02-2960 Barry R. Fetterolf v. Harcourt General, Inc.

*The Honorable Joel A. Pisano, United States District Judge for the District of New
Jersey, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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02-2960
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BARRY R. FETTEROLF,
Appellant
v.
HARCOURT GENERAL, INC.;
HARCOURT INC., T/A HARCOURT
COLLEGE PUBLISHERS,
HARCOURT COLLEGE PUBLISHING,
SCIENCE AND MATH GROUP
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________
(D.C. Civ. No. 01-cv-01112)
District Judge: The Honorable James T. Giles
Submitted Under Third Circuit Rule 34.1(a)
April 10, 2003
Before: ALITO and FUENTES, Circuit Judges, and PISANO, District Judge*
(Filed: May 19, 2003)

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____________________
OPINION
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Per Curiam:
This is an appeal from an order denying post-trial motions for judgment as a matter of
law and for a new trial. In this diversity breach of contract action, the jury found (1) that
there was a contract between Harcourt and Fetterolf but (2) that Harcourt did not breach the
contract by refusing to pay two years of salary to Fetterolf after he left. In denying
Fetterolf’s motion for judgment as a matter of law, the District Court concluded that the trial
record adequately supported these findings. The Court also rejected Fetterolf’s argument
that a new trial was warranted due to an allegedly misleading jury instruction, stating that
Fetterolf’s “speculation that he could have been prejudiced in some way” was insufficient to
merit a new trial. For essentially the reasons given by the District Court, we affirm.
1. Judgment as a matter of law should be granted only if the record, viewed in the
light most favorable to the verdict, is critically deficient of the minimum quantum of
evidence from which the jury might reasonably afford relief. Walter v. Holiday Inns, Inc.,
985 F.2d 1232, 1238 (3d Cir. 1993); Keith v. Truck Stops Corp. of America, 909 F.2d 743,
745 (3d Cir. 1990); Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3d Cir. 1980). We
exercise plenary review over the denial of a motion for judgment as a matter of law. Trabal v.
Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001).
In this case, there was evidence that Fetterolf negotiated his severance package with
Harcourt as a way of insuring against the harm that he might incur if his prospective boss,

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Tyson, were suddenly to leave Harcourt. The record shows that Tyson left Harcourt in
November 1995, but that Fetterolf did not leave Harcourt until August 1996. The record also
shows that Fetterolf enjoyed working under Tyson’s successor, Ted Bucholz and that when
Fetterolf finally did resign from Harcourt, it was in order to take a better paid position under
his friend and former mentor, Tyson, at another company. Finally, Fetterolf did not file his
claim for severance pay until February of 2001, over four years after he had resigned from
Harcourt.
Viewing the record in the light most favorable to Harcourt, we conclude that the jury
could have reasonably inferred that the severance clause in the Fetterolf’s 1993 employment
contract was included in order to shield Fetterolf from any adverse effects that might occur
as a result of Tyson’s departure from Harcourt and that Fetterolf was obligated to depart
within a reasonable time period after Tyson, in order to receive severance pay under the
contract. The record further supports the inference that Fetterolf did not leave Harcourt
within a reasonable time as a result of Tyson’s departure, since Fetterolf worked at Harcourt
under Tyson’s successor, Bucholz, for 9 months after Tyson left. It is also reasonable to
infer that Tyson’s leaving Harcourt did not adversely effect Fetterolf’s employment, since
Fetterolf testified that he enjoyed working for Bucholz. Moreover, it is reasonable to infer
that when Fetterolf finally did leave Harcourt, it was not as a result of the harm that he had
suffered as a result of Tyson’s departure, but that Fetterolf left to take a more lucrative
position under his former mentor, Tyson, at UOL. The inference that Fetterolf was not
prejudiced by Tyson’s departure from Harcourt in November of 1995 receives additional
support from the fact that Fetterolf did not file a claim for breach of contract until five years

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after Tyson left Harcourt and four years after his own departure from Harcourt.
In sum, there was evidence from which the jury could properly have found that
Fetterolf was not prejudiced by Tyson’s departure, did not leave within a reasonable time
thereafter, and so was not entitled to receive two years’ severance pay from Harcourt.
2. We exercise plenary review with respect to “the legal standard enunciated in a jury
instruction,” but our “review of the wording of the instruction, i.e., the expression, is for
abuse of discretion.” United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1999). Id. “This
Court reviews jury instructions to determine whether, ‘taken as a whole, they properly
apprized the jury of the issues and the applicable law.’” Id. (quoting Dressler v. Busch
Entertainment Corp., 143 F.3d 778, 780 (3d Cir. 1998)).
Fetterolf does not allege that the District Court misstated the law. He argues, instead,
that the judge’s use of an analogy to a snow removal contract led the jury to conclude that a
reasonable time is the same as a short time. Reply Brief at 5. We disagree. The judge used
the snow removal example to explain that what is meant by a reasonable time depends on the
circumstances. The judge nowhere said that reasonable means short or that what is
reasonable for a snow removal contract would be reasonable in the case of Fetterolf’s
employment contract. The judge emphasized that reasonableness varies with the context.
Accordingly, the jury instructions “taken as a whole . . . properly apprized the jury of the
issues and the applicable law.” Yeaman, 194 F.3d at 452 (3d Cir. 1999).
We have considered all of Fetterolf’s arguments but find no ground for reversal.
Accordingly, the order of the District Court is affirmed.

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