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Popanz v. Peregrine Corp.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1998 ME 95
Docket: 	Cum-97-621
Argued:	April 8, 1998	
Decided:	April 30, 1998

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA,  LIPEZ,
		and SAUFLEY, JJ.

VICKIE L. POPANZ v. PEREGRINE CORPORATION
RUDMAN, J.

	[¶1]  Vickie L. Popanz appeals from a summary judgment entered in
the Superior Court (Cumberland County, Calkins, J.) in favor of Peregrine
Corporation.  Popanz contends, inter alia, that the court erred as a matter of
law by determining that her employment contract claim was barred by the
statute of frauds; and by granting a summary judgment given the existence of
material facts in dispute regarding the existence of an employment contract.
We disagree and affirm the judgment.
	[¶2]  Popanz began working for the Peregrine Corporation in 1991.{1} 
In 1993, the then executive director of Peregrine, Gail Mueller, decided to
step down and her position was offered to Popanz, then employed as
associate director.  Popanz claims that she declined this offer on reliance of
promises she asserts Mueller made to her that she would have her position
with Peregrine until she (Popanz) retired at age 65.{2}  In 1996, Peregrine
terminated Popanz's employment when it eliminated her position.
	[¶3]  Popanz rests her breach of contract claims on two bases:  (1) that
she was promised lifetime employment; and (2) that Peregrine's personnel
policy gave her as a senior employee the right to "bump" a less senior
employee if her position was eliminated.  After Peregrine took Popanz's
deposition, Peregrine moved for a summary judgment.  Its motion was
subsequently granted by the trial court.  This appeal ensued.
	[¶4]  A court properly enters a summary judgment pursuant to M.R.
Civ. P. 56(c).  If there is no genuine issue of any material fact, a party is
entitled to a judgment as a matter of law.  We review the entry of a summary
judgment for errors of law, viewing the evidence in the light most favorable
to the party against whom judgment was entered.  See Gayer v. Bath Iron
Works Corp., 687 A.2d 617, 620 (Me. 1996).  We undertake an independent
review of the motion pleadings to determine whether there is a genuine
issue of material fact and if the moving party is entitled to a judgment as a
matter of law.  See Taliento v. Portland West Neighborhood Planning
Council, 1997 ME 194, ¶ 7, 705 A.2d 696, 699.  In ruling on a motion for
summary judgment pursuant to M.R. Civ. P. 56(c), "the court is to consider
only the portions of the record referred to, and the material facts set forth,
in the Rule 7(d) statements."  Gerrity Co., Inc. v. Lake Arrowhead Corp., 609
A.2d 293, 295 (Me. 1992).
	[¶5]  Popanz claims that she and Peregrine had entered into two
distinct and enforceable employment agreements.  The first, based on the
oral promises she alleges were made to her by the executive directors at
Peregrine, is that she could retain her position as associate director until
she retired at the age of 65.  Enforcement of this oral promise is barred by
the statute of frauds.{3}  "[T]o enforce a multi-year employment contract an
employee must produce a writing that satisfies the statute of frauds or must
prove fraud on the part of the employer."  Stearns v. Emery-Waterhouse Co.,
596 A.2d 72, 75 (Me. 1991).  Standing alone, Peregrine's oral promise
creates no more "than a contract of employment for an indefinite period of
time . . . terminable at will by either party."  Rancourt v. Waterville
Osteopathic Hosp., 526 A.2d 1385, 1389 (Me. 1987).
	[¶6]   Popanz also argues that the court erred by determining as a
matter of law that she could not avoid the statute of frauds by resorting to a
promissory estoppel theory.   The legal theory of "promissory estoppel"
holds that "[a] promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee . . . and which does
induce such action or forbearance is binding if injustice can be avoided only
by enforcement of the promise."  Struck v. Hackett, 668 A.2d 411, 420 (Me.
1995) cert. denied 517 U.S. 1168 (1996) (citations omitted).  An employee
cannot avoid the statute of frauds "based solely upon his detrimental
reliance on an employer's oral promise of continued employment."  Stearns,
596 A.2d at 74 ("we decline [the] invitation to accept promissory estoppel
as permitting avoidance of the statute in employment contracts that require
longer than one year to perform").
	[¶7]  Popanz next argues that Peregrine's personnel policy manual
changed the employment relationship between Peregrine and Popanz from
one terminable at will to one terminable only by the express terms of the
manual.  She argues that the manual reflects an agreement between her and
Peregrine that she could "bump" employees junior to her if her position was
eliminated.  Popanz claims that whether the manual reflects such an
agreement is a contested issue of fact that should have precluded the
summary judgment.  The only evidence that Popanz offered in opposition to
the summary judgment on the issue of contractual seniority rights was an
excerpt from Peregrine's personnel policy manual and her testimony that
such seniority rights existed.  The excerpt reads: "Work performance being
equal, seniority within Peregrine Corporation shall be considered in
determining employees to be placed on layoff."{4}
	[¶8]  "A summary judgment is proper when the party that bears the
burden of proof of an essential element at trial has presented evidence that,
if it presented no more, would entitle the opposing party to a judgment as a
matter of law."  Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 506 (Me.
1996).  The language that Popanz cites as proof of contractual "bumping
rights" merely directs the employer to consider seniority.  Written language
within a personnel policy distributed to an employee that implies
restrictions on the employer's rights to terminate an employee's
employment is insufficient to bind the employer.  See Taliento, 1997 ME at
¶ 10, 705 A.2d at 699; see also McCullough v. Visiting Nurse Serv. of S.
Maine, Inc., 1997 ME 55, ¶ 7, 691 A.2d 1201, 1203 (court interprets
employment contracts terminable only pursuant to its expressed terms
"narrowly").
	The entry is:
					Judgment affirmed.
                     
Attorney for plaintiff: Cynthia A. Dill, Esq., (orally) 75 Pearl Street, Suite 214 Portland, ME 04101 Attorney for defendant: Philip J. Moss, Esq., (orally) Melinda J. Caterine, Esq. Moon, Moss, McGill, Hayes & Shapiro, P.A. P O Box 7250 Portland, ME 04112-7250
FOOTNOTES******************************** {1} Peregrine at that time was unincorporated and was known as the Project for Supported Living. Peregrine is now a non-profit corporation that provides services to people with disabilities in the greater Portland community. {2} Popanz will turn 65 years of age in the year 2021. {3} 33 M.R.S.A. § 51(5) (1988), Statute of Frauds, reads: No action shall be maintained . . . [u]pon any agreement that is not to be performed within one year from the making thereof . . . unless the promise, contract or agreement on which such action is brought . . . is in writing and signed by the party to be charged within . . . . {4} After the entry of the summary judgment, Peregrine moved, pursuant to M.R. Civ. P. 74(e), to supplement the record by inclusion of the entire personnel policy. Because the policy manual in its entirety was not part of the record, we do not consider it. See Foss v. Maine Potato Grower's Exch., 126 Me. 603, 604-05, 139 A. 85, 86 (Me. 1927) (on appeal, the court may not consider affidavits and papers not in the record).