COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69303 KENNETH J. HAIRE, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION PHILIPS INDUSTRIES, LTD. : PARTNERSHIP, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : MARCH 7, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 274026 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Willard E. Bartel David C. Peebles MILLER, STILLMAN & BARTEL 1610 Euclid Avenue Cleveland, Ohio 44115 For defendants-appellees: Keith A. Ashmus Michael N. Chesney THOMPSON, HINE & FLORY 3900 Society Center 127 Public Square Cleveland, Ohio 44114-1216 -2- NAHRA, J.: Appellants, Kenneth J. Haire, et al., are appealing the trial court's grant of summary judgment in favor of appellees, Philips Industries Limited Partnership d.b.a. Philips Container and Container Investments, Inc. For the following reasons, we affirm. Container Investments is the general partner of Philips Industries Limited Partnership, d.b.a. Philips Container. Philips Container owned and operated a plant in Cleveland, Ohio for the manufacture of plastic moldings. The Plus-Tool Company was awarded a judgment against Philips Container for copyright infringement. To satisfy the judgment, Philips planned to sell the Cleveland plant as a going concern to P.T. Resolution Company, the parent company of Plus-Tool. P.T. Resolution would then sell the plant to Letica Corporation. The employees of Philips were informed of the contemplated sale, and that Letica would be interviewing them for possible employment. In October of 1993, Letica decided it could not buy the Cleveland plant as a going concern, due to possible environmental problems. On November 15, the employees of Philips were informed that the plant would close, and the assets sold to Letica. The employees were terminated on November 30, 1993. Kenneth J. Haire and the other plaintiffs were employees of Philips when the plant closed. The plaintiffs sued appellees- defendants for breach of an oral contract for failure to pay certain vacation benefits. -3- When the employees were hired, they were told they would receive vacation benefits. The salaried employees received handbooks, which stated: Vacations are earned on the anniversary date of each team member based on work during the prior twelve (12) month period. The hourly employees also received handbooks, which stated: Vacations are earned on the anniversary date of each team member based on work during the prior twelve (12) month period. A team member must be on payroll on the anniversary date to earn vacation. Dorothy Haffey, personnel director for Philips, stated in her affidavit that an employee had to work twelve months, from one anniversary date of hire to the next, to be entitled to any vacation for the next year. If an employee left the company for whatever reason, before the anniversary date of their hire, they would not receive vacation pay which accrued from their last anniversary date to the date the employee left. Haffey stated this policy was applied consistently. Plaintiff Dennis Burke stated in deposition that his wife, Pamela Burke, did receive such accrued or pro-rata vacation pay when she quit her job at Philips in February, 1992. When the plant closed, the employees received vacation pay for the vacation earned as of their anniversary date occurring before the plant closed on November 30, 1993. If the employee's anniversary date occurred after November 30, the employee was not paid vacation accrued from their last anniversary date up until the plant closing. This accrued vacation is the subject of this suit. -4- Haffey's affidavit stated that neither she nor the company president, George Humphrey, made any oral promises to the employees that they would be paid pro-rata vacation pay when the plant closed. George Humphrey deposed that the employees were told that earned vacation would be paid but accrued vacation would not be paid. In September, 1993, Humphrey posted a notice to the employees, which stated: ALL VACATIONS EARNED UP TO THE DATE OF TRANSFER AND NOT USED ARE THE LIABILITY OF PHILIPS CONTAINER AND UNLESS ASSUMED BY LITICA (SIC) WILL BE PAID TO EACH EMPLOYEE IN THE FINAL PAY CHECK ISSUED BY PHILIPS CONTAINER. (Emphasis added.) Plaintiffs Kenneth Haire and Dennis Burke deposed that no one promised them vacation beyond what was provided in the manual. The plaintiffs felt they deserved vacation pay for the eleven months they worked before the plant closed. Appellants' sole assignment of error states: THE TRIAL COURT ERRED, TO THE DETRIMENT OF THE PLAINTIFFS-APPELLANTS KENNETH J. HAIRE ET AL., IN GRANTING DEFENDANTS-APPELLEES' PHILIPS INDUSTRIES LTD. PARTNERSHIP'S AND CONTAINER INVESTMENTS, INC.'S, MOTION FOR SUMMARY JUDGMENT IN THAT THERE EXISTED GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANTS-APPELLEES INCURRED A CONTRACTUAL OBLIGATION TO PAY PLAINTIFFS- APPELLANTS THEIR VACATION PAY. Appellants argue that the employment manuals, posted notice concerning vacations and oral statements of appellees constituted a promise to pay pro-rata vacations upon the closing of the plant. The posted notice, oral statements and the manuals promise only to pay earned vacation, not pro-rata vacation. The appellees' oral and written statements can only be construed as requiring the -5- employees to have worked until their anniversary date to receive vacation. See Momchilov v. Astro Metallurgical Corp. (Oct. 26, 1994), Wayne App. No. 2856, unreported, Spangler v. Go-Jo Industries, Inc. (March 22, 1989), Summit App. No. 13853, unreported, Bernard v. Rockwell International Corp. (C.A. 6 1989), 869 F.2d 928. Appellees consistently denied pro-rata vacation, with one possible exception, which further proves the meaning of the employee manuals and other statements concerning vacation pay. Appellants failed to produce any evidence demonstrating a contract to pay pro-rata vacation pay. Appellants cite two cases which find the requirement that the employee be working on the anniversary date to receive vacation was not a material part of the contract, and the employees could receive pro-rata vacation pay upon plant closing. Local Union No. 1986 v. Armour and Company (C.A. 6 1971), 446 F.2d 610, Schneider v. Electric Automobile-Lite Co. (C.A. 6 1972), 456 F.2d 366. These cases do not apply to the case at hand because they apply the federal labor law principal that vacation is compensation for past services. Ohio courts have specifically rejected this interpretation of the anniversary date provision. See Spangler, Momchilov, supra. Appellants assert that Armour and Schneider, supra, also awarded pro-rata vacation pay because the condition that the employee work until the anniversary date was made impossible by the employer's closing the plant. It is a principle of general contract law that the non-performance of a condition is excused -6- when performance of the condition is prevented by an act of the other party. Armour, supra, at 614, Suter v. The Farmers Fertilizer Co. (1919), 100 Ohio St. 403, Ruddock v. Cunningham (1987), 43 Ohio App.3d 146, Werner v. Biederman (1940), 64 Ohio App. 423. The interference with performance must be either a violation of the express or implied terms of the contract or a wrongful act in excess of one's legal rights. See Tait v. North American Equitable Life Assurance Co. (C.P. 1963), 25 Ohio Ops.2d 451, aff'd (O. App.) 195 N.E.2d 128, Ruddock, supra, 18 Ohio Jurisprudence 3d (1980), 164, 170 Contracts 247, 252, 6 A. Corbin, Contracts 1362, p. 509 (2d ed. 1962). In this case, there is no express or implied contract term that appellees would keep the plant open, and closing a plant is not in excess of one's legal rights. Armour and Schneider involved collective bargaining agreements from which may have been implied a promise to keep the factory open or retain the employees for a specified period. The employees here were at-will employees and there was no promise to provide them with work for any specified period. Thus, appellees' closing the plant did not excuse appellants from complying with the anniversary date condition in order to receive vacation. In conclusion, the clear wording of appellees' oral and written statements and the consistent denial of pro-rata vacation pay proved the appellants were not promised such vacation pay. Appellants presented no evidence of any contract to receive such -7- vacation pay. Summary judgment in favor of appellees was proper. See Civ.R. 56, Wing v. Anchor Media (1991), 59 Ohio St.3d 108. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -8- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .