NO.

COA08-859

FOURTEENTH DISTRICT

***********************************

NORTH CAROLINA COURT OF APPEALS

***********************************

MICHAEL J. PRESSLER,

Plaintiff-Appellee,

vs.

DUKE UNIVERSITY and JOHN F. BURNESS,

From Durham County 08 CVS 1311

Defendants-Appellants.

***********************************

PLAINTIFF-APPELLEE'S BRIEF

***********************************

c
':;~~"i
(+.~O;
.. ..;
I
V.;
lJ
.r:=
.r-
r - ii -

INDEX

TABLS OF CASSS AND AUTHORITISS

iii

QUESTIONS PRESENTED , . . . . .. 1

I. Did the Mutual Release and Settlement Agreement signed by Pressler and Duke extinguish, cancel, and void the obligation in Duke's Dispute Resolution Policy to arbitrate disputes related to separation

of employment? " ,... 1

STATEMENT OF THE CASE , . . . . . . .. 2

STATEMENT OF THE FACTS ,.. . . . . . . . . . .. 2

STANDARD OF REVIEW , 7

ARGUMENT ., , . . . . . . . . . . . . . . . . . . . . . .. 7

I. The Mutual Release and Settlement Agreement signed by Pressler and Duke extinguished, cancelled, and voided the obligation in Duke's Dispute Resolution Policy to arbitrate disputes related to

separation of employment .. , , 7

CONCLUSION " , , , , , , , 15

CERTIFICATE OF SERVICE 17

APPENDIX

CONTENTS OF APPENDIX

- iii -

TABLE OF CASES AND AUTHORITIES

CASES

Bell v. Purolator Products, Inc., 1989 u.s. Dist.

LEXIS 6857 (E.D. Pa. 1989) 14

Encore Productions, Inc. v. Promise Keepers,

53 F. Supp. 2d 1101 (D. Colo. 1999) 9

GATX Management Services, LLC v. Weakland, 171 F.

Supp. 2d 1159(0. Colo. 2001) 8

Harris v. Green Tree Fin. Corp., 183 F.3d 173

(3rd Cir. 1999) 8

Martin v. Vance, 133 N.C. App. 116, 514 S.E.2d 306

(1999) 11

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765,

(1983) 9

Nolde Brothers, Inc. v. Bakery and Confectionary Workers Union, 430 U.S. 243, 97 S. Ct. 1067, 51 L. Ed.

2d 300 (1977) 14

Raspet v. Buck, 147 N.C. App. 133, 554 S.E.2d 676,

(2001) 7

Riley Manufacturing Co., Inc. v. Anchor Glass Container Corp., 157 F.3d 775(10th Cir. 1998) ..... 8

Virginia Carolina Tools, Inc. v. International Tool

Supply, Inc., 984 F.2d 113 (4th Cir. 1993) 9

Zandford v. Prudential Bache Securities, Inc.,

112 F.3d 723 (4th Cir. 1997) 13

NO. COA08-859

FOURTEENTH DISTRICT

***********************************

NORTH CAROLINA COURT OF APPEALS

***********************************

MICHAEL J. PRESSLER,

Plaintiff-Appellee,

vs.

DUKE UNIVERSITY and JOHN F. BURNESS,

From Durham County 08 CVS 1311

Defendants-Appellants.

***********************************

PLAINTIFF-APPELLEE'S BRIEF

***********************************

QUESTION PRESENTED

Did the Mutual Release and Settlement Agreement signed by

Pressler and Duke extinguish, cancel, and void the obligation in

Duke's Dispute Resolution Policy to arbitrate disputes related

to separation of employment?

(R. P. 142).

- 2 - STATEMENT OF THE CASE

On January 23, 2008 in Durham County Superior Court, Pressler filed a complaint alleging that Duke University, through its official spokesperson, John Burness, made defamatory statements about Mike Pressler with respect to his business,

profession and means of livelihood as a lacrosse coach.

(R. pp.

2-16). Duke and Burness moved to stay the litigation pending

arbitration.

(R. pp. 17-24). During an April 16, 2008 hearing,

the Hon. Howard E. Manning, Jr. denied the motion to stay. In an Order dated April 23, 2008, Judge Manning determined that "any obligation of Plaintiff to arbitrate any claims alleged against the defendants in this lawsuit is extinguished, cancelled and voided by the Mutual Release and Settlement

Agreement."

(R. p. 132)

Duke and Burness timely noticed an

appeal.

(R. p. 134).

STATEMENT OF THE FACTS

Leading up to April 2006, Pressler enjoyed a remarkable career path. He began in 1982 as a graduate assistant on the lacrosse coaching staff at Hampton-Sydney College. The next year, Pressler became the first Head Coach for the Virginia

Military Institute's new Men's Lacrosse Team.

In 1984 and 1985,

- 3 -

he moved to Defensive Coordinator for the U.S. Military Academy

at West Point.

(R. p. 3).

From 1986 through 1990, Pressler was the Head Coach for

Ohio Wesleyan University Men's Lacrosse Team.

He led his teams

five times to the NCAA Division III Final Four and three times

to the national championship game.

(R. p. 3).

He was also a

three-time North Coast Athletic Conference Coach of the Year and

the 1987 Division III National Coach of the Year.

(R. p. 4).

From 1991 until April 2006, Pressler was the Head Coach for

the Duke University Men's Lacrosse Team.

He led his teams to

three Atlantic Coast Conference championships, ten NCAA Division I tournament berths, two Final Four appearances, and the 2005

national championship game.

(R. p. 3).

He was a three-time

Atlantic Coast Conference Coach of the Year and the 2005

Division I National Coach of the Year.

His players achieved a

100% graduation rate.

(R. p. 4).

In 1990 and for every year thereafter through 2004, Duke signed Pressler to annual contracts for employment as Head Men's

Lacrosse Coach.

Responding to his record of success, Duke

signed Pressler to a three-year contract in June, 2005.

Each of

these employment contracts recites that the Athletic Director will assign Pressler his duties, and "your employment is subject

- 4-

to such polioies and regulations of the University as may exist

from time to time."

(R. pp. 98-128) (emphasis supplied).

Each employment contract specifically incorporated Duke's

policies and regulations.

Duke's policies for employment

separation are found in Duke's Dispute Resolution Policy.

Each

time Pressler contracted for a period of employment, he thereby entered into an agreement for separation of employment as set

forth in the Dispute Resolution Policy.

( R . pp. 8 0 - 8 2) .

In March 2006, a substantially impaired and mentally unstable woman made false and wildly incredible allegations that some members of the Duke University Men's Lacrosse Team assaulted and gang-raped her in a tiny, residential bathroom, despite the nearby presence of other teammates within the small

home.

(R. p. 4).

This incident soon brought Pressler's

successful career at Duke to an abrupt halt.

On AprilS, 2006 and ~at Duke's request," Duke and Pressler ~entered into a separation agreement," by which he "resigned"

his position.

(3. p. 1).

In his Complaint, Pressler alleges

that he was "terminated," that his separation of employment "was without any semblance of a fair hearing or any willingness to consider the truth," and that "Duke publicly suggested that he bore some responsibility for alleged misconduct of members of

the Duke Men's Lacrosse Team."

(R. p. 4).

- 5 -

On June 21, 2006, Duke rescinded the earlier agreement for

separation of employment, and simultaneously reinstated

Pressler's three-year employment contract while terminating it

without cause, effective April 6, 2006.

(R. pp. 4 and 28, S. p.

1) .

In March 2007, Pressler and Duke entered into a final

agreement regarding separation of employment, a confidential

"Mutual Release and Settlement Agreement." 1

(R. p. 4; S. pp. 1-

2). The language pertinent to the question before the Court is

as follows:

This agreement is entered into. . for the

purpose of clarifying the conditions of Pressler's

separation from employment. . and in order to

finally, fully, and amicably resolve all issues and controversies arising out of the termination of said employment such that the parties may put all such matters behind them for their mutual benefit .

WHEREAS,

. Pressler and Duke wish to cancel

all earlier agreements and reach a final settlement and resolution of all matters regarding Pressler's

separation from employment with Duke . ;

NOW, THEREFORE, Pressler and Duke agree as follows:

1. Any obligations. arising from the 2005

Employment Contract, and/or the previous agreements of the parties regarding separation of employment .

are extinguished, cancelled, and declared void.

1 For purposes of clarity and ease of reading, the Mutual Release and Settlement Agreement has been re-typed in Arial font. This version can be found in the Appendix to this Brief.

- 6 -

8. Duke and Pressler agree that this Mutual

Release and Settlement Agreement is the final agreement between them as to his employment with Duke, his separation from employment with Duke, and any other issue arising there from or relating thereto.

(5. pp. 1-2) (emphasis supplied).

The Mutual Release and

settlement Agreement does not include an arbitration provision.

(5. p. 1-2).

Pressler's defamation claims relate to statements allegedly

made and published by Burness in April and June 2007. At that

time, BUrness was Duke's Senior Vice President for Public

Affairs and Government Relations.

(Appellant's Br. p. 2).

The Complaint alleges that Burness, in his capacity as

Duke's official spokesperson, made various defamatory statements

about Pressler with respect to his business, profession and

means of livelihood.

(R. p. 7).

Pressler alleges Duke, through

Burness, falsely asserted that Pressler's lack of character as a

coach justified his termination; that he had to be fired for a

lack of supervision of his team; that the difference between the

plaintiff and the new coach was ~day and night;H that the

plaintiff was the opposite of a mensch;2 and that Defendant Duke

had to terminate the plaintiff because ~it was essential for the

2 [AJ mensch is someone to admire and emulate, someone of noble character. (Rosten, Leo. 1968. The Joys of Yiddish. New York: Pocket Books. 237)

- 7 -

team to have a change of leadership in order to move forward."

(R. pp. 5-6). In his Complaint, Pressler pursues causes of

action for Slander Per Se, Slander Per Quod, Libel Per Se, and

Libel Per Quod.

(R. pp. 6 -14) .

STANDARD OF REVIEW

Because it involves a claim to a right to enforce an

arbitration agreement, Judge Manning's Order is subject to de

novo review.

Raspet v. Buck, 147 N.C. App. 133, 136, 554 S.E.2d

676, 678 ("The trial court's conclusion as to whether a

particular dispute is subject to arbitration is a conclusion of

law, reviewable de novo by the appellate court.").

ARGUMENT

The Mutual Release and Settlement Agreement signed by Press1er and Duke extinguished, cancelled, and voided the obligation in Duke's Dispute Reso1ution Po1icy to arbitrate disputes re1ated to separation of emp1oyment.

I. Termination of the arbitration requirement expressly or by

clear imp1ication.

Appellants' argument for arbitration is based upon Federal

Arbitration Act's requirement that arbitration agreements "shall

be valid, irrevocable, and enforceable, save upon such grounds

as exist at law or in equity for the revocation of any

- 8 -

contract." 9 U.S.C. § 2.

Cases construing the Federal

Arbitration Act ("FAA") have developed "a federal common law of arbitrability that implements Congress' expression of a strong national policy favoring the resolution of commercial disputes through arbitration." Riley Manufacturing Co., Inc. v. Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998)

Federal common law determines the interpretation and construction of arbitration agreements even for state common law

actions.

Harris v. Green Tree Fin. Corp., 183 F.3d 173, 179

(3rd Cir. 1999).

The federal common law includes a "presumption

of arbitrability," even for disputes related to an expired

contract that included the arbitration agreement. F.3d at 781.

Riley, 157

The presumption of arbitrability for expired or terminated contracts vanishes and has no legal effect in this case because Pressler and Duke have expressed or clearly implied their intent

to terminate the arbitration requirement.

"The presumption in

favor of continuing arbitrability, however, disappears . if

the parties express or olearly imply an intent to repudiate post-expiration arbitrability." Riley, 157 F.3d at 781

(emphasis supplied); GATX Management Services, LLC v. Weakland, 171 F. Supp. 2d 1159, 1164 (D. Colo. 2001) ("the revocation of an

arbitration provision requires the express or clear intent of

- 9 -

the parties to do so"); Encore Productions, Inc. v. Promise

Keepers, 53 F. Supp. 2d 1101, 1108 (D. Colo. 1999).

Under federal common law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Moses H. Cone Mem'l Hasp. v. Mercury Constr. Corp., 460 U. S. 1,

24-25, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765, 785 (1983).

This

resolution of doubts as to scope does not apply to the issue of whether an arbitration agreement has been extinguished expressly or by clear implication. Whether an arbitration provision survives the termination of a contract "depends upon whether the law can impute such an intention to the parties." Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113, 119 (4th Cir. 1993).

II. Pressler and Duke intended to terminate the agreement to be bound by the Dispute Resolution Policy.

In March 2007, Pressler and Duke wanted to sever all ties between them. A very happy marriage that began in 1989 suddenly disintegrated into an extremely painful divorce in the wake of

the Duke Lacrosse Rape Hoax.

Pressler and Duke attempted to

make a clean and "final break that would terminate all ties and

all previous agreements between them. Settlement Agreement begins:

The Mutual Release and

- 10 -

This agreement is entered in order to

finally, fully, and amicably resolve all issues and

controversies . such that the parties may put all

such matters behind them for their mutual benefit.

(3. p. 1).

Their expressly stated intention was to ~cancel all

earlier agreements."

(S. p. 1) (emphasis supplied).

~All"

means just what it says. Their clear and expressly stated

intent was to extinguish, cancel and declare void "Any

obligations of the parties arising from the 2005 Employment

Contract and/or the previous agreements of the parties regarding

separation of employment."

(S. p , 1) (emphasis supplied).

~Any" means just what it says.

Pressler and Duke expressed their intention to terminate

all prior agreements between them, leaving only the Mutual

Release and Settlement Agreement as the "the final agreement

between them as to [Pressler's] employment with Duke, his

separation from employment with Duke, and any other issue

arising there from or relating thereto."

(S. p. 2) (emphasis

supplied) .

Even if Pressler and Duke somehow failed to express

explicitly their intention to terminate every agreement between

them-including the agreement to arbitrate-then Pressler and Duke

certainly did so by clear implication.

The blooms of the rose

had withered and dropped.

Pressler and Duke wanted nothing more

- 11 ~

to do with each other, even to the point that they jncluded in

this final agreement a non-disparagement provision.

4. Duke and Pressler agree that neither they nor their agents, principals or representatives will make disparaging or defamatory comments regarding the other party .

(3. p. 1).

The 2005 Employment Contract incorporated the Dispute

Resolution Policy, including its provisions related to

separation of employment.

In so doing, the 2005 Employment

Contract dealt not only with the terms for employment, but also

with the terms for separation of employment.

The Mutual Release

and Settlement Agreement terminated all obligations between

Pressler and Duke-both as to employment and as to separation of

employment.

(S. p. 1).

Appellants argue that the Dispute Resolution Policy was a

separate agreement from the 2005 Employment Contract.

Appellants cite a case enforcing the Dispute Resolution Policy

for a Duke employee even in the absence of an employment

contract.

(Appellants' Br. P. 20) (citing Martin v. Vance, 133

N.C. App. 116, 120, 514 S.E.2d 306, 309 (1999)).

Nevertheless,

Pressler's 2005 Employment Contract did incorporate the Dispute

Resolution Policy, just as every previous employment contract

had done so.

When Pressler's employment contract was terminated

- 12 -

and superseded by the Mutual Release and Settlement Agreement, also terminated were the contract terms that Pressler would be assigned his duties by the Athletic Director and that his employment would be subject to the policies and regulations of

Duke.

In addition, the Dispute Resolution Policy is a "previous

agreement[] of the parties regarding separation of employment," as described in the Mutual Release and Settlement Agreement. Obligations under the Dispute Resolution Policy were thus

expressly extinguished, cancelled and declared void.

(S. p. 1)

Appellants argue that the omission in the Mutual Release and Settlement Agreement of the words, "Dispute Resolution Policy" and "arbitration," means that the arbitration

requirement somehow survives.

Their brief cites Riley for the

proposition, "If the Settlement Agreement had intended to extinguish the entire Manufacturing Agreement [which contained an arbitration provision], it would be expected that it would have said so explicitly." (Appellants' Br. p. 21) (quoting from Riley, 157 F.3d at 783). Appellants' argument ignores that the Mutual Release and Settlement Agreement explicitly terminated the obligations under all ""previous agreements of the parties regarding separation of employment."

Moreover, Appellants ignore that the intention to repudiate the arbitration agreement can be expressed by clear implication.

- 13 -

Given the painful circumstances surrounding the severing of ties

between Pressler and Duke, the language of the Mutual Release

and Settlement Agreement could not more clearly imply that

Pressler and Duke intended to extinguish, cancel and void any

and all obligations between them, including the obligation to

arbitrate.

All prior agreements between Pressler and Duke were merged

into their final agreement, the Mutual Release and Settlement

Agreement.

In this regard, Pressler's situation is analogous to

that found in Zandford v. Prudential Bache Securities, Inc., 112

F.3d 723 (4th eir. 1997).

Two contracts with mandatory

arbitration provisions were involved in Zandford, one between

Zandford and his employer, Pru-Bache, and another between

Zandford and the National Association of Securities Dealers

(NASD) .

112 F.3d at 725.

Zandford was compelled to arbitrate

because of the contract with NASD, but not because of his

contract with his employer.

112 F.3d at 727.

The arbitration

requirement in the latter contract was extinguished by

Zandford's settlement with Pru-Bache through a general release.

112 F.3d at 727.

The Zandford decision explains:

The settlement agreement between Pru-Bache and Zandford does not purport to provide any exceptions to Zandfordrs general release from all obligations that are directly or indirectly related to his employment with Pru-Bache.

- 14 -

It is, therefore, apparent from the wording of

the release. . that Pru-Bache and Zandford intended

their employment contract to be no longer the source of any requirement or liability. Based on the language of the release and the intent of the parties

that it evinces, it is clear. . that Zandford

cannot be called upon to arbitrate any matter on the authority of the arbitration clause included in the employment agreement.

Id. Similarly, the final agreement between Pressler and Duke

terminated "Any obligations .

. arising from the 2005

Employment Contract and/or the previous agreements of the

parties regarding separation of employment."

(S. p. 1).

Pressler cannot be called upon to arbitrate his post-termination

defamation claims.

This case differs also from cases simply involving

termination or rescission of contracts.

Pressler and Duke

entered a contract to terminate all previous agreements and to

end all business and disputes between them.

Their situation is

analogous to that found in Bell v. Purolator Products, Inc.,

1989 U.S. Dist. LEXIS 6857 (E.D. Pa. 1989).

The Court in Bell

distinguished Nolde Brothers, Inc. v. Bakery and Confectionary

Workers Union, 430 U.S.~ 243, 97 S. Ct. 1067, 51 L. Ed. 2d 300

(1977), in explaining why an arbitration provision did not

survive the end of the particular union contract at issue.

The Supreme Court held in Nolde that even when a collective bargaining agreement has terminated,

- 15 -

disputes that would have been the subject of arbitration before termination must still be submitted to arbitration.

Nolde, however, differs from this case in one important respect. There was no closure agreement in Nolde. The collective bargaining agreement simply expired. Although the relationship between the parties was over, it was reasonable to assume in Nolde that the earlier agreement to arbitrate would extend to post-termination disputes as well. In this case, however, there was a closure agreement which was designed not only to terminate the collective bargaining agreement, but also to conclude all pending business between the defendant and the employees .

It is not reasonable to assume that the parties would have wanted the agreement to arbitrate to continue when they thought all disputes had been resolved.

Bell, at p. 22.

Pressler and Duke entered into their agreement

also for "closure.n Their previous agreements did not merely

end by expiration or rescission.

Pressler and Duke entered into

a final agreement that superseded and terminated all previous

contracts and obligations.

CONCLUSION

Given the extraordinary context of Pressler's separation of

employment with Duke, the intention to end the arbitration

obligation is found either expressly or by clear implication.

The Mutual Release and Settlement Agreement makes every effort

to sever all ties, eliminate all claims, and terminate all

obligations for Pressler and Duke.

For the reasons stated

- 16 -

above, the Court should affirm Judge Manning's Order Denying

Defendants' Motion to Stay Proceeding Pending Arbitration. The

Court should remand this matter so that the parties can resolve

the post-termination defamation claims in Superior Court.

RESPECTFULLY SUMBITTED, this the 3rd day of October, 2008.

TWIGGS, BESKIND, STRICKLAND & RABENAU, P.A.

J~Jr.

NCSB No. 11124

Donald R. Strickland N.C. State Bar No. 12570 Jesse H. Rigsby, IV

N.C. state Bar No. 35538

P.O. Drawer 30

Raleigh, NC 27602

Telephone: 919/828-4357 Counsel for Pla~nt~ff-Appellee

- 17 -

CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that he served

the foregoing P1aintiff-Appe11ee's Brief upon the attorney(s)

shown below by facsimile and by depositing a copy in the United

states Mail, postage pre-paid, addressed to said attorney(s).

This the 3rd day of October, 2008.

TWIGGS, BESKIND, STRICKLAND & RABENAU, P.A.

~-J-r-.-------

NCSB No. 11124

P.O. Drawer 30

Raleigh, NC 27602 Telephone: 919/828-4357

Served on:

Dan M. Hartzog Rachel Esposito

CRANFILL SUMNER & HARTZOG, LLP 5420 Wade Park Blvd., Suite 300 Raleigh, NC 27607

***********************************

NORTH CAROLINA COURT OF APPEALS

***********************************

MICHAEL J. PRESSLER,

Plaintiff-Appellee,

VS.

DUKE UNIVERSITY and JOHN F. BURNESS,

From Durham County 08 CVS 1311

Defendants-Appellants.

********************************************

APPENDIX TO PLAINTIFF-APPELLEE'S BRIEF

********************************************

MUTUAL RELEASE AND SETTLEMENT AGREEMENT

CITED CASES

-App. i-

CONTENTS OF APPENDIX

Brief pp.

1, 2, 5,

6, 7, 9, 10 11, 12, 13, 14

Bell v. Purolator Products, Inc., 14 1989 U.S. Dist. LEXIS 6857

(E.D. Pa. 1989)

App.pp

1-3

4-5

-App.p.l-

MUTUAL RELEASE AND SETTLEMENT AGREEMENT

This agreement is entered into this 14 day of March 2007, by and between Duke University (~Duke") and Mike Pressler (~Pressler") for the purpose of clarifying the conditions of Pressler's separation from employment with Duke University and in order to finally, fully, and amicably resolve all issues and controversies arising out of the termination of said employment such that the parties may put all such matters behind them for their mutual benefit.

WHEREAS, Mike Pressler ("Pressler") was employed by Duke University ("Duke") as its men's head lacrosse coach under a contract dated June 1, 2005 ("2005 Employment Contract") ;

WHEREAS, Pressler at Duke's request entered into a separation agreement dated April 5, 2006, by which Pressler would resign as coach and Duke would make certain payments to Pressler ("First Separation Agreement")

WHEREAS, on June 21, 2006, the First Separation Agreement was rescinded and Duke reinstated Pressler's 2005 Employment Contract, but simultaneously terminated Pressler without cause, and provided for certain payments by Duke to Pressler;

WHEREAS, at this time after further consideration, Pressler and Duke wish to cancel all earlier agreements and reach a final settlement and resolution of all matters regarding Pressler's separation from employment with Duke in this Mutual Release and Settlement Agreement ("Mutual Release and Settlement Agreement");

NOW, THEREFORE, Pressler and Duke agrees as follows:

1. Any obligations of the parties arising from the 2005 Employment Contract, and/or the previous agreements of the parties regarding separation of employment that are remaining and unfulfilled as of the execution of this Agreement are extinguished, cancelled, and declared void.

-App.p.2-

2. Duke hereby agrees to pay to Pressler Duke shall pay to Pressler

3. Duke and Pressler agree that all terms of this agreement are to be kept confidential and they will not disclose the details or terms of this Agreement, except as required by law and except that Pressler may discuss the terms of this Agreement with his attorney and tax advisor.

4. Duke and Pressler agree that neither they nor their agents, principals or representatives will make disparaging or defamatory comments regarding the other party, it being the intent of the parties that both Duke and Pressler will comment where possible, favorably one upon the other and if inquiry is made, each shall indicate that after difficult circumstances the parties were able to amicably resolve the circumstances of separation.

5. Subject to the provisions of Paragraph 4, nothing herein shall be construed so as to prevent Duke, Pressler, their agents or representative from speaking, writing or commenting publicly regarding the facts or events involving the 2006 Duke Lacrosse Team or Pressler's tenure as the head lacrosse coach.

6. Duke understand and agrees that the acceptance of the terms outlined within this Agreement shall constitute a waiver and release by the University or anyone claiming by or through it, of any and all claims it or they may have, known or unknown, suspected or unsuspected, against Pressler or his family, agents or successors, arising out of his employment or duties with Duke, under the policies and procedure of Duke as well as under any federal, state, or local statute, law, or precedent, including but not limited to causes of action for damages, defamation, libel, slander, emotional distress and any and all other causes of action relating to Pressler's employment with and/or separation from employment with Duke and the circumstances surrounding or arising out of the same.

-App.p.3-

7. Pressler understands and agrees that the acceptance of the terms outlined within this Agreement shall constitute a waiver and release by him, for himself or anyone claiming by or through him, of any and all claims he may have, known or unknown, suspected or unsuspected, against Duke University, its trustees, officers, directors, employees, and agents, and arising under the grievance policy and procedure of Duke as well as under any federal, state, or local statute, law, or precedent, including but not limited to causes of action for damages, lost income and benefits, wrongful discharge, defamation, libel, slander, emotional distress and any and all other causes of action relating to his employment with and/or separation from employment with Duke University and the circumstances surrounding or arising out of the same.

8. Duke and Pressler agree that this Mutual Release and Settlement Agreement is the final agreement between them as to his employment with Duke, his separation from employment with Duke, and any other issue arising there from or relating thereto.

9. Duke and Pressler acknowledge that they enter into this agreement voluntarily and with the full opportunity for the advice of counsel.

The parties hereto execute this Agreement on the dates set forth below.

DUKE UNIVERSITY

MICHAEL J. PRESSLER

By: Richard Broadhead Date:March 21, 2007

By: Michael J. Pressler Date: March 14, 2007

Page 1

-App.p.4-

JOSEPH M. BELL v. PUROLATOR PRODUCTS, INC., STANLEY BOKUNEWICZ v. PUROLATOR PRODUCTS, INC.

Civil Action Nos. 87-6475, 87-6172

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

1989 U.S. Dist. LEXIS 9822

August 16, 1989, Decided

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant manufacturing plant closed before plaintiffs, inj ured employees, completed the bureaucratic process necessary to receive disability pensions. At issue was whether the employees' rights to disability pensions were vested at the time of the execution of the closure agreement between the plant and the employees' collective bargaining agent and whether the closure agreement was intended to extinguish all pension rights.

OVERVIEW: Following a bench trial to resolve the two issues presented in the litigation, the court held that the employees were entitled to disability benefi ts and rendered j udqmeri t in favor of the employees. The court found that the collective bargaining agreement and the

pension plan were ambiguous wi th respect to when the parties intended the plaintiffs' disability pensions to vest. Relying on extrinsic evidence, the court found that the employees' disability pensions vested when they became disabled. The court also found that the post-agreement evidence concerning the course of performance of the closure agreement demonstrated that the closure agreement was latently ambiguous with respect to whether the parties intended to extinguiSh the employees' claims. Again relying upon extrinsic evidence, the court held that the such evidence demonstrated that the closure agreement did not ex t i nqu i sh the employees' claims. As the plant's defense that it was an improper party to the suit was first raised at closing argument, it was not tried implicitly under Fed. R. Civ. P.

Page 2

-App.p.5-

15 (b) and the defense was accordingly, waived.

OUTCOME: The court entered judgment in favor of the employees and against the plant in the employees' action to establish their entitlement to disability pensions following closure of the plant.

LexisNexis(R) Headnotes

Labor & abil.ity ance > Proof >

Employment Law > Dis& Un~loyment InsurDisability Benefits >

General Overview

Pensions & Benefi ts Law > Employee Retirement Income Security Act (ERISA) > Participation & Vesting> General. Overview

[HNlJ Where a plan participant satisfies the other eligibility requirements for a disability pension that participant has a right to receive a disability pension which vests immediately when the participant becomes permanently disabled. It may be that commencement of the benefi ts to which a disabled participant has earned the right can reasonably be delayed after the date of the disabling injury. Nevertheless, it is the occurrence of the disabling injury which ultimately and fundamentally establishes the participant's right to the disabili ty benefits which are ultimately paid.

Contracts Law > Contract Interpretation > Parol. Evidence > General. Overview

Evidence> Documentary Evidence > Parol Evidence

Evidence > Relevance > Parol Evidence

[HN2] The documents are ambiguous if they are reasonably susceptible of different constructions and capable of being understood in more than one sense. The determination of ambiguity is a matter for the court, and once that determina-

tion is made, admissible.

parol evidence is

Contracts Law > Contract Interpretation > Parol. Evidence > General Overview

Evidence > Relevance > Parol Evidence

(HN3] A trial judge faced with a problem of contract interpretation must hear the proffer of the parties and determine if there is objective indicia tha t , from the linguistic reference point of the parties, the terms of the contract are susceptible of differing meanings.

Contracts Law > Contract Interpretation > General Overview Contracts Law > Defenses > Ambiguity & ~stake > General Overview

Contracts Law > For.mation > Ambiguity & ~stake > General Overview

(HN4] Post-execution evidence of the course of performance is always admissible to construe a

-App.p.6-

Page 3

written contract, and can be used to demonstrate that a facially unambiguous contract has latent ambiguities.

Civil Procedure > Pleading & Practice > Defenses, Demurrers, & Objections > Affirmative Defenses

Civil Procedure > Pleading & Practice > Pleadings > Amended Pleadings > Relation Back

[HN5] The defense of improper party should be pled in a defendant r s answer. Fed. R. Ci v. P. 8 (c). The failure to do so is a waiver of the defense unless leave of court is granted to amend under Rule 15. Amendment is permitted under Rule 15{b) even after the close of the evidence, but only if the issue has been explicitly or implicitly tried by the parties.

COUNSEL: [*1] Frank J. Toole, Esq., TOOLE, TOOLE & TOOLE, Shenandoah, Pennsylvania, Joseph Golberg, Esq., Phila., Pennsylvania, Attorney for Joseph M. Bell.

Martin Wald, Esq., Eric Hoffman, Esq., SCHNADER, HARRISON, SEGAL & LEWIS, Phila., Pennsylvania.

CRAIG M. BROWN, ESQ. - PRO HAC VICE, Duvin, Cahn & Barnard, Cleveland, Ohio, Attorney for PUROLATOR PRODUCTS, INC.

Frank J. Tolle, Esq., Shenandoah, Pennsylvania and cocounsel, Joseph Goldberg, Esq.,

Phila. Pennsylvania, Attorney for STANLEY BOKUNEWICZ.

PUROLATOR PRODUCTS, INC., BY:

Martin Wald, Esq., Eric Hoffman, Esq., Phila. Pennsylvania.

PRO HAC VICE, Craig M. Brown, Esq., DUVIN, CAHN & BARNARD, Cleveland, Ohio.

OPINION BY: CAHN

OPINION

MEMORANDUM

EDWARD N. CAHN, UNITED STATES

DISTRICT JUDGE

The plaintiffs were employees of a now defunct Purolator plant. They were injured on the job, but before they could complete the bureaucratic process necessary to receive disabili ty pensions, Purola tor closed the plant and entered into a closure agreement wi th plaintiffs' collective bargaining agent. Purolator claims the closure agreement extinguished plaintiffs' rights to disability pensions.

On June 19, 1989, I issued an

opinion denying the cross-

motions for summary [*2]

judgment and narrowing the issues in the case. Subsequen tly, a bench trial was held to resolve the two remaining issues

whether plaintiffs' rights to disabili ty pensions were vested a t the time of the closure agreement and whether the closure agreement was intended

Page 4

to extinguish rights.

pension

-App.p.7-

the

FINDINGS OF FACT

The background of this case is set forth a t length in my earlier opinion. Those facts are adopted as my findings of fact pursuant to Fed. R. Civ. P. 52 (a), wi th the following supplemental findings:

1. In order to receive a disability pension, an injured employee had to present Purolator wi th a certificate of permanent disabili ty from the Social Security Administration. The certificates identify the date of permanent disability and the date of entitlement to benefits, which is six months after the disability.

2. Before 1983, defendant's practice was to pay disabili ty benefits retroactively to the date of entitlement. When the certificate of disability was recei ved, Purola tor would make a lump-sum payment reflecting benefi ts for the month following the date of entitlement until the month when the regular monthly checks began. Subsequently, the employee would receive [*3] a regular monthly disability check.

3. Paragraph 78 (D) of the 1983 collective bargaining agreement, which was not a part of the 1980 agreement, stated:

"Disabili ty Retiremen t will be paid the first of the month following i n i tial Social Security disability payment." Mr.

Sheeran, the negotiator for Purola tor, sta ted tha t 78 (D) was incl uded to remove the obligation of the defendant to pay retroactive benefits. Mr. Toole, an attorney and one of the two lead negotiators for the Union a t the 1983 negotiations, stated that there were no discussions concerning whether this provision would change the mechanism for awarding disability pensions.

4. Paragraph 4.4 of the pension plan provides that disability retirement benefi ts are to continue until death, the date disability ceases, or normal retirement benefi ts commence.

5. Other than the plaintiffs, there were no disability pension claiman ts subsequen t to the consummation of the 1983 agreement.

6. Purolator prepared worksheets to calculate the amount of benefi ts owed to the plaintiffs. The benefi ts were computed using the da te of entitlement as the date of commencement, not the da te of the award.

7. In a letter da ted April 17, 1986, from William [*4 J Lynch, the director of benefi ts administra tion at Purolator, to Penn Mutual Insurance Company, Lynch stated that the plaintiffs had to be paid their pensions and requested a price for the necessary annuities. Purolator directed Penn Mutual to base their calculations on a starting da te for the annul ties

Page 5

-App.p.8-

which corresponded to the dates of enti tlement, not the dates of the awards.

8. On April 23, 1986, Lynch wrote a letter stating that the plaintiffs r pensions "will be paid retroactive to July 1, 1984 for Bokunewicz and August 1, 1984 for Bell."

9. In the only other dispute concerning the payment of disabili ty pension benefi ts, Purolator took a different position than it takes today. Arthur Hartzell, an employee of Purolator, suffered a heart attack. While he was awaiting his social secur i ty award certificate, a new contract was entered into which provided for

higher disabili ty benefi ts.

Hartzell was given the lower benefi t under the old contract, not the increased benefits available under the new contract.

10. Purolator acted at all times as if the en ti tlement to disability benefits was triggered by the injury and not the social securi ty award certificate.

11. On August 6, 1985,

Sheeran [*5 J requested a determination from Penn Mutual as to how much money would be needed to fund the disabili ty pensions of the plaintiffs.

12. On November 15, 1985, Sheeran wrote to Lynch and stated: "In addition, enclosed is the Agreemen t da ted July 17, 1985 [closure agreement] as it relates to the pension improve-

ment in exchange for a broad gauge [sic] release. While this is not of substance regarding the issue at hand, I wanted to include it to keep your file complete."

13. In a memorandum dated January 17, 1986, Sheeran noted tha t the 1983 contract and the

pension plan were "the ruling documen ts" wi th respect to plaintiffs r pension rights. No mention of the closure agreement or its applicability was made.

14. In an inter-office memorandum to Lynch dated January 23, 1986, Sheeran stated "it would appear that we have, based on past practice, li ttle option but to grant a disability retirement to Stanley Bokunewiczz [sic] and Joseph Bell. rr

15. The plaintiffs were led to believe, both through correspondence and phone calls, that their pensions were going to be paid.

16. Sheeran never thought the closure agreement barred the plaintiffs r cla ims. He only contended the closure agreement extinguished [*6J plain-

tiffs' rights after Craig

Brown, an attorney for Purolator, brought the issue to his attention.

DISCUSSION

A. Vesting of Plaintiffs f

Pensions

The first issue before me is whether plaintiffs' rights to

disabili ty pensions were vested when the closure agreement was signed. As I ruled in my earlier opinion, if the rights were vested, then the closure agreemen t could ha ve no effect on the pensions. Defendant maintains that benefi ts do not vest until the first payment is received. Plaintiffs assert that their pension rights were vested when they suffered the disabling injuries.

In Music v. Western Conference of Teamsters Pension Trust Fund, 712 F.2d 413 (9th Clr. 1983), the Ninth Circuit Court of Appeals was faced with a similar problem. An employee was disabled, and before he received his social security award certificate, the contract governing the calculation of disability benefits was changed to the employee's detriment. The plan administrator ruled that the employee was not entitled to the higher benefits under the old plan because the benefi ts were to commence when the new contract was in force. The court held the plan administrator acted arbi trar ily and capriciously (*7] and stated:

In our view, [HNl] where a plan participant satisfies the other eligibility requirements for a disabili ty pension that participant has a right to receive a disability pension which vests immediately when the participant becomes permanently disabled. It may be that commencement of the benefits to which a disabled participant

Page 6

-App.p.9-

has earned the right can reasonably be delayed for five months after the date of the disabling inj ury. Nevertheless, it is the occurrence of the disabling injury which ul timately and fundamentally establishes the participant's right to the disability benefits which are ultimately paid.

Music, 712 F.2d at 419.

Music is persuasive authority supporting plaintiffs' claims that their benefits vested upon injury and not when the first check was paid. Ultimately, the question of vesting is determined by the intention of the parties. The Music court held that the plan administrator's construction of the contract was not what the parties intended. Similarly, Purolator's position that plaintiffs' rights never vested is selfserving and erroneous.

The relevant documents are the 1983 collective bargaining agreement and the pension plan. The [*8] documents, however, say little concerning the vesting of disability pension benefits. Paragraph 78(D) of the 1983 agreement states that " [d] isabi1i ty retirement will be paid the first of the month following initial Social Securi ty disability payment." This language only indicates when the first benefit check is to be paid, not that pensions vest when the money is paid rather than at the time of injury. The pension plan is equally silent. Article III of the plan pro-

Page 7

-App.p.10-

vides that a disabled employee may retire on the "Disability Retirement Date, which date shall be the first day of the seventh calendar month following the date on which his Disability is determined (by the Plan Administrator) to have commenced. IT This refers to the date of retirement, which like the normal retirement date denotes the first day of entitlement, not the date of vesting. It is clear, however, that disability pensions do vest at some point. Section 4.4 states that disability benefits are to continue for life. I

1 The pension plan in this case provides that disability benefits will continue for life (barring renewed health or enrollment in the normal retirement plan). This distinguishes the instant case

from Ryan v. Chromalloy

American Corp., F.2d

131 L.R.R.M. 2887 (7th Cir. 1989). In Ryan there was no such provision. Furthermore, Ryan only dealt wi th welfare benefits such as medical and life insurance. Plaintiffs' disabili ty pensions are much more closely akin to pensions than these benefits. It is reasonable to conclude that the parties would treat disability pensioners like other pensioners and consider the rights to be vested at some point. The most natural and logical choice for the time of

vesting is the date of injury. See Music. Finally, Purolator cannot contend it was simply exercising its right to terminate its welfare benefits program as in Ryan. There is no evidence that Purolator tried to cut-off the disability pensions of those receiving benefits at the time of the closure agreement. To the extent that the termination clause of the pension plan was used against the plaintiffs and not other disability claimants, such action would be an unreasonable and arbitrary use of the termination power. See Benci venga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574, 583 n. 4 (3d Cir. 1985) (Stapleton, J., concurring) .

[*9] (HN2] The documents

are ambiguous. They are "reasonably susceptible of different constructions and capable of being understood in more than one sense." Langer v. Monarch Life Ins. Co., No. 89- 1053, slip op. at 13, 1989 U.S. App. LEXIS 9499 (3d Cir. July 6, 1989) (quoting Hutchison v. Sunbeam Coal Corp. , 513 Fa. 192, 201, 519 A.2d 385, 390 (1986)). The determination of

ambiguity is a matter for the court, and once that determination is made, parol evidence is admissible. Hutchison, 513 Pa. at 200-201, 519 A.2d at 390.

There are two areas of parol evidence relevant to the vest-

-App.p.l1-

Page 8

ing issue. The first concerns

the treatment of another

Purolator employee, Arthur

Hartzell. Toole testified that sometime before 1983 Hartzell had a heart attack and applied for disability benefits. Between the heart attack and his receipt of the social security award, the Union and Purolator agreed to raise disability benefits as part of new contract negotiations. Hartzell received a pension calculated under the old contract. If Purolator had considered Hartzell vested only at the time he received benefits, it should have paid him under the new contract. Defendant chose to pay him under the old contract [*10] when to do so would save money. In the present dispute, Purolator has flip-flopped and now asserts that the entitlement to disability benefits is governed by the new contract, the closure agreement. The closure agreement, of course, provides for no benefits at all. This position is inconsistent with the treatment of Hartzell and indicates defendant's present posture with respect to the time of vesting is self-serving.

Plaintiffs' case is also bolstered by the fact that once the social security award was issued, Purolator's practice was to pay benefits retroacti vely to the entitlement date (six months after permanent disability). The retroactivity of benefits is relevant because the payment of such benefits is

evidence that Purolator considered disability pensioners to be entitled to their pensions before the social security award. The payment of benefits for periods before the social security award is inconsistent with a position that benefits vest only when the award is made.

It is clear that Purolator paid retroactive benefits under pre-1983 collective bargaining agreements. Defendant argues, however, that this fact and the Hartzell incident are irrelevant because the mechanism for [*11] paying disability pensions has been changed. Defendant relies on the addition to the 1983 agreement of Paragraph 78(0), which provides that disability retirement will be paid on the first day of the month following the Social Security award. This provision was not in the 1980 agreement, and according to the defendant, 78(0) was meant to end the retroacti vi ty of benefits. While Sheeran testified that this was the reason for the change, Toole who was one of the two lead negotiators for the Union, testified that there was no discussion of this point at the negotiations.

Indeed, the actions of

Sheeran and other employees subsequent to the plaintiffs' social security awards shed doubt on Sheeran's version. First, worksheets were prepared to facilitate payment of the plaintiffs' pensions. The pensions were calculated based on

the entitlement dates, not the award dates. Second, Purolator employees contacted Penn Mutual and asked it to calculate the price of annuities for the pensions. Penn Mutual was directed to use the entitlement dates for their computations. Third, Lynch, the director of benefits at Purolator, wrote to Penn Mutual and specifically stated that the benefits were to be paid [* 12 J retroactively. This evidence demonstrates that Purolator did not intend the 1983 collective bargaining agreement to change the parties' understanding with respect to the retroactivity of benefits.

In light of the Hartzell incident and the fact that it was Purolator I s policy to pay disabil i ty benefi ts retroactively, I cannot credit defendant's claim that it does not consider disability pension rights vested until the first payment. Plaintiffs' disability pensions were vested before the closure agreement was signed. Consequently, the closure agreement can have no effect on their pensions, and judgment must be entered in favor of the plaintiffs.

B. Effect of the Closure Agreement

While the finding tha t plaintiffsJ rights vested upon injury decides the case, there is an another, independent ground for my decision. The closure agreement was never intended to

Page 9

-App.p.12-

cover plaintiffsr claims. After hearing the evidence, I am convinced tha t the defendant r s negotiators simply forgot about the plaintiffsJ potential claims and never intended the closure agreement to bar the disability pensions.

[HN3] A trial judge faced wi th a problem of contract interpreta tion mus t "hear the proffer of the parties and

[*13] determine if there is objective indicia that, from the linguistic reference point of the parties, the terms of the contract are susceptible of differing meanings. rr Mellon Bank N.A. v. Aetna Business credit Inc., 619 F.2d 1001, 1011 (3d Cir. 1980). The contract language in this case seems broad, but when examined In light of admissible extrinsic evidence, the language proves to be ambiguous.

In paragraph four of the agreement the Union agrees that the closure agreement shall be "a final and complete disposition of all claims or disputes, known or unknown, which the Union or Individuals had, has or may have. ." Paragraph five states that "CtJhe Union and Individuals agree to withdraw any and all charges, complaints, grievances or claims now pending, and further agree not to initiate maintain or participate in any charges, complaints, claims, legal actions or grievances. " This is strong wording; however, there is extrinsic evidence of the course of perform-

Page 10

-App.p.13-

ance which demonstrates that the parties never intended to dispose of plaintiffs' claims. [HN4] post-execution evidence of the course of performance is always admissible to construe a written contract, and can be used to demonstrate [* 14 J that a facially unambiguous contract has latent ambiguities. Langer, slip op. at 15 n.S.

The communications with the plaintiffs, among employees of Purolator, and between Purolator and Penn Mutual all demonstrate that Purolator did not consider the plaintiffs' claims to be barred by the closure agreement. The plaintiffs were repeatedly reassured that their pensions would be paid, and Purolator employees did everything necessary to procure annuities for the pensions. There was no question in the minds of Purolator employees, including the lead negotiator, Sheeran, that plaintiffs were entitled to their pensions despite the closure agreement. It was not until Sheeran talked to Purola-

tor's that

attorney, Craig defendant altered

Brown, its po-

sition.

The post-execution extrinsic evidence draws into question the meaning of the words "claims now pending" found in the closure agreement. This phrase is not as allencompassing as it might seem. The closure agreement did not, for instance, absolve defendant of the responsibility to provide for current pensioners. The need to pay future monthly

benefits was not extinguished by the closure agreement despite the fact that each new

monthly payment [*15J would

constitute a new "claim"

against the defendant. Likewise, it is possible, in light of Purolator's actions, to construe "claims now pending" not to include the plaintiffs' pension rights. The plaintiffs were simply awaiting the formal notice of disability from the Social Security Administration; otherwise their rights were already fixed.

Furthermore, Purolator certainly thought the contract was capable of two constructions. It acted all along as if the closure agreement did not affect plaintiffs' claims. Now it believes the closure agreement does bar the claims. Under these circumstances, I hold that the contract is ambiguous, and therefore parol evidence is admissible to construe the contract.

Nei ther side has asserted that plaintiffs' pension rights were discussed at the bargaining table. Sheeran testified that the difficulty in providing the plaintiffs' pensions was that he had forgotten about them and no funding remained. This was embarrassing for him and difficult to correct through the Purolator bureaucracy, but Sheeran never considered the closure agreement to have any effect on the pensions. Similarly, Toole testified that he never contemplated that the closure agreement

Page 11

-App.p.14-

[* 16] would extinguish the plaintiffs' pension rights. It is hard to believe that the Union would knowingly agree to bargain away the plaintiffs' disability pensions.

Plaintiffs were entitled to disability pensions under the 1983 collective bargaining agreement. Unless there was a meeting of the minds to divest the plaintiffs' rights, they are entitled to their pensions. I find that there was no meeting of the minds to extinguish the plaintiffs' pensions. Consequently, the closure agreement had no effect on the plaintiffs, and their disability pension benefits are governed by the 1983 collective bargaining agreement.

C. Purola tor Products, Inc. as a Proper Party

Finally, defendant asserted for the first time in closing argument that Purolator Products, Inc., is not a proper party to this suit. Defendant contends that the plaintiffs should have sued the trustees of the pension plan instead.

[HN5] This defense should have been pled in defendant's answer. Fed. R. Civ. P. 8(c). The failure to do so is a waiver of the defense unless leave of court is granted to amend under Fed. R. Civ. P. 15. Albee Homes, Inc. v. Lutman, 406 F.2d 11 (3d Cir. 1969); Transport Trailer Service, Inc. v. Upjohn (*17J Co., S06 F. Supp. 442 (E.D. Pa. 1981).

Amendment is permitted under Rule 15(b) even after the close of the evidence, but only if the issue has been explicitly or implicitly tried by the parties. The issue was not tried in this case. Nor am I inclined to grant the defendant leave to amend under Rule lS(a) which provides that amendments are to "be freely given when justice so requires." There is no j ustice in allowing Purolator to amend their answer to assert they are not the proper party to this suit. Purolator signed the closure agreement which terminated the pension plan and thereby damaged the plaintiff. It fought this case through arbitration and the courts for close to five years. Closing argument is simply too late a time to interpose a dubious, technical argument about the proper party in interest. Accordingly, the court will not consider defendant's argument.

Conclusions of Law

1. This court has subject matter jurisdiction over the dispute pursuant to 28 U.S.C. § 1331.

2. This court has personal jurisdiction over the parties.

3. The 1983 collecti VB bargaining agreement and the pen-

sion plan respect to tended the ity [*18]

are ambiguous with when the parties inplaintiffs' disabilpensions to vest.

4. The extrinsic evidence demonstrates that plaintiffs'

-App.p.15-

Page 12

disabili ty pensions vested when they became disabled.

5. The post-agreement evidence concerning the course of performance of the closure agreement demonstrates that the closure agreement was latently ambiguous wi th respect to whether the parties intended to extinguish plaintiffs' claims.

6. The extrinsic evidence

demonstrates that the closure agreement did not extinguish the plaintiffs' claims.

7. Defendan t ' s defense tha t it is not a proper party to this sui t was first raised at closing argument. The issue was not tried implicitly under Fed. R. Civ. P. 15 (b), and justice does not require allowance of an amendment pursuant to Fed. R. Civ. P. 15(a) at this late date. Therefore, the defense is waived.

8. Plaintiffs are entitled to disability pensions. They are also enti tied to any other benefi ts they would be recei ving had their pensions commenced before the closure agreement.

ORDER

AND NOW, this 11th day of August, 1989, IT IS ORDERED that:

1. Plaintiffs are entitled to disability pensions. They are also enti tled to any other benefi ts they would be recei ving had payment of their pen-

sions commenced before the

[*19] closure agreement was

consummated.

2. JUDGMENT IS ENTERED in favor of Joseph M. Bell and against Purola tor Products, Inc. in Civil Action No. 87- 6475. JUDGMENT IS ENTERED in favor of Stanley Bokunewicz and against Purola tor Products, Inc. in Civil Action No. 87- 6172.

3. The parties are directed to calculate the benefits due according to the aforesaid opinion and to prepare a final judgment order which is to be submi tted to the court for approval.

4. The Clerk of Court is directed to close the dockets of the within cases for statistica 1 purposes.