a benefit which was two which was retard and in the future a retirement that had not yet occurred so consequently it would you say that again this is an offer  future it was an offer of a benefit which had not had not yet occurred because the offer was when you retire just campbell when you retire will then get a benefit now the problem with the genders decision respectfully is that aside from the fact that he did not do consideration for this offer other words once you have an offer then under unilateral contract purposes per continued work at diamond state provided the consideration the her continued performance so it would be true then the day after one of the day after she negotiated unico she contract she said thank you very much  for the rest of her life yes it to answer your question specifically your honor if she worked a day or two days after january twenty four thousand and six she would have been a title movies supplemental retirement benefits where judge andrews i believe created an error of law was that he looked at simply the question of whether she could have whether right her subjective intent was six years later well i think  at least for me is what is continuous here i'm sorry what is continuous service i think on she got this lifetime health package for continuous service because i can't remember the of the plain definition of that language which the court should engage and interpret in a contra is continuing and if you look at the context or forms of this reasons if you look at the four corners of the doc in that and you look at what was being provided what was being provided was a supplemental retirement retirement benefit which would kick in in the future so by definition if you look at the context of this contract she would have had she did for two years she would continue to work at the time in state in two thousand and seven when she retired is is an acceptance of her cunt in u s service it if this if the language had read reward for loyal and past service but it doesn't and if you look at the context of this contract not going outside of it she did boogity represent i can honestly answer that for the following reasons he doesn't recall who he represented there's an issue he provided a plan nine paula asked him if the follow up on what the president of sussex said that they would honor this plan she asked him for his advice and in the record there is a letter from him saying that they are bound by the contract sussex is bound by the contract understanding that she would remain she did not announce retirement so i don't think you can look as judge enters that you can just simply look at the language and say we're going to ignore the nature of the benefit because the nature of the benefit is until you retire you will continue to work at hutchie stock working then the benefit would have picked then so it was understood for loyal and continuous continuing service that's a that's a that's a term of art that is clear language and if and it's consistent with the party's actions because she then continues to work and serve sussex or serve diamond state and when she retired in november two thousand when she left then the benefit then it's a supplemental retirement benefit so unlike other potential consideration the consideration the  was your back and rebuttal was the things you might want to consider dealing with is what would you put in a trial to show that that was a consideration for the grant of health benefits post retirement or m thomas everyone knew when thomas left in eighty eight she was getting ready to retire almost immediately after this plan went into effect in fact she retired with then but a month and a half two months whereas campbell stayed another almost two years correct that's correct so why isn't that something that should be resolved at trial and not leave us to guess that summary judgment when the world's going on here what continuous for another year and a half and and she just quite simply did not do it the only evidence in the record which which speaks to which is outside of the four part of the contract which speaks to the intent of the parties is miss campbell's own testimony  that not only on the day after she could not only that she could have retired the day after that the plan became affected and entitled to the benefits but the previous question she actually said that on the day that it was signed she was entitled to the retirement benefits so this pretty much just i mean the exception to everyone everyone knew she was leaving and the other one people didn't know when she was leaving she set off for another couple years i believe that those two circumstances are not the same and in this thomas's case i believe the plan actually set forth a date for her retirement and while it's a short period everybody knew she was going to retire shortly thereafter that becomes a question of addicts adequacy of the consideration not whether consideration exists in the first place and i believe that  couple months of service is adequate consideration in exchange for a promise of well then it sounds like two years should be out of consideration too even more like let's see twenty four much about twelve times two months if if that was what induced miss campbell  state for the year and a half than i would agree with that statement but there's simply no evidence which of course it was because she did she has to try to put in that if that's all we're saying i mean it looks one could make an argument here that rule fifty six is being used you could have submitted an affidavit from the diamond state employees who were responsible for drafting the contract but there's nothing like that in the record and it's because it doesn't exist because miss campbell's own testimony is that she believed she was entitled to th benefit moment that the plan was signed which she which proves that it cannot possibly have induced her to stay for a year and a half to help me out here it is that is that the law supposedly that if you i just give you a reward for what you've done for me in the past there's no consideration for that that's correct but if i say to you you're going to get health benefits if you stay there is considerations benefits are mere gratuities or result of an adult rated truism most are for services rendered or for the purpose of inducing further rendering of services they help us to guarantee a competent and happy workforce that when you look at that also there's in pennsylvania cases this is retirement benefits are not managed the false miraculously from the sky i mean that the idea is that you're giving somebody something and here are talks about continuous service which we don't quite know what it means and i'm unsure as to how that can be resolved just a summary judgment without a airing of on the merits well typically the problem from such as perspective is that there's just no evidence in the record that continuous mean anything other than you were a performance from when you began with diamond state until  date that they plan to sign if there was if we think that that's a retrospective view but is there anything that tells us we can't give it a prospective you know the words the contract is signed we're going to do this for you for loyalty in continu benefit on the day that it was signed and that if she could have retired the next day but she didn't title the benefit but she didn't so i mean does that i mean what you know effect maybe that's asking us to consider what the fact that she didn't and that she i have the exact quote marked off here so i can read it or it's on page two nineteen of the joint appendix did miss campbell's answer to our prior question as the benefits plan was adopted by the board effective january twenty fourth two thousand and six question ok so on it out there january twenty fourth two thousand and six as you understand it you are entitled to this retirement plan is that correct yes ok so for example you could have retired the next day january twenty fifth two thousand and six and would have been entitled to retirement by correct  o you do this is it as a reward or or a gift as opposed to a prospective contract yes that's correct or not and that's moving on to the second piece of evidence if in the record that speaks to the intent of the parties i was i believe is we start talking about this part of this plan earlier the fact that daniel support the attorney who drafted the agreement used the thomas plan as a model and specifically extracted the language that required a date certain for retirement and required ms thomas to continue working i think a circumstantial proof that the parties this campbell and i'm still not looks like an promises case that was a reward i don't know  know i don't know either i agree that it is that if we don't know either and i don't know then then you need to have a trial i don't have a rationale for in essence it didn't require her to do anything and that was the basis for its opinion there was little other evidence in the record delaware law is what governs this contract federal common law contracts government that it was your choice of law in the in the room at all or work or in the war whatever it was that were did i believe there was a choice a role provision i believe that it's i dis is an interesting question i don't know the answer to it but i believe it would be presented by us in large measure of would be the first you know in delaware there's a one hundred sixty six chance record decision says the modern trend is to do one very kinds of plans as constituting offers of additional compensation as an as incentives to continuing and more dedicated service it sounds like this was and could could be might be sending a welcome to the trial and incentive to continuing and more dedicated service and in fact the word continuous is used in the contract or the document plan with respect to you know right with respect to those two points i'm not familiar with the case but i don't believe that we have the first in this case with respect to the second there's certainly no evidence in the record and then was presented an opposition to sussex its motion for summary judgment that purpose was to incentivize miss campbell to stay by the way i did was a deposition i believe  questions with respect to if we get beyond this you suggest that the one year statute of limitations had had house and that  was it one of his life in the number six i cannot speak to that i agree with you i tend to agree with you that it's putting form over substance but that is the the only problem with the four prior letters that were claim on october thirty first two thousand and nine and played in august two thousand and ten she would be within the year which you know no she would not because the question is equitable throwing the claim accrued and on may fourteenth two thousand and nine when the scandal was still page four of the plan paragraph five this agreement shall be construed in accordance with and governed by the laws of the state of delaware appendix one eight nine three o'clock part of it was tailored for your client that there's a well yes it was it was it was consistent with what they'd done for eva thomas inconsistent with what they did for paula and what we did created errors of law in reading summary judgment in try to construe a contract and which we say was not he could not resort to this so called evidence because we believe it's on its face it's susceptible of two at least two interpretations we believe our interpretation is was and continuous but more importantly i think we would have been able to show  that during the course of leading up to hall as acceptance of employment with sussex and zero seven in may of in the record your honor that actually the plan finally was sent to paul in february of zero six they would have done some revisions and was back dated to january but in may of zero six after the plan was was entered into effective date there was an annual meeting so she had the testimony would be there was never an intention of her to retire she never discussed with the board oh i'm retiring tomorrow and see the thomas did had she that's what i was saying paula would would testify that i had no intention to retire there was never discussion about retiring i continued to retire i continued to work and it wasn't until two years later when they when this flew at sussex approached her that she then said i will i will go and buy the way and she said this and i've got forty three seconds she said to paula in an email did you tell me you do not need health benefits and paula said yes sussex is done in states pay for that she said that will make it easier to hire will reward her that it contemplates actions in the past not the future and her knowledge of the same inner deposition testimony that she believed it was for what she had done in the past because she could have left that every day i do you deal with that well i deal with it in a variety of ways your honor first of all paul is deposition testimony does not change the language of the contract it was extrinsic evidence that seven years later he lied by what happened which was she continued to work it was speculation and the quote is she was not require if she was not required to continue to work it was a reward it was not a contract well put well that's but that's not such a consideration  then the judge was right it wasn't consideration correct no your honor because the evidence is when she was asked the question so you could have retired but next day so you could have retired the next day she said yeah but that doesn't mean that it was a gratuitous promise with no consideration what it says is for your continuous service at a trial we would put in testimony from paula deen of greater and others as to the circumstances under which this this benefit was provided to her so i it's our position that the law does not require a set time all it requires particularly if you have a unilateral contract or are is continued performance which is what she did and we believe that we should have the right to go to trial present our evidence have a full trial on the particular these other issues and we believe that judge enters was correct on the statute of limitations that can be down the road revisited with this court and