that he was already on active military duty with the Air National Guard. Mr. Pareti told plaintiff that he was expected to report for work on May 31, 1982, after plaintiff's vacation was over. Plaintiff replied that he would not be there, and has not performed as a pilot for defendant since then. In a letter dated May 28, 1982, the same date on which the above described conversation took place, plaintiff repeated his request for a 48 month military leave of absence and stated that he had been assigned to the National Guard.
In a number of letters dated July 26, August 16, and November 9, 1982, plaintiff, through his counsel, made inquiries of defendant as to the status of his request for military leave. On August 3, 1982, Mr. Pareti requested that plaintiff supply a copy of his "orders to active duty", which plaintiff duly supplied. Plaintiff received no further communication from defendant until September 6, 1983 when, by letter from its counsel, defendant informed plaintiff's counsel that plaintiff's request for military leave was denied. With that letter, defendant also tendered to plaintiff a check for $10,074, the total amount that plaintiff had paid toward the purchase of the stock. Defendant also informed plaintiff that his promissory notes were cancelled.
On January 9, 1984, plaintiff was issued new orders which extended his tour of active duty for two years. Thus, plaintiff is now on active duty and will remain on active duty until May 16, 1986. His period of active duty will therefore extend for the full 48 months for which he requested a military leave of absence.
On July 18, 1983, defendant's common stock was the subject of a two-for-one stock dividend for shareholders of record on June 17, 1983. On September 6, 1983, the date that defendant repurchased plaintiff's shares, defendant's common stock was being traded at $21-7/8 per share. Thus, the 3,000 shares that plaintiff claims to own would have become 6,000 shares on July 18, 1983, and would have been worth $131,240 on September 6, 1983.
Plaintiff brought suit on April 4, 1984, alleging that defendant had violated his rights under the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021-2026 ("the Act"), which is part of the Veterans' Reemployment Rights Act. Plaintiff claims that defendant violated the Act by repurchasing plaintiff's 3,000 shares of stock for $10,074 when the shares had a value of approximately $131,000 as reported in the Wall Street Journal on September 6, 1984. The relief for which plaintiff asks includes a decree that plaintiff had been terminated from defendant's employ in violation of the Act, and payment to plaintiff for the stock that was "wrongfully appropriated" by defendant on September 6, 1983.
Defendant answered on April 18, 1984 and alleged several affirmative defenses including failure to state a claim upon which relief can be granted, and plaintiff's lack of standing. Defendant also alleged that plaintiff is estopped from pursuing his claims because: (1) he voluntarily left defendant's employ without defendant's permission or authorization when he reentered active duty with the Air National Guard on May 17, 1982; and (2) he defaulted on all payments due on the promissory notes that he had executed for the purchase of the stock. Defendant asked that the complaint be dismissed.
Defendant moved to dismiss or for summary judgment. Plaintiff cross-moved for summary judgment and for leave to amend the complaint and for summary judgment on the amended complaint. Plaintiff's proffered amendment alleges that defendant anticipatorily breached the terms of the Restricted Stock Purchase Plan by repurchasing plaintiff's stock on September 6, 1983. Plaintiff requested relief in the form of a declaration that he had been on military leave of absence since May 28, 1982. In addition, he asked that, pursuant to the terms of the Plan by which unrestricted stock accrues to the purchaser over the course of employment, he be adjudged the unrestricted owner of a total of 4,000 shares as of May 1, 1985. Plaintiff also seeks damages.
In order to prevail on a motion for summary judgment, the moving party must prove that "there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. A motion for summary judgment may only be granted if there are no disputes as to material facts requiring a full trial. Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980).
All of the issues and allegations set forth by both parties in this matter turn on one threshold question: Did plaintiff resign his position with defendant when he returned to active duty with the Air National Guard, or did plaintiff enter into a military leave of absence from defendant's employ at that time? If plaintiff resigned, then he forfeited his right to ownership of the stock. If, however, pursuant to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 2021 et seq., plaintiff was on military leave, then at least some of his claims regarding the stock are meritorious.
The first issue which must be addressed is defendant's contention that plaintiff lacks standing to sue under the Act because he not only has not demanded reinstatement with defendant, but has not fulfilled the prerequisites for reemployment under the Act. Section 2021(a) of the Act provides that in order to be eligible for reemployment under the Act, a person (a) must be discharged from military service, (b) have received a certificate of satisfactory completion of service, and (c) must make application for reemployment within 90 days from his release from duty. Defendant argues that since plaintiff is currently on active military duty and has not requested reemployment, he lacks standing to maintain an action under the Act.
Plaintiff, however, argues that his rights arise not under § 2021(a), but under § 2024(b)(1) which provides the same reemployment rights for reservists and National Guardsmen that § 2021(a) provides for inductees. See generally 1961 U.S. Code Cong. & Admin. News, 3319-20; Pub. L. 97-252, Title XI, § 1130, Sept. 8, 1982, 96 Stat. 759. Section 2024(b)(1) reads as follows:
Any person who, after entering the employment on the basis of which such person claims restoration or reemployment, enters upon active duty (other than for the purpose of determining physical fitness and other than for training), whether or not voluntarily, in the Armed Forces of the United States or the Public Health Service in response to an order or call to active duty shall, upon such person's relief from, active duty under honorable conditions, be entitled to all of the reemployment rights and benefits provided for by this chapter in the case of persons inducted under the provisions of the Military Selective Service Act (or prior or subsequent legislation providing for the involuntary induction of persons into the Armed Forces), if the total of such active duty performed between June 24, 1948, and August 1, 1961, did not exceed four years, and the total of any such active duty, additional or otherwise, performed after August 1, 1961, does not exceed four years (plus in each case any additional period in which such person was unable to obtain orders relieving such person from active duty.)
The reference in the above provision to "reemployment rights and benefits provided for in this chapter" include those set forth in § 2021(b)(1) and (b)(2):
(b)(1) Any person who is restored to or employed in a position in accordance with the provisions of clause (A) or (B) of subsection (a) of this section shall be considered as having been on furlough or leave of absence during such person's period of training and service in the Armed Forces, shall be so restored or reemployed without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration or reemployment.