                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2007

Zarrilli v. John Hancock Life
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1642




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"Zarrilli v. John Hancock Life" (2007). 2007 Decisions. Paper 1365.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1365


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-1642


                JAMES ZARRILLI; CAROL ZARRILLI, Individuals

                                           v.

                 JOHN HANCOCK LIFE INSURANCE COMPANY

                                        James Zarrilli; Carol Zarrilli,
                                                  Appellants


                   On Appeal From the United States District Court
                            For the District of New Jersey
                           (D.N.J. Civ. No. 04-cv-03173)
                    District Judge: Honorable William H. Walls


                     Submitted Under Third Circuit LAR 34.1(a)
                                November 15, 2006

                   Before: Barry, Chagares and Roth, Circuit Judges

                                 (Filed: April 3, 2007)


                                       OPINION




PER CURIAM

      James and Carol Zarrilli appeal pro se from the District Court’s entry of summary

judgment in favor of John Hancock Life Insurance Company (“John Hancock”) on claims
potentially arising from John Hancock’s termination of Mr. Zarrilli’s employment. For

the reasons that follow, we will affirm.

                                             I.

       Mr. Zarrilli worked for John Hancock as a marketing representative (apparently

without an employment contract) until the company terminated him in September 2001.

The circumstances surrounding his termination are as follows. In 1995, Mr. Zarrilli

invested money belonging to his mentally-handicapped uncle, Robert Frungillo, in John

Hancock investment accounts. In 1995 and 1996, the Zarrillis borrowed approximately

$200,000 from Mr. Frungillo by withdrawing funds directly from those and other

accounts.1 In 1998, Mr. Frungillo sued John Hancock and the Zarrillis, alleging that they

had converted the withdrawn funds. Mr. Zarrilli was on medical leave at that time.

When he returned in August 1999, John Hancock immediately suspended him with pay

pending its investigation of the matter. Two months later, John Hancock reinstated Mr.

Zarrilli, but placed him on probation pending its investigation and notified him that he

might be subject to further discipline, including termination.

       In 2001, John Hancock encouraged the Zarrillis to settle the Frungillo lawsuit,

telling them that “we should all be anxious to get back to our ‘normal’ lives.” The

Zarrillis settled the suit on June 6, 2001. On June 19, 2001, a John Hancock subsidiary




   1
      The parties dispute whether the Zarrillis borrowed or stole this money, but we will
assume that Mr. Frungillo agreed to lend the Zarrillis the money as they allege.

                                             2
terminated Mr. Zarrilli’s registration with the National Association of Securities Dealers,

citing, among other things, a company policy against accepting loans from clients. John

Hancock terminated his employment three months later. If he had remained employed by

John Hancock for twenty months longer, his pension (then valued at $127,000) would

have become “grandfathered” and would rapidly have begun to increase in value.

         Mr. Zarrilli’s work voice mail message remained active until December 2002, and

his name remained on John Hancock correspondence until sometime thereafter. John

Hancock notified Mr. Zarrilli’s former clients of his termination in October 2003 by

sending them a letter that included the statement “[i]f James Zarrilli contacts you and

states that he can still be your John Hancock service representative, he is wrong and we

would appreciate knowing of such contact.”

         In February 2004, the Zarrillis filed their complaint in New Jersey state court, and

John Hancock later removed it to federal court. On January 26, 2006, the District Court

granted John Hancock’s motion for summary judgment. The Zarrillis appeal from that

order.

                                               II.

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

District Court’s entry of summary judgment is plenary. See Turner v. Schering-Plough

Corp., 901 F.2d 335, 340 (3d Cir. 1990). Summary judgment may be granted only if there

are no genuine issues of material fact and if, viewing the facts in the light most favorable



                                               3
to the non-moving party, the moving party is entitled to judgment as a matter of law. See

id.; Fed. R. Civ. P. 56(c). We agree with the District Court’s reasons for granting John

Hancock’s motion for summary judgment, and will only summarize them here.

       The District Court liberally (and properly) construed the Zarrillis’ complaint to

assert three claims. Their first claim is based on the termination of Mr. Zarrilli’s at-will

employment. The Zarrillis assert two theories in support of this claim. First, they allege

that the termination was motivated by John Hancock’s desire to prevent Mr. Zarrilli from

reaping increased pension benefits. That claim is governed by § 510 of the Employee

Retirement Income Service Act of 1974 (“ERISA”), 29 U.S.C. § 1140, and requires the

Zarrillis to establish, among other things, a “specific intent on the part of the employer to

interfere with the attainment” of increased benefits. Hendricks v. Edgewater Steel Co.,

898 F.2d 385, 389 (3d Cir. 1990). The only evidence that the Zarrillis produced in

support of this claim, however, was the fact that John Hancock terminated Mr. Zarrilli

eighteen months before his pension would have begun to increase in value. That

evidence is not sufficient to survive a motion for summary judgment. See id. at 389-90

(holding that termination eleven months before vesting of pension benefits was

insufficient to show specific intent); Turner, 901 F.2d at 347-48 (affirming summary

judgment for employer where termination deprived employee of opportunity to accrue

additional pension benefits because employee produced no evidence “suggesting that

pension interference might have been a motivating factor”).



                                              4
       Second, the Zarrillis assert that John Hancock was obligated to retain Mr. Zarrilli

on a promissory estoppel theory because it had promised him continued employment.2

Under New Jersey law,3 “the sine qua non” of a promissory estoppel claim is a “clear and

definite promise.” Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat’l

Bank, 395 A.2d 222, 230 (N.J. Super. Ct. App. Div. 1978). We agree with the District

Court that the only potentially qualifying statement – John Hancock’s statement that the

Zarrillis should settle the Frungillo litigation because “we should all be anxious to get

back to our ‘normal’ lives” – does not constitute a “clear and definite promise” of future

employment, particularly in light of Mr. Zarrilli’s probationary status.

       The Zarrillis’ second claim is that John Hancock defamed Mr. Zarrilli in its letter

to his former clients by informing them that “[i]f James Zarrilli contacts you and states

that he can still be your John Hancock service representative, he is wrong and we would

appreciate knowing of such contact.” We agree with the District Court that this

statement, read in the context of the letter as a whole, is not susceptible of a defamatory

meaning. See Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186, 189 (3d Cir.

1998) (setting forth New Jersey’s definition of defamation and explaining that whether a

   2
       Neither the parties nor the District Court discussed whether this claim might be
preempted by ERISA. See Sembos v. Philips Components, 376 F.3d 696, 703-04 (7th
Cir. 2004) (surveying authority regarding ERISA preemption of various contract and
promissory estoppel claims). Because this claim fails under state law, “we need not delve
into the intricacies of ERISA preemption in this case.” Id. at 704.
   3
        The parties assume, as did the District Court, that New Jersey law applies to the
Zarrillis’ state-law claims. We see no reason in the record to question that assumption.

                                              5
statement is susceptible of a defamatory meaning is a question of law).

        Finally, the Zarrillis claim that John Hancock improperly kept Mr. Zarrilli’s voice

mail message active and included his name on correspondence after he had been

terminated. The District Court construed this claim as one of misappropriation of Mr.

Zarrilli’s name for John Hancock’s benefit, and concluded that it fails as a matter of law

because the Zarrillis presented no evidence that John Hancock acted with a commercial

purpose or sought some other benefit from what it claimed had been a mistake. See

Bisbee v. John C. Conover Agency, 452 A.2d 689, 692-93 (N.J. Super. Ct. App. Div.

1982). Having reviewed the record, we agree with the District Court in this respect as

well.

                                             III.

        Accordingly, we will affirm the District Court’s entry of summary judgment in

favor of John Hancock.
