A local company sued for allegedly improperly firing a Pennsylvania National Guardsman because of his military service is asking that there be no jury trial in the case because the man has died.

Lt. Col. Michael E. “Mack” McLaughlin of East Lackawannock Township was fired Aug. 27, 2001, from his job as plant manager for Newark Paperboard Products, Pymatuning Township. Newark said he was fired because of a personality conflict with a major customer, and it feared it would lose that customer.

McLaughlin, 44, was killed in action Jan. 5 in Iraq. His wife, Tamera J., who administers his estate, has been substituted as plaintiff in the case.

In a motion filed Nov. 29, Newark said the liquidated damages provision in the Uniformed Services Employment and Reemployment Act is the only one that gave McLaughlin a right to a jury trial. Liquidated damages are designed to punish when a claim of willfulness has been proven, said Newark attorney, James P. Thomas of Pittsburgh.

McLaughlin’s death “abated” the liquidated damages claim, Thomas said.

Thomas acknowledged there have been no cases addressing whether the law’s liquidated damages claim can remain when the plaintiff has died, but noted the provision in the Age Discrimination in Employment Act, which also allows liquidated damages when willfulness has been proven, is not available when the plaintiff has died. The language in the liquidated damage sections of each law are “practically identical,” Thomas said.

The U.S. Attorney’s Office in Pittsburgh, which is representing Mrs. McLaughlin, said in a response filed Wednesday that case law concerning the age discrimination act is “distinguishable” and “nonbinding” on matters concerning the Uniformed Services Employment act.

Case law has shown that a finding about a liquidated damages provision in one law is not binding on another law, said Assistant U.S. Attorney Christy Criswell Wiegand.

In the absence of specific language in a law concerning the death of the plaintiff, common law takes over, she said. Under common law, a cause of action in a “penal statute” does not survive the death of the plaintiff, while it does in a “remedial” law.

Case law has established a three-prong test in determining whether a law is remedial or penal, she said. A remedial law addresses individual wrongs, instead of more general wrongs to the public; recovery runs to a person, not the public; and the recovery is not wholly disproportionate to the harm suffered, said Ms. Wiegand, who argued that the McLaughlin case satisfies all three prongs.

To take the option of a jury trial way from Mrs. McLaughlin would be unfair to military service members, who are “likely to be exposed to hazards which may result in death,” Ms. Wiegand said.

U.S. District Court Judge Terrence F. McVerry, Pittsburgh, will decide whether he or a jury will hear the case. Trial is tentatively set for April or May.

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