                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2005

Murphy v. Bancroft Constr Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2929




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                                                                       NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT


                                         No. 04-2929


                                  THOMAS A. MURPHY,

                                                           Appellant
                                              v.

                        BANCROFT CONSTRUCTION COMPANY




                       On Appeal from the United States District Court
                                 for the District of Delaware
                            (D.C. Civil Action No. 02-cv-00453)
                         District Judge: Honorable Sue L. Robinson


                         Submitted Under Third Circuit LAR 34.1(a)
                                      April 4, 2005

                   Before: BARRY, AMBRO and COWEN, Circuit Judges

                                     (Filed May 5, 2005)


                                         OPINION


AMBRO, Circuit Judge

          Plaintiff Thomas Murphy appeals the District Court’s judgment in favor of

defendant Bancroft Construction Company (“Bancroft”). For the reasons that follow, we

affirm.
I.     Jurisdiction and Standard of Review

       The District Court had jurisdiction over this action under 28 U.S.C. §§ 1331, 1332

and 1367. We have appellate jurisdiction under 28 U.S.C. § 1291.

        Because this appeal implicates three orders entered at different stages in the

proceedings, it involves three standards of review. First, the District Court granted

Bancroft’s motion for judgment as to Murphy’s claim under the Racketeer Influenced and

Corrupt Organization Act (“RICO”), 18 U.S.C. § 1962 et seq. Our Court’s review of a

motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is

plenary. Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002). Like the District Court, we

“view the facts alleged in the pleadings and the inferences to be drawn from those facts in

the light most favorable to the plaintiff,” and the motion should not be granted “unless the

moving party has established that there is no material issue of fact to resolve, and that it is

entitled to judgment in its favor as a matter of law.” Id.

       Second, the District Court entered summary judgment against Murphy on his

claims under Delaware law. We “exercise plenary review over a district court’s grant of

summary judgment and apply the same standard as the district court, i.e., whether there

are any genuine issues of material fact such that a reasonable jury could return a verdict

for the plaintiff.” Debiec v. Cabot Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003).

       Third, in a motion for reconsideration, Murphy sought to assert an age

discrimination claim. Plenary review also extends to any legal conclusion underlying the



                                               2
District Court’s decision to deny a motion for reconsideration, though the decision on the

motion lies within the sound discretion of the Court. See Le v. Univ. of Pa., 321 F.3d

403, 405-06 (3d Cir. 2003).

II.    Analysis

       Because we write solely for the parties, we do not recite the facts underlying

Murphy’s claims or the case’s procedural history. He has raised four issues on appeal,

and we address each in turn.

                                              A.

       Murphy alleges that he was discharged by his employer because of his efforts to

divulge Bancroft’s wrongful actions, including, inter alia, Bancroft’s alleged overcharges

and fraudulent billing practices in connection with a construction project for the Capital

School District (“District”). Although under the employment at-will doctrine an at-will

employee like Murphy may be dismissed at any time without cause, Delaware courts

recognize an implied covenant of good faith and fair dealing as tempering this general

doctrinal rule. See Lord v. Souder, 748 A.2d 393, 401 (Del. 2000). Murphy argues that

his discharge was in retaliation for his “whistleblowing” actions, rendering his discharge

a violation of public policy, and thus neither in good faith nor fair.

       Much of Murphy’s argument is aimed at establishing that Bancroft was involved in

illegal activities. These arguments are unpersuasive because, among other reasons, they

are not supported by the results of audits—initiated after Murphy’s discharge—by the



                                               3
Office of Auditor of Accounts for the State of Delaware and the Delaware Department of

Justice. Further, Murphy’s complaints appear to have been aimed at Bancroft’s internal

business practices, which, absent illegality, generally fail to implicate the type of public

interest required for his claim to succeed. See E.I. Dupont de Nemours & Co. v.

Pressman, 679 A.2d 436, 442 (Del. 1996).

       Moreover, Murphy’s allegations with respect to his purported whistleblowing

activities are insufficient to establish that he was discharged because of those activities.

Murphy’s comments to one of the members of the District’s board did not specify

wrongdoing, but instead urged that a board member “keep asking questions.” Although

he may have made more specific allegations of wrongdoing to an attorney who

represented the District in contract negotiations with Bancroft, Murphy has not pointed to

any evidence that Bancroft was aware of his discussions with the attorney.

       In view of these factual deficiencies and the narrowness of the exceptions to the

employment at-will doctrine, the District Court did not err in entering summary judgment

against Murphy on his claim for breach of the implied covenant of good faith and fair

dealing. See Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 334 (3d Cir. 2003)

(explaining that Delaware courts have been reluctant to recognize a broad application of

the implied covenant of good faith and fair dealing out of concern that the covenant

“could swallow the doctrine of employment at will”); Lord, 748 A.2d at 401-03

(discussing exceptions to at-will employment doctrine as “narrow and discrete” and



                                              4
interpreting them to “prevent further erosion” of the doctrine).

                                             B.

       Murphy argues that two Bancroft employees made comments to the District’s

board that resulted in the District hiring another individual for a construction management

position. This, he alleges, is intentional interference with a prospective business

relationship. To prevail under Delaware law, Murphy must show: (1) the reasonable

probability of a business opportunity; (2) Bancroft’s intentional interference with that

opportunity; (3) proximate causation; and (4) damages. DeBonaventura v. Nationwide

Mut. Ins. Co., 428 A.2d 1151, 1153 (Del. Super. Ct. 1981).

       Looking to the first element, as the District Court explains, Murphy did not receive

an offer of employment from the District. Instead, he was involved in “informal

conversations” with the District’s superintendent and the president of the District’s school

board. Neither testified that assurances were given to Murphy that he would be hired,

which in any event could only have occurred after public announcement and a formal

application process. In addition, there is no indication in the record that the other

members of the District’s board were inclined to hire Murphy. Thus the District Court

did not err in concluding that Murphy could not have had a reasonable expectation of

employment; hence the first element was not satisfied. See Malpiede v. Townson, 780

A.2d 1075, 1099 (Del. 2001) (describing the first element of the tort of intentional

interference as involving a reasonable expectation of receiving a tangible benefit).



                                              5
                                             C.

       As the District Court explained in ruling on Bancroft’s motion for judgment on the

pleadings, Murphy’s complaint failed to indicate what section of RICO Bancroft

allegedly violated. The Court also explained that even if Murphy’s pleading deficiencies

with respect to the RICO allegations could be overcome in an amended complaint, his

claim would still require dismissal because it was based on non-cognizable injuries.

       In alleging damages, Murphy has taken the position that he was injured in his

capacity to work as a result of Bancroft’s actions. He argues he is not attempting to

recover for his emotional pain, but rather is seeking to recover his losses to his earning

capacity caused by his depression. Moreover, Murphy submits that at trial he would

attempt to connect his depression to Bancroft’s wrongful acts.

       RICO creates a civil cause of action for “any person injured in his business or

property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). “In ordinary

usage, ‘injury to business or property’ does not denote physical or emotional harm to a

person. Indeed, the Supreme Court has declared that Congress’s limitation of recovery to

business or property injury ‘retains restrictive significance. It would for example exclude

personal injuries suffered.’” Genty v. RTC, 937 F.2d 899, 918 (3d Cir. 1991) (emphasis

in original) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)). Murphy

attempts to evade this problem by asserting that many personal injuries are accompanied

by lost earning capacity. However, he cites no authority and concedes this suggested path



                                              6
is “somewhat novel.” Murphy’s argument hardly persuades, thus rendering his RICO

claim untenable and warranting judgment on the pleadings with respect to this claim.

                                              D.

       Murphy waited until after the District Court had granted Bancroft’s motion for

summary judgment on his state law claims (and well after the Court had granted the

motion for judgment on the pleadings as to the RICO claim) to seek to assert an age

discrimination claim, notwithstanding the fact that—as the Court indicated—he could

have sought to add the age discrimination claim to this action as early as August 2002.

Murphy argues that the District Court’s denial of his request for leave to amend (raised in

his motion for reconsideration) rested on an erroneous conclusion that he was precluded

from raising this claim.

       The doctrine of claim preclusion is central to a court’s objective of conclusive

resolution of disputes and seeks to avoid the expense and vexation of multiple lawsuits

while conserving judicial resources and fostering reliance on judicial action by

minimizing the possibility of inconsistent decisions. Equal Employment Opportunity

Comm’n v. U.S. Steel Corp., 921 F.2d 489, 492 (3d Cir. 1990) (quotation omitted). More

simply, its purpose is to avoid piecemeal litigation of claims arising from the same events.

Churchill v. Star Enters., 183 F.3d 184, 194 (3d Cir. 1999). Thus, where there is “no

escaping from the fact that [a plaintiff] has relied on different legal theories to seek

redress from the [same defendant] for a single course of wrongful conduct . . . [by]



                                               7
splitting a cause of action,” the doctrine of claim preclusion will prohibit the prosecution

of the second lawsuit. Id. at 195.

       The District Court properly applied that doctrine here. The assertions Murphy

sought to raise in an amended complaint involve the same facts and the same parties as

those in his initial complaint. Moreover, raising a new legal theory does not make the

second case different for purposes of claim preclusion. See Churchill, 183 F.3d at 195

(explaining that where new allegations are made, but the thrust of the two complaints

remains practically identical, claim preclusion applies); Bradley v. Pittsburgh Bd. of

Educ., 913 F.2d 1064, 1070 (3d Cir. 1990) (explaining that claim preclusion prohibits

reexamination not only of matters actually decided in a prior case, but also those that

parties might have, but did not, assert in that action). Murphy’s age discrimination claim

focused on an allegedly age-hostile comment that he first complained of in November

2001 in connection with his separation from his employer—the same separation that has

been the focus of the suit before us. Furthermore, Murphy’s initial complaint included

allegations that he was subjected to “age-disparaging” remarks and harassment.       In these

circumstances, the District Court hardly erred by applying the doctrine of claim

preclusion to deny Murphy’s request for leave to amend his complaint to add an age

discrimination claim.

                                      * * * * *

       Accordingly, we affirm the District Court’s judgment.



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