author: LASKER, District Judge.

text:
    AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., Plaintiff, v. Max MARCO and Demarco Cal Fabrics 570 7th Ave., New York, N.Y. 10018 Acct # 3782 629041 21001, Defendants. Max MARCO and Demarco Cal Fabrics 570 7th Ave., New York, N.Y. 10018 Acct #3782 629041 21001, Third-Party Plaintiffs, v. BRITISH AIRWAYS, Third-Party Defendants.
    83 Civ. 573(MEL).
    United States District Court, S.D. New York.
    June 27, 1985.

      Lester A. Lazarus, P.C., New York City, for defendants and third-party plaintiffs; Harlan M. Lazarus, Wayne M. Albinder, New York City, of counsel.
    Condon & Forsyth, New York City, for third-party defendant; Stephen J. Fearon, Wendy A. Grossman, New York City, of counsel.
   LASKER, District Judge.

Third-party defendant British Airways moves pursuant to Rules 12(b) and 56 of the Federal Rules of Civil Procedure, to dismiss the third party action. Max Marco and DeMarco Cal Fabrics, third-party plaintiffs (hereinafter collectively referred to as “Marco”) oppose the motion on the ground that material facts remain at issue for trial. For the reasons set forth below, the motion is granted in part and denied in part.

I.

On November 9, 1982, Max Marco and his wife were passengers aboard a London to New York British Airways Concorde flight. Mr. and Mrs. Marco asked for and were given no-smoking section boarding passes upon checking in. Prior to departure, Mr. and Mrs. Marco observed several ticket-holders smoking cigars in the lounge, and upon inquiring about this were told by a British Airways attendant that cigar smoking would not be allowed on the plane.

An error resulted in duplicate boarding passes being issued for the Marcos’ seats and they were reassigned to other seats in the no-smoking section. During the flight, cigar smoking continued and was engaged in by passengers in seats surrounding and adjacent to the no-smoking section as well as in the aisles of the aircraft. As a result of the smoke the Marcos became ill and Mr. Marco missed three or four days of work.

Tickets for this flight were charged to the American Express credit card of Max Mareo/DeMarco Cal Fabrics. American Express Travel Related Services filed a claim against Marco after he withheld payment for the Concorde tickets. Marco then filed this third party indemnity claim against British Airways. British Airways moves to dismiss the amended third party complaint (hereafter referred to as “the complaint”) on the ground that Marco has failed to state a claim upon which relief may be granted.

The complaint alleges seven causes of action. Counts one, two and three seek relief for alleged discrimination in violation of 49 U.S.C. § 1374(b). Counts four and five seek to estop the use of a British Airways tariff as an affirmative defense. Count six claims a violation of the Civil Aeronautics Board (“CAB”) regulation governing smoking in air travel. The seventh count alleges a violation of 49 U.S.C. § 1374(a) which imposes a duty on foreign air carriers to promulgate reasonable rules and practices.

II.

The complaint alleges violations of 49 U.S.C. § 1374(b), which provides:

No air carrier or foreign air carrier shall make, give or cause any undue or unreasonable preference or advantage to any particular person ... in air transportation in any respect whatsoever or subject any particular person ... to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

Count one of the complaint alleges that in not enforcing the provision of British Airways’ manual instructing them to “firmly discourage” passengers from smoking in the no-smoking section, the crew treated other passengers with undue preference over the Marcos.

British Airways moves to dismiss this count on the ground that the discrimination intended to be prevented by the statute is not the type of discrimination alleged. We agree because we are not persuaded that Congress intended to provide for a passenger’s every comfort in proscribing “unjust discrimination and undue prejudice.” In Diefenthal v. C.A.B., 681 F.2d 1039 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983), the court found no discrimination to arise under 49 U.S.C. § 1374(b) based on distinctions in passenger treatment arising from a smoking/no-smoking differentiation. In that case, as well as in Polansky v. Trans World Airlines, Inc., 523 F.2d 332 (3d Cir.1975), the court construed the statute as intending to protect a non-discriminatory right of access to air facilities. The Marcos do not allege any denial of access and were, in fact, aboard the flight. For this reason, count one of the complaint is dismissed, as is count three which alleges discriminatory preference to the smoking passengers when British Airways enforced their boarding passes but not the no-smoking section boarding passes of the Marcos.

Count two alleges discrimination arising from the manner British Airways applied its tariff, which specifies “carrier does not guarantee allocation of any particular space in the aircraft.” We fail to see how British Airways can be sued for the discriminatory performance of a negative contractual provision. However, even if this were possible, we see no connection between this tariff provision and a request for a smoking or no-smoking section seat. Such a request is not for a “particular space.” Marco did not ask to sit in a specific seat, but rather in a section of the plane where other non-smokers were seated. The tariff provision appears inapplicable to the situation at hand, as is any allegation that it was discriminatorily applied. For this reason count two of the complaint is dismissed.

III.

Counts four and five of the amended complaint allege causes of action in equitable and promissory estoppel. They seek to estop British Airways from denying the validity of the oral representation made with respect to smoking by a British Airways attendant, and the written representation contained on the no-smoking section boarding, passes issued to the Marcos. British Airways moves to dismiss these counts on the ground that its tariff may not be avoided by invoking estoppel principles. The tariff in question, used by British Airways as an affirmative defense to the estoppel counts, states that “carrier does not guarantee allocation of any particular space in the aircraft.” British Airways argues that reliance on the part of Marco on any items extrinsic to the tariff is improper where the representations are contrary to the tariff.

Because passengers and shippers are charged with constructive knowledge of their terms, tariffs are not subject to estoppel. Mao v. Eastern Airlines, 310 F.Supp. 844, 846 (S.D.N.Y.1970). British Airways cites many cases for the proposition that a carrier’s tariffs may not be avoided by invoking estoppel principles. See Chesapeake and Ohio Railway v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983 (1931); Rosch v. United Airlines, 146 F.Supp. 266, (S.D.N.Y.1956); Westhemeco Ltd. v. New Hampshire Insurance Co., 484 F.Supp. 1158 (S.D.N.Y.1980); Consolidated Rail Corp. v. Containair Systems Corp., 553 F.Supp. 418 (S.D.N.Y.1981). In those cases, however, the language of the tariffs on file applied clearly and specifically to the particular situations at issue. See, e.g., Consolidated Rail Corp. v. Containair Systems, supra, in which a storage charge rate was involved. When there was reliance, it was directly to the contrary of a clear and specific tariff on file with the CAB. For that reason it was reasonable to charge the passenger or shipper with knowledge of the tariff provisions. Indeed, public transportation could not operate successfully unless passengers and shippers were chargeable with knowledge of specific tariff provisions relating to the subjects covered.

In the case at hand, however, the quoted blanket statement of British Airways in its tariff, “carrier does not guarantee allocation of any particular space in the aircraft,” is subject to varied constructions. Because of the tariffs lack of reference to smoking, and therefore its inapplicability, the constructive knowledge of its terms that is charged to Marco is ineffective to overcome the representations made to him. Marco relied on very specific representations which did not necessarily conflict with the tariff.

Were we dealing here with a mathematical or other exact tariff provision, the constructive knowledge and exclusive contractual nature of a tariff would be sufficient to enable British Airways to deny the validity of any contrary representations to the Marcos. However, constructive knowledge of this tariff gave Marco no information relating to smoking. The tariff provision in question has no relationship to whether Marco could be guaranteed a seat in the no-smoking section by a boarding pass or oral representation. A request for a seat in a no-smoking section is not a request for any particular space in the aircraft. Accordingly, British Airways’ reliance on its tariff is ineffective in this case and Marco is. not prevented from pleading that British Airways should be estopped from denying the validity of the oral and written representations made to him.

British Airways’ motion for summary judgment on counts four and five is therefore denied.

IV.

Count six of the complaint alleges a violation of the regulation governing smoking in air travel, 14 C.F.R. § 252.3 (1983), which provides that “[e]ach air carrier shall take such action as is necessary to ensure that smoking is not permitted in no-smoking sections ____” Marco claims British Airways violated this regulation by permitting passengers to smoke in the no-smoking section of the aircraft.

British Airways moves to dismiss, arguing that this CAB regulation does not apply to it because British Airways is not an “air carrier” but rather a “foreign air carrier.” The Federal Aviation Act of 1958 (“the Act”) defines the terms employed by the CAB regulations. “Air carrier” is defined by the Act as “any citizen of the United States who undertakes ... to engage in air transportation.” British Airways is a corporation organized and existing under the laws of the United Kingdom with its principal place of business in the United Kingdom, and the majority of its corporate shares are owned by the United Kingdom. It is not a United States citizen, but falls within the Act’s definition of a “foreign air carrier,” see 49 U.S.C. § 1301(19), and the categories of “air carrier” and “foreign air carrier” are mutually exclusive. U.S. v. Keuylian, 602 F.2d 1033, 1039-40 (2d Cir.1979). Accordingly, the CAB regulation does not cover British Airways’ conduct and its motion to dismiss count six is granted.

V.

Count seven of the complaint alleges a violation of subsection (a) of 49 U.S.C. § 1374. This provision requires foreign air carriers to “establish, observe, and enforce just and reasonable ... classifications, rules, regulations, and practices relating to foreign air transportation.” Marco claims that British Airways violated the provision by allowing passengers to smoke in the no-smoking section.

British Airways argues that there is no private right of action either explicit or implicit in § 1374(a). Marco responds that there is an implicit right of action under the subsection as it was construed in Angel v. Pan American World Airways, 519 F.Supp. 1173, 1177-78 (D.D.C.1981) and Diefenthal v. C.A.B., 681 F.2d 1039, 1049-51 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983). These cases, however, refer only to a private right of action under § 1374(b). Accordingly, we proceed to consider whether under general principles a private right of action under the statute may be implied.

In deciding “whether a private remedy is implicit in a statute not expressly providing one,” four factors are determinative. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). The first is whether the statute was enacted to protect a particular class of beneficiaries. Since § 1374(a) names no particular class to be protected, and only general language is used in the statute, it suggests no intent to create a private right. California v. Sierra Club, 451 U.S. 287, 294-5, 101 S.Ct. 1775, 1779-80, 68 L.Ed.2d 101 (1981).

The second factor calls for an examination of a specific legislative intent to create or deny a private right. As discussed in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 13-15, 101 S.Ct. 2615, 2622-2623, 69 L.Ed.2d 435 (1981), the fact that the statute is part of an act containing a detailed and explicit enforcement scheme implies a legislative intent to deny a private right of action. Such a scheme is contained in the Act at 49 U.S.C. § 1487.

The third factor is whether a private right of action would be consistent with the underlying purposes of the legislative scheme. While enforcement is provided for in § 1487, it has been argued that the additional enforcement resulting from allowing passengers in situations analogous to Marco’s to sue privately would create additional incentive for compliance with the statute. However, while the approach of the court in Diefenthal v. C.A.B., 681 F.2d 1039, 1050 (5th Cir.1982) (denying that substantial enforcement power is added to the legislative scheme by granting private rights to passengers) is not without merit, we decline to accept the conclusion that a private right should be denied upon application of this factor in the circumstances of this case.

The fourth factor, i.e., whether an alternative state remedy is available to plaintiff, is favorable to Marco because there is no state remedy analogous to what he argues for under The Federal Aviation Act.

Despite the factor in his favor, we conclude that no private right of action exists under this subsection of the statute. The absence of an alternative state remedy is insufficient to meet the Cort v. Ash test. Accordingly, British Airways’ motion to dismiss count seven of the complaint is granted.

For the foregoing reasons, British Airways’ motion for dismissal is granted as to counts one, two, three, six and seven of the complaint and is denied with respect to counts four and five.

It is so ordered.

      . The facts discussed are those alleged in the amended third party complaint.

      . " ‘Foreign Air Carrier’ means any person, not a citizen of the United States, who undertakes ... to engage in foreign air transportation.”

      . First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ ... that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? ____

        Cort v. Ash, supra, 422 U.S. at 78, 95 S.Ct. at 2088 (citations omitted, emphasis in original).


source: Caselaw Access Project

author: GENE CARTER, District Judge.

license: Public Domain

text:
    Shirley KERSHNER, Anthony Kershner, and Daniel Kershner, Plaintiffs, v. BELOIT CORPORATION and Black Clawson Company, Inc., Defendants, v. SCOTT PAPER COMPANY, Counterclaim Defendant.
    Civ. No. 82-0303-P.
    United States District Court, D. Maine.
    June 27, 1985.
    Edward T. Dangel, III, Frank L. McElroy, Dangel & Sherry, Boston, Mass., Maurice A. Libner, Brunswick, Me., for plaintiffs.
    Gerald F. Petruccelli, John P. Erler, Portland, Me., Vernon I. Arey, Waterville, Me., Ellen A. Gorman, Richard J. Kelly, Portland, Me., for defendants.
   MEMORANDUM OF DECISION ON DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFFS’ CLAIMS OF BREACH OF WARRANTY AND MINOR PLAINTIFF’S CLAIMS FOR LOSS OF CONSORTIUM

GENE CARTER, District Judge.

This matter is before the Court for decision on the issues generated by the defense of Beloit and Black Clawson that Plaintiffs’ Counts II and IV are barred by lack of privity between the Plaintiffs and the Defendants and by the applicable statute of limitations, 14 M.R.S.A. § 752. The parties have agreed that these defenses are to be decided on the written submissions of counsel and the oral arguments made at the final pretrial conference. Report of Final Pretrial Conference and Order, at 2. The Complaint, alleges that Plaintiff Shirley Kershner was an employee of Scott Paper Company at its Winslow, Maine facility and that in the course of her duties on August 11, 1981, the Plaintiff’s left hand was badly injured when it became caught between two large, unguarded rollers in a portion of the paper-making machine known as the calendar stack. The machine was manufactured by Defendant Beloit and was sold by Beloit to Scott in 1931.

The Complaint states three claims on behalf of Shirley Kershner: negligence (Count I); breach of warranty (Count II); and strict liability (Count III). Incorporating pertinent allegations of the prior counts, Count IV asserts the claim of Kershner’s two minor children, Anthony and Daniel, for their loss of parental society and services. The breach of warranty count of the Complaint alleges that the Defendant expressly and impliedly warranted that the machine and stack were safe, merchantable, and fit for their intended purposes. A breach of the alleged warranties is also set out in the Complaint, and “the Plaintiff asserts that she relied upon the warranties made by the Defendant and suffered great personal injury and loss of income as the direct and proximate result of reliance on the warranties, and as the direct and proximate result of the breaches of warranties by the Defendant.” Amended Complaint, at 5. The Complaint contains, however, no allegation of the existence of privity of contract between the Plaintiffs and either Defendant.

Beloit and Black Clawson argue that absent an allegation of the existence of privity between the Plaintiffs and the Defendants, Count II fails to state a claim upon which relief can be granted under Maine law. It is agreed by the parties that Beloit’s sale of the machinery in question to Scott Paper Company occurred in 1931. Plaintiffs’ Amended Complaint alleges that the rebuilding of the “calendar stack portion” of the paper machine in question by Black Clawson occurred “in the 1960’s.” The record presently before the Court does not further refine in temporal terms the specific year in which that activity occurred.

I. Privity

Relying on Hurd v. Hurd, 423 A.2d 960 (Me.1981), Defendants contend that the liability of a manufacturer to a plaintiff user of its product is determined by the law of Maine as it existed at the time of the sale, not the time of the injury. They assert, therefore, that Plaintiffs’ claim against Beloit is barred for lack of privity because in 1931, the year of Beloit’s sale of the paper machine in question, Maine law required privity of contract for assertion of warranty claims. This Court thinks that the decision in Hurd is called into question by subsequent development in Maine law. The Court will, therefore, decline to decide Defendant’s Motion to Dismiss and will certify the question to the Law Court if the issue is still viable after trial. See Fishermen’s Net, Inc. v. Weiner, 608 F.Supp. 1283 (D.Me.1985).

In Hurd v. Hurd, the plaintiff brought both negligence and breach of warranty claims against the manufacturer of a piece of farm equipment who had sold it in 1960. Defendant Hurd, plaintiff’s employer-father, had bought it second hand in 1971. The Law Court held that plaintiff’s lack of privity with the manufacturer, as determined by Maine law in 1960, barred him from recovery in both negligence and breach of warranty. Stating that the legislature had expressly declared its intention that its Uniform Commercial Code enactments should not be given retrospective effect, the Court in Hurd concluded that “Plaintiff’s claims are thus not aided by those changes in Maine’s law regarding privity, all of which took place after the initial sales transaction by defendant Clark.” Id. at 964.

In Adams v. Buffalo Forge Co., 443 A.2d 932 (Me.1982), the Law Court addressed the negligence claims of a plaintiff who was injured in 1979 by a drill press sold by defendant to plaintiff’s employer through an intermediary company in 1967. The Court overruled Hurd and another similar case, Burke v. Hamilton Beach Division, Scovill Manufacturing Co., 424 A.2d 145 (1981), and held that “lack of privity does not constitute a bar to an action alleging negligence on the part of the manufacturer.” Adams v. Buffalo Forge Co., 443 A.2d at 939 (emphasis added). In doing so, the Court drew a clear distinction between actions which sound in contract and those which sound in tort:

Contractual recovery is predicated in the first instance upon a consensual obligation between two or more parties. McNally v. Nicholson Manufacturing Co., 313 A.2d [913] at 923. The common law, recognizing the consensual underpinnings of the contractual relationship, understandably required privity between parties as a condition precedent to recovery for breach of contract.

Adams, supra, at 938. The Court went on to point out that tort recovery (e.g., for negligence) does not rest upon “a consensual relationship”:

The status relationship which constitutes the predicate for tort recovery is entirely independent from and, indeed, foreign to any notions of the consensual features which form the basis of contractual liability. The status relationship is not born of an agreement between the parties but rather is created when the requisite events necessary to support a cause of action in negligence merge — which occurs at “the point at which a wrongful act produces an injury for which a potential plaintiff is entitled to seek vindication.”

Id. (quoting Williams v. Ford Motor Co., 342 A.2d 712, 718 (Me.1975)).

Although Buffalo Forge appears to leave Hurd and Burke intact as they state the law on warranty claims, that result is called into question by the recent Law Court decision in Ouellette v. Sturm, Ruger & Co., Inc., 466 A.2d 478 (Me.1983), a case not cited by any of the parties in this action. In Ouellette, the Court addressed the question, certified by the First Circuit Court of Appeals, of when a cause of action for breach of warranty accrues for a plaintiff injured in 1975 by a second hand gun sold initially by the defendant manufacturer to its distributor in 1971. Defendant contended that plaintiff’s cause of action for breach of warranty arose in 1971 at the time the gun was originally sold to its distributor. It further contended that 1973 amendments to the Uniform Commercial Code providing a general six-year statute of limitations for claims for personal injury based on allegations of breach of warranty, with the cause of action accruing at the time of injury, were inapplicable. Plaintiff contended that his cause of action did not arise until the date of his injury in 1975. The Court stated:

[t]he differing interpretations result from the fact that although the concept of accrual was prospectively changed by the legislature’s amendment of 2-725, the accrual event remains undetermined for those causes of action which involved a tender of delivery prior to 1973 and an injury after 1973 to a non-contractual claimant.

Id. at 482-83.

In a marked turn from the dicta in Buffalo Forge, the Court characterized the plaintiff in Ouellette, who was suing for breach of warranty, as a “non-contractual claimant.” Ouellette, 466 A.2d at 483. Using this characterization as its foundation, the Court held

that the non-contractual liability resulting from the elimination of privity and premised upon a status measured by reasonable foreseeability sounds in tort rather than in contract, and is subject to the limitations applicable to torts---- In the absence of a contrary statement of legislative intent the general rule provides that the action accrues “when the particular potential plaintiff has a judicially recognizable claim against the defendant.” ...
Plaintiff’s cause of action did not arise prior to the effective date of the 1973 amendments and is not barred by the previous version of section 2-275(2) nor is it precluded by the applicability clause of the 1973 Act.

Id. (first emphasis added, second emphasis in original).

This case, like Ouellette, involves a tender of delivery prior to 1973 and an injury after 1973 to what the Law Court now has termed a non-contractual claimant. Plaintiff’s claim also results from the elimination of privity in 11 M.R.S.A. § 2-318, as construed by McNally v. Nicholson Manufacturing Co., 313 A.2d 913. The Court thinks it possible that since the Law Court has apparently recharacterized warranty claims as lying in tort rather than contract, it would alter its view of the requirement of privity in the assertion of such claims as it did in Buffalo Forge for claims of negligence. It is also arguable that the Law Court in Ouellette has decided the issue sub silentio. However, since the Law Court did not mention Buffalo Forge, Hurd, or Burke in the Ouellette decision, and since the facts in that case involved a sale which had taken place after the abolition of any privity requirements in the Commercial Code, this Court is not certain whether and how it should apply Ouellette to this case in which one sale is alleged to have taken place in 1931 and the other in the 1960’s. Any decision on this matter will involve serious policy considerations, see Adams v. Buffalo Forge, and should therefore be left to Maine’s highest court. See Fishermen’s Net, Inc. v. Weiner, 608 F.Supp. 1283.

If their privity defenses fail, Defendants Black Clawson and Beloit have raised statute of limitations defenses to the warranty claims based on Hurd and Burke. None of the parties has cited Ouellette, the language of which seems broad enough to encompass this case. Again, because of the disparity in the dates of the sales by the manufacturer Defendants in Ouellette and in this case, the Court deems it appropriate to let the Maine court also decide whether the time for accrual of a personal injury warranty action is determined under Ouellette or earlier precedent.

III. The Minors’ Consortium Claims

The Motions to Dismiss by Beloit and Black Clawson also attack Count IV of the Complaint in toto on another rationale. The assertion made in support of the motion is that Count IV fails to set forth a claim for relief which has viability under Maine law. That count seeks to recover on behalf of the Plaintiff minor children for their loss of the society and services of their mother, Plaintiff Shirley Kershner, resulting from her physical injury. Counsel agree that the Maine Law Court has not ruled upon the question of whether there exists under the substantive law of Maine such a cause of action. Likewise, it is agreed that no general cause of action in a minor child to recover for that child’s loss of consortium of the parent has been specifically created by the Maine legislature. Plaintiffs argue that three of the old Maine cases and what they term “emergence of the modern trend” in other jurisdictions should persuade this Court that, if confronted with the need to decide that issue, the Maine Law Court would conclude that such a cause of action is available under Maine law.

The Court is persuaded to the contrary for a number of reasons. All of the precedents relied upon by the Plaintiffs in advancing this argument are clearly distinguishable in that none of them indicate any right of recovery under Maine law to exist in a minor child for loss of services of the child’s parent. All of them permit recovery by a parent for the parent’s loss of services of the child. That is conventional consortium doctrine and has unquestionably been in place in Maine since 1826. In Emery v. Gowen, 4 Me. 33 (1826), the Court allowed a father to recover for the seduction of his daughter. The holding of the case permits the father to recover for his damages resulting from loss of services of the daughter. The same is true of Plaintiffs’ other cases, Kennard v. Burton, 25 Me. 39 (1845), and Beaudette v. Gagne, 87 Me. 534 (1895). None of the cases cited by the Plaintiffs, nor any case which the Court has been able to find by its independent research, contains any hint of a right in a minor child to recover damages for the child’s loss of consortium of the parent. In fact, in Sawyer v. Bailey, 413 A.2d 165 (Me.1980), the Law Court in dicta stated that “[t]he authorities agree that the benefits of the doctrine do not extend to children.” The Court thinks it unlikely that the Maine Law Court will ultimately come to conclude that such a cause of action exists under Maine law. As the Defendants point out, every Maine trial court which has considered the issue to date has found that no such cause of action exists under Maine law. See Burke v. International Minerals and Chemicals Corp., CV-82-396 (Me.Super.Ct., Pen.Cty., March 18, 1982); Griffin v. Robbins Electrical and Supply Co., CV-81-113 (Me.Super.Ct., Cum.Cty., Jan. 29, 1982). Moreover, the clear majority rule in other jurisdictions, as pointed out by the Defendants, rejects the existence of such a claim for relief. See Restatement (Second) of Torts § 707A and subsequent annotations.

Courts of those other jurisdictions have found a multiplicity of reasons for rejecting the existence of such a cause of action: (1) the lack of precedent for such a cause of action; (2) the uncertainty and remoteness of the damages which would flow from such a cause of action; (3) the danger of duplication of recovery between the child and parents; (4) the unsettling effect that the creation of such a cause of action would have upon a parent’s settlement negotiations with tortfeasors; (5) the increased risk of falsification in order to recover under such a cause of action; (6) the potential for increased insurance costs; (7) the potential harm to the integrity and sanctity of the family unit; (8) the lack of statutory authority for the creation of such a cause of action; and (9) the legal basis of a child’s claim to the services of the parent under the substantive law of the state in question. Taken in toto these considerations are persuasive to this Court for the proposition that such a cause of action is not warranted. Their persuasive impact would not be lost upon the Maine Law Court were the question to be considered by it. The Court is fully satisfied that no such cause of action exists under Maine law at the present writing.

Accordingly, it is hereby ORDERED that the Motions to Dismiss of Beloit and Black Clawson as to Count IV of the Complaint, be, and are hereby, GRANTED and said Count IV is hereby DISMISSED.

Defendants’ Motion to Dismiss the breach of warranty claim set forth in Count II is hereby DENIED.

So ORDERED.

      . Although Black Clawson adopts Beloit's argument on the privity issue, it acknowledges that a factual question remains as to when its transaction with Plaintiff’s employer took place and that the resolution of the privity issue as to Black Clawson may be determined by that fact.


author: BUA, District Judge.

text:
    Larry McCALL-BEY, Plaintiff, v. Gayle FRANZEN, et al., Defendants.
    No. 80 C 4678.
    United States District Court, N.D. Illinois, E.D.
    June 27, 1985.

      Larry McCall-Bey, pro se.
    Neil F. Hartigan, Atty. Gen. of 111. by Theodore Karavidas, Asst. Atty. Gen., Chicago, 111., for defendants.
   ORDER

BUA, District Judge.

Plaintiff in this case, Larry McCall-Bey, has moved this Court for an order to enforce settlement pursuant to the Court’s dismissal of this cause on September 4, 1984 and the Court’s retention of jurisdiction to enter any appropriate order pending completion of the details of the parties’ settlement agreement.

I. FACTS

On May 14, 1984, this Court granted plaintiff’s motion for partial summary judgment on his constitutional claims arising out of an incident which occurred at the Menard Correctional Facility on June 23, 1977. McCall-Bey v. Franzen, 585 F.Supp. 1295 (N.D.Ill.1984). Plaintiff, then an inmate at Menard, had been accused of deviate sexual assault against another inmate and, following an administrative hearing, was placed in segregation and reduced in grade. This Court, citing Hayes v. Walker, 555 F.2d 625 (7th Cir.1977) and Chavis v. Rowe, 643 F.2d 1281 (7th Cir.1981), found that the prison’s Adjustment Committee had violated plaintiff’s constitutional rights by failing to provide adequate reasons for its finding of plaintiff’s guilt and subsequent punishment.

After the Court’s decision in May, the parties reached a settlement agreement in principle in September 1984. The cause was dismissed on September 4, 1984, with jurisdiction retained to allow the parties to continue negotiating the final written settlement agreement. At that time the plaintiff was an inmate at the Dixon Correctional Center. The parties began part performance of the agreement when the Department of Corrections assigned plaintiff to the work release program at the Metropolitan Chicago Community Correctional Center (“Metro”) on September 12, 1984 so that he could begin his studies at Roosevelt University in Chicago. On October 5, 1984, the Court extended its jurisdiction to permit the parties to finalize the settlement agreement.

The settlement agreement, dated December 8, 1984, provides, in part, that plaintiff would be assigned to a work release program so that he could attend college in Chicago. Defendant’s Exh. 1, at (11. The Department of Corrections further agreed to waive its normal requirement that an inmate spend the first seven days in the work release center orientation program. Instead, plaintiff was allowed to begin attending classes “as soon as practicable.” Id. In exchange, plaintiff agreed to obey all “rules and regulations of the work release program, as well as all Illinois Department of Corrections rules.” Id. at ¶ 6. Plaintiff also agreed that if he was “disciplined for violating any of the terms of (sic) conditions in this agreement or any above-mentioned rule or regulation, [his] assignment to work release may be terminated, according to applicable Department of Corrections Rules.” Once terminated from the work release program, plaintiff agreed to surrender himself to the Department of Corrections “for incarceration in any correctional center selected by the Department of Corrections, and ... remain incarcerated for the remainder of [plaintiffs] prison term, good time excepted.” Id. Although dated December 8, 1984, the terms of the settlement agreement were effective September 12, 1984. Id.

On October 29, 1984, plaintiff, while at Metro, received a Resident Disciplinary Report charging him with violations of DR-504C-102 (assaulting any person); DR-504C-105 (dangerous disturbance); DR-504C-203 (drugs and drug paraphernalia); DR-504C-206 (intimidation or threat); and DR-504C-403 (disobeying a direct order). Defendants’ Exh. 10. Specifically, the report states that during a routine search of plaintiff at the Metro, plaintiff was told to “drop his pants below his knees.” Plaintiff was then told to “reach inside the crotch of his shorts and turn it inside out.” Plaintiff refused. After being informed that he would be subject to a complete search by Metro officials, the report states that plaintiff “reached inside of his underwear crotch and removed an object covered with paper.” Plaintiff then “put the item in the commode and flushed it.” While the officer attempted to retrieve the item, the officer states that plaintiff “started wrestling with me to keep me from retrieving the item.” Plaintiff then flushed some cigarette papers down the drain and a “scuffle” ensued between plaintiff and the officer. Plaintiff was then handcuffed. Defendants’ Exh. 10.

On November 1, 1984, the prison Adjustment Committee convened to hear plaintiff’s Disciplinary Report. The “Record of Proceedings” states:

Resident stated to Committee that he was not guilty and that he did not take off his shorts because the shorts would have torn. Resident also stated that he told CRC Doby that he would take off everything [illegible].

The Adjustment Committee found plaintiff guilty of the violations charged, and gave the following reasons:

[Illegible] besides Disciplinary Report. Admission of Resident not taking off his shorts when ordered by CRC Doby lead the Committee to believe that violation was committed as charged.

The Adjustment Committee ruled that: (1) 60 days of plaintiff’s good time be revoked; (2) plaintiff be demoted to “C” level for 60 days; and (3) plaintiff be reincarcerated and segregated for 60 days. “Other punishment” is indicated on the report, but this segment of the report is illegible. See Defendants’ Exh. 11. On November 12, 1984, plaintiff was placed in segregation at Joliet Correctional Center and on November 15, 1984, the Director of Joliet Correctional Center, Mr. Michael Lane, approved the Adjustment Committee decision in part by revoking only 10 days of the recommended 60 for good conduct. On November 23, 1984, plaintiff filed a pro se motion to reinstate the cause of action, which the Court granted.

On November 28, 1984, plaintiff’s grievance was heard by the Administrative Review Board; the Review Board recommended that the grievance be denied. The reasons given by the Review Board for its decision are:

Based on a total review of available information, the Panel is of the opinion the inmate is guilty of the infraction as cited. Therefore, the Panel is of the opinion the grievance should be denied.

Plaintiff’s Exh. 2. Plaintiff contends that in the interim between the Adjustment Committee meeting and the meeting of the Review Board, he was induced by his attorney to sign the final release and settlement of claim because of the promise that Director Lane would personally view the plaintiffs grievance and come to a decision on it as soon as possible. On December 8, 1984, plaintiff signed the settlement agreement while his grievance was still pending that “personal viewing” by Director Lane. On December 12, 1984, the Review Board met again, personally interviewed the plaintiff, and determined that no further action should be taken, noting that plaintiff had received no response from the first Review Board hearing. Plaintiffs Exh. 3. No specific reasons are given in this report. On December 13, 1984, the Court dismissed plaintiffs cause as settled.

On December 24, 1984, the plaintiff was transferred from segregation at the Joliet Correctional Center to the Pontiac Correctional Center. On January 13, 1985, the plaintiff sent a letter to the Attorney General’s Office requesting a modification of the earlier settlement agreement. Defendants’ Exh. 20. On January 23, 1985, defendant’s attorney directed a letter to defendant Lane requesting that Lane review plaintiff’s situation personally. Plaintiff filed the present motion to enforce settlement on March 19, 1985.

II. DISCUSSION

A. Parol Evidence Rule and Oral Agreement Made During Negotiations

Plaintiff contends that during the weeks prior to the actual signing of the settlement agreement on December 8, 1984, and during the administrative process after his alleged infraction, an oral agreement concerning prompt and personal review by Director Lane was made. Plaintiff argues that since such personal attention was not requested promptly, defendants materially breached the agreement, resulting in plaintiff’s inability to enroll in spring semester courses at Roosevelt University.

The law on such oral agreements is clear. In a similar case, G.L. Webster Co. v. Trinidad Bean & Elevator Co., 92 F.2d 177 (4th Cir.1937), the role of negotiations and final integration is stated as such: “Where negotiation has been entered into with regard to a transaction and it is understood that the contract finally agreed upon is to be reduced to writing, all of the agreements made between the parties are presumed to be incorporated in the written contract when finally executed by both parties.” G.L. Webster Co., supra, 92 F.2d at 177.

Applying this principle to the case at bar, there is little doubt that the settlement agreement signed by the plaintiff on December 8 was fully integrated and expressed the intent of the respective parties regarding it. The negotiation process had been in progress for over two months. If such a stipulation had been part of the plaintiff’s design for the agreement, it could have been negotiated and included in the final writing. The Court further recognizes that even if it were not to consider the writing integrated for some reason, the oral agreement would still be excluded under the Restatement rule that such a stipulation (prompt and personal review by Director Lane) would be of the sort to qualify as a “term which would have been part of the agreement even if it had not been integrated.” Restatement 2d, Contracts. The Court finds no merit in the plaintiff’s contention that such a “promptness” qualification was made.

B. Procedures Following Resident Disciplinary Report of October 29, 1984

Defendants argue that plaintiff was in breach of the settlement agreement by reason of the Disciplinary Report filed on October 29, 1984. As the record shows, plaintiff was the subject of a Resident Disciplinary Report on October 29, 1984, regarding an incident with Officer Doby in which plaintiff allegedly refused to remove his underwear and threatened Officer Doby. On November 1, 1984, the Adjustment Committee met to hear the allegations and found plaintiff guilty of the violations charged. The Committee prepared a summary of the hearing which appears within. On November 15, 1984, Director Lane approved the Committee’s findings and disciplinary actions, with an alteration of the number of good time days to be revoked.

Plaintiff contends that defendants are in breach of the settlement agreement because the November 1, 1984 Adjustment Committee summary is inadequate due to its failure to state either the reasons for the disciplinary action or written justification by the factfinders as to the evidence relied upon to reach the finding of guilt.

Many of the issues presented by this complaint are similar to those raised in the previous opinion of May 14, 1984, in which plaintiff was involved in disciplinary proceedings of a different nature. The major contention in the original case was whether the proceedings utilized to determine plaintiff’s guilt satisfied due process under the fourteenth amendment. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), mandates that in a prison disciplinary hearing a prisoner must be provided with “advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the disciplinary action taken” in satisfaction of the minimum requirement of procedural due process. Wolff, 418 U.S. at 563, 94 S.Ct. at 2978. Furthermore, defendants’ own regulations, which they agreed to follow in the event plaintiff violated any rule or regulation (see Defendants’ Exh. 1, at ¶ 6), requires the Adjustment Committee to “specifically refer to the evidence which convinced them to decide the committed person did or did not commit the offense.” Defendants’ Exh. 11A, at p. 7.

Such protection is of paramount importance in a case such as the instant one. Since the state was a party to the original action which resulted in the settlement agreement, it has placed itself in the position of judge and jury by way of its reviewing process. The Court looks with disfavor on any procedural shortcuts the state might take in interpreting the terms of the settlement agreement and deciding whether plaintiff has breached those terms.

Although the Adjustment Committee report alludes to the reporting officer’s statement, the facts contained in that document are not stated in the summary. Furthermore, the reasons for the disciplinary action taken, required by Wolff and department regulations, are absent from the summary. Under the “Reasons” portion of the summary, the report states that plaintiff admitted not removing his shorts, but says nothing about the remaining charges and the evidence relied upon to find plaintiff guilty as charged. There is no indication in the record of a logical connection between the punishment invoked and the alleged violations. In fact, the only violation possibly supported by the evidence of this record is plaintiff’s violation of DR-403, “Disobeying a Direct Order.” The maximum sentence for violation of DR-403, according to department regulations, is 30 days demotion to B or C grade, 15 days loss of good time, 30 days in segregation, and 30 days loss of privileges. Since plaintiff’s punishment clearly exceeded these máximums, defendants are in breach of the settlement agreement.

Defendants’ final argument is patently unreasonable. Defendants suggest that if plaintiff was not afforded procedural due process regarding the October 29, 1984 incident, he should file a new lawsuit and that “termination of work release would be an element of plaintiff’s damages.” Defendants’ Response at ¶ 11. Given, however, that plaintiff’s projected release date is presently set for November 14, 1985, requiring plaintiff to file a new suit would simply render moot his request to be allowed to continue his studies. The Court will not condone defendants’ apparent strategy of wearing a pro se plaintiff down until his claim becomes moot.

CONCLUSION

For all of the above reasons, finding that plaintiff will suffer irreparable harm without immediate relief, the Court orders as follows:

(1) Defendants are in breach of the settlement agreement by virtue of their failure to comply with department regulations and minimal standards of due process in processing plaintiffs grievance of the October 29, 1984 Disciplinary Report.

(2) Defendants are ordered to transfer plaintiff to the Metro Chicago Community Correctional Center, or any community correctional center which will enable plaintiff to complete his studies at Roosevelt University in Chicago, within 10 days.

(3) Defendants are ordered to restore plaintiff to Level IV status (see Defendants’ Exh. 9, at p. 4) within 10 days.

(4) Defendants are ordered to expunge all records of the October 29, 1984 incident as relating to the unproven charges of violations of DR-504C-102 (assaulting any person); DR-504C-105 (dangerous disturbance); DR-504C-203 (drugs and drug paraphernalia); and DR-504C-206 (intimidation or threat). Furthermore, all collateral consequences of the above charges shall be neutralized. The only violation that shall be permitted to remain in plaintiff’s record is his violation of DR-504C-403 (disobeying a direct order).

(5) Defendants are ordered to recalculate defendant’s punishment within the applicable limits of DR-504C-403 within 10 days.

(6) Plaintiff’s motion for bail is denied as moot.

(7) Defendants’ attorney is ordered to promptly communicate the Court’s order to plaintiff.

(8) The Court retains jurisdiction to enforce the settlement agreement and this order.

IT IS SO ORDERED.


text:
    Dieter W. REICHELT, Plaintiff, v. URBAN INVESTMENT AND DEVELOPMENT COMPANY, a Delaware corporation; United Development Company, an Illinois corporation; Chicago Title and Trust Company, as Trustee under a trust dated April 2, 1968 and known as Trust No. 51875; and Bert Thomas d/b/a Home Inspection Consultants, Defendants.
    No. 83 C 5290.
    United States District Court, N.D. Illinois, E.D.
    June 27, 1985.

      James A. Romanyak, Schlegel, Azeris & Romanyak, Chicago, 111., for plaintiff.
    James A. Christman, Wildman, Harrold, Allen & Dixon, Chicago, 111., for defendants Urban Inv. and Development Co. and United Development Co.
    Demetri J. Retson, Borton, Retson & Lipschultz, Chicago, 111., for Bert Thomas d/b/a Home Inspection Consultants.
    Thomas J. Adams, Chicago Title and Trust Co., Chicago, 111., for Chicago Title and Trust Co.
   ORDER

BUA, District Judge.

I. FACTS

Plaintiff filed his original complaint against these defendants and others in August 1983. In it he alleged a breach of an implied warranty of habitability and a violation of the Illinois Consumer Fraud Act. Plaintiff’s claim arose out of a defect in the foundation of a townhouse built by defendants in 1969 and purchased by the plaintiff in 1980. Plaintiff charges that these structural defects were caused by the defendants’ failure to properly construct the townhouse. In fact, he alleges that the defendants knew the house was built on highly compressible fill material and they concealed the inadequate soil base with three to six inches of clay. As a result, large cracks developed in the floor and walls of the basement and excessive settlement occurred in the interior floors and exterior patio.

After this Court granted defendants’ motion to dismiss the portion of the action under the Illinois Consumer Fraud Act, the parties reached a partial settlement, 577 F.Supp. 971. In May 1984 this Court, by agreement of the parties, ordered the case dismissed without prejudice and retained jurisdiction for six months to allow the parties to fulfill the terms of the settlement agreement. The terms of the settlement agreement are contained in the following five points:

1. Urban Investment and Development Company (UIDC) will repair all defects in the foundation and structure and will correct any above-ground damage caused by those repairs.

2. UIDC will pay plaintiff’s currently unpaid expert fees.

3. UIDC will pay reasonable hotel expenses for plaintiff during the period of foundation repairs.

4. The parties agree to continue negotiations as to:

(a) reimbursement/supervision of repairs to townhouse above ground to correct prior existing damage.
(b) (rendered irrelevant by UIDC repairing total foundation)
(c) all other costs and fees incurred by plaintiff.

5. Plaintiff agrees to “cease prosecution of all aspects of his lawsuit ... except for those unsettled claims outlined in paragraph four,” and if those claims remain unsettled and go to trial, plaintiff agrees to release defendants from “all liability pertaining to all foundation defects and repairs.”

With their motion, defendants have filed an affidavit of UIDC Vice President David McCoy stating that the foundation repairs were completed and expert fees paid in accordance with the settlement agreement. Plaintiff has offered no contradictory evidence of malfeasance with regard to the work done by defendants.

In November 1984, the plaintiff moved the Court to vacate the dismissal order and set the matter for a pretrial conference. However, no further settlement could be reached. In February 1985, the plaintiff filed his Second Amended Complaint. In Count I plaintiff alleges a breach of an implied warranty of habitability and fraudulent concealment. As damages he claims the cost of repair of the above-ground portions damaged, loss of use during the repairs and loss of economic value of the townhouse. In Count II he also seeks punitive damages.

II. DISCUSSION

A motion for summary judgment is properly granted if the pleadings, depositions and admissions on file, together with any affidavits or exhibits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56. Although it is true that a court should give to the nonmoving party the benefit of all reasonably drawn inferences, the mere possibility that a factual dispute may exist, without more, is an insufficient basis upon which to justify denial of a motion for summary judgment. Powers v. Dole, 607 F.Supp. 841, 844 (1984); Posey v. Skyline Corp., 702 F.2d 102, 106 (7th Cir.1983). A settlement agreement is a contract and as such the construction and enforcement of settlement agreements are governed by principles of local law applicable to contracts generally. Airline Stewards and Stewardesses Assoc. v. Trans World Airlines, 713 F.2d 319 (7th Cir.1983).

In this case, the issue before the Court is one of contract interpretation. The plaintiff claims that defendants’ motion for summary judgment should be denied because an ambiguity exists in the language of the contract. However, whether or not an ambiguity exists in a contract is to be determined by the court as a matter of law. Susmano v. Assoc. Internists, 97 Ill.App.3d 215, 52 Ill.Dec. 670, 422 N.E.2d 879 (1st Dist.1981). If the court determines that there is an ambiguity, there may be a genuine issue of fact concerning the intention of the parties contracting, which would preclude the entry of summary judgment. However, in this case the Court finds no ambiguity in the contract. As stated in Whiting Stoker Co. v. Chicago Stoker Corp., 171 F.2d 248, 250-251 (7th Cir.1948) and quoted in Public Relations Board v. United Van Lines:

A contract is ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions; it is not ambiguous if the Court can determine its meaning without any guide other than a knowledge of the simple facts on which from the nature of the language in general, its meaning depends. 17 C.J.S. Contracts § 294, and cases there cited. Contracts are not rendered ambiguous by the mere fact that the parties do not agree upon their proper construction.

15 Ill.Dec. 381, 382, 373 N.E.2d 727, 728.

In this case, the letter of settlement can be construed by the Court without the need to resort to other sources. As summarized above, the settlement calls for defendants to repair the foundation, pay the unpaid expert fees and plaintiff’s hotel expenses during those repairs. In exchange, plaintiff agreed to “cease prosecution of all aspects of his lawsuit except for those unsettled claims outlined in paragraph 4.”

Plaintiff’s argument that paragraph 5 of the settlement letter is inconsistent with paragraph 4 is unconvincing. The first sentence of paragraph 5 states:

Mr. Reichelt will cease prosecution of all aspects of his lawsuit, captioned above, against Urban and United Development Company (“UDC”) except for those unsettled claims outlined in paragraph 4 above.

The meaning of this sentence is clear: to prohibit prosecution by the plaintiff of any claims not included in paragraph 4. In other words, after the settlement, any subsequent action by the plaintiff is limited to those claims listed in paragraph 4.

Subsection (a) of paragraph 4 specifies that the plaintiffs only remaining cause of action in this case is for “[rjeimbursement for and supervision of repairs to the townhouse to correct prior-existing damage resulting from the foundation problems.” This subsection (a) covers all repairs to the townhouse caused by the foundation problems, but does not include repairs to the foundation itself. Therefore, the only remaining cause of action here is for repairs to the above-ground structure which were necessitated by the foundation problems. In addition, it is clear that no punitive damages may be awarded in this action because the relief in subsection (a) is limited to “reimbursement for and supervision of repairs.”

The Court finds that no “internal inconsistency” or ambiguity is found in the language of the settlement agreement. Where a contract is unambiguous, the instrument itself is the only source of the parties’ intentions. Halper v. Halper, 57 Ill.App.3d 588, 15 Ill.Dec. 252, 373 N.E.2d 598 (1st Dist.1978). Therefore, the Court holds that no genuine issue of material fact exists that would preclude an entry of summary judgment. The plaintiff’s remaining claims are for the cost of above-ground repairs along with other fees incurred therein. It was the intention of the parties to release defendants from liability for punitive damages. The Court accordingly grants defendants’ motion for partial summary judgment.

III. CONCLUSION

For the reasons stated above, defendants’ motion for partial summary judgment is granted.

IT IS SO ORDERED.


author: CAFFREY, Chief Judge.

text:
    Loretta ALVES, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-1777-C.
    United States District Court, D. Massachusetts.
    June 27, 1985.
    Richard K. Latimer, Kistin, Babitsky, La-timer & Oppenheim, Falmouth, Mass., for plaintiff.

      Asst. U.S. Atty. Jeffrey R. Martin, Boston, Mass., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action brought under § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), in which claimant Loretta Alves seeks review of an unfavorable final decision by the Secretary of Health and Human Services. The matter is now before the Court on claimant’s motion for summary judgment, Fed.R.Civ.P. 56, and defendant’s motion for an order affirming the Secretary.

The claimant, who was 47 years old at the time of her hearing, has completed the tenth grade and last worked in 1974 as a bar maid and waitress. She alleges that since that time she has been disabled due to injuries to her right hand, which is her dominant hand. She also complains of several other ailments which include: pain and weakness in the left hand caused by a ganglion, arthritis of the neck and back, and emotional disturbances.

On September 30, 1982 a hearing was held before an Administrative Law Judge (“AU”) at which Ms. Alves was represented by counsel. In addition to the voluminous medical record, the AU heard testimony from Ms. Alves and a vocational expert (“VE”). The substance of the VE’s testimony was that even without the effective use of her right hand, Ms. Alves could perform several jobs available in the region. On cross examination by claimant’s counsel, the VE testified that he based his opinion on “actual experiences, visiting certain plants ..., department of Labor statistics,” and his personal observations of these jobs.

Upon this evidence, the AU made the following findings:

1. The medical evidence establishes that the claimant suffers from a severe impairment of her dominant right hand which leaves her with essentially no function of her right hand. The claimant is able to use her right arm and her right hand as a guide and support in conjunction with the use of her left hand.
2. Despite severely impaired use of the claimant’s right hand, she does not suffer from disabling pain associated with the impairment of her right hand, as she herself admitted at the hearing that her pain was dull although continuous.
3. The medical evidence establishes that, although the claimant suffers from a ganglion of her left hand, she retains the ability to perform gross movements on a repetitive basis with her left hand and she suffers from no impairment relative to her left arm.
4. The medical evidence establishes that the claimant suffers from a mild cervical spondylosis. This condition does not cause the claimant a significant degree of pain or restriction of functional ability. In this regard, the claimant’s allegation that she was unable to sit for longer than two hours is not supported by the weight of the medical evidence, and her testimony was not entirely credible.
5. The medical evidence establishes that the claimant suffers from depression which is neither severe or persistent.
6. The claimant is a 47 year old woman with a 10th grade education whose past relevant work has been unskilled.
7. Despite the combination of the claimant’s exertional impairments, she retains the residual functional capacity to perform sedentary work as defined by Social Security Regulations No. 16, Section 416.967(a).
8. The claimant is precluded from performance of her past relevant work which a Vocational Expert testified had exertional requirements above the sedentary level.
9. The claimant has not engaged in substantial gainful activity since the alleged onset date of her disability.
10. Considering the claimant’s age, education and previous work experience, pursuant to Rule 201.18 of Appendix 1, a finding that the claimant is disabled is not possible based on her exertional impairments alone.
11. The claimant’s mental impairment is not of a severe nature and would not further limit her ability to perform any job which she retained the physical strength to perform.
12. Although the claimant suffers from a manipulative impairment of her right hand, a Vocational Expert testified that there are a significant number of sedentary positions in the regional economy which the claimant could perform using her nondominant left hand and her right hand only as a guide and support.
13. Despite the combination of the claimant’s exertional and nonexertional impairments, she has retained the residual functional capacity to engage in substantial gainful activity through the date of this decision. The claimant, therefore, is four “not disabled.”

After a review of the record, I find and rule that findings one through six, and eleven, which relate to Ms. Alves’ physical and emotional condition, are supported by substantial evidence and may not be disturbed. 42 U.S.C. § 405(g). In particular, I note that an October 14, 1982 letter from Dr. Gegan reports “no objective evidence of disease in the left hand except a ganglion” and that gross movements of the left hand were not impaired. A second physician, Dr. Greene, found that “the left hand is good and strong.” Dr. Greene’s examination also revealed that although Ms. Alves had symptoms consistent with cervical spondylosis, she was capable of walking, sitting and standing. The AU’s assessment of the claimants psychological difficulties are supported by reports from Dr. John Karkalas, a board-certified psychiatrist. Dr. Karkalas found that Ms. Alves depressive symptoms were neither serious nor persistent.

Although there is conflicting medical and psychiatric evidence on some issues, it is for the Secretary to resolve such conflicts and to determine what weight to give particular items of evidence. Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir.1982). Moreover, the AU may properly determine matters involving the credibility of witnesses, as he has done with respect to Ms. Alves’ claims of pain. Gray v. Heckler, 760 F.2d 369 (1st Cir.1985).

There remains an issue as to whether the AU’s determination that Ms. Alves is not entitled to benefits is correct, given his findings of fact regarding her condition. The AU’s finding that claimant’s impairments do not meet or equal those described in Appendix I, 20 C.F.R. pt. 404, subpt. P, is clearly supported by substantial evidence and not at issue here. He then went on to apply the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App II, finding that Ms. Alves retained the residual functional capacity to perform sedentary work as defined in the regulations. 20 C.F.R. 416.967(a). The claimant argues that this is error because she cannot, with her nonfunctional right hand and other physical problems, perform the full range of occupations which the Secretary has defined as sedentary.

Considerable support for this argument may be found in applicable portions of the regulations. In 20 C.F.R. § 416.967, the Secretary defines the categories of physical exertion which certain occupations require. Subsection 416.967(b), which defines the requirements of “light” work, sheds light on the meaning of the term “sedentary” with the following language:

If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity ... (emphasis added)

Furthermore, § 201.00(h) of Appendix II indicates that the “inability to perform jobs requiring bilateral manual dexterity significantly compromises the [individual’s ability to perform sedentary work].” With these regulations in mind, I rule that the AU was in error when he determined that Ms. Alves could perform sedentary work as it is defined in the context of the Medical-Vocational Guidelines. Therefore, the Medical-Vocational Guidelines contained in Appendix II should not have been applied to the claimant’s case. 20 C.F.R. pt. 404 subpt. P app. II § 200.00.

This, however, is not the end of the court’s inquiry. The AU heard testimony from a vocational expert, made reference to this testimony in the body of his opinion, and made findings of fact based upon it. This, indeed, was the practice before the adoption of the Medical-Vocational Guidelines in 1978. While the use of these tables has been the subject of litigation, it has never been the law that these tables are the exclusive means of determining the availability of substantial gainful employment within a claimant’s capability. See Heckler v. Campbell, 461 U.S. 458, 462 n. 5, 103 S.Ct. 1952, 1955 n. 5, 76 L.Ed.2d 66 (1983).

Where a claimant has limitations which do not fall squarely within the rules set forth in Appendix II, “full consideration must be given to all of the relevant facts of the case.” Id. The VE’s testimony indicates that he considered these relevant factors in arriving at his testimony that the claimant was able to perform employment available in the regional economy in substantial numbers. The AU properly relied upon this unopposed testimony in making his determination that Ms. Alves was not entitled to benefits.

The claimant further argues that the VE’s testimony as to the number of jobs available for an individual with Ms.- Alves’ limitations was based upon the VE’s improper use of statistics contained in the Dictionary of Occupational Titles and other publications. This argument, which in essence raises an issue of credibility, was raised during cross-examination at the hearing. As noted previously, an AU’s determination as to credibility is seldom overturned by a reviewing court, Gray v. Heckler. Furthermore, the VE testified that he was familiar with many of these occupations as a result of his personal observations. Even if his use of statistics were to be disregarded as untrustworthy, that portion of the VE’s testimony which is based on personal knowledge would provide substantial evidence in support of the AU’s decision.

Accordingly, I rule that the Secretary’s decision should be affirmed.

Order accordingly.


author: REYNOLDS, Chief Judge.

text:
    COATINGS, INC., a Wisconsin corporation, Plaintiff, v. NATIONAL COLD DRAWN, INC., an Illinois corporation, Defendant.
    Civ. A. No. 85-C-89.
    United States District Court, E.D. Wisconsin.
    July 2, 1985.

      David J. Yergeront, Milwaukee, Wis., for plaintiff.
    Kenneth R. Nowakowski, Milwaukee, Wis., for defendant.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

The issue before the Court in this diversity action is the defendant’s motion to stay these proceedings pending the final disposition of a related action which is before the Circuit Court of Cook County, Illinois. The motion will be denied.

The plaintiff, Coatings, Inc. (“Coatings”) is a Milwaukee steel processor that ordered steel bars according to specifications supplied by its Milwaukee customer, Trace-AMatic, from the defendant, National Cold Drawn, Inc. (“National”), an Illinois steel broker. National obtained the steel bars from an Illinois supplier, Abcor Steel Company (“Abcor”) and delivered them to Coatings, who processed them and delivered them to Trace-A-Matic. Coatings alleges that further processing by Trace-A-Matic disclosed defects in the steel, and Coatings seeks recovery from National for breach of contract.

Abcor filed the Cook County action against National on October 4, 1984, seeking payment for steel bars. National answered the complaint on November 5, 1984, and brought a counterclaim which referred to “the third party receiver of the steel bars” who had filed a claim against National. Since Coatings admits it reviewed a copy of this pleading before the instant action was filed on November 30, 1984, National contends that Coatings knew the identical issues had already been raised in the Cook County action. Coatings contends that it was not aware that the steel bars at issue in the Cook County action included the ones it had received until January 22, 1985, when National filed a third party complaint and amended counterclaim joining Coatings and a Texas purchaser, Oil Well Steel, Inc. (“Oil Well”). National filed a motion to stay this action on January 25, 1985, one week after it was removed from state court. Finally, the Court was notified on March 25, 1985 that Coatings had answered the third party complaint in Cook County and brought a counterclaim on the same grounds alleged herein.

The pendency of an action in state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction, and federal courts have a virtually unflagging obligation to exercise the jurisdiction given them. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 936, 74 L.Ed.2d 765 (1983). The factors to be considered in deciding whether to stay the action include: 1) whether the state court assumed jurisdiction to the exclusion of other tribunals; 2) the inconvenience of the federal forum; 3) the desirability of avoiding piecemeal litigation; 4) the order in which the forums obtained jurisdiction; and 5) whether federal law provides the rule of decision. Id. at 15, 23.

The first factor, based on whether the state court assumed jurisdiction over property at issue, is inapplicable in this case. The second factor is not helpful, since witnesses and sources of proof are located in both Wisconsin and Illinois, and one party will be inconvenienced no matter what this Court decides. Moreover, the competing forums are not so distant as to make convenience a decisive factor.

The third factor weighs in favor of staying one of the actions, because the issues in the two actions are substantially the same, leading to what has been described as “a grand waste of efforts by both courts and parties.” Microsoftware Computer Systems v. Ontel Corporation, 686 F.2d 531, 538 (7th Cir.1982). It is also true that “since a judgment by either court would ordinarily be res judicata in the other, the existence of such concurrent proceedings creates the serious potential for spawning an unseemly and destructive race to see which forum can resolve the same issues first.” Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 567, 103 S.Ct. 3201, 3214, 77 L.Ed.2d 837 (1983). Nonetheless, these considerations are always present when this question is raised, and the Supreme Court has not retreated from the proposition that a federal court may decline to exercise its jurisdiction because of parallel state court litigation only in exceptional circumstances. Colorado River Water Conservation District v. U.S., 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). The fact that the two actions are duplicative can hardly be said to be exceptional or this factor would swallow the rule.

The fourth factor “is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand. Thus, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions.” Moses 460 U.S. at 21, 103 S.Ct. at 939. Consequently, the Court will not decide this motion on the basis of whether Coatings was or should have been aware that the Cook County action was based on the same subject matter at the time this action commenced in state court. The parties have not informed the Court how much discovery has been taken in the Cook County action or when further proceedings are scheduled, but it is safe to assume that that action has progressed farther than this one since nothing has been filed herein since National moved for a stay.

National also emphasizes that all parties necessary for a complete resolution of this matter are before the Cook County court. Coatings objects that because National joined Oil Well in the Cook County action, the proceedings there are more complex and time consuming, and consequently more burdensome to Coatings because it will be compelled to attend depositions involving the unrelated Texas party. National correctly points out, however, that Coatings will have to protect its interests in the Cook County action regardless of this Court’s decision on the motion to stay.

As a practical matter, then, the fourth factor weighs in favor of staying this action because all of the parties are currently before the Cook County court and the resolution of the case turns on whether Abeor supplied defective steel to Coatings, through National. This factor is not entitled to much weight, however, because National could have impleaded Abeor when it answered the complaint herein. Of course this assumes that Abcor is subject to jurisdiction in Wisconsin, and neither party has addressed this question. Nonetheless, National’s tactical decision not to implead Ab-cor in this action should not be the decisive factor in issuing a stay at National’s request.

The fifth factor also is not determinative, because federal law will not provide the rule of decision in either forum. National emphasizes, however, that Coatings has no interest in a federal forum because this action was commenced in Milwaukee County Circuit Court. Coatings does have an interest in a local forum, however, and National’s decision to remove the action to federal court does not affect the general presumption in favor of a plaintiff’s choice of forum.

Under the factors discussed, the question presented is a close one. Although Coatings has requested the Court to take judicial notice of the overall reputation of the Cook County court system, no evidence has been presented which would suggest that the parallel state court action will not be an adequate vehicle for the complete resolution of the issues between the parties. On the other hand, National has not provided this Court with any indication as to when the issues will be tried in Cook County. In the final analysis however, the decision “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses at 16, 103 S.Ct. at 937. National has failed to demonstrate that these issues will be promptly decided in the parallel state action, and consequently has failed to carry its heavy burden in support of a stay.

IT IS THEREFORE ORDERED that the defendant’s motion for a stay of proceedings is denied.

IT IS FURTHER ORDERED that a scheduling conference telephone call will be placed by the court at 9:15 a.m. on Thursday, August 8, 1985.


text:
    William WHITEHEAD, Plaintiff, v. TELESPHERE INTERNATIONAL, INC., Defendant.
    No. 84 C 4654.
    United States District Court, N.D. Illinois, E.D.
    July 2, 1985.

      Joel F. Handler, Chicago, 111., for plaintiff.
    John E. Verscaj, W.E. Whittington, IV, Bell, Boyd & Lloyd, Chicago, 111., and George S. Kois, Elm Hurst, 111., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

Before the Court is a breach of contract dispute. The parties have filed cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 12(e). At issue is whether the defendant-employer has wrongfully terminated a one-year employment contract with the plaintiff-employee. For the reasons stated herein, the plaintiff’s motion for summary judgment is denied and the defendant’s cross-motion for summary judgment is granted.

I. FACTS

This is an action to recover damages for an alleged breach of a one-year employment contract. The plaintiff, William Whitehead, is a former employee of the defendant. The defendant, Telesphere International Incorporated (Telesphere) is a Delaware corporation with its principal place of business in Illinois.

In December 1983, Whitehead contacted Telesphere representatives regarding possible employment in Telesphere’s sales division. As a result, Whitehead on several occasions met with Dennis Casey, Telesphere’s Chairman and President. During these meetings they discussed Whitehead’s qualifications and interest in a sales position with Telesphere.

Ultimately, the two parties came to an understanding and Whitehead commenced employment with Telesphere on or about January 16, 1984. As of this time, there was no written contract regarding Whitehead’s employment.

On January 17, 1984, Casey sent Whitehead a letter which embodied the terms of the employment contract. The letter stated, “This will confirm our agreement on your employment with Telesphere ...” Also, the letter provided for Whitehead’s “Salary to be $45,000.” Other parts of the letter addressed Whitehead’s participation in employee fringe benefits and expense compensation. However, contrary to Whitehead’s assertions, no mention is made in the letter of a “one-year” employment contract. Additionally, the letter referred specifically to other “forms” and “information” that Whitehead would be required to complete as part of his employment contract.

On January 18, Whitehead received an “Employee Invention and Confidentiality Agreement.” The confidentiality agreement provided that, “In consideration of my [Whitehead’s] employment by Telesphere ... I agree that my employment may be terminated by me or the company at any time.” ' Whitehead signed the confidentiality agreement.

Prior to and during Whitehead’s employment, Telesphere policy required that each new employee “satisfactorily complete” a ninety [90] day probationary period. After expiration of such period, Telesphere maintained suggested guidelines to be followed in disciplining and dismissing an employee. Such guidelines provided that before a post-probationary employee was dismissed, he or she should be given one oral and two written warnings.

On April 15, 1984, after approximately seventy-eight [78] days of employment, Whitehead was notified by Telesphere that his services were no longer required. Whitehead subsequently commenced the present action against Telesphere.

In Count I of his amended complaint, Whitehead claims damages as a result of Telesphere’s breach of an oral one-year employment contract. Counts II and III further allege that Telesphere willfully and wantonly breached such contract in violation of their own suggested guidelines.

Telesphere denies that any oral agreement was ever entered into and that in any case the parol evidence rule prevents its admission as evidence. Telesphere concludes that, since Whitehead was an “at will” employee, his employment could be terminated at any time.

II. DISCUSSION

On a motion for summary judgment, the moving party must demonstrate a lack of genuine issue as to any material fact. Gracyalny v. Westinghouse Electric Co., 723 F.2d 1311, 1316 (7th Cir.1983). If the Court determines no such issue to exist, Rule 56 of the Federal Rules of Civil Procedure permits an immediate entry of judgment. Posey v. Skyline Cory., 702 F.2d 102, 105 (7th Cir.1983). However, in reviewing the record on a Rule 56 motion, the Court should entitle the nonmoving party to the benefit of all doubts and reasonable inferences that can be drawn in its favor. Id. at 105.

Accordingly, a detailed review of the pleadings must convince this Court that no genuine issue of material fact exists with respect to the following issues:

(1) If parol evidence is admissible to determine whether Whitehead had a one-year or at-will employment contract with Telesphere.
(2) Whether Telesphere violated company procedures and guidelines when they dismissed Whitehead.

Both parties agree that according to Illinois choice of law principles, the law of Texas (place of performance) will govern this Court’s determination of the dispute. Adams Laboratories, Inc. v. Jacobs Engineering Co., 486 F.Supp. 383 (N.D.Ill.1980). Indeed, whether Texas or Illinois law applies is of no significance as there exist no relevant legal differences. Texas City Refining v. Universal Oil Products, 681 S.W.2d 303 (Tex.App.1984).

A. Parol Evidence Rule

Under Texas law, a written instrument is presumed to embody the parties’ entire contractual intent. Wilkins v. Bain, 615 S.W.2d 314 (Tex.Civ.App.1981); Cox v. Bell Helicoytor International, 425 F.Supp. 99 (N.D.Tex.1977). Thus, any pri- or oral agreements are presumed incorporated into the writing itself. Cox at 104. Absent a showing of ambiguity, incompleteness, or fraud, parol evidence of any prior or contemporaneous agreements will be inadmissible to aid in the construction of a valid written contract. Id. at 103; Horville Rose Service v. Kellogg Co., 448 F.2d 1346 (5th Cir.1971).

In the present case, the plaintiff alleges that Telesphere orally promised him a one-year employment contract prior to consummation of the written contract. Plaintiff argues that such evidence creates an issue of material fact and should be admissible on two separate grounds. First, plaintiff contends that parol evidence is admissible because the written contract represents “mere confirmation” of a primary oral agreement. Second, plaintiff characterizes the contract as an ambiguous or incomplete document that may be supplemented by parol evidence.

Plaintiff’s first argument relies exclusively on National Bank of South Carolina v. United States, 621 F.2d 1109, 223 Ct.Cl. 573 (1980). However, National Bank is factually distinguishable from the case at bar. In National Bank, parol evidence was admissible based on the court’s conclusion that the written document was not a contract, but was only evidence of a primary oral agreement. Id., 621 F.2d at 1113. Specifically, the contract in question began with the words “In accordance with our telephone conversation this date____” National, 621 F.2d at 1110. Additionally, the defendant in National admitted to having an oral agreement with the other party. Also, the contract, a loan agreement, was silent as to many key terms such as time, amount, and period of payments.

Unlike National Bank, the present case involves a written instrument that sets out in detail the terms of the employment contract and is therefore presumed to embody the parties’ entire contractual intent. Baker v. Lockheed Aircraft Service, 584 S.W.2d 369 (Tex.Civ.App.1979). Additionally, unlike National Bank, the written agreement involved here makes no specific reference to any prior oral agreements, a factor crucial to the court’s determination in National Bank. Therefore, National Bank is not controlling in this case.

Plaintiff’s second argument, which asserts that parol evidence should be admissible to clarify the terms of the letter, rests on two findings urged by him: (1) that the January 17 letter does not incorporate as part of the employment contract the Employee Agreement signed by plaintiff on January 18, and (2) that, as a result of this first finding, the letter is “ambiguous” and can be supplemented by oral evidence. For reasons stated below, the Court finds that the letter does incorporate the Employee Agreement, and the contract is unambiguous. Therefore, parol evidence is inadmissible to clarify or interpret the contract.

According to Texas law, where two instruments are executed at different times for the same purpose and pertain to the same transaction, both instruments are to be treated as a single contract. Jones v. Kelley, 614 S.W.2d 95 (Tex.1981); Harris v. Rowe, 593 S.W.2d 303 (Tex.1979). A written contract may therefore consist of multiple integrated documents. W.B. Dunavant and Co. v. Southmost Growers Inc., 561 S.W.2d 578 (Tex.Civ.App.1978). This is especially true where the prior and subsequent instruments are connected by reference. Page Airways, Inc. v. Associated Radio Service Co., 545 S.W.2d 184 (Tex.Civ.App.1976).

Based on the foregoing principles, there appears little doubt that the letter and Employee Agreement should be read together as a single employment contract. Both instruments were received by Whitehead within one day of each other and both expressly addressed Whitehead’s employment with Telesphere. The record shows the January 17 letter to have specifically referred to “all personnel forms and other information ...” that Whitehead would receive as part of his employment. The record also shows that on January 18, Whitehead received the Employee Agreement which Whitehead signed “In consideration of my employment with Telesphere.” In short, the Court concludes that the parties intended the two instruments to represent one employment contract.

Parol evidence is admissible to supplement or explain a written contract where the contract is facially incomplete or ambiguous. Gibson v. Bentley, 605 S.W.2d 337 (Tex.Civ.App.1980); Cox v. Bell Helicoptor International, 425 F.Supp. 99 (N.D.Tex.1977). The threshold determination of contractual ambiguity is a question of law for the court. Texas City Refining v. Universal Oil Products, 681 S.W.2d 303 (Tex.App.1984); McCrea v. Cubilla Condominium Corporation N.V., 685 S.W.2d 755 (Tex.App.1985). Where the meaning of a contract is uncertain or capable of more than one interpretation, it is ambiguous and may be clarified by oral evidence. Seaman v. Seaman, 686 S.W.2d 206 (Tex.App.1984). However, where the written contract is clear and capable of only one interpretation, it is unambiguous and its provisions must be applied as a matter of law without reference to any extrinsic evidence. O’Grady v. Hines, 683 S.W.2d 763 (Tex.App.1984); Stitt v. Royal Park Fashions, 546 S.W.2d 924 (Tex.Civ.App.1977).

In the present case, a reading of the employment contract conclusively shows that it is neither incomplete nor ambiguous with respect to Whitehead’s term of employment. The contract states that “In consideration of my [Whitehead’s] employment ... I agree that my employment ... may be terminated by me or the company at any time.” The language is clear, unambiguous, and capable of only one conclusion. Where a provision of an employment contract is unambiguous, the Court need not consider any evidence of an alleged oral agreement to interpret the provision. Cox, supra, 425 F.Supp. at 103. As such, any evidence concerning Whitehead’s “oral” one-year employment contract is inadmissible. Construction of the written contract is thus a question of law appropriate for summary judgment. Lasater v. Convert Energy Corp., 615 S.W.2d 340 (Tex.Civ.App.1981); Carroll v. Paetznick, 603 S.W.2d 381 (Tex.Civ.App.1980).

Whitehead’s employment contract provided that “I agree that my employment may be terminated by me or the company at any time.” This Court finds that such language, as a matter of law, shows the employment contract could be terminated at will by either party. See Sylvania Electronic Products Inc. v. Curry, 479 S.W.2d 777, 779 (Tex.Civ.App.1972). Accordingly, Whitehead’s employment could be legally terminated by Telesphere for a good reason, a bad reason, or no reason at all. Phillips v. Goodyear Tire and Rubber Co., 651 F.2d 1051 (5th Cir.1981); United States Auto Assn. v. Tull, 571 S.W.2d 551 (Tex.Civ.App.1978). Therefore, since it finds that Whitehead had a written “at will” employment contract, the Court grants defendant’s motion for summary judgment on Count I of plaintiff's complaint.

B. Violation of Company Guidelines

Having decided that Whitehead was an employee subject to “at will” termination, the question now becomes whether Telesphere was nevertheless obligated to follow certain procedures before dismissing Whitehead. In Counts II and III, Whitehead alleges that Telesphere willfully terminated his employment in violation of Telesphere’s suggested “Employee Disciplinary Policy.” Telesphere, however, characterizes the guidelines as nonbinding suggestions subject to Telesphere’s unilateral modification. Reynolds Mfg. v. Mendoza, 644 S.W.2d 536 (Tex.App.1982). This Court agrees with Telesphere and the decision in Reynolds. In Reynolds, the court dealt with a disciplinary policy similar to this case and ruled that the policy constituted nothing more than nonbinding general guidelines subject to the employer’s unilateral modification. However, the Court need not even go that far.

The Employee Disciplinary Policy (hereinafter the policy) shows that even assuming the policy to be binding, Whitehead was not subject to the benefit of its discharge and termination procedures. The policy provides that:

Each new employee is subject to a 90-day probationary period. An employee who fails to satisfactorily complete the probationary period will be terminated on or before the 90th day of employment. Please refer to disciplinary and termination procedures for additional information regarding unacceptable performance following the probationary period. (emphasis added) ■

Since Whitehead had completed only seventy-eight [78] days on the day of his discharge, Telesphere never violated the policy guidelines and procedures. Counts II and III of Whitehead’s complaint are therefore dismissed.

CONCLUSION

Accordingly, the Court finds that the record shows no genuine issue as to any material fact. Defendant’s cross-motion for summary judgment as to all three counts is granted and plaintiff’s motion for summary judgment is denied.

IT IS SO ORDERED.

      . Because both instruments represent a single employment contract, Whitehead’s allegation that the Employee Agreement lacks consideration is without merit, as none is required. Mitchell v. Lawson, 444 S.W.2d 192 (Tex.App.1969); Garcia v. Laredo Collections, Inc., 601 S.W.2d 97 (Tex.Civ.App.1980). Additionally, Whitehead’s argument that the Employee Agreement is invalid as conflicting with the provisions of the letter is based on the fallacious assumption that the letter creates a one-year contract.

      . Even assuming, arguendo, that the Employee Agreement is not part of the employment contract, the letter by itself is still an "at will” contract, incapable of supplementation by parol evidence, because it provides for Whitehead’s indefinite term of service. See United Services Asso. v. Tull, 571 S.W.2d 551 (Tex.Civ.App.1978); NHA Inc. v. Jones, 500 S.W.2d 940 (Tex.Civ.App.1973).