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) Order granting summary judgment in favor of the 

City of Lancaster (City) on Erb’s promissory estoppel claim and dismissing Count 

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 for 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 to appeal the 

dismissal of his promissory estoppel claim. He argues that the trial court erred in 
2

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 this 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 contract 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 monthly 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, non-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 Lancaster 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 collect 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 Releasors and the warranties and 
3

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 taxes 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 Employer-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; (iii) 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; and (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, entitled “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 nothing 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 these 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 benefit, or commencing 

payment of an officer’s pension benefit, before the officer’s 25th 

service anniversary date. The City designed the Early Retirement 
5

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 the session. According to Hopkins, during the session it 

became apparent that the officers were confused about the figure 

listed as the 25[-]Year Pension Benefit. Hopkins explained to the 

officers, 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 this plan and if you left after 25[-]years of service and we 

add[ed] three-percent annual increases.” Hopkins explained during 

trial that the 25[-]Year Pension Benefit figure 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, while 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 participated, 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 immediately 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 Option 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 reviewed 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 gross 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 explained 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 service 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 until 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 noted 
7

that he would have preferred to retire early under Option 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 pension 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 and 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 Contract contained a 

patent ambiguity of what pension amount Erb was to receive and resolved the 

ambiguity 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 Contract 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 trial court 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 a 
8

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 executing the Contract. (FOF

¶¶ 32, 40, 43.) Accordingly, the trial court, by order dated September 11, 2017, 

entered 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 do 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 lump 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 consideration 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 understand, in the absence of any explanation, how Erb, 

in reading this Contract and its exhibits, might have expected his 
9

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 terms 

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 examined, 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 15-17 (footnotes and citations omitted). Accordingly, we reversed the trial 

court’s order 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, on October 23, 2018, the trial court, in 

response to this Court’s order in Erb I, issued an order dismissing 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 lacked

jurisdiction to enter it because the record had not been remanded since Erb filed a 

petition for allowance of appeal with the Supreme Court. The Supreme Court

ultimately denied Erb’s petition for allowance of appeal. The trial court, upon 

remittance of the record, entered an order 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. ARGUMENTS

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 

cannot 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 reasonably expected to induce reliance, and Erb both 

relied on that promise and took the expected action, the promise as to 

the [pension’s] amount . . . 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 from 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 Contract that induced him to “substantially change position as to the 

continuation of his employment.” (Id. at 16.) These promises were: (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 did not consider the promises that 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 Contract; therefore, the trial court erred in dismissing 

the promissory estoppel claim. 

The City 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 Generalist; 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 instead 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 under 
12

contract law principles” because of the lack of consideration. Peluso v. Kistner, 

970 A.2d 530, 532 (Pa. Cmwlth. 2009). In order to succeed on 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 

action in reliance on the promise; and (3) injustice can be avoided only by 

enforcing the promise.” Id. at 533 (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 Contract, 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 part, 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 resources 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 

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. 

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 cannot be a promise to satisfy the first element of promissory estoppel.

In addition, Erb argues that the Human Resources Generalist’s actions, after

he signed the Contract, constituted a promise upon which he relied. The Human 

Resources Generalist reviewed the Contract and, on Amended Exhibit A, drew a 

box around the $4382.30 figure. 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 Generalist was completed at a 

meeting that occurred after Erb signed the Contract; therefore, he could not have 

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

Contract. 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 expectation, not that 

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

“[I]t is clear that there is no promise in the Contract 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 

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

The 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 argument 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, Judge
IN 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 

Lancaster County, entered in the above-captioned matter, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge