are actionable only in contract. Purvis v. Consolidated Energy Products, 674 F.2d 217, 222-23 (4th Cir.1982). See also Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569 (10th Cir.1984) (holding no tort recovery where defective dryer results in unsalable product). In the Purvis decision the Fourth Circuit held: .

“[5] All products carry the risk that they will serve their intended function poorly. In this sense, the risk of ‘ordinary’ malfunction is well within the contemplation of the average purchaser. [Citations omitted.] This view comports with common sense as well as with the underlying purpose of strict products liability, which is to protect consumers from products which are unreasonably unsafe, not from those which are merely ineffective. [Citations omitted.] When a loss results from mere product ineffectiveness, it is the law of contracts and commercial transactions, rather than strict products liability, which fixes responsibility for the loss. See generally Seely v. White Motor Co., 63 Cal.2d 9, 403 P.2d 145, 149-50, 45 Cal.Rptr. 17 (1965).”

Purvis, id., 674 F.2d at 222-23.

Another characteristic of the “risk” the product poses is whether it is one of a type of risk which invariably will be asserted solely by the purchaser. If the purchaser alone is the only interested party who asserts the claims regarding a particular defect, the contract is the proper vehicle for allocating risks of failure of the product to perform up to expectations. Jones and Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280, 285-88 (3rd Cir.1980).

With respect to the manner in which the injury arose, several courts have determined also that “physical injuries” are com-pensable under tort law and “economic losses” are compensable under contract law. The Third Circuit described a “physical injury” as one where the defect creates a safety hazard and where the injury to the property is so akin to personal injury that there is no reason for distinguishing them. Pennsylvania Glass Sand, 652 F.2d at 1170. Comparatively, economic losses are losses of the benefit of the bargain — the loss of the service the product was supposed to render. National Can Corp. v. Whittaker Corp., 505 F.Supp. 147, 149 (N.D.Ill.1981). If the injury is an economic loss, then tort law need not enter the picture. National Can, 505 F.Supp. at 155. Instructively, the West Virginia Court in Star Furniture, states: “[S]udden calamitous damage will almost always result in direct property damage ..., (while) deterioration, interest and depreciation will be considered economic loss.” 297 S.E.2d at 859 n. 4 (citing Cloud v. Kit Mfg. Co., 563 P.2d 248, 251 (Alaska 1977)).

Mere damage to other property does not preclude a finding of purely economic loss. In Daitom, supra, the defective dryer caused damage to the plaintiffs product— making it unsalable. The Tenth Circuit held that no tort recovery was available. In Jones and Laughlin, a defective roof caused damage inside the building to the plaintiffs products, and the Third Circuit held a tort theory inapplicable. In National Can Corp., the defendant’s defective bottle caps caused the plaintiffs product— soft drinks — to deteriorate in the bottle. The Northern District Court of Illinois held that the tort remedy was unavailable.

Where, however, the product functions basically as designed and then proximately causes a sudden, calamitous damage, tort liability results. In Pennsylvania Glass Sand, a fire suppression system in a fork lift failed and as a result fire damage to the fork lift occurred. The Third Circuit reasoned that the fork lift could do its job and found that the calamitous damage gave rise to a tort recovery. Similarly, in Hales v. Green Colonial, Inc., 490 F.2d 1015, 1022 (8th Cir.1974), a heater performed its assigned function, but started a fire. The Eighth Circuit found that the calamitous event gave rise to a tort claim.

In summary, the Court recognizes that the Supreme Court of Appeals of West Virginia has determined that not all damage to products or other property is actionable under strict liability. If the West Virginia Court already has not determined that a calamitous or sudden event is required to trigger tort liability, it would, at least, require something other than an allegation of a bad bargain. This Court also opines that the West Virginia Supreme Court of Appeals likely would follow an analysis akin to Pennsylvania Glass Sand in determining when a product defect results in a breach of warranty or a tort.

Roxalana alleges in Counts IV and IX of its complaint that the Stuccato board was defective in a manner which was not contemplated by Roxalana. Roxalana specified the nature of the defect at paragraphs 13 and 14 of the complaint:

“13. On or about April 17, 1981, Rox-alana discovered that the Stuccato manufactured by Masonite and sold to Plaintiff through Masonite’s distributor, McCoy, was defective, unfit in the West Virginia environment for its intended use and unfit in said location for the particular purpose for which it was to be used in that, among other things:
(a) Stuccato is unduly susceptible to moisture;
(b) Stuccato does not permit the ventilation of moisture causing said moisture to become trapped in, around and behind the exterior siding panels;
(c) Stuccato absorbs moisture, swells up and becomes soft; and
(d) Because Stuccato is slow to dry and traps moisture, it caused deterioration in the appearance and structure of Roxalana Hills.
14. As a result of the use of Stuccato by Plaintiff in Roxalana Hills, which Stuccato was defective, unfit in the West Virginia environment for its intended use and unfit in said location for the particular purpose for which it was sold, the apartment units comprising Roxalana Hills have experienced rotting and decay of the Staccato siding panels (including degeneration of their appearance) and of many of the structural members of the various Roxalana Hills apartment units, which Plaintiff has been required and will be required to replace or repair, at great loss and expense, causing inconvenience to tenants, and other business disruption.”

In summary, Roxalana complains of rotting and decay, degeneration of appearance and “inconvenience to the tenants.” The risk that the product would not last for as long as the Plaintiff had expected is certainly one peculiar to the purchasers of products. The safety of the product is not mentioned nor even suggested by this pleading. The character of losses charged are decay and rotting — the type Star Furniture explicitly held to be economic and, therefore, the subjects of a bad bargain. Here, the Plaintiff alleges that the products should have ventilated the vapor from the interior of the buildings to the outside, just as the bottle caps in National Can should have preserved the product in the bottle and just as the roof should have held its place, not absorbed moisture or lost its dimensional qualities as in Jones & Laugh-lin Steel. Because Roxalana complains of a bad bargain, of economic loss, it cannot make a strict liability in tort claim out of this commércial case.

There is also a secondary issue as to whether Roxalana’s simple negligence claim against Masonite should survive. Jones & Laughlin dealt with this question in terms of the scope of relief defined in the Restatement (Second) of Torts:

“Disallowance of tort claims for economic losses accords with the provisions of the Restatement (Second) of Torts that discuss a manufacturer’s liability for negligence and strict liability. Section 323 of the Restatement (Second), for example, which defines the liability of one who negligently performs an undertaking to render services, provides that a manufacturer is liable to persons using its products for ‘physical harm’ caused by its negligence. Neither the rule nor its accompanying commentary and illustrations extends liability for negligence to encompass economic losses, [footnote omitted]. Similarly, §§ 402A and 402B, which establish respectively strict liability for defective products and misrepresentation in the sale of products, apply only where the product or misrepresentation causes physical harm to the user of the product. Nowhere in the accompanying commentary or illustrations do the reporters of the Restatement indicate that the doctrine of strict liability covers economic losses, [footnote omitted]. Indeed, comment d to § 402B strongly implies that the rule was not intended to overlap the provisions of the Uniform Commercial Code or the common law of sales, which traditionally provided the sole basis for recovery of economic losses: ‘The liability stated in this section is liability in tort, and not in contract; and if it is to be called one of “warranty,” it is at least a different kind of warranty from that involved in the ordinary sale of the goods from the immediate seller to the immediate buyer.’ ” [footnote omitted].

Jones & Laughlin, 626 F.2d at 287-88.

Hart Engineering v. FMC Corporation, 593 F.Supp. 1471, 1483 (D.R.I.1984), relying on the Fourth Circuit’s Purvis case held that the same reasoning which distinguishes between the strict liability theory and the contract theory distinguishes the negligence theory from the contract theory. The Court believes that West Virginia would not find a negligence cause of action in a breach of contract case merely because the breach occurred negligently. The Court concludes the same bargain and expectation interests apply to negligent breaches of contract, Pennsylvania Glass Sand, 652 F.2d at 1173, and would similarly prohibit circumventing the Uniform Commercial Code for the redress of economic losses caused by ineffective products. Jones & Laughlin, 626 F.2d at 288— 89.

Accordingly, Masonite’s motion for judgment on the pleadings to dismiss Roxala-na’s tort claims, Counts IV, VIII and IX is granted.

The second question raised by Masonite’s motion for judgment on the pleadings is whether Roxalana’s complaint is barred by the statute of limitations. The relevant statute of limitations is found in W. Va. Code, § 46-2-725, which states in pertinent part:

“(1) an action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the goods must await the time of such performance the cause of action accrues when the breach if or should have been discovered.
* * * * # *
(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this chapter becomes effective [July 1, 1964].”

Roxalana constructed the buildings containing the offending Stuccato panels beginning in 1975. The complaint discloses that “warranties” are alleged; however, the warranties alleged relate to the ability of the Stuccato board to withstand the environment in West Virginia, that the products would be of merchantable quality, that the product would be fit for its intended particular use, and that it would be fit for its ordinary purpose.

Noticeably lacking here is the allegation that the product would last any particular length of time. Despite the complaint’s otherwise complete listing of the warranties it explicitly alleges, the allegation seeking the warranty which explicitly extends the time of performance is not asserted. From the pleadings alone, the Court holds that defects relating to the product delivered prior to March 28, 1979, would not be actionable because they would be barred by the applicable four-year statute of limitations.

Were the Court to consider the matter as a motion for summary judgment, as Roxa-lana has invited the Court to do, and to which Masonite has assented, the Court is presented with the additional information that the principal utilization of Masonite’s product occurred between 1975 and 1977. Roxalana first discovered that the Stuccato board had discolored and in some instances buckled in early 1977. Roxalana called Masonite to enlist its assistance in clearing up the problem.

The Court notes that the significance of Roxalana’s Exhibit E is twofold: (1) Roxa-lana argues that it created a warranty for performance over an extended time; and (2) it indicates that Roxalana clearly knew that the Stuccato board was defective long before the claimed April, 1981, date of discovery stated in the complaint. Under W. Va. Code, § 46-2-725(2), even assuming Roxalana is correct in arguing that there is an extended warranty, Roxalana discovered the defect less than a year after the installation in the principal Roxalana Hills project was complete, and accordingly, its cause of action accrued in 1977.

In support of its contention that it is entitled to a warranty for extended performance, Roxalana tenders documents which it argues demonstrate “warranties” relating to the length of time which the board would perform. These “warranties” are not found in documents relating to the sale itself, but rather in an advertisement presumptively published prior to the date Roxalana purchased the Stuccato board, and in statements made by Masonite's agents after the principal purchase of the Stuccato board had been consummated.

Roxalana claims that Masonite “warranted” that the Stuccato X-90 board is “specifically formulated for weatherability and durability.” Roxalana also asserts that Frank Madden, Howard Spault and Ron Kesselring made certain statements which constituted warranties as to the Stuccato board's extended performance. Madden and Spault each made statements in their depositions which contain their opinions that the Stuccato board, if properly installed, would last the lifetime of the building to which it is attached. Kesselring, pursuant to Roxalana’s inquiries shortly after the principal construction had been completed in 1977, reviewed the installation technique of Roxalana’s construction companies and made certain specific recommendations as to how to properly install the Stuccato siding boards. At the conclusion of a letter sent to Roxalana, Kesselring states that in his opinion if the requested changes in construction technique were made, the board should perform “quite satisfactorily.”

Masonite expressly warranted its Stucca-to siding for five years for the factory applied finish nails, and it is expressly warranted that the siding will stand up for twenty-five years against hail damage. See Exhibit Q to the Plaintiff’s Response to the Defendant’s Motion for Judgment on the Pleadings. Masonite did not warrant the general appearance or explicitly warrant any length of time for which the siding will otherwise endure in the brochure appearing at Plaintiff’s Exhibit Q. The language Roxalana asserts in support of its contention that an express warranty was created is found on the second page of a twenty-four page brochure. The brochure contains several general comments about X-90 boards, and further contains a two-page section which lists the express warranties and the time for which the warranties extend on the various X-90 siding products. The language which Roxalana draws its support from is contained in the general introductory remarks concerning X-90 side boards.

W.Va.Code, § 46-2-313 states:

“(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to goods and becomes a part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made a part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
******
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

Each of the three methods (two of which are indicated) provided for in § 46-2-313(1) requires that the affirmation, description or sample be made “a basis of the bargain.” Roxalana does not suggest how the statements by Masonite’s agents after the project at Roxalana’s apartment complex was completed constituted a basis for the bargain for the previously sold goods. The only "warranty” which might be considered a basis for the bargain are Masonite’s introductory remarks contained in the pamphlet submitted to the Court as Plaintiff’s Exhibit Q. The pamphlet says that X-90 boards, of which Stuccato board is one, is “specifically formulated to provide durability and weatherability.” The statement does not relate to a period of time and it does not warrant that it will accomplish the goal for which it was designed. The statement merely says that X-90 board has been “specifically formulated” for this purpose. Thus the statement relates to the value of the product and falls short of the factual affirmation or description which forms the basis of a bargain.

The statements of Madden, Spault and Kesselring relied upon by Roxalana as warranties, are easily dismissed as merely opinions, in addition to the problem of their not being a basis of the bargain.

Roxalana further argues that Masonite’s responses to Roxalana’s inquiries regarding problems with Stuccato siding set up an equitable estoppel. Upon reviewing Roxa-lana’s factual offerings in this area, the Court concludes that there were no representations by Masonite which approach the representations of fact or inducements for Roxalana not to take action which are required to invoke this tolling principle. Humble Oil and Refining Co. v. Lane, 152 W.Va. 578, 165 S.E.2d 379, 384 (1969).

Accordingly, the Court determines that if limited to the complaint and answer, the pleadings demonstrate that this action is barred by the applicable statute of limitations for those products purchased prior to March 28,1979. Considering those matters offered factually to establish a tolling of the statute, the Court concludes that the factual offerings create no genuine issue of fact for trial and that Masonite is entitled to judgment as a matter of law on the remaining Uniform Commercial Code counts.

The Court notes, however, that the Plaintiff may proceed on the approximately 225 Stuccato panels which were purchased after March 28, 1979. These sales are not barred by the statute of limitations under the Plaintiff’s Uniform Commercial Code theories. Accordingly, the Court considers as actionable those approximately 225 Stuc-cato panels which were purchased within the statute of limitations applicable to this action.

One remaining issue concerns Diamond Hill Plywood’s and McCoy Industries’ motion to amend their answers to incorporate the statute of limitations defense. The issue posed by the late filed motions is whether the amendment to raise this defense should be freely granted as “justice requires.” Rule 15(a), Federal Rules of Civil Procedure. The limitations defense was asserted from the outset by Masonite, and it is evident from Roxalana’s response to Masonite’s motion that Roxalana was prepared to meet the defense. The interposition of the statute of limitations to this litigation gives dispute finality to a seemingly interminable commercial transaction. Extending this defense to the vendors of the Stuccato board does not delay consideration of this case. To prohibit the amendment effectively would deny Masonite the defense it has raised seasonably. For these reasons, the Court grants the motions to amend to permit McCoy and Diamond Hill the statute of limitations defense and the proposed amended answers are ORDERED filed herewith.

Also pending are McCoy’s and Diamond Hill’s motions for summary judgment regarding scope of insurance coverage and the insurers’ duty to defend these entities under certain insurance contracts. The facts necessary to resolve these motions for summary judgment are not before the Court. Because the factual predicate is incomplete and because the motions are not ripe, McCoy and Diamond Hill’s motions are denied without prejudice.

The Clerk is directed to send a certified copy of this Memorandum Opinion and Order to counsel of record.

      . The opinion disclosed the presence of water in the mill resulting in electrical outages. 626 F.2d at 282.

      . Jones & Laughlin, 626 F.2d at 285-87 and n. 13, notes that this distinction is drawn in a majority of jurisdictions.

      . See, Exhibit E, Exhibits in Support of Plaintiffs Answer to Motion of Defendant Masonite Corporation to Dismiss and for Judgment on the Pleadings.

      . Roxalana, as it has been previously noted, proceeds against McCoy and Diamond Hill on the basis that they were sellers of the Stuccato siding which breached implied warranties. McCoy and Diamond Hill, in turn, proceed against Masonite for indemnity as they merely warehoused or shipped the Stuccato board without modification. To allow Roxalana to proceed against McCoy and Diamond Hill on the time barred claims would allow Roxalana to do indirectly what it cannot do directly; that is, recover from Masonite for breaches of warranty prior to the four years next preceding the filing of this complaint.