                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-2008

Breitigan v. State of DE
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2956




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 06-2956

                             RONALD W. BREITIGAN,

                                          Appellant
                                          v.

                 STATE OF DELAWARE; NEW CASTLE COUNTY
                 DIVISION OF POLICE; NEW CASTLE COUNTY,
                     New Castle County Employees' Retirement
                            System Board of Trustees

                     Appeal from the United States District Court
                             for the District of Delaware
                               (Civ. No. 02-cv-01333)
                       District Judge: Hon. Gregory M. Sleet

                      Before: McKEE and ROTH, Circuit Judges,
                            and PADOVA,* District Judge

                    Submitted pursuant Third Circuit LAR 34.1(a)
                                   May 13, 2008

                         (Opinion filed: September 24, 2008)

                                      OPINION

McKEE, Circuit Judge.

      Ronald W. Breitigan appeals a judgment entered in favor of New Castle County

after a jury found that his termination from the New County Castle Police Department

      *
       The Honorable John R. Padova, Senior District Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

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pursuant to the County’s mandatory retirement policy did not violate the Age

Discrimination in Employment Act (“ADEA”). For the reasons that follow, we will

affirm.

                                                 I.

          Inasmuch as we write primarily for the parties who are familiar with this case, we

need not reiterate the factual or procedural background. Rather, we need only consider

the two arguments Breitigan makes on appeal.

          Breitigan first argues that the County’s application of its mandatory retirement

policy to eliminate his job as a police officer violated the ADEA. Section 623(a) of the

ADEA provides, in relevant part, as follows:

          It shall be unlawful for an employer –

          (1) to fail or refuse to hire or to discharge any individual or otherwise
          discriminate against any individual with respect to his compensation, terms,
          conditions, or privileges of employment, because of such individual’s
          age[.]

29 U.S.C. § 623(a)(1). However, governmental employers may adopt and enforce a

mandatory retirement age for law enforcement officers and firefighters if certain

requirements in § 623(j) are met. Section 623(j)(2) provides:

          It shall not be unlawful for [a state or local government] to . . . discharge
          any individual [law enforcement officer or firefighter] because of such
          individual’s age if such action is taken . . . (2) pursuant to a bona fide
          hiring or retirement plan that is not a subterfuge to evade the purposes of
          this chapter.

          The ADEA does not define “bona fide.” However, the district court relied on

                                                 2
United Airlines, Inc. v. McMann, 434 U.S. 192 (1977) and Pub. Employees Ret. Sys. of

Ohio v. Betts, 492 U.S. 158 (1989), to hold that a retirement plan was “‘bona fide’ within

the meaning of the ADEA if it ‘exists and pays benefits.’” Breitigan v. New Castle

County, 350 F. Supp.2d 571, 576 (D. Del. 2004). Breitigan argued that the district court

should not narrowly define a bona fide plan simply as one that exists and pays benefits.

The district court agreed with Breitigan and, in its opinion addressing the summary

judgment motions, expanded its earlier definition and held that a retirement plan is bona

fide if it “(1) is untainted by bad faith, fraud, or deceit, and (2) exists and pays benefits.”

2005 WL 3544296 at *6.

       At trial, the parties proposed divergent instructions of “bad faith,” and “fraud” and

“deceit.” They eventually agreed on bad faith and deceit instructions, but were unable to

agree on a fraud instruction. Accordingly, the district court gave the following

instruction to the jury:

       Fraud is an intentional or deliberate misrepresentation of the truth for the
       purpose of inducing another, in reliance on it, to surrender a legal right.
       Fraud, then, is a deceit which, whether perpetuated by words, conduct, or
       silence, is designed to cause another to act upon it to his or her legal injury.

       A statement, claim or document is fraudulent if it was falsely made, or
       made with reckless indifference as to its truth or falsity, and made or
       caused to be made with an intent to deceive.

       Consequences are intended if a person either acts with the desire to cause
       them, or acts believing that they are substantially certain to result. Thus
       one who believes that another is substantially certain to be misled as a
       result of a misrepresentation intends to mislead, even though he or she may
       not desire to mislead.

                                               3
App. 145-146. The County objected before the charge was given because it disagreed

with the court’s explanation of “intended consequences.”      However, Breitigan’s counsel

did not object to the instruction.

       During deliberations, the jury sent a note to the district court, which reads as

follows:

       Regarding the definition of fraud, are we required to use the first sentence
       in the definition of fraud when reading and interpreting the other sentences
       relating to fraud or can each of the following sentences be used as “stand-
       alone” definitions of fraud?

App. 153. The district court instructed the jury that it had to read the sentences together

and that they all encompassed the definition of fraud. Thereafter, the jury continued

deliberations without any further questions. The jury returned a verdict in favor of the

County later the same day.

       Since Breitigan did not object to the charge, we review only for “plain error in the

instructions affecting substantial rights.” Franklin Prescriptions, Inc. v. New York Times

Co., 424 F.3d 336, 338 (3d Cir. 2005) (citing Fed.R.Civ.P. 52(d)(2)). Therefore, “we

will reverse the trial court only where a plain error was fundamental and highly

prejudicial, such that the instructions failed to provide the jury with adequate guidance

and our refusal to consider the issue would result in a miscarriage of justice.” Id.

(citation and internal quotations omitted).

       Breitigan makes three arguments in this portion of his appeal. First, he contends

that the district court erred in using Black’s Law Dictionary as the basis for its fraud

                                              4
instruction because Black’s “is not intended as a guide for lay persons to use in deciding

a verdict.” Breitigan’s Br. at 20. However, Breitigan mistates the record. The district

court’s fraud instruction was not based on the fraud definition in a legal dictionary.

Rather, it was based upon a combination of Federal Jury Practice and Instructions, 5th

Ed., § 16.08, and the Restatement (Second) of Contracts, § 162 cmt. a. (1979). Moreover,

we are not aware of any per se rule forbidding reliance on a legal dictionary. As long as

the resulting charge clearly and accurately informs the jurors of the applicable legal

principles, there is no error.

       Breitigan contends that the jury’s question reflects jury confusion because “the

first and second sentences of the instruction used different language to define fraud” and,

therefore, the “jury’s question reveals that the jury found some inconsistency between

those two sentences.” Breitigan’s Br. at 13. In Breitigan’s view, “[h]ad the Court

instructed the jury that each sentence could ‘stand alone’ as a definition, the verdict could

have been different.” Id. at 14. However, the sentences are not inconsistent. The district

court simply gave alternative definitions of fraud. The core meanings of each definition

are the same. Moreover, Breitigan’s argument that “the verdict could have been

different” is simply nothing more than conjecture. It does not establish error.

       In a variation of the same argument, Breitigan contends that the district court’s

instruction should not be a “dictionary definition of fraud” because the “dictionary

definition does not clearly set out the actual elements of the cause of action for fraud.”



                                              5
Breitigan’s Br. at 20. He argues that the district court’s fraud instruction should have

been based on the definition of common law fraud found in Stephenson v. Capano

Development, Inc., 462 A.2d 1069, 1074 (Del. 1983). However, this is puzzling because

Breitigan is not asserting a cause of action for fraud. He is asserting an ADEA claim,

and considerations of fraud were only relevant to determining the bona fides of the

County’s retirement plan. Moreover, the substance of the fraud instruction used contains

all of the general elements of the definition of common law fraud found in Stephenson,

and it was therefore tantamount to the definition that Breitigan urged the upon district

court.
                                              II.

         Section 26.04.106 of the County Code provides that full benefits under the

County’s retirement plan do not accrue until an officer has 20 years of service credit.

Breitigan claims in Count III of his second amended complaint, that this section of the

County Code was unconstitutionally vague. The district court explained why that

argument is meritless in its thorough and well-reasoned opinion granting the County’s

Rule 12(b)(6) motion as to Count III. 350 F. Supp. 2d at 580-81. We can add little to

the district court’s analysis and discussion. Accordingly, we will affirm the district

court’s dismissal of Count III substantially for the reasons set forth in that opinion.

                                             III.

         For the aforementioned reasons, we will affirm the order of the district court

entering judgment in favor of the County and against Breitigan.

                                               6
