Wells et al v. JPC Equestrian Inc. et al
Filing
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MEMORANDUM OPINION re: cross motions for summary judgment. Signed by Magistrate Judge Martin C. Carlson on January 13, 2015. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOE PETE WELLS and
LES KRUTOFF,
Plaintiffs
v.
JPC EQUESTRIAN, INC. and
VARUN SHARMA,
Defendants
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Civil No. 3:13-CV-2575
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
INTRODUCTION AND STATEMENT OF THE CASE1
This litigation stems from a broken and embittered commercial relationship
between two independent salesman, an equine-products company, and its founder.
The plaintiffs, Joe Pete Wells and Les Krutoff, have sued JPC Equestrian, Inc.
(“JPC”) and its President, Varun Sharma, alleging that the defendants breached the
terms of sales representation contracts by failing to pay the Wells and Krutoff sales
commissions for products they sold on behalf of JPC. Additionally, the plaintiffs
allege that Sharma tortiously interfered with their contractual relations by causing
This case and the parties claims and defenses are substantially related to
another action pending before this Court, Mark Edward Kearney v. JPC
Equestrian and Varun Sharma, Civil No. 3:11-CV-1419. The resolution of the
pending motions in this case substantially parallels our previous disposition of the
parties cross motions for summary judgment in Kearney.
1
another corporate entity that Sharma controlled to engage in sales activity in the
plaintiffs’ assigned territories, thereby undercutting the commissions that they would
have received from JPC.
After the preliminary disposition of a number of claims, the parties engaged in
fact discovery, which has now concluded. Following that discovery, the parties have
filed cross motions for summary judgment, which are now ripe for disposition. For
the reasons that follow, we conclude that the plaintiffs’ contract claims are replete
with disputed issues of fact, and that the resolution of these disputes must await trial.
The defendants insist that the record fails to support the plaintiffs’ claims that there
was mutual assent to support the contracts, or otherwise that the record should compel
the conclusion that the plaintiffs waived their contract claims long ago by failing to
pursue contractual remedies for years. We disagree that the record compels such a
conclusion, and instead find that the contract claims in this case turn on the resolution
of numerous disputed issues in the record, making summary judgment unwarranted.
In contrast, we agree with the defendants that there is insufficient evidence to
support the plaintiffs’ tortious interference claims, and will enter summary judgment
in Sharma’s favor on these claims alone.
2
II.
FACTUAL BACKGROUND
The background facts relevant to this dispute begin nearly thirteen years ago,
and many do not seem to be seriously disputed.
A.
JPC’s Business and Operations
Varun Sharma is a native of India and, since 1992, has operated two businesses
in that country. These businesses manufacture and sell equestrian-related supplies,
clothing, and equipment. Sales from these businesses extend worldwide, and are
primarily directed at wholesalers, who then sell the products to retailers.
One of the businesses that Sharma has operated in India is a company called
JPC (“JPC-India”). JPC-India is a partnership, in which Sharma owns 90% and his
son owns the remaining 10%. JPC-India primarily sells its products to wholesalers
but sometimes sells to retailers as well. (Doc. 36, Affidavit of Varun Sharma
(“Sharma Aff.”) ¶¶ 1-5.)
In early 2002, Sharma came to the United States to establish a new business
known as JPC Equestrian, Inc (“JPC”). On February 4, 2002, JPC was incorporated
under the laws of Pennsylvania. JPC is a wholly owned subsidiary of Cotton Naturals
India Ltd. Sharma owns 90% of Cotton Naturals, and his son owns the remaining
10%. Sharma is the President of JPC, which has its principal place of business in
Drums, Pennsylvania. (Sharma Aff. ¶¶ 6-8.)
3
JPC sells equestrian-related supplies, clothing, and equipment to retailers in the
United States. Its purchases inventory from JPC-India and then sells the product to
retail-store customers. (Sharma Aff. ¶ 9.) Since it was established in the United
States in 2002, JPC has used independent sales representatives to make many, but not
all, of its sales. These sales representatives are assigned territories in which they are
responsible for marketing and selling JPC product. (Sharma Aff. ¶ 10.) In order to
market JPC products, sales representatives purchase product samples from JPC and
then show those samples to customers. (Sharma Aff. ¶ 12.) The sales representatives
are all independent contractors, and are paid solely through commissions on sales
made to customers. (Id. ¶ 15.)
Although many of JPC’s sales are made through sales representatives, some
sales are made through the company’s customer service department. Customers who
purchase products through JPC’s customer service department are known as “house
accounts.” (Id. ¶ 13.) JPC has used house accounts since 2003. House accounts are
generally internet-based accounts or customers who have asked to deal directly with
JPC’s customer service department. (Id. ¶ 14.)
Generally, sales representatives receive 10% sales commissions. However,
because sales to house accounts are made through JPC’s customer service department,
4
sales representatives do not receive commissions on these sales. They also do not
receive commissions on close-out sales or other liquidation sales. (Id. ¶¶ 16-17.)
Sales representatives also receive reduced commissions for bigger, nation-wide
customers who are not house accounts, but who consistently buy large quantities of
product at a discount. Commission payments for sales to these larger accounts
“generally equals” 5% of the sale price. (Id. ¶ 17.)
B.
The Plaintiffs’ Relationship with JPC and Sharma
As Sharma was preparing to enter the equine-products market in the United
States, he consulted with a lawyer in New Hampshire, who provided him with a form
document that was entitled “Sales Representation Agreement,” which the lawyer
suggested could be exchanged with the independent sales representatives that Sharma
intended to use to market and sell products on behalf of JPC in the United States.
In January 2002, Sharma arranged to meet with the plaintiffs and other sales
representatives in the business at a trade show in King of Prussia, Pennsylvania.
(Sharma Aff. ¶ 25; Wells Dep. at 46-47; Krutoff Dep. at 29.) Sharma had some
familiarity with the plaintiffs due to their involvement in the equine business,
specifically as sales representatives for another equestrian-supply wholesaler, English
Equestrian Group (“EEG”), and they met during the convention to discuss the
possibility of the plaintiffs representing JPC’s product line as independent sales
5
representatives. Sharma recalls have some “general discussions” with the plaintiffs
about how the prospective company would operate, what types of products
representatives would be expected to sell, and how the representatives would market
product and get paid for sales. (Sharma Aff. ¶ 25; Wells Dep. at 46-47; Krutoff Dep.
at 25-31.) Although no agreements were reached at this meeting, Sharma claims that
in April “without discussing any particulars about the company with me, plaintiffs
said they would serve JPC Equestrian as independent sales representatives.” (Sharma
Aff. ¶¶ 25, 27.)
To memorialize this new business relationship, sometime in 2002, after the
plaintiffs had begun marketing product on JPC’s behalf, Sharma “inserted plaintiffs’
respective names and addresses” into the “document template” for a sales
representation agreement that Sharma had been provided by the New Hampshire
lawyer, entitled “Sales Representation Agreement,” which purported to outline the
parties’ relationship.2 None of the parties has produced a copy of the Agreement
Although the defendants now disclaim the term “Agreement” for this
document, and use the generic term “Document” to define it in their briefs, we will
refer to the document as the “Agreement” in this memorandum. In doing so, the
Court is not signaling that the document is necessarily a binding contract, or that
the terms it contains were necessarily terms to which the parties’ ultimately
agreed; as noted, we find that disputed issues of fact exist as to whether the parties
entered into the Agreement, what the terms of their contractual relationship were,
if any, and whether JPC breached the terms of such contract. The term
“Agreement” is, however, consistent with the title of the document that Sharma
2
6
signed by all parties; instead, Wells has submitted a copy that does not bear his own
signature, and Krutoff has not provided a copy of the Agreement that he received and
further represents that his copy was not signed by Sharma or anyone else at JPC.
(Doc. 1; Wells Dep. at 53; Krutoff Dep. at 40:15-19.) The plaintiffs testified during
their depositions that they considered the Agreement to be a formality, which they
even deemed to be “unnecessary,” and which was largely “forgotten about.” (Krutoff
Dep. at 36:6-12; 39:22-24; 62:2-3; Wells Dep. at 58:20-24.) It appears that none of
the parties engaged in any discussions regarding the terms of the Agreement itself.
(Krutoff Dep. at 36:19-23 (“there was no discussion about it. It was just a
formality”); Wells Dep. at 57:19-25; 58:1-5 (“I don’t recall discussing it that much
at all, really. I don’t recall”).) Although he inserted the plaintiffs’ names into the
Agreement and sent a copy to each of the plaintiffs, Sharma now claims that
“subjectively speaking, I, on behalf of JPC Equestrian, never intended for the
purported terms of the Document to govern JPC Equestrian’s relationship with the
plaintiffs.” (Sharma Aff. ¶ 32.) Sharma does not explain why, if that was the case,
he prepared the Agreement and sent the same to the plaintiffs for their signature.
provided to the plaintiffs, and is more descriptive of what the document appears to
be.
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Although the defendants seem to dispute that Wells and Krutoff ever executed
the Agreement, both Wells and Krutoff have testified that they did so. Wells testified
as follows:
I got a call or an e-mail – and I’m not sure which – from
Nina DePetris, the vice president, asking had I returned it.
And I said, No, I don’t even know where the thing is at the
moment, Nina. I don’t know if it’s in one of my briefcases
or one of my vehicles. I’ll have to find it. She said, Well,
we’re going to overnight you another copy of it. If you
will just sign it and put it in the return mail. I said, I’ll do
it. And that is was happened.
So therefore, when I finally found this one [i.e., the copy
attached to the complaint] in a briefcase I had discarded –
not discarded; quit using – I just happened to have it,
which meant nothing to me at the time. But I sad, well, I’ll
just keep it anyhow. So that’s how come. There is no
reason for this one to be signed, because I never did get
around to returning this one. The one that was sent back to
them definitely was signed by me and dated.
(Wells Dep. at 52-53.) Krutoff likewise testified that he received a copy of the
Agreement, which he signed and returned to the company. (Krutoff Dep. at 35-36.)
Nevertheless, in marked contrast, Sharma testified that he never received a signed
copy of the Agreement from either of the plaintiffs. (Sharma Aff. ¶¶ 30-31.)
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Pursuant to the terms of the Agreement,3 the plaintiffs agreed to be engaged as
sales representatives for JPC as independent contractors. Wells’ Agreement provided
that he would act as an independent marketing representative for JPC products, in a
defined territory of Maryland, Virginia, North Carolina, and South Carolina. Krutoff
represents that pursuant to the Agreement that he received, he would serve as a
marketing representative in Pennsylvania, New York, New Jersey, and Delaware.
The plaintiffs also claim that they had substantive discussions with Sharma
about the terms of their Agreements and relationship with JPC, and the plaintiffs’
version of these discussions differed markedly from that recalled by Sharma. Thus,
Wells testified during his deposition that Sharma assured him that he would be paid
a 10% commission on all sales made within his territory, and that Sharma agreed to
furnish Wells with samples at no charge to enable him to “get right out and go” begin
marketing and selling on JPC’s behalf. (Wells Dep. at 47-48.) Krutoff similarly
testified that he made it clear to Sharma that he wanted a 10% commission on all sales
It appears to be undisputed that Sharma prepared and sent sales
representative agreements to both Wells and Krutoff, although only Wells’s copy
has been produced by the parties. (Compl., Ex.) There is no suggestion in the
record that the terms of the Agreement provided to Krutoff differed any respect
from that provided to Wells, other than with respect to assigned sales territories,
and since Sharma has taken the position that he treated the document as a mere
form, there appears to be no reason to believe that the terms of the document
provided to either plaintiff differed in any other material respect.
3
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within his territory, which was exclusive, and that there would be no house accounts
on which commissions would not be paid. (Krutoff Dep. at 33.) The 10%
commission the plaintiffs claim Sharma agreed to orally is similarly reflected in the
Agreement that Sharma prepared and provided to the plaintiffs in 2002. (Doc. 1,
Compl., Ex.)
The terms of the Agreement provide, apparently with no exceptions, that the
plaintiffs would be paid a 10% commission on the total net payable invoices on sales
made by the company and which resulted “from the Sales Representative’s
Introductions or other interventions.” (Doc. 1, Compl., Ex., Sales Representation
Agreement ¶ 4.) The Agreement also provided that the plaintiffs would bear their
own expenses, with certain exceptions, and prohibited them from working for
competitors while serving as JPC’s representative. The Agreement also spelled out
the procedures and timing by which either party could terminate the Agreement.
The defendants insist that the “Sales Representation Agreement” that Sharma
prepared and provided to each of the plaintiffs does not amount to a contract. To the
contrary, the defendants emphasize that the “Agreement” was never negotiated by the
parties. They also assert that the plaintiffs failed to sign and return the document, or
that neither JPC nor Sharma executed the document, and they highlight numerous
instances where the parties did not faithfully follow each and every provision of the
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Agreement over the course of their years of commercial dealings with one another
(something the plaintiffs acknowledge, but argue actually supports their claims that
the defendants repeatedly breached the parties’ agreement).
The plaintiffs claim that although they were typically paid the 10% commission
called for under the Agreement, at numerous times JPC failed to pay a 10% percent
commission on certain accounts, and instead paid only 5% for these accounts –
something that Sharma has attested was the standard practice for JPC. Later, the
plaintiffs claim that JPC converted some large accounts to “house accounts” and thus
paid them no commissions at all on sales made to these accounts even if they were
within the plaintiffs’ sales territories. The plaintiffs also alleges that JPC sold directly
to a number of their customers in order to avoid paying a commission as required
under the Agreement. Finally, the plaintiffs allege that Sharma tortiously interfered
with their contracts with JPC by selling products on behalf of JPC-India, in direct
competition with JPC, and, therefore, denied the plaintiffs the benefit of their
contracts with JPC by interfering with their sales efforts, and impairing their ability
to earn commissions on the sales they generated.
JPC and Sharma take a decidedly different, and far narrower, view of the
parties’ relationship. Although they never explain or define the precise nature of the
commercial relationship that JPC and the plaintiffs had for approximately eight years,
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or whether that relationship was governed by any written or oral contractual
agreement, they are adamant that the “Sales Representation Agreement” first tendered
from Varun Sharma to the plaintiffs in or around May 2002 did not form a contract.
In support of this assertion, the defendants contend that the plaintiffs never signed the
Agreement, despite being asked to do so by Sharma, or otherwise that no copy of a
fully executed agreement have been produced. In the absence of a copy of the
“Agreement” bearing all parties’ signatures, the defendants insist the document never
matured into an enforceable contract.
The defendants also note that the “Agreement” was not negotiated by the
parties, emphasize that the plaintiffs testified during their depositions that the
Agreement was essentially a formality and something that the parties did not focus
on, and more importantly, the defendants maintain that the parties did not act
consistently with numerous terms of the Agreement. Despite undisputed evidence
showing that the parties adhered to many of the terms of the Agreement, the
defendants insist that the parties paid so little regard to certain other terms that it
compels a finding that the parties never manifested their assent to the Agreement.
Furthermore, the defendants argue that even if there were factual disputes
regarding whether the parties entered in to the Agreement, they submit that summary
judgment is nevertheless warranted because the plaintiffs have waived their right to
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enforce the Agreement’s terms. Here the defendants are saying that because the
plaintiffs continued working even while they were being paid less than full
commissions on their sales, and while JPC was not adhering to all terms of the
Agreement, their passivity should be construed as a waiver of their right now to
enforce the terms of the parties’ arrangement.
Finally, the defendants argue that they are entitled to summary judgment on the
plaintiffs’ claims that Sharma tortiously interfered with their contractual relations
with JPC. The defendants assert that the plaintiffs have no evidence to show that
Sharma caused JPC to breach any contract that it had with the plaintiffs, and there is
no evidence showing that Sharma as a third party interfered with a contract that the
plaintiffs may have had with JPC. Kearney, in contrast, argues that his claim is
straightforward: JPC India sells bulk goods of the same type as those sold by JPC in
smaller quantities, and in numerous instances Sharma, acting as managing director
of JPC India, interfered with the plaintiffs’ contracts with JPC by selling goods in
direct competition with JPC, and, therefore, denying the plaintiffs the benefit of their
own contracts with JPC.
Thus, despite agreeing on many of the facts in this case, the parties take sharply
different views of the claims and the factual record, and those sharply divergent views
are reflected in competing evidence in the record that makes summary judgment in
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favor of either party on the plaintiffs’ breach-of-contract claim inappropriate at this
time.
Although it is difficult to embrace the defendants’ assertion that the parties
operated for eight years in a commercial relationship without any contractual
arrangement, and although many of the defendants’ interpretive arguments seem
rather narrow, we nonetheless find that there do remain sufficient questions as to
whether and when the plaintiffs and JPC entered into an enforceable contract, and if
so what the terms of that contract were, and whether those terms were breached.
In contrast, we find that the plaintiffs’ tortious interference claim against Varun
Sharma lacks sufficient evidentiary support, and is undermined by Sharma’s sworn
explanation regarding the nature of JPC-India’s sales to customers in the plaintiffs’
sales territories. Furthermore, we do not find in the record sufficient evidence to
show that Sharma effectively could be considered a third-party interferer, since he
effectively controlled both JPC and JPC India.
Accordingly, for the reasons that follow, the parties’ cross-motions for
summary judgment will be denied with respect to the plaintiffs’ breach-of-contract
claims, and granted in favor of Varun Sharma with respect only to the tortiousinterference claims.
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III.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:
A party may move for summary judgment, identifying each
claim or defense – or the part of each claim or defense – on
which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. The court should
state on the record the reasons for granting or denying the
motion.
Fed. R. Civ. P. 56(a). For purposes of Rule 56, a fact is material if proof of its
existence of nonexistence might affect the outcome of the suit under the applicable
substantive law. Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408,
412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). For an issue to be genuine, “all that is required is that sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve
the parties’ differing versions of the truth at trial.” Id. (quoting Anderson, 477 U.S.
at 248-49).
Accordingly, in support of a motion for summary judgment, the moving party
must show that if the evidence of record were reduced to admissible evidence in
court, it would be insufficient to allow the non-moving party to carry its burden of
proof. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). Provided the moving party
15
has satisfied this burden, “its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380
(2007). Instead, if the moving party has carried its burden, the non-moving party
must then respond by identifying specific facts, supported by evidence, which show
a genuine issue for trial, and may not rely upon the allegations or denials of its
pleadings. See Martin v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007); see also Fed. R.
Civ. P. 56(c).
In adjudicating the motion, the court must view the evidence presented in the
light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all
reasonable inferences in the light most favorable to the non-moving party, Big Apple
BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Where the non-moving party’s evidence contradicts the movant’s, then the nonmovant’s must be taken as true. Id. Additionally, the court is not to decide whether
the evidence unquestionably favors one side or the other, or to make credibility
determinations, but instead must decide whether a fair-minded jury could return a
verdict for the plaintiff on the evidence presented. Id. at 252; see also Big Apple
BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has
instructed that:
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To raise a genuine issue of material fact . . . the opponent
need not match, item for item, each piece of evidence
proffered by the movant. In practical terms, if the
opponent has exceeded the “mere scintilla” threshold and
has offered a genuine issue of material fact, then the court
cannot credit the movant’s version of events against the
opponent, even if the quantity of the movant’s evidence far
outweighs that of its opponent. It thus remains the
province of the factfinder to ascertain the believability and
weight of the evidence.
Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
quotation marks omitted); NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d
464, 476 (3d Cir. 2011).
When a court is presented with cross-motions for summary judgment, “the
court must rule on each party’s motion on an individual and separate basis,
determining, for each side, whether a judgment may be entered in accordance with the
summary judgment standard.” See Schlegel v. Life Ins. Co. of N. America, 269 F.
Supp. 2d 612, 615 n.1 (E.D. Pa. 2003) (quoting 10A Charles A. Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (1998)); see also
Marciniak v. Prudential Financial Ins. Co. of Am., 184 F. App’x 266, 270 (3d Cir.
2006).
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IV.
DISCUSSION
A.
Disputed Issues of Fact Remain with Respect to the Plaintiffs’
Breach of Contract Claim.
“Where the facts are in dispute, the question of whether a contract was formed
is for the jury to decide.” Ingrassia Construction Co. v. Walsh, 486 A.2d 478, 482
(Pa. Super. Ct. 1984) (quoting O’Neill v. ARA Services, Inc., 457 F. Supp. 182, 185
(E.D. Pa. 1978)).
Mindful of this overarching principle of contract law and the proper respective
roles of the court and the jury, we first consider the defendants’ assertion that the
Agreement never formed a contractual relationship between either of the plaintiffs
and JPC. The Agreement provides that it was to be interpreted in accordance with
Pennsylvania law, and the parties have at all times indicated that they mutually
believe that Pennsylvania law governs the claims in this case. The defendants argue
that the plaintiffs’ failure to sign the document, or perhaps Sharma’s failure to sign
the document, caused it to be entirely unenforceable, and they argue that the parties’
subsequent conduct, and indeed the plaintiffs’ own testimony about how they viewed
the written Agreement, compels a finding that neither the plaintiffs nor JPC
considered themselves to be bound by the Agreement’s terms.
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As a threshold matter, as the parties prosecuting a claim for breach of contract,
the plaintiffs bear the burden of proving the following: (1) the existence of a
contract; (2) a breach of duty imposed by the contract; and (3) resultant damages.
Pennsy Supply, Inc. v. Am. Ash. Recycling Corp., 895 A.2d 595, 600 (Pa. Super. Ct.
2006). Pennsylvania law holds that a contract is enforceable “when the parties to it
1) reach a mutual understanding, 2) exchange consideration, and 3) delineate the
terms of their bargain with sufficient clarity.” Helpin v. Trustees of the Univ. of Pa.,
969 A.2d 601, 610 (Pa. Super. Ct. 2009) (quoting Weavertown Transport Leasing,
Inc. v. Moran, 834 A.2d 1169, 1172 (Pa. Super. Ct. 2003)).
“The law of this Commonwealth makes clear that a contract is created where
there is mutual assent to the terms of a contract by the parties with the capacity to
contract.” Shovel Transfer and Storage, Inc. v. Pennsylvania Liquor Control Bd., 739
A.2d 133, 136 (Pa. 1999). Notably, “[a] true and actual meeting of the minds is not
necessary to form a contract. In ascertaining the intent of the parties to a contract, it
is their outward and objective manifestations of assent, as opposed to their
undisclosed and subjective intentions, that matter.” Ingrassia Constr. Co., 486 A.2d
at 482-83 (citations omitted).4 Furthermore, “[i]f the parties agree upon essential
4
As one treatise explains:
According to the objective theory of contract formation,
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terms and intend them to be binding, a contract is formed even though they intend to
adopt a formal document with additional terms at a later date.” Hartman v. Baker,
766 A.2d 347, 351 (Pa. Super. Ct. 2000) (citation omitted). Moreover, “[a]s a general
rule, signatures are not required unless such signing is expressly required by law or
by the intent of the parties.” Id. (quoting Shovel Transfer and Storage, 739 A.2d at
136). Additionally, “an offer may be accepted by conduct and what the parties d[o]
pursuant to th[e] offer is germane to show whether the offer is accepted.” Id. (quoting
Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. Ct. 1993)).
Under Pennsylvania law, courts determining whether the parties objectively
manifested their intention to be bound will consider the entire document asserted to
represent the parties’ contractual agreement, and assess the relevant circumstances
what is essential is not assent, but rather what the person to
whom a manifestation is made is justified as regarding as
assent. Thus, if an offeree, in ignorance of the terms of an
offer, so acts or expresses itself as to justify the other party
in inferring assent, and this action or expression was of
such a character that a reasonable person in the position of
the offeree should have known it was calculated to lead the
offeror to believe that the offer had been accepted, a
contract will be formed in spite of the offeree's ignorance
of the terms of the offer.
1 Richard A. Lord, Williston on Contracts § 4:19 (4th ed. 2008) (quoted in
Morales v. Sun Constructors, Inc., 541 F.3d 218, 222 (3d Cir. 2008)).
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that surround the document’s creation, including the parties’ conduct. See Channel
Home Centers v. Grossman, 795 F.2d 291 (3d Cir. 1986) (vacating and reversing the
district court’s determination that there was no enforceable agreement based upon a
property owner’s promises to a prospective tenant). Guided by these bedrock
principles of Pennsylvania contract law, we turn to the defendants’ contention that the
Agreement that Sharma filled out, signed, and provided to the plaintiffs did not
actually constitute a binding contract.
As an initial matter, the defendants place undue weight on the fact that neither
party has produced copies of the Agreement that bears all parties’ signatures. It is
undisputed that Sharma prepared the document, and that he sent the document to each
of the plaintiffs with a request that they sign it. It is undisputed that no copy of the
Agreement has been produced with the signatures of all parties. Relying on standard
language contained in the Agreement that provides that it “may be executed in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument,” (Doc. 1-1), and a single
unpublished decision narrowly construing this language as creating an ironclad
requirement that such an agreement be signed by both parties to be enforceable, the
defendants argue that the absence of all parties’ signatures renders the entire
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Agreement unenforceable as a matter of law. We disagree that this matter can be
resolved at summary judgment.
A document signed by only one party may be enforceable “as long as both
parties accept and act under its terms.” Sullivan v. Allegheny Ford Truck Sales, Inc.,
423 A.2d 1292, 1295 (Pa. Super. Ct. 1980). Although the defendants acknowledge
this principle of contract law, they nonetheless argue that in this case the absence of
a fully signed agreement compels a finding that the Agreement never matured into a
binding contract. The defendants’ support this assertion by relying exclusively on
Buzzmarketing, LLC v. The Upper Deck Company, LLC, No. Civ. A. 03-4392, 2004
WL 966241 (E.D. Pa. May 6, 2004), an unpublished decision in which the court
considered the question of whether parties who orally agreed to the terms of an
unsigned written contract were bound by the terms of the writing.
In Buzzmarketing, the court noted that the Pennsylvania Supreme Court has
held that the mere fact that a proposed contract contained signature lines is not
conclusive evidence that the parties intended to require the contract to be executed
only in writing, but also held that if the contract had contained language “stating the
parties’ intent to execute the agreement in writing, the oral agreement would indeed
have been invalid.” Id. (citing Shovel Transfer & Storage, Inc. v. Pennsylvania
Liquor Control Bd., 739 A.3d 133, 138 (Pa. 1999). In Shovel Transfer the court
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found the absence of such intentional language in the written agreement would be
construed against the drafting party, and held that the inclusion of signature lines
alone was insufficient proof of the parties’ intent that the agreement needed to be
executed in writing to be binding. Accordingly, the Shovel Transfer court found that
the parties’ oral agreement to the terms of a written, but unsigned, contract were
enforceable. Id.
In contrast, the Buzzmarketing court cited to a decision of the Pennsylvania
Commonwealth Court which held that a proposed contractual clause that provided
that the contract in question would “not be fully executed and binding on the Parties
unless and until all signatures are affixed hereto” manifested the parties’ intent to
execute the contract only in writing.
Id. (citing Commonwealth v. On-Point
Technology Sys., Inc., 821 A.2d 641, 648, 649 n.13 (Pa. Commonw. Ct. 2003). The
inclusion of such mandatory language satisfied the holding of Shovel Transfer that
a contract will not be enforceable if both parties expressly agreed that full execution
of the agreement by both parties was a condition to enforcement.
Relying on the foregoing cases, the Buzzmarketing court turned to the language
of the unsigned written agreement at issue in that case. That language provided only
that “[t]his Agreement may be executed in counterparts and facsimile signatures shall
suffice as originals.” Buzzmarketing, LLC, 2004 WL 966241, at *3 (emphasis
23
added). Although this boilerplate language contained none of the mandatory
language at issue in On-Point Technology that the Commonwealth Court found
manifested the parties’ intent to enter into only a fully-executed written agreement,
the court nevertheless concluded that the clause “signatures shall suffice” to execute
the agreement “clearly indicate[d] the parties’ intent to execute the agreement only
by signing it.” Id.
Upon consideration, we do not find the Buzzmarketing court’s analysis of this
issue to be persuasive, and we do not agree with the defendants that the holding in
On-Point Technology adequately supports the court’s conclusion. Whereas the
contractual language at issue in On-Point Technology plainly stated that the contract
would “not be fully executed and binding on the Parties unless and until all signatures
are affixed hereto,” the language in the document in Buzzmarketing merely allowed
for the parties to execute the document in counterpart and by facsimile; it did not
contain anything comparable to the mandatory language used by the parties in OnPoint Technology. For that reason, we do not agree with the court’s assessment that
“it is difficult to conceive of any reasonable reading of this term under which the
agreement could be executed without the signatures of both parties.” Id.
Since the language used in the Agreement did not expressly make clear that it
could only become effective upon the signature of both parties, and because the
24
language regarding counterparts and facsimile signatures are familiar and typical
clauses used in commercial contracts generally, we do not agree that use of this
customary language causes all agreements bearing this language to become
unenforceable in the absence of signatures.
Our interpretation of the language at issue, and the teaching of Shovel Transfer,
is bolstered by the fact that Pennsylvania has long recognized that a document signed
by only one party may be enforceable “as long as both parties accept and act under
its terms.” Sullivan v. Allegheny Ford Truck Sales, Inc., 423 A.2d 1292, 1295 (Pa.
Super. Ct. 1980). The decisions in Shovel Transfer and On-Point Technology do not
fundamentally change that principle; instead those cases simply recognize that parties
can agree with one another that any written agreement they are negotiating will not
become binding unless and until both parties sign the document. Accordingly, we do
not find that the typical, even boilerplate, language used in the Agreement regarding
the manner of signature rendered the contract entirely unenforceable in the absence
of both parties’ signatures.
The plaintiffs have attested that they signed the
Agreement that Sharma provided to them, and the absence of a copy of the
Agreement bearing all parties’ signatures is not dispositive as to whether the parties
entered into a binding contract.
25
B.
Neither Party is Entitled to Summary Judgment Based Upon PreContracting or Post-Contracting Conduct
Next, the defendants argue that the Agreement should be declared
unenforceable because “[t]he relevant circumstances surrounding the Document’s
creation and the parties’ behavior afterward also show that the parties never intended
to be bound by the Document.” (Doc. 37, at 20.) In particular, the defendants argue
that the plaintiffs and Sharma did not actively negotiate the terms of the Agreement,
and that after the Agreement was exchanged the parties acted in a manner that was
inconsistent with some of the Agreement’s terms. The defendants also place great
weight on select testimony by the plaintiffs to the effect that Wells considered that the
Agreement was “unnecessary,” (Wells Dep. at 58:20-24), that Krutoff considered it
a mere “formality,” (Krutoff Dep. at 36:6-12), and that the parties had few, if any
discussions about it. In making these arguments, however, the defendants are really
arguing about how the facts should be interpreted, and they do not persuade us that
those facts compel the entry of summary judgment in their favor on the question of
whether the parties entered into a valid and binding contract in 2002.
In addition to arguing that the parties’ pre-contracting conduct suggests that the
parties were not in mutual agreement, the defendants set forth numerous instances
where the parties behaved contrary to, or inconsistently with, the terms of the
26
Agreement. Thus, for example, the defendants note that although the Agreement
provided that the plaintiffs would “meet reasonable gross sales requirements that are
assigned . . . by the Company,” (Agreement ¶ 1(b)), it is undisputed that JPC never
established or imposed sales requirements on the plaintiffs. (Wells Dep. at 60:10-12;
Krutoff Dep. at 43:21-24; 44:1 - 45:2; Sharma Aff. ¶ 33(a).) The defendants also note
that paragraph 1(d) of the Agreement purports to require Kearney, as the sales
representative, to collect payments from customers, but this was never done. (Wells
Dep. at 61:5-15; Krutoff Dep. at 45:16-21; Sharma Aff. ¶ 33(b).) Likewise, the
Agreement prohibits a sales representative from selling products that compete with
JPC’s products, but there is evidence to show that Krutoff did, and that Wells may
have, sold products that competed with JPC during the time they worked on JPC’s
behalf, but JPC did not invoke the non-compete provision to force either plaintiff to
discontinue their outside sales work. (Wells Dep. at 40-41; Krutoff Dep. at 21-22;
Sharma Aff. ¶ 33(c).)
The Agreement further provided that the sales representative would receive a
10% commission on sales “directly resulting from the Sales Representative’s
introductions or other interventions.” (Agreement ¶ 4.) It is undisputed that on
multiple occasions, the plaintiffs were not paid a 10% commission on close-out sales,
house accounts, or sales made to larger, national account customers, and these
27
practices existed over the course of the parties’ eight-year relationship. For their part,
the defendants argue that JPC’s routine practice of paying less than 10% commissions
depending upon the particular customer and circumstances shows that the parties did
not intend to be bound by the single 10% commission provided for in the Agreement.
The plaintiffs have maintained that their agreements provided that they would be paid
10% and the fact that they were not paid such commissions on all sales is evidence
not of a waiver, but of a breach. We believe that the parties’ divergent interpretation
of these facts highlight a material factual dispute, and does not compel the entry of
judgment for either party as a matter of law.
The defendants submit numerous other instances where they claim the parties
disregarded the Agreement’s terms, or did not faithfully comply with them. The
defendants aggregate instances where the parties did not strictly comply with the
Agreement’s provisions and terms, and argue that the conduct of the parties suggests
a complete absence of outward and objective manifestations of assent to the terms of
the Agreement. Again, the plaintiffs insist that whether or not all terms of the
Agreement were followed is not dispositive of whether a binding contract was
formed, and emphasize their view that instances of what they perceive as breach
should not be construed instead as a waiver on their part of their right to enforce the
terms that they claimed they bargained for.
28
On the record before the Court, we find that summary judgment in favor of
either party is inappropriate on the question of whether the parties entered into a
binding Agreement and, if so, what the scope of its terms were, and we do not find
that these questions may be answered as a matter of law by this Court based purely
upon examples of the parties’ conduct over a lengthy commercial relationship. The
defendants’ collection of instances where the parties diverged from the precise terms
of the Agreement are not sufficient to show that there was a complete absence of
outward and objective manifestations of assent, since it is also undisputed that
Sharma prepared and provided the Agreement to the plaintiffs, that the plaintiffs
continued selling on behalf of JPC immediately after being provided the Agreement
that Sharma himself prepared, and in many respects the parties seem to have followed
fundamentally material aspects of the Agreement. Furthermore, the plaintiffs argue
that Sharma required all sales representatives to have signed contracts, and that he
maintained a file with these contracts at JPC’s headquarters in Drums, Pennsylvania,
thus suggesting that is was common practice for JPC to enter into agreements with
its independent sales force. The record concerning whether the parties entered into
a written contract, or otherwise entered into an enforceable oral agreement, is in
dispute, and is not capable of being resolved through a motion for summary
judgment.
29
C.
The Defendants are Not Entitled to Summary Judgment on Their
Affirmative Defense that the Plaintiffs Waived Their Rights Under
the Agreement
The defendants argue that even if the Court finds that disputed issues of fact
preclude summary judgment as to whether the parties entered into an enforceable
contract, the Court should nevertheless grant summary judgment because the
plaintiffs waived their right to enforce the Agreement as a matter of law. Here, too,
we disagree.
“A waiver is the intentional relinquishment of a known right.” Consol. Rail
Corp. v. Delaware & H. R. Co., 569 F. Supp. 26, 29 (E.D. Pa. 1983); Brown v.
Pittsburgh, 186 A.2d 399, 401 (Pa. 1962). Under Pennsylvania law, parties may
waive contract provisions. Trumpp v. Trumpp, 505 A.2d 601, 603 (Pa. Super. Ct.
1985). “To constitute a waiver of a legal right, there must be a clear, unequivocal and
decisive act of the party with knowledge of such right and an evident purpose to
surrender it.” Brown, 186 A.2d at 401. Waivers may be express or implied. Id. In
this case, the defendants argue that the plaintiffs impliedly waived their right to
enforce the terms of the Agreement governing payment of commissions, and the
provision of samples.
An implied waiver exists where: (1) there is an “unexpressed intention to
waive, which may be clearly inferred from the circumstances”; or (2) when there is
30
no such actual intention to waive, but where a party’s conduct “misleads [the other
contracting part] into a reasonable belief” that a contract provision no longer matters.
Den-Tal-Ez, Inc. v. Siemens Capital Corp., 566 A.2d 1214, 1223 (Pa. Super. Ct.
1989) (applying New York law). However, “[i]t is well settled under Pennsylvania
law that the doctrine of implied waiver ‘applies only to situations involving
circumstances equivalent to an estoppel, and the person claiming the waiver to prevail
must show that he was misled and prejudiced thereby.’” Consol. Rail Corp. v.
Delaware & H. R. Co., 569 F. Supp. 26, 29-30 (E.D. Pa. 1983) (emphasis in original).
“In other words, applying the same standards as used in claims of estoppel, the
moving party must show that it was prejudiced because the promise caused it to
change its position.” 2101 Allegheny Assocs. by Rappaport v. Cox Home Video,
Inc., Civ. A. No. 91-2743, 1991 WL 225008, at *9 (E.D. Pa. Oct. 29, 1991). The
party asserting waiver as a defense has the burden of proving that the counterparty
impliedly waived its right to enforce a contractual provision. Id.; United States ex rel.
E.C. Ernst, Inc. v. Curtis T. Bedwell & Sons, Inc., 506 F. Supp. 1324, 1329 (E.D. Pa.
1981).
The defendants argue that the plaintiffs’ failure to seek legal enforcement of
their rights under the Agreement over eight years should now be construed as a matter
of law to constitute waiver of those claims. The defendants have not carried their
31
burden in this regard, in large part because other than to cite to cases in which waiver
has been found, they have not demonstrated that in their case they were actually
misled by the plaintiffs’ conduct, or that they were actually prejudiced by the
plaintiffs’ decision not to enforce their alleged rights under the Agreement. Since the
defendants have not demonstrated that they were somehow misled by the plaintiffs,
or that they are now unreasonably prejudiced by their claims of breach, we cannot
agree that a jury would be compelled to find in their favor on this affirmative
defense.5
Although we do not find that the defendants are entirely foreclosed from
pursuing their affirmative defense of waiver at trial, they are not entitled to summary
judgment on the basis of the defense.
In summary, we find that there remain disputed issues of material fact with
respect to whether the parties had entered into an enforceable sales representation
Moreover, the defendants offer especially thin legal support for their
argument regarding waiver. The defendants essentially rely on a single
bankruptcy court decision in which a party’s failure to enforce a warranty to repair
a medical device lulled the defendant into believing that its services were
acceptable. In re Imaging Services, 143 B.R. 355, 359 (Bankr. W.D. Pa. 1992).
The defendants in this case do not persuasively analogize the performance
guarantee at issue in In re Imaging Services to the sales representation agreement
that is the subject of this case, or how Kearney’s alleged decision to continue
working despite the defendants’ alleged breaches of the parties’ agreement is
analogous to the failure to exercise rights under a service warranty.
5
32
contract; about whether the defendants breached that contract; about which terms of
that contract, if any, may have been breached; and about whether the plaintiffs may
have waived their rights to enforce any aspect of that Agreement by waiting to bring
suit until 2010.6
D.
Sharma is Entitled to Summary Judgment on the Plaintiffs’
Tortious Interference Claim
The plaintiffs also claim that Varun Sharma tortiously interfered with their
rights under the Agreement, and undercut their ability to earn commissions under the
Agreement, by funneling sales in the plaintiffs’ territories from JPC to JPC-India.
Thus, the plaintiffs allege that Sharma sold products on behalf of JPC-India, and these
products were precisely the same type and nature sold by JPC in smaller quantities.
Pennsylvania law has adopted the Restatement (Second) of Torts § 766,
governing the tort of malicious interference with contract. Adler, Barish, Daniels,
Levin and Creskoff v. Epstein, 393 A.2d 1175 (Pa. 1979); see also Daniel Adams
The defendants also urge the Court at this time to enter an order limiting
the plaintiffs’ claim for damages based upon Pennsylvania’s four-year statute of
limitations governing contract claims. 42 Pa. Cons. Stat. Ann. § 5525(a)(1).
Although the Court recognizes the statute-of-limitations in this case, we find it
unnecessary to separately rule in this opinion regarding the scope of damages that
may be recoverable, since such a matter may effectively be addressed with the
parties separately prior to trial or, if necessary, through instructions at the time of
trial.
6
33
Assocs., Inc. v. Rimbach Pub., Inc., 519 A.2d 997, 1000 (Pa. Super. Ct. 1987).
Section 766 explains the tort as follows:
One who intentionally and improperly interferes with the
performance of a contract (except a contract to marry)
between another and a third person by inducing or
otherwise causing the third person not to perform the
contract, is subject to liability to the other for the pecuniary
loss resulting to the other from the failure of the third
person to perform the contract.
Restatement (Second) of Torts § 766.
To maintain a claim for tortious interference, the plaintiffs bear the burden of
demonstrating:
(1) the existence of a contractual, or prospective contractual
relationship between the plaintiff and a third party; (2) purposeful action on the part
of the defendant, specifically intended to harm the existing relationship, or to prevent
a prospective relation from occurring; (3) the absence of privilege or justification on
the part of the defendant; and (4) actual legal damages resulting from the defendant’s
conduct. CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375,
384 (3d Cir. 2004). The plaintiffs have not come forward with sufficient evidence to
allow this claim to move beyond summary judgment.
The plaintiffs claim that Sharma, acting on behalf of JPC-India, interfered with
the Agreement between the plaintiffs and JPC by acting on behalf of JPC-India to
divert sales from JPC to JPC-India, thereby depriving the plaintiffs of sales
34
commissions. Yet, the plaintiffs never point to evidence showing that Sharma, acting
on behalf of another corporate entity that he also controlled, intentionally interfered
with an actual contractual relationship that the plaintiffs and JPC had. Even assuming
that the Agreement constituted an enforceable contract, the plaintiffs do not explain,
or point to evidence showing, that Sharma interfered with that contract by negotiating
sales on behalf of JPC-India that may arguably have impacted the plaintiffs’ ability
to earn commissions. They simply assert that Sharma undermined their ability to earn
commissions by selling products through JPC-India rather than through JPC. This
is insufficient.
Furthermore, we have difficulty perceiving how the plaintiffs can satisfy the
first prong necessary to a tortious interference claim, namely, that Sharma was a thirdparty interferer for purposes of the tort. It is fundamental that in order to recover for
tortious interference, a plaintiff must demonstrate the existence of a contractual
relationship between himself and a third person “other than the defendant.” Daniel
Adams Assocs., 519 A.2d at 1000. In other words, the party against whom the tort
is asserted cannot be the other party to the plaintiffs’ contract, but instead must be a
third party outside of the parties’ contractual relationship. Nix v. Temple Univ., 596
A.2d 1132, 1137 (Pa. Super. Ct. 1991) (a corporate agent acting on behalf of a
corporation is not a party distinct from the corporate entity and thus is not subject to
35
tortious-interference liability). In this case, the defendants have persuasively shown
that Sharma owns and operates both JPC and JPC India, the party that the plaintiffs
seem to claim interfered with their own contracts with JPC. Sharma thus maintains
that as a practical matter, given his ownership interests in JPC and JPC India, he and
these twin entities are effectively the same, and thus he argues that he cannot
practically interfere with a contract to which he is a party. The plaintiffs do not
persuasively respond to this assertion, and they do not produce evidence to support
their claim in any event that Sharma tortiously interfered with their contract with JPC.
Sharma is thus entitled to summary judgment on this claim.
V.
CONCLUSION
Accordingly, for the foregoing reasons, the plaintiff’s motion for partial
summary judgment will be denied, and the defendants’ motion for summary judgment
will be granted with respect to the plaintiffs’ tortious interference claim only, and will
be denied in all other respects.
An order consistent with this memorandum shall issue separately.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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