IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher M. Erb, :

Appellant :

:

v. :

: No. 647 C

. D

. 2019 : Argued: December 10 , 2019 City of Lancaster :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA McCULLOUGH

, Judge
HONORABLE ANNE COVEY , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: January 6, 2020

Christopher M. Erb ( Erb ) appeals from the Court of Common Pleas of

Lancaster County’s ( trial court ) O rder granting summary judgment in favor of the
City of Lancaster (City) on Erb’s promissory estoppel claim and dismiss ing C ount

II of Erb’s Complaint

. After the trial court issued its Order, this matter proceeded
to a bench trial on Count I of Erb’s Complaint, which was for breach of contract.
The trial court entered judgment in Erb’s favor on the contract claim, which the
City appealed to this Court. In Erb v. City of Lancaster (Pa. Cmwlth., No. 1421
C.D. 2017, filed October 11, 2018)

, petition f or allowance of appeal denied

, (Pa.,

No. 732 MAL 2018 , filed November 1, 2018 ) ( Erb I ), we reversed the trial court’s

order entering judgment on the contract claim and remanded for the trial court to

dismiss the breach of contract claim , which it did . Erb now seeks t o appeal the
dismissal of his promissory estoppel claim. He argues that the trial court e rred in2

dismissing the claim because the promise required to establish a claim for estoppel
was separate and apart from the contract claim . Upon review, we affirm.

I. BACKGROUND

In Erb I

, this Court set forth the underlying facts of th is case as follows:

In April 2016, Erb, a police officer with the City from September 5, 1989, until December 31, 2009, filed a Complaint against the City seeking damages for breach of co ntract and estoppel based on the City having allegedly promised to pay him, as part of its Early Retirement Incentive Program, a monthly pension benefit of $4382.30 beginning on September 5, 2014. However, Erb alleged, the City has been paying him a month ly pension benefit of only $3342.12.

The City filed a Motion for Summary Judgment, which the trial court granted in part and denied in part. The trial court dismissed Erb’s cause of action for estoppel. Thereafter, the matter proceeded to

a one

- day, n on

-

jury trial on the contract claim only.

At trial, the following testimony and evidence was presented. In November 2009, due to the national fiscal crisis resulting in the loss of revenue to the City and “the loss of a police service contract with Lanc aster Township,” the City, in an attempt to reduce its staff and avoid layoffs of police, devised the Early Retirement Incentive Program. The Early Retirement Incentive Program was offered to two groups of officers, those with 25 years or more of service, and those, such as Erb, with more than 20 years of service but less than 25 years of service. Police officers with 25 years or more of service were offered an incentive to retire of $1000 per year of service payable in a lump sum and would begin to colle ct their pensions upon their retirement. Police officers with more than 20 years of service but less than 25 years of service were offered payment for accrued unused paid time off (PTO), post

- employment medical benefits, and a Retirement Incentive Payment (Option A). The Confidential Separation Agreement and General Release (the Contract), provided to Erb, described the terms of the Early Retirement Incentive Program as follows:

2. Payments and Benefits

. In consideration of the releases herein by Releas ors and the warranties and3 representations of Employee, Employer [(the City)] agrees as follows:

a. Retirement Incentive Payment . Employer agrees to pay Employee the lump sum of $140,073.795

, less payroll taxes and other legally mandated withholdings (“the Retirement Incentive Payment”). The precise calculation and formula used to determined [sic] the amount of your Retirement Incentive Payment is attached hereto as Exhibit A

.

***

c. Payment for Accrued Unused PTO . Employer agrees to pay Employee for any accrued but unused PTO to which Employee may be entitled

. . . . Pursuant to the terms of this Paragraph, you shall receive an estimated payment in the amount of $14,263.12 , less payroll tax es and other legally mandated withholdings, for all accrued, unused PTO to which you are entitled.

d. Benefits

. Employees entitled to post

- employment medical benefits pursuant to an applicable collective bargaining agreement will continue to receive their E mployer

- sponsored health benefits for any term outlined in the applicable collective bargaining agreement . . . .

***

f. No Other Benefits

. Employee shall have no right to receive any further payment or benefit arising from his or her employment relationship with Employer except those benefits and payments described herein, those required by law . . . or vested benefits under any Employer retirement plan.

***4 3. Adequate Consideration

. You agree that (i) the consideration and payments made to you by Employer pursuant to this Agreement represent the sole and exclusive payments and undertakings to be provided to you; (ii) said payments include any and all outstanding and accrued compensation, wages, and benefits that may be due and owing you; (ii i) with the exception of any vested retirement benefits, Employer has no further obligation to provide Employee with any compensation of any sort, or any non

- monetary or monetary benefits in addition to that which is set forth in Paragraph No. 2, above; an d (iv) the aforementioned payments are in excess of what you otherwise would have been entitled to and constitute good and sufficient consideration for this Agreement.

Attached to the Contract were three exhibits. Relevant here was Amended Exhibit A, en titled “ Retirement Incentive Payment Calculation .” Erb’s Retirement Incentive Payment was $137,862.45, which, as Amended Exhibit A indicated, was calculated based on multiplying Erb’s monthly pension benefit as of December 31, 2009 ($3342.12), the date of his retirement, by the number of months to his 25th service anniversary date (55). This figure ($183,816.60) was then multiplied by 75% to equal the amount of the Retirement Incentive Payment. Also on Amended Exhibit A under a separate heading, “Pension Calculation,” was Erb’s 25th service anniversary date, listed as September 5, 2014, and “ Monthly Pension Benefit Amount To Be Received Commencing On 25 Year Anniversary Date ” (25 Year Pension Benefit) listed as $4382.30

. Erb acknowledged that there was n othing in the Contract that indicated the amount of his monthly pension benefit; that figure appeared only on Amended Exhibit A.

The idea behind the Retirement Incentive Payment, the City’s Business Administrator Patrick Hopkins (Hopkins) explained, was to “bridge the gap” from the time t hese officers retired until [] they started receiving their pensions on their 25th service anniversary date. Hopkins testified that there was nothing in the Contract that proposed awarding an officer a greater pension be nefit, or commencing payment of an officer’s pension benefit, before the officer’s 25th service anniversary date. The City designed the Early Retirement5

Incentive Program so that it would not impact the pension plan, Hopkins testified.

In early December 2009, Hopkins held an information session with officers who were eligible to retire early. Erb, who was then the President of the City’s Police Officers’ Association (POA) and involved in bargaining over the Early Retirement Incentive Program, attended t he session. According to Hopkins, during the session it became apparent that the officers were confused ab out the figure listed as the 25[

- ] Year Pension Benefit. Hopkins explained to the offi cers, he testified, that the 25[

- ] Year Pension Benefit “is not your pension benefit. This is what your pension benefit would be if you didn’t take thi s plan and if you left after 25[

- ] years of service and we add[ed] three

- percent a nnual increases.” Hopkins explained during trial that the 25 [

- ] Year Pension Benefit fi gure was included in the Contract on legal advice, so that officers would be aware of the difference in their pension benefit based on whether they accepted early retirement or waited until their 25th service anniversary date. According to Erb, however, w hile Hopkins claimed “that there was confusion, it wasn’t on [Erb’s] part. [He] understood what [Hopkins] said in that meeting and so did other [officers].”

Following the information session, discussions between the POA and the City, in which Erb parti cipated, resulted in the City proposing an alternative, known as Option B, to incentivize early retirement. Under Option B, officers were offered payment for accrued unused PTO and permitted to retire on January 31, 2010, at which point they would immedia tely begin receiving their pension benefits based on a calculation of those officers having served 25 years. The City would contribute to the pension fund for the cost of Option B

. Hopkins explained that in order to change a pension benefit, as Option B proposed, the City had to have an actuarial evaluation and the City Council had to amend the City Code. Option B did not include the Retirement Incentive Payment as Option A did.

On January 15, 2010, the deadline, Erb signed the Contract, accepting Opti on A. However, on January 18, 2010, believing that he was eligible for Option B, Erb e

- mailed Hopkins what he believed would be his monthly pension benefit, listing it as $3817.08.6 On January 19 or 20, 2010, after he signed the Contract, Erb met with a Human Resources Generalist to review his paperwork. The Human Resources Generalist reviewed the Contract and, turning to Amended Exhibit A, put a box in ink around the $4382.30 figure and told him that this would be his pension benefit.

Ultimately, the City Council approved Option B but only for officers with 21 years of service or more, which excluded Erb. By the time Option B was adopted, Erb testified, he was retired.

In August 2014, Erb met with the Chief of Finance for the City to sign paperwork needed for Erb to begin receiving his monthly pension benefit. Erb asked the Chief of Finance what his pension benefit would be for September since it was prorated based on his 25th service anniversary date falling on September 5. The Chief of Finance re viewed Erb’s file and, while looking at Amended Exhibit A, said his pension benefit for September would be the $4382.30 figure, prorated for 25 days, which, after deductions, was the amount Erb received in September.

In October, however, Erb received a g ross amount of only $2452.92. Erb inquired and received a memorandum from Hopkins explaining the discrepancy. In that memorandum, after outlining the Early Retirement Incentive Program and the calculation of Erb’s Retirement Incentive Payment, Hopkins ex plained that the Payroll Department used the wrong figure on Amended Exhibit A. The Payroll Department used the $4382.30 figure, which, Hopkins stated, was the figure Erb would have received had he not retired early and continued working until his 25th se rvice anniversary date, when the Payroll Department should have used the $3342.12 figure, which was Erb’s pension benefit as of December 31, 2009. The $4382.30 figure, Hopkins stated, was based on Erb receiving a three

- percent salary increase each year un til he reached his 25th service anniversary date. Going forward, Erb would receive the gross amount of $3342.12.

Erb testified that had he known his pension benefit was going to be only $3342.12, he would not have retired early. Erb made his decision to retire early, he testified, based on him receiving $4382.30. Erb noted that the Retirement Incentive Payment he received was less than had he continued working for another five years. Erb also noted7

that he would have preferred to retire early under Opt ion B, which, he agreed with the City’s Counsel, was a better financial outcome for him.

The City presented expert testimony from Thomas Zimmerman, the actuary for the City’s pension plans, who testified that the correct calculation of Erb’s monthly pens ion benefit was $3342.12 and, if the City was ordered to pay Erb a monthly pension benefit of $4382.30, the auditor general would find the City in violation of its pension plan because that benefit would be contrary to the collective bargaining agreement a nd the City Code. Further, if Erb was awarded a pension benefit of $4382.30, in order for the City to cover the increased cost, it would have to contribute, based on actuarial projections of Erb’s life expectancy, another $20,450 per year for 14 years.

Erb I, slip op. at 2

- 8 (alterations in original) (internal record citations and footnotes
omitted)

. Following the trial, the trial court concluded that the C ontract contained a
patent ambiguity of what pension amount Erb was to receive and resolved the

a mbiguity in favor of Erb. We summarized the trial court’s findings as follows :

[t] he trial court credited Erb’s testimony that he “would not have chosen to retire early had he known” he was to receive a monthly pension benefit of only $3342.12, and concluded that Erb had

“ reasonably relied on the written offer” the City made to him which

“ induced [Erb] to accept the offer[.]” Then, the trial court, after reciting the principles of law governing whether a contract is ambiguous, concluded that the Con tract and its exhibits “contain[ed] a patent ambiguity of what pension amount Erb [was] to receive[,]” whether it was $4382.30 or $3342.12.

Id . at 9 (quoting t rial c ourt Findings of Fact (FOF) ¶¶ 42

- 43 and Conclusion of
Law ¶ 3) (alterations in original) (internal record citations omitted). In addition,
the trial court stated that the proposed Contract ’s Amended Exhibit A included a8

monthly pension benefit of $4382.30 and that a City Human Resources Generalist

hand drew an ink box around the $4382.30 on Amended Exhibit A , which induced
Erb to accept the offer on January 15, 2010

, by execu ting the C ontract. ( FOF
¶¶ 32 , 40

, 43. ) Accordingly, the trial court

, by order dated September 11, 2017,

enter ed judgment in Erb’s favor for more than $37,000 for past benefits plus

interest , which the City appealed to this Court.

We reversed. After summarizing general contract law principles, we
concluded that the Contract and its exhibits “are clear and unequivocal and d o not provide for the payment of a monthly pension benefit of $4382.30. ” Erb I , slip op.

at 14. We explained the Contract provided for “ three forms of consideration:

(1) payment for accrued unused PTO; (2) post

- employment medical benefits; and
(3) a lum p sum payment of $140,073.795 in the form of a Retirement Incentive

Payment. ” Id. (emphasis omitted). This Court also ruled , contrary to the trial

court, that Amended Exhibit A was not a promise and whether Erb was induced
was not part of the court’s con sideration of his breach of contract claim

. Specifically, we stated:

The only reference to a monthly pension benefit of $4382.30, again, is in Amended Exhibit A, where under a separate heading, “Pension Calculation,” Erb’s 25th service anniversary date is listed as September 5, 2014, and “Monthly Pension Benefit Amount To Be Received Commencing On 25 Year Anniversary Date” is listed as $4382.30. This sole reference to $4382.30, in the absence of any promise to pay anything other than the three forms of consideration listed in the Contract, does not amount to a promise to pay. Reading the Contract and its exhibits together, the reference to $4382.30 and its accompanying language was for informational purposes, and not a promise to pay.

We can understan d, in the absence of any explanation, how Erb, in reading this Contract and its exhibits, might have expected his9

monthly pension benefit to be $4382.30 when he reached his 25th service anniversary date. Both Erb and the trial court, in part, respectively litigated and adjudicated this matter as if Erb was claiming that he had been negligently induced into accepting the Contract

. However, the only claim at issue before the trial court, and before us, is Erb’s breach of contract, which is governed by the t erms of the [C] ontract, not reliance or inducement. The trial court had dismissed Erb’s estoppel claim on the City’s Motion for Summary Judgment from which there has been no cross

- appeal. Again, when the entire Contract and its exhibits are carefully exa mined, it is clear that there is no promise in the Contract or its exhibits to pay Erb a monthly pension benefit of $4382.30, and this figure was included on Amended Exhibit A for informational purposes.

Id . at 1 5

- 17 (footnotes and citations omitted)

. A ccordingly, we r eversed the trial

court’s o rder and remanded with instruction to dismiss the cause of action for

breach of contract.
Following our decision in Erb I

, Erb filed a petition for allowance of appeal
to the Supreme Court. In the interim, o n October 23, 2018, the trial court , in

response to this Court’s order in Erb I

, issued an order dismiss ing the breach of

contract cause of action , which Erb attempted to appeal. This Court vacated the
trial court’s October 23, 2018 order on the basis that the trial court lack ed
ju risdiction to enter it because the record had not been remanded since Erb filed a
petition for allowance of appeal with the Supreme Court

. T he Supreme Court
ultimately denied Erb’s petition for allowance of appeal

. The trial cour t , upon
remittance of the record, entered an o rder on April 29, 2019 , dismissing Erb’s

breach of contract claim , in accordance with this Court’s order in Erb I

. On May
29, 2019, Erb filed a notice of appeal

.10

II. ARGUMENT S
On appeal, Erb argues the trial court erred in granting summary judgment in
favor of the City on his promissory estoppel claim. 1 Specifically, Erb asserts that

the trial court found the essential elements of promissory estoppel have been met

and still dismissed Erb’s claim on the mistaken assumption that an estoppel claim

can not lie where there is a consideration for a contract

. Erb asserts that this Court,

in Erb I , “made it clear .

. . that, had the estoppel claim been properly before it at

the time, it would have sustained the claim.” (Erb’ s Brief (Br.) at 13.) According

to Erb, the trial court concluded

estoppel would not lie here because while there was a promise that could have been reasonabl y expected to induce reliance, and Erb both relied on that promise and took the expected action, the promise as to the [pension’s] am ount . . . was integral to the [C] ontract that it found to have existed.

( Id. at 14.) Furthermore, Erb asserts that the trial court erred when it
“misperceived that the promise was not separate f rom the [C] ontract

. ” ( Id. at 11.)

Erb asserts that this Court “ confirmed the existence of the [C] ontract, but contrary
to the perception of the trial court, the Commonwealth Court also held the promise

of an ‘enhanced ’ pension was not part of that [C] ontract. ” ( Id . at 15 (emphasis
omitted).) In addition, Erb argues there are two promises that were made outside

of the C ontract that induced hi m to “substantially change position as to the
continuation of his employment.” ( Id . at 16.) These promises we re: (1) Amended

1 In our review of a trial court’s grant of summary judgment, this Court is to determine
whether there was an error of law or an abuse of discretion

. Irish v. Lehigh Cty. Hous. Auth.

, 751 A.2d 1201, 1203 n.4 (Pa. Cmwlth. 2000). Upon review, “ we must examine the record in a light most favorable to the non

- moving party, accepting as true all well

- pleaded facts and reasonable inferences to be drawn therefrom. ” Id

.11

Exhibit A and (2) the Human Resources Generalist’s reiteration of the amount in

Amended Exhibit A. ( Id . at 16 n.2.) Erb argues that the trial court
misapprehended the scope of the agreement and the limitation of consideration,

and thus d id not consider the promise s t hat were separate and distinct from the

agreement. Erb concludes that all of the elements of estoppel were met and the
promise is separate from the C ontract ; therefore

, the trial court erred in dismissing

the promissory estop pel claim

. The Cit y notes that this Court has held that the Contract was complete and
supported by consideration. The City argues that this Court also ruled that
Amended Exhibit A was not a promise and cannot support a claim of promissory
estoppel. In addition, the City also argues that Erb’s allegation that the Human

Resources Generalist’s circling of the $4382.30 figure constitutes a promise is not
correct. The City asserts that Erb signed the Contract before he met with the

Human Resources Generalis t ; therefore

, the circling of the amount cannot
constitute a promise that established his reliance. The City also contends that the

Human Resources Generalist did not specifically state that Erb was entitled to the
$4382.30, but i nstead only circled the number. The City asserts that Erb’s
promissory estoppel claim cannot succeed. In its brief, the City additionally argues
that Erb has waived his right to appeal the trial court’s Order because he did not

file a cross

- appeal of the Order in Erb I when the Order was initially before this

Court

. (City’s Br. at 10.)

III. DISCUSSION
Promissory estoppel, or detrimental reliance, allows a person or entity to

enforce a “contract

- like promise

, ” which would not be “ [] enforceable under12

contract law principl e s” because of the lack of consideration. Peluso v. Kistner

, 970 A.2d 530, 53 2 (Pa. Cmwlth. 2009). In order to succeed o n a claim of
promissory estoppel, the aggrieved party must prove that : “( 1) the promisor made
a promise that would reasonably be expected to induce action or forbearance on the
part of the promisee; ( 2) the promisee actually took action or refrained from taking

acti on in reliance on the promise; and ( 3) injustice can be avoided only by
enforcing the promise. ” Id . at 5 33 (citing Crouse v. Cyclops Indus. , 745 A.2d 606,

610 (Pa. 2000)). The three elements are to be “strictly enforced to guard against
the ‘loose application’ of promissory estoppel.” Id . (quoting Fried v. Fisher

, 196
A. 39, 43 (Pa. 1938)).
The parties in this case focus on whether a promise was made outside the
language of the C ontract , meaning a promise was made in Amended Exhibit A

itself

, or by the City’s Human Resources Generalist

. In the trial court’s Order , the
trial court stated the following, in p art, about the promissory estoppel claim:

Even accepting as true [] Erb's allegations, the court finds that his claim for estoppel fails as a matter of law. The representation made by human resou rces regarding the amount of [] Erb ’ s monthly pension was done within the larger context of the [Contract]

– and for this there was adequate consideration on both sides. A claim for estoppel is therefore inappropriate, and this portion of the City ’ s motion shall be granted.

(Reproduced Record at 129a.)

In Erb I , we held that Amended Exhibit A made no promise for a monthly
pension benefit of $4832.30, instead it was just “for informational purposes.” Erb
I, slip op. at 16

- 17. We held:13

This sole reference to $4382.30, in the absence of any promise to pay anythi ng other than the three forms of consideration listed in the Contract, does not amount to a promise to pay. Reading the Contract and its exhibits together, the reference to $4382.30 and its accompanying language was for informational purposes, and not a p romise to pay.

Id . at 16 (emphasis added)

. Because we have previously determined that
Amended Exhibit A is not a promise, contrary to Erb’s position here, Amended

Exhibit A can not be a promise to satisfy the first element of promissory estoppel.

In add ition, Erb argues that the Hum an Resources Generalist’ s actions, after
he signed the Contract, constituted a promise upon which he relied. T he Human

Resources Generalist reviewed the Contract and

, on Amended Exhibit A, drew a
box around the $4382.30 figur e. Upon doing this, the Human Resources
Generalist also “told [Erb] that this would be his pension benefit.” Id. at 7.
However, this promise could not have reasonably been relied upon to induce Erb’s

action. The box drawn by the Human Resources General ist was completed at a
meeting that occurred after Erb signed th e C ontract ; therefore

, he could not have

relied on the Human Resources Generalist to induce his own action in signing the

C ontract

. Id . at 6

- 7.
Erb quotes the following language from our opinion in Erb I in support of
his promissory estoppel claim : “We can understand, in the absence of any
explanation, how Erb, in reading this Contract and its exhibits, might have
expected his monthly benefit to be $4382.30 . . . .” (Erb’ s Br. at 13 ( quoting Erb I

, slip op. at 16 (emphasis added) ) .) Erb states that, based off this language, “had the
estoppel claim been properly before [us] at the time, [we] would have sustained the
claim.” ( Id

. ) Our prior opinion only speaks to Erb’s potential expe ctation, not that

there was a promise and reliance on that promise, as promissory estoppel requires.14

“[I]t is clear t hat there is no promise in the C ontract or its exhibits to pay Erb a
monthly pension benefit of $4382.30.” Erb I , slip op. at 17. Therefore, Erb cannot
use our prior opinion in Erb I to conclude that we would have sustained his claim.

Like Erb I , we understand his expectations and the miscommunications
surrounding this case ; however, we cannot conclude that Erb has succeeded in

prov ing promissory estoppel in this case for lack of promises by the City.

T he City has also argued that Erb waived his right to appeal the trial court’s

Order because Erb did not file a cross

- appeal in the first instance in Erb I . We

need not address this a rgument because this appeal does not succeed on its merits.

IV. CONCLUSION
Accordingly , this Court concludes that, because there was no promise upon

which Erb could rely

, the elements for promissory estoppel are not satisfied

. The

trial court did not err in granting summary judgment on Erb’s promissory estoppel

claim.

_____________________________________ RENÉE COHN JUBELIRER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher M. Erb, :

Appellant :

:

v. :

: No. 647 C

. D

. 2019

: City of Lancaster :

O R D E R

NOW

, January 6, 2020

, the Order of the Court of Common Pleas of

L a ncaster County

, entered in the above

- captioned matter

, is AFFIRMED.

_____________________________________ RENÉE COHN JUBELIRER, Judge