Buck v. Billings Montana Chevrolet, Inc.

No. 90-250

IN THE SUPREME COURT OF THE STATE OF MONTANA

JAMES S. BUCK,

Plaintiff and Appellant,

-vs-

BILLINGS MONTANA CHEVROLET, INC.,

a Delaware corp.; FRONTIER CHEVROLET CO.,

a Montana corp.; FS ENTERPRISES, INC., a

South Dakota Corp.; FRANK STINSON; and

DENNIS MENHOLT ,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Robert Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kenneth D. Tolliver (argued); Wright, Tolliver &

Guthals, Billings, Montana

For Respondent:

Sidney R. Thomas, Martha Sheehy (argued); Moulton,

Bellingham, Longo & Mather, Billings, Montana

Peter T. Stanley, Bill McNamer (argued); McNamer

& Thompson, Billings, Montana

Rockwood Brown (argued); Anderson, Brown, Gerbase,

Cebull, Fulton, Harman & Ross, Billings, Montana

Submitted: March 21, 1991

Decided; May 16, 1991

Filed:

-2

Clerk

Justice R. C. McDonough delivered the Opinion of the Court.

I

plaintiff, James S. Buck, appeals from an order granting

summary judgment in favor of defendants Billings Montana Chevrolet,

Frontier Chevrolet, F.S. Enterprises, Inc., Frank Stinson and

Dennis Menholt. The District Court of the Thirteenth Judicial

District, Yellowstone County, held that the reasons asserted by

defendants for Buck's discharge constituted a legitimate business

reason under the Wrongful Discharge from Employment Act, Sections

39-2-701 et seq., MCA. It therefore granted summary judgment and

dismissed Buck's lawsuit. We affirm in part and reverse in part.

The issues presented for our review are:

1. Whether a new owner (controlling shareholder and new

officers) of a business may properly terminate a long term employee

who was general manager of the business before the control of the

new business was sold to the new owner;

2. Whether the District Court properly granted summary

judgment on the issue of fraud;

3. Whether an issue of fact exists as to the employee's

discharge violating written personnel policies of Billings Montana

Chevrolet;

4. Whether The District Court properly dismissed Frontier

Chevrolet, F.S. Enterprises, Frank Stinson and Dennis Menholt from

the lawsuit.

James Buck (Buck) was an employee, since 1973, of a

corporation which was named Frontier Chevrolet Company (Frontier

Chevrolet) and is now named Billings Montana Chevrolet, Inc., in

Billings, Montana. The controlling shareholder of Frontier

Chevrolet was Andy Anderson, who was Buck's father-in-law and

president of the company. By all accounts, Buck was a competent,

faithful employee who had risen through the ranks to become deneral

manager of the business. I

His expertise was recognized thro,ughout

the automobile industry. Mr. Buck was elected President of the

Billings Automobile Dealers Association, the only non-dealer to

~

ever hold the position and was preapproved by General Motors to be

a dealer. Apparently, Mr. Buck had dreams of purchasing the

dealership, but he did not have sufficient resources.

Frank Stinson is a controlling shareholder of FS Enterprises,

Inc., which owns and controls a number of automobile dealerships.

In 1986 he began looking for another automobile dealership on

behalf of F.S. Enterprises, and, as a result became interested in

purchasing the Frontier Chevrolet Company. Apparently, Mr. Stinson

through F.S. Enterprises had a tradition of buying dealerships and

having his long term loyal employees placed in a position of

management at the newly purchased business. These employees would

eventually purchase the dealership from F.S. Enterprises. This

arrangement was a method utilized by Stinson, through his

companies, to reward his faithful employees.

After several months of negotiations, a contract for the

purchase of the stock of Frontier Chevrolet was agreed to. During

these negotiations Andy Anderson died. However, Mr. Buck and his

wife continued to negotiate the purchase. The final contract

required the officers and directors of Frontier Chevrolet to

resign. The contract did not, however, require any employee to

resign. Although Mr. Buck was the general manager of the

dealership, he was not an officer or director.

Sale of the stock of Frontier Chevrolet was completed on

August 7, 1987. Consistent with Frank Stinson's and F.S.

Enterprise's policy of management, Frontier Chevrolet, acting

through its new officers, filled the position of executive manager

of the dealership with one of Stinson's long-term employees, Dennis

Menholt. The next day, Mr. Buck showed up for work and was told

that he was no longer general manager because Menholt would be

running the business, and it would not work out with both of them

there. After some negotiations, he was offered the position of

Fleet and Lease Manager, which he refused.

Mr. Buck's employment with his father-in-law's company was

without a contract or specified term.

I

Following F.S. Enterprises' purchase of the stock of Frontier

Chevrolet, and the change of officers, Jim Buck was terminated.

The defendants maintain that Buck was terminated in compliance with

a long standing policy of F.S. Enterprises and Frank Stinson, which

placed long term employees in charge of the new dealership. The

defendants also maintain that this arrangement would save money,

because the two positions formerly held by Buck and his father-

in-law, were consolidated into one position held by Dennis Menholt.

Buck has not brought forth any facts to contest these reasons.

He does, however, maintain that the first reason, which was the

primary justification for his discharge, is not adequate under

Montana's Wrongful Discharge from Employment Act. See 8 8 39-2-

701, MCA, et seq. According to pertinent parts of the Wrongful

Discharge Act, a discharge is only wrongful if the discharge was

not for good cause and the employee had completed the employer's

probationary period of employment. See § 39-2-904(2), MCA.

Buck was not a probationary employee. Therefore, in order to

establish a claim for wrongful discharge under 8 39-2-904(2), MCA,

he must prove that his termination was not for good cause. Good

cause is defined as:

... reasonable job related grounds for dismissal based

on a failure to satisfactorily perform job duties,

disruption of the employer's operation or other

legitimate business reason. Section 39-2-903(5).

All parties agree that there was no failure on Buck's part to

satisfactorily perform his job duties. Nor is there any allegation

that he disrupted the employer's operation. Instead the defendants

maintain that his dismissal was justified by "reasonable job

related grounds . . . based upon [a] legitimate business reason.''

We must therefore determine whether under these uncontested facts

F.S. Enterprise's policy (which became Frontier Chevrolet's policy)

to replace Buck with its own man constituted a legitimate business

reason under the Act.

A review of the legislative history of the Wrongful Discharge

from Employment Act is of little assistance. Initially good cause

was defined as a legitimate business reason. However, further

changes eliminated this term and defined good cause as:

reasonable job related grounds for dismissal based upon

5

a failure to satisfactorily perform job duties or

disruption of employment operations.

This wording appears to have been set forth to include some

specificity to misconduct charges for the protection of the

employee. However, this limited language had a major omission

because there was no allowance for discharge based upon legitimate

economic reasons such as lack of work or elimination of the job.

To remedy this situation, the term legitimate business reason was

added to the definition. It was thought that this term was broad

enough to cover all of the various kinds of termination of

employment. The term would advance the employee's interest in job

security by requiring the employer in fact have a legitimate reason

for discharge. At the same time, the employer's interest in

management discretion would be protected by allowing businesses to

make employment decisions for business reasons.

Perhaps because this term was added in an effort to broaden

the definition of good cause, the legislature has not provided any

concrete guidance to aid the judiciary in interpreting its meaning.

We have, therefore, thoroughly reviewed prior case law from this

jurisdiction, our sister jurisdictions, arbitration cases from the

National Labor Relations Board, and law from foreign jurisdictions

in an effort to arrive at a precise meaning of the term Illegitimate

business reason." This review has been of little assistance. All

attempts to more specifically define this term or like terms have

resulted in definitions that are as general as the term itself.

We are therefore forced to fill in the gap left by the legislature

and to define and apply the term in an equitable fashion that most

6

nearly effectuates the intent of the legislature.

A legitimate business reason is a reason that is neither

false, whimsical, arbitrary or capricious, and it must have some

logical relationship to the needs of the business. In applying

this definition, one must take into account the right of an

employer to exercise discretion over who it will employ and keep

in employment. Of equal importance to this right, however, is the

legitimate interests of the employee to secure employment.

We apply this definition to the issue presented by this case.

As stated earlier, Jim Buck was an exemplary employee who worked

in his father-in-law's business for almost fifteen years. During

that period of time he rose through the ranks to become general

manager of the dealership. While holding this position, Buck was

responsible for managing the business in his father-in-law's

absence.

In 1987, the business was sold to F.S. Enterprises. Frank

Stinson, controlling shareholder, had a long term policy which was

executed by F.S. Enterprises, of buying dealerships and placing

long term faithful employees in the position of manager. The

employee would then be given the chance to buy the business.

According to deposition testimony, Stinson preferred this

arrangement because he found the dealerships were run most

efficiently and competently when the manager had a vested financial

interest. In accordance with this system, Dennis Menholt was

placed in charge of Billings Montana Chevrolet.

In the past, we have noted that it is inappropriate for courts

to become involved in the day-to-day employment decisions of

business. See e.g. Hobbs v. Pacific Hide and Fur (1989), 236 Mont.

503, 771 P.2d 125. In cases such as this one, it is particularly

important that this philosophy is followed. F.S. Enterprises made

a large investment when it purchased the dealership from Buck's

father-in-law. Because he lived in Louisiana, Stinson, through

F.S. Enterprises and ultimately through the Frontier Chevrolet

Company, desired to place a long term employee, in whom he held

great trust, to manage that investment. As a matter of his policy,

and the corporate policy of the company he controlled, such an

arrangement was preferred because it allowed the placement of a

person who conceivably held the same business values and

philosophies as himself, in charge of the newly acquired business.

It also gave him an opportunity to reward long term employees.

It would be against common sense and rationality for this

Court to hold that such reasons or grounds do not constitute a

legitimate business reason and are not related to the job involved.

The net result of such a holding would be to force a new owner of

a business to retain someone who it did not know or perhaps even

trust to manage a large dollar investment.

In this case, Buck has not argued these reasons for replacing

him were false. Instead, he has steadfastly maintained that these

motivations were not justified by the Wrongful Discharge from

Employment Act. Because Buck has not come forward with any

evidence showing bad faith or falsehood, we hold summary judgment

was properly awarded.

We caution, however, that this holding is confined only to

those employees who occupy sensitive managerial or confidential

positions. An owner under these circumstances may not hold the

right to terminate employees who hold duties which do not require

the exercise of broad discretion. A company's interest in

protecting its investment and in running its business as it sees

fit is not as strong when applied to lower echelon employees, and

may therefore be outweighed by their interest in continued, secure

employment. See e.g. Pugh v. See's Candies Inc. (1981), 171

Cal.Rptr. 917, 928. Under the uncontested material facts of this

case, the company's decision to replace Jim Buck with Dennis

Menholt as executive manager of ~rontierChevrolet Company was for

legitimate business reasons. The decision was not false,

whimsical, arbitrary nor capricious and it had a logical

relationship to the needs of the business.

I1

Buck maintains in a conclusory fashion that the defendants

engaged in actual fraud at the time of his discharge by justifying

it with false reasons. He argues that he was initially told he was

terminated for economic reasons, because his former job of general

manager was eliminated. He further argues that later another

reason was given when the defendants stated Buck was discharged in

order to make room for Dennis Menholt. He argues the original

reasons were false and therefore constituted fraud. According to

his argument, this "fraud1'entitles him to recover punitive damages

under 5 39-2-905(2), MCA.

This section states:

The employee may recover punitive damages otherwise

allowed by law if it is established by clear and

convincing evidence that the employer engaged in actual

fraud or actual malice in the discharge of the employee

in violation of 39-2-904(1).

Section 39-2-904(1) states:

A discharge is wrongful only if . . . it was in violation

for the employee's refusal to violate public policy or

for reporting a violation of public policy.

Through a constrained interpretation of these provisions, Buck

argues that they should be read together to allow him to proceed

to the jury on the issue of punitive damages. Buck maintains that

the alleged false reasons given for his discharge constituted a

violation of public policy and are therefore actionable under 5 39-

2-905(2), MCA. We disagree.

Even if everything he says is true, this section does not

provide Buck with a legitimate claim. The clear language of these

provisions states that punitive damages are only allowed if an

employer engages in actual fraud or actual malice in discharging

an employee who reports or refuses to engage in violations of

public policy. There is no evidence Buck reported or refused

violate public policy and he is therefore precluded from obtaining

punitive damages under the Act. Summary judgment on this issue is

affirmed.

Section 39-2-904 (3) , MCA, states that a discharge is wrongful

if 'Ithe employer violated the express provisions of its own written

personnel policy." Buck maintains that his employment was governed

by provisions of a written company employment manual which assured

his continued employment if his job performance and economic

circumstances remained satisfactory. Because neither of these

conditions were present at the time of his discharge, Buck

maintains the employment policies were violated and that he has a

valid cause of action under § 39-2-904(3), MCA.

Defendants Billings Montana Chevrolet, Frank Stinson and

Dennis Menholt, argue this issue was not presented at the District

Court level and therefore should not be heard on appeal. Wyman v.

DuBray Land Realty (1988), 231 Mont. 294, 752 P.2d 196. However,

after reviewing the record, we note the issue was raised in

prejudgment motions and orders. We therefore hold there is

sufficient reference to this argument at the District Court level

to allow this Court to review its merits.

The employee handbook contained numerous references to a

policy on the part of the dealership to provide job security. In

particular, one section stated:

Our dealership is still growing. You are thus assured

of steady employment as long as you are producing for

us. We expect each of our employees to be maximum

producers, always doing their part in accomplishing our

business objectives.

Buck maintains that because there is no evidence he failed to

produce for the dealership and because it was not in financial

trouble, he was dismissed in violation of the terms of the employee

handbook. We note, however, that Dennis Menholt offered Buck a

position of fleet manager after the dealership changed hands.

Buck maintains that he did not accept this position because

he did not think it was a genuine offer and would actually result

in a later dismissal. He felt Menholt offered him this position

in an effort to appease him so that a lawsuit could be avoided.

If these facts are true, it is possible Buck may have a cause of

action under !j 39-2-904(3), MCA.

The issue was not specifically addressed in the order granting

summary judgment . However, because the case was completely

dismissed, we reverse the grant of summary judgment as it applied

to this issue and remand for further proceedings to determine the

effect of language of the handbook and then whether the offer was

made in good faith.

IV

In order to fully understand the final issue of this appeal,

it is necessary to fully comprehend the relationships between the

different defendants. The original corporation which was owned by

Buck's father-in-law was named Frontier Chevrolet Company

(Frontier-Delaware). It was a Delaware corporation and its stock

was sold to F.S. Enterprises, which is controlled and operated by

Frank Stinson, on August 7, 1987. On August 8, 1987, Frontier-

Delaware terminated James Buck.

In December of 1987, Frontier-Delaware changed its name to

Billings Montana Chevrolet, Inc., a Delaware corporation. Later

in this same month, the duties and assets of Billings Montana

Chevrolet were split between itself and a new corporation

(Frontier-Montana). Frontier-Montana performed the operating

functions of the dealership. Billings Montana Chevrolet, on the

other hand, retained the majority of all inventory, property and

assets. It is also the principal shareholder of Frontier-Montana.

This corporate scheme developed so that Dennis Menholt could

become an approved dealer under GM guidelines. Apparently, before

one can become a dealer, one must retain a certain percentage of

ownership in the dealership. By splitting the assets of Billings

Montana Chevrolet, Dennis Menholt was able to afford the costs of

purchasing the required interest in the operating dealership.

The District Court dismissed Frontier-Montana, Frank Stinson

and Dennis Menholt from the lawsuit by order of summary judgment

on February 6, 1990. F.S. Enterprises had previously been

dismissed through stipulation of the parties. On March 1, 1990,

Billings Montana Chevrolet (formerly Frontier-Delaware) was granted

summary judgment on the grounds that Buck's dismissal was justified

by a legitimate business reason. Buck has contested the dismissal

of Frank Stinson, Dennis Menholt, Frontier-Montana and F.S.

Enterprises, Inc. on appeal. In this portion of the opinion we

address the propriety of the dismissal by the District Court of

these four defendants.

Buck maintains that the District Court improperly dismissed

Frontier-Montana. He argues that Frontier-Montana is a mere

successor corporation to Billings Montana Chevrolet, and as such

is liable for any obligations owed by Billings Montana Chevrolet,

which arose before the split of assets. A successor corporation

can be liable for the debts of its predecessor, if it is merely a

continuation or reincarnation of the first corporation. 19

Am.Jur.2d Corporations 3 2711. Generally, however, before a

corporation can be deemed a successor, certain showings must be

made. For example, it is generally required that the plaintiff

establish that insufficient consideration ran from the new company

to the old and that only one corporation existed at the completion

of the transfer. 19 Am.Jur.2d Corporations 3 2711.

The facts here do not support the conclusion that Frontier

Montana is a successor corporation to Billings Montana Chevrolet.

According to the record Billings Montana Chevrolet sold some assets

to Frontier-Montana. However, Billings Montana Chevrolet has

actively remained in business and holds equipment and real property

received from the sale of Frontier-Delaware. There is no evidence

that there was fraud in the sale of the corporate assets from

Billings Montana Chevrolet to Frontier Montana or lack of

consideration that would justify a finding that it was a successor

corporation. The District Court properly dismissed Frontier

Montana from the lawsuit.

Buck next argues that it was inconsistent for the lower court

to dismiss Stinson and Menholt from the lawsuit and at the same

time take their interests into consideration in determining that

he was dismissed for a legitimate business reason. This argument

suffers from several inherent weaknesses. First, a corporation,

in and of itself, being an inanimate object, is incapable of

formulating its own interests and policies. Rather its interests

are formulated by the officers, directors and employees who carry

out corporate business. With limited exceptions, these persons are

generally immune from lawsuits arising out of corporate affairs.

Second, the Wrongful Discharge from Employment Act provides

the exclusive remedy for wrongful termination. Meech v. Hillhaven

West, Inc. (1989), 238 Mont 21, 776 P.2d 488. All remedies

provided by the Act run against the employer. The Act does not

envision lawsuits against corporate employees, officers or

shareholders. In this case there is no question that Buck's

employer was Billings Montana Chevrolet. It was not the employees

or shareholders of that corporation. Therefore, as mere

shareholders or officers of Billings Montana Chevrolet, Stinson and

Menholt were properly dismissed from the lawsuit.

Despite the fact that he agreed to dismissal in the record at

the District Court level, Buck now attempts to argue that F.S.

Enterprises was improperly dismissed. His argument on this issue

closely parallels that set forth above relative to Stinson and

Menholt . However, we need not consider the merits of this

contention because Buck's appeal of this issue is barred by his

acquiescence to the dismissal of F.S. Enterprises in the District

Court.

Counsel for F.S. Enterprises, however, has moved this Court

to award sanctions against Buck to reimburse it for costs and

attorney fees associated with the appeal. Given the fact that in

the record Buck previously conceded the propriety of the dismissal

which was then granted by the District Court, we hold that the

motion is well taken. Upon remand the District Court shall

determine the costs and attorney fees associated with this appeal

and award F.S. Enterprises appropriate reimbursement. See e.g.

Rookhuizen v. Blains Mobile Home Court (1989), 236 Mont. 7, 767

P.2d 1331.

Conclusion

This case is reversed and remanded for further proceedings in

accordance with this opinion concerning the issue of Buck's

dismissal in contravention of the written personnel manual of

Billings Montana Chevrolet. Summary judgment dismissing Frontier

Chevrolet Company, a Montana Corporation, Frank Stinson and Dennis

Menholt is affirmed. The appeal of F.S. Enterprises' dismissal is

dismissed and upon remand appropriate attorney fees and costs shall

be assessed against Buck and his attorneys.

/

Justices

Honorable Diane G. Barz did not participate in this decision.

Justice Terry N. Trieweiler concurs in part and dissents in

part.

I concur with those parts of the majority opinion which affirm

summary judgment for the defendants on the issue of fraud; affirm

the dismissal of defendants, other than Billings Montana Chevrolet,

Inc.; and remand this case to the District Court for further

consideration of plaintiff's claim that he was discharged in

violation of the employer's written personnel policies.

I dissent from that part of the majority opinion which holds

that as a matter of law plaintiff's employer has Itreasonable job

related grounds for dismissal based upon .. . legitimate business

reasons.

The constitutionality of the Wrongful Discharge From

Employment Act was challenged in this Court in Meech v. Hillhaven

West, Inc., 238 Mont. 21, 776 P.2d 488 (1989). In that case, an

employee contended that the Act violated the Equal Protection

Clauses of the Montana and Federal Constitutions by discriminating

against a class of claimants without a rational basis, and that the

Act violated prior case law by abrogating causes of action without

providing a reasonable substitute.

In upholding the constitutionality of the Act, and in finding

that adequate substitutes were provided for those rights that were

lost, this Court concluded that even though damages were limited

by the Act, greater job security was provided to employees by the

ltgood cause1' requirement that now exists under the Act for

17

termination of an employee. In balancing the rights of employers

and employees to determine whether there was a rational basis for

the Act, this Court concluded that the "good cause" protection of

the Act was a significant factor. We stated:

Under the Act, employers benefit because their potential

liability is made more certain. Meanwhile, employees1

control over the manner in which they are discharged

remains, in part, as a result of the Act's I1good

employees' causeI1 requirement. The Act, in making this

trade, is in no sense irrational. Therefore,

classifications in the Act satisfy the requirements of

the rational basis test.

Meech, 776 P . 2 d at 505.

With its decision in this case, the majority now begins the

erosion of that same I1goodcausef1

requirement which was previously

found to be the quid pro quo for rights which have been taken away

from employees under the Act.

Good cause, as it pertains to this case, is defined in 5 39-

2-903 (5), MCA, as ll. . . reasonable job-related grounds for

dismissal based on . . . legitimate business reason. It is

l1 not

sufficient that a termination of employment be for a "legitimate

business reasont1unless that reason is reasonably related to the

job that the employee performs.

If Illegitimate business reasonf1 and of itself is sufficient

by

to establish good cause, then the good cause requirement in the

Wrongful Termination Act has been rendered meaningless and

employees in the State of Montana receive nothing in return for the

rights they gave up under the Wrongful Discharge From Employment

Act, 5 39-2-901, & seq., MCA.

The majority discusses the business interests of Frank Stinson

at length, but fails to establish that the plaintiff's replacement

as general manager of Billings Montana Chevrolet, Inc., was in any

way job related.

The plaintiff was hired by the Billings auto dealership in

1973 as a salesman. He advanced through the ranks of employment

and eventually served as the new truck manager, the new car sales

manager, and general manager. He was general manager for nine

years prior to his discharge. During that time the dealership

operated successfully and profitably.

As pointed out by the majority, he was the only nondealer ever

elected president of the Billings Automobile Dealers Association.

He frequently ran the dealership during the absence of its owner.

There was no evidence in this record to indicate that

plaintiff's replacement as general manager of the auto dealership

was in any way related to his performance of that job.

Furthermore, there was no indication in this record that it

was the employer's "legitimate business reasonn for which the

plaintiff was terminated. Plaintiff's employer was Billings

Montana Chevrolet, Inc. It apparently operated successfully under

plaintiff's management.

James Buck was terminated because of the business interests

of Frank Stinson.

19

Mr. Stinson and his corporation, F.S. Enterprises, Inc., owned

and operated a number of auto dealerships around the country. The

person with whom he replaced the plaintiff was a successful sales

manager of one of his other dealerships in South Dakota, and

consistent with his business practice in those other dealerships,

he promised that person an opportunity to take over operation and

eventually acquire ownership of the next dealership he purchased.

The decision by Stinson to make Dennis Menholt the general manager

of his next dealership was made before he ever looked at Frontier

Chevrolet, and before he ever met James S. Buck. It was made prior

to the time that he and the corporation that he owned purchased the

shares of the Billings dealership. Therefore, it had nothing to

do with legitimate business reasons of the company which employed

the plaintiff.

It is logically inconsistent to dismiss Frank Stinson and the

corporation which purchased the shares of Billings Montana

Chevrolet, Inc., because they were not technically the plaintiff's

employer, but then to consider Frank Stinson's business interests

as justification for termination of the plaintiff.

Under the undisputed facts, and based on the laws set forth

in the Act, a strong argument could be made that plaintiff was

entitled to summary judgment because the undisputed facts

established that plaintiff was not terminated by Stinson for any

job related reason, or for any legitimate business reason of the

company for which he worked. However, the plaintiff was at least

20

entitled to a jury trial to determine whether under these facts,

and according to the statutory definition of "good cause1Iplaintiff

was properly terminated.

The majority opinion proceeds from the premise that the role

of courts is to protect people from juries. I believe, on the

contrary, that juries exist, and are provided for in both the

federal and state constitutions, to protect people from a r b i t r a r y

decisions of courts.

For that reason, I would remand this case to the District

Court for a jury trial to determine whether plaintiff was

terminated from his employment for "good causeI1 and I dissent from

the majority opinion which grants summary judgment to the defendant

on that issue.

I concur in the foregoing concurrence and dissent of Justice

Trieweiler.