Bisbano, Sr. et al v. Strine Printing Company, Inc. et al
Filing
48
MEMORANDUM AND ORDER granting Defendants' 37 Motion for Summary Judgment: Counts II through VIII are DISMISSED. So Ordered by Chief Judge Mary M. Lisi on 5/8/2013. (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
RICHARD BISBANO, SR. and
RICHARD BISBANO, JR.,1
v.
C.A. No. 10–358-ML
STRINE PRINTING COMPANY, INC. and
MICHAEL STRINE, SR.
MEMORANDUM AND ORDER
MARY M. LISI, Chief District Judge.
The remaining plaintiff in this case, Richard Bisbano, Sr.
(“Bisbano”), a Rhode Island resident, brought claims of breach of
contract, misrepresentation, and intentional interference with
prospective business relations against his former employer, Strine
Printing Company (“Strine Printing”), a Pennsylvania corporation,
and its President and Chief Operating Officer Michael Strine, Sr.
(“Strine,” together with Strine Printing, the “Defendants”) after
Bisbano’s employment with Strine Printing was terminated. The
matter before the Court is the Defendants’ motion for summary
judgment
pursuant
to
Rule
56
of
the
Federal
Rules
of
Civil
Procedure.
1
Any claims raised by Richard Bisbano, Jr. were dismissed by
stipulation on June 18, 2012 (Docket # 32).
1
I. Factual Background2
Bisbano has worked in the printing industry since the 1970s,
primarily as a sales representative for vendors. SUF ¶ 4. In the
course of his work for two different printing service companies,
Bisbano interacted with Vanco Industries, Inc., (“Vanco”), a broker
in the printing industry. SUF ¶ 7. In December 2006, Bisbano
accepted an offer of employment as a sales representative at Strine
Printing. SUF ¶ 9. At the commencement of his employment, Bisbano
received a Strine Printing handbook, the receipt of which Bisbano
confirmed by signing an acknowledgment page(the “Acknowledgement”).
SUF ¶ 10, Defs’ Exh. C. The Acknowledgment states that “nothing in
this handbook or any other policy or communication changes the fact
that
employment
terminated
at
is
any
at-will
time
by
for
you
an
or
indefinite
the
period
Company.”
unless
Id.
The
Acknowledgment also provides that “no employee or representative of
the Company, other than the President or Vice President, Finance
and Administration, has any authority to enter into an employment
contract or to change the at-will employment relationship, or to
make
any
agreement
contrary
to
the
foregoing.”
Id.
At
his
September 25, 2012 deposition, Bisbano confirmed that he was always
an at-will employee at Strine Printing and that he had no contract
2
The summary of facts is based primarily on the Defendants’
Statement of Undisputed Facts (“SUF”) which is, with two noted
exceptions, unchallenged by Bisbano. (Docket # 38).
2
with the company. Defs.’ Ex. B, 10:9-14(Docket # 38-2).
During
his
compensation,
employment
like
that
with
of
all
Strine
other
Printing,
sales
Bisbano’s
personnel,
was
commission-based. SUF ¶ 13.
At the beginning of Bisbano’s employment with Strine Printing,
the company interacted with Vanco as a broker to obtain printing
work from CVS. SUF ¶ 15. However, Vanco did not obtain CVS projects
for Strine Printing at a satisfactory level, SUF ¶ 16, and, in mid2007, Strine Printing ended its relationship with Vanco. SUF ¶ 17.
According to Bisbano, he handled the CVS account and “was charged
with establishing a direct relationship between [Strine Printing]
and CVS.” Bisbano’s Statement of Disputed Facts (“SDF”) ¶ 17.
Following the separation from Vanco, Bisbano’s sales for 2008,
including
his
sales
to
CVS,
dropped
significantly,
reducing
Bisbano’s commission-based pay by about two thirds. SUF ¶¶ 25, 26.
Bisbano’s earned commissions returned to 2007 levels in 2009, after
Strine Printing made capital expenditures to keep up with CVS’s
printing business. SUF ¶¶ 27, 28.
In
April
Bisbano’s
2010,
disclosure
CVS
conducted
that,
while
an
in
investigation
another
regarding
company’s
employ
several years earlier, he had contributed $10,300 to assist an
employee in CVS’s printing department pay for her lease of a luxury
vehicle. SUF ¶
29. Bisbano does not dispute the alleged details of
this transaction. SUF ¶ 30-32. The CVS employee was terminated by
3
CVS. SUF ¶ 29. In addition to investigating Bisbano’s disclosure,
CVS also conducted a complete review of its print department and
print vendors. SUF ¶ 33. Anna Umberto (“Umberto”), CVS’s V.P. for
strategic procurement, met with Strine Printing.3 SUF ¶ 34. Umberto
and CVS security investigator James Lynch (“Lynch”) also met
separately with Bisbano. SUF. ¶ 34.
who
apologized
for
the
incident
After meeting with Bisbano,
and
indicated
that
he
was
interested in moving forward with CVS, Umberto decided that she
would “not feel comfortable with [Bisbano] as our account rep on
the Strine account or any other account.”
SUF ¶¶ 34, 35.
It is undisputed that Umberto had the final say on all
procurement
decisions
and
that
she
executes
CVS’s
printing
contracts with vendors. SUF ¶ 35. Umberto communicated her decision
to cut all ties with Bisbano to John Cappelletti (“Cappelletti”) of
CVS’s
Print
(“Sanchez”),
Production
CVS’s
Department
Director
of
and
to
Advertising
Carlos
&
Sanchez
Promotion
and
Cappelletti’s supervisor. SUF ¶ 35. Umberto decided that CVS would
enter into a contract with Strine Printing; however, she instructed
Sanchez and Cappelletti to inform Strine Printing that it must
remove Bisbano from the vendor account with CVS. ¶ 37.
In June 2010, Strine decided to terminate Bisbano’s at-will
employment, “based on CVS’s instruction that Bisbano must be
3
It is unclear who represented Strine Printing at that meeting.
4
removed from the CVS account and the fact that Bisbano did not have
other sufficient business accounts to support the continuation of
his employment.” SUF ¶ 39. Strine’s deposition testimony as to
Bisbano’s termination indicates that, although there were some
other accounts on which Bisbano could have worked, Strine did not
extend that offer because he “didn’t think it was a wise thing to
do.” SDF ¶ 39, Pltf.’s Ex. D, 92:17-93:4.
On
his
part,
Bisbano
asserts
that
testimony
offered
by
Cappelletti, Sanchez, and CVS strategic sourcing analyst Matthew
Iannetta
(“Iannetta”)
refutes
Strine’s
assertion
that
CVS
instructed him to remove Bisbano from the CVS account. SDF ¶ 39.
However, the specific question posed to these three individuals
during their respective depositions was whether any of them told
Strine at a particular meeting in June 2010 that “Bisbano Sr. is
not allowed to work on the CVS account or to contact CVS in anyway,
otherwise, CVS would not give any additional work to Strine.” All
three answered the question in the negative. (Emphasis added).
Pltf.’s Ex. L, 22:4-19, Ex. M, 17:5-21, Ex. N, 8:2-19. Umberto’s
statements that (1) she had determined to enter into a contract
with Strine Printing; (2) Bisbano had to be removed from the Strine
Printing account with CVS; (3) she had instructed Sanchez and
Cappelletti
to
inform
Strine
Printing
accordingly;
and
(4)
Cappelletti told Umberto that he had done so, are all undisputed by
Bisbano
and
they
are
consistent
5
with
Umberto’s
deposition
testimony. SUF ¶¶ 35-38, Defs.’ Ex. D, 13:2–14:24, 18:3-15, 19:1220:2.
On June 30, 2010, Strine met with Bisbano to inform Bisbano
that his employment with Strine Printing was terminated. SUF ¶ 40.
The Defendants assert that Bisbano was paid in full for his
commissions and expenses. SUF ¶ 41. On his part, Bisbano maintains
that, following the termination of his employment, Strine Printing
received
“preferred
commissions
have
vendor
been
status”
paid
to
with
CVS,
but
that
for
his
efforts
[Bisbano]
procuring this business for [Strine Printing] since 2011.”
41
(emphasis
added).
On
two
occasions in
July
“[n]o
in
SDF ¶
2010, Bisbano
contacted Cappelletti at CVS on behalf of another vendor, but
received no response. SUF ¶¶ 42-43.
II. Procedural History
On July 29, 2010, Bisbano filed the Complaint in Rhode Island
state court, which the Defendants removed to this Court on August
26, 2010 on the basis of diversity between the parties. The
Defendants filed a motion to dismiss on September 14, 2010, which
was denied at the conclusion of a hearing on the matter on January
5, 2011. Bisbano was also advised that he could file an amended
complaint. The parties proceeded to discovery. Bisbano did not file
an amended complaint. On September 28, 2012, Bisbano voluntarily
dismissed a claim for age-based discrimination.
On January 18, 2013, the Defendants filed a motion for summary
6
judgment on all remaining counts of the Complaint, to which Bisbano
responded with an objection on March 8, 2013. The Defendants filed
a reply thereto on March 15, 2013. The matter is now in order for
decision.
III. Standard of Review
Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a).
“Material” means that a contested fact has the potential to change
the outcome of the suit under governing law. The issue is “genuine”
when a reasonable jury could return a verdict for the nonmoving
party based on the evidence. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party
moving for summary judgment bears the burden of showing the absence
of a genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The
evidence submitted in support of the motion must be considered in
the light most favorable to the nonmoving party, drawing all
reasonable inferences in its favor. Navarro v. Pfizer Corp., 261
F.3d 90, 94 (1st Cir.2001).
“On issues as to which the nonmovant bears the ultimate burden
of proof, he may not defeat a properly focused motion for summary
judgment by relying upon mere allegations or evidence that is less
than
significantly
probative.”
7
Maldonado-Denis
v.
Castillo-
Rodriguez, 23 F.3d 576, 581 (citing Anderson, 477 U.S. at 249–50,
106 S.Ct. at 2510–11; Pagano v. Frank, 983 F.2d 343, 348 (1st
Cir.1993)). Moreover, “motions for summary judgment must be decided
on the record as it stands, not on litigants' visions of what the
facts
might
some
day
reveal.”
Maldonado-Denis
v.
Castillo-
Rodriguez, 23 F.3d at 581. The First Circuit has warned that
“[b]rash conjecture, coupled with earnest hope that something
concrete will eventually materialize, is insufficient to block
summary judgment.” Id. (quoting Dow v. United Bhd. of Carpenters,
1 F.3d 56, 58 (1st Cir.1993)).
IV. The Complaint
Bisbano’s breach of contract claim (Count IV) is based on the
contention
that
“a
valid
employment
agreement
exists
between
Bisbano, Sr. and Defendants,” Complaint ¶¶ 63, 69 and that such
agreement prohibits the Defendants “from terminating Bisbano, Sr.
when they did while continuing to provide printing work to CVS.”
Id. at ¶ 65. Regarding his related claim in Count V, Bisbano states
the “Defendants breached the duty of good faith and fair dealing by
terminating Bisbano, Sr. after he had succeeded in developing a
direct business relationship with CVS and procuring multi-millions
of dollars in CVS printing work.” Complaint ¶ 72.
On the same facts, Bisbano asserts claims of unjust enrichment
(Count II) and quantum meruit (Count VIII) on the grounds that it
would be inequitable for Defendants to retain the benefit of a
8
direct relationship with CVS that was cultivated by Bisbano, id. at
¶ 55, 91. With respect to the claim of quantum meruit, Bisbano
specifies that he seeks compensation for “working for the benefit
of Defendants related to CVS printing work starting in January
2010.” Complaint ¶ 91.
Bisbano also states that he “had a business relationship or
expectancy
with
respect
to
CVS”
and
that,
“[b]y
terminating
Bisbano, Sr. and continuing its [sic] business relationship with
CVS,
Defendants
intentionally
interfered
with
Bisbano,
Sr.’s
business relationship or expectancy with respect to CVS.” (Count
III), Complaint ¶¶ 57, 59.
Further, Bisbano raises claims of intentional and negligent
misrepresentation (Counts VI and VII, respectively). Specifically,
Bisbano alleges that Strine represented to him that, as long as
Bisbano “continued to bring in CVS printing business, Bisbano, Sr.
would be employed at Strine [Printing] on terms the same as those
of his current terms of employment.” Id. ¶ 75, 83. According to
Bisbano, those representations were false and were made by the
Defendants “with the intent of inducing Bisbano, Sr. to remain
employed at Strine [Printing] and continue to cultivate a direct
business relationship with CVS.” Id. ¶¶ 78, 86. Bisbano seeks
unspecified damages, pre-judgment interest, costs, and attorneys’
fees.
9
V. Defendants’ Summary Judgment Motion
Regarding Bisbano’s unjust enrichment claim (Count II), the
Defendants assert that Bisbano was compensated for the services he
performed during his employment and that he is not entitled to
additional compensation on the ground that CVS awarded printing
work to Strine Printing after Bisbano’s employment was terminated.
Defs.’ Mem. 8 (Docket # 37-1).
The Defendants assert that Bisbano’s claim of intentional
interference with prospective contractual relations (Count III)
fails as a matter of law because (1) CVS contracted with Strine
Printing, not Bisbano; (2) Umberto decided that there would be no
further interaction between CVS and Bisbano after his role in
financing a vehicle lease for a (now terminated) CVS employee was
revealed; and (3) efforts by Bisbano to reconnect with CVS after
the
termination
unsuccessful,
directive.
of
his
employment
demonstrating
that
with
CVS
was
Strine
Printing
following
were
Umberto’s
Id. 8-9.
With respect to Bisbano’s contractual claims (Counts IV and
V), the Defendants point out that Bisbano was an at-will employee
and there was no employment contract between Bisbano and Strine
Printing. The Defendants reject Bisbano’s suggestion that there was
an “implied contract” because nothing in the record gives “rise to
any reasonable belief that Bisbano was anything other than an atwill employee.” Id. at 10.
10
Finally,
regarding
Bisbano’s
claims
of
intentional
and
negligent misrepresentation (Counts VI and VII), the Defendants
maintain that any statements made by Strine to Bisbano do not
change the fact that Bisbano was an at-will employee and that, in
light of that fact, Bisbano’s reliance on so-called promises of job
security was neither reasonable nor actionable. Id. at 12-13.
VI. Bisbano’s Objection
In response to the Defendant’s motion for summary judgment,
Bisbano maintains that (1) the Defendants were unjustly enriched by
benefitting
from
a
relationship
with
CVS
which
Bisbano
had
established, Obj. 4; (2) Bisbano “maintained a discernible business
relationship with CVS” and the Defendants interfered with that
relationship when they terminated Bisbano’s employment, id. at 8;
(3) Strine’s communications to Bisbano created an express oral
agreement or, at least, an implied agreement between Bisbano and
the Defendants, id. at 9; and (4) Bisbano reasonably relied on
Strine’s misrepresentation that Bisbano’s employment would continue
as long as Bisbano continued to procure CVS printing work for
Strine Printing, id. at 12-15.
VII. Discussion
A. Unjust enrichment
Under Rhode Island law, a claim for unjust enrichment “is
predicated upon the equitable principle that one shall not be
permitted to enrich himself at the expense of another by receiving
11
property
or
Narragansett
benefits
Elec.
without
Co.
v.
making
Carbone,
compensation
898
A.2d
for
87,
99
them.”
(R.I.
2006)(citing R & B Electric Co. v. Amco Construction Co., 471 A.2d
1351, 1355
(R.I.1984)).
To
recover
under
a
claim
for
unjust
enrichment,
“a plaintiff is required to prove three elements: (1) a
benefit must be conferred upon the defendant by the
plaintiff, (2) there must be appreciation by the
defendant of such benefit, and (3) there must be an
acceptance of such benefit in such circumstances that it
would be inequitable for a defendant to retain the
benefit without paying the value thereof.” Id. at 99
(quoting Bouchard v. Price, 694 A.2d 670, 673
(R.I.1997)); Anthony Corrado, Inc. v. Menard & Co.
Building Contractors, 589 A.2d 1201, 1201-02 (R.I.1991).
In this case, Bisbano essentially seeks compensation for work
that CVS awarded to Strine Printing after Bisbano’s employment was
terminated,
on
the
grounds
that
Bisbano
had
an
existing
relationship with CVS before he began working for Strine Printing
and that he continued to cultivate that relationship throughout his
employment. It is undisputed that, while Bisbano was working for
Strine Printing, he was compensated on a commission basis for sales
he made to clients, primarily CVS. In 2007, while Strine Printing
was still interacting with Vanco as a broker, Bisbano earned
$315,858
in
commissions;
after
the
relationship
was
severed,
Bisbano’s commissions dropped to $102,636 in 2008. The following
year, after Strine Printing had made some capital expenditures to
keep up with CVS’s demand, Bisbano’s pay went back up to $315,737.
12
Bisbano has not alleged, and there is no evidence in the record,
that he was tasked with any additional efforts related to CVS other
than that of a sales representative.
It is also undisputed that, notwithstanding the contractual
relationship between CVS and Strine Printing, Strine Printing has
to bid on each printing project and CVS could elect to award a
project to other vendors. SUF ¶ 24.
Those circumstances are
distinguishable from those in Arrison v. Information Resources,
Inc.,
on
which
Bisbano
relies.
See
Arrison
v.
Information
Resources, Inc., No. C95-3554THE, 1999 WL 551232 (N.D. Cal. Jul.
16,
1999).
In
Arrison,
the
plaintiff
sales
representative
(“Arrison”) was employed by the defendant corporation (“IRI”)
software division pursuant to a written employment contract. Upon
specific request by IRI, Arrison devoted extensive efforts in
cultivating an expanding relationship between IRI and a client
corporation (“Oracle”). Specifically, Arrison worked on developing
a value added resale (“VAR”) arrangement with Oracle, which was
rendered obsolete when Oracle decided to purchase the IRI software
division.
The
district
court
determined
that
IRI
was
not
contractually obligated to compensate Arrison for the VAR work
because neither the VAR, nor the contract addressing Arrison’s VAR
compensation was ever consummated. However, because Arrison, in
addition to the tasks for which he was compensated, had rendered
services to IRI by making extraordinary efforts to improve the
13
relationship with Oracle, the district court concluded that failure
to compensate Arrison for those services would unjustly enrich IRI.
Arrison at 7.
By contrast, there is nothing to indicate that Strine Printing
asked Bisbano to provide additional, uncompensated services related
to the CVS account, nor does Bisbano offer any evidence that he did
so. By all accounts, Bisbano was a successful sales representative
and was compensated accordingly; he fails to establish, however,
that his efforts were responsible for sales to CVS after the
termination of his employment or that he conferred any additional
benefit on Strine Printing.
Moreover, Bisbano’s assertion that “the Defendants continue to
benefit from the Plaintiff/CVS relationship,” entirely fails to
acknowledge that CVS decided to sever that relationship because
Bisbano admitted his role in financing a vehicle lease for a CVS
employee who worked in the CVS print department. Under those
circumstances, equity does not require that Strine Printing pay
anything to Bisbano for sales it has been making to CVS after
Bisbano’s employment was terminated.
B.
Intentional
Interference
with
Prospective
Contractual
Relations
To recover for a claim of intentional interference with
prospective contractual relations, a plaintiff must show: “(1) the
existence of a business relationship or expectancy, (2) knowledge
14
by
the
interferer
of
the
relationship
or
expectancy,
(3)
an
intentional act of interference, (4) proof that the interference
caused the harm sustained, and (5) damages to the plaintiff.”
Avilla v. Newport Grand Jai Alai LLC, 935 A.2d 91, 98 (R.I. 2007)
(quoting L.A. Ray Realty v. Town Council of Cumberland, 698 A.2d
202,
207
(R.I.1986));
see
Roy
v.
Woonsocket
Institution
for
Savings, 525 A.2d 915 (R.I.1987). In addition, “the elements of the
tort
require
showing
an
‘intentional
and
improper’
act
of
interference, not merely an intentional act of interference.”
Avilla v. Newport Grand Jai Alai LLC, 935 A.2d at 98.
It is undisputed that, in the instant case, the contractual
relationship was between Strine Printing and CVS and that the
relationship between Bisbano and CVS was limited to that between a
sales representative and the client of that sales representative’s
employer. That relationship was severed unilaterally by CVS after
Bisbano disclosed to CVS that he had paid $10,300 to assist a CVS
printshop employee - whose employment was terminated by CVS - in
leasing a luxury car. That conduct by Bisbano occurred years
earlier, while he was in the employ of a different printing vendor.
There is nothing in the record to support that Strine Printing’s
decision
to
undisputedly
terminate
decided
it
Bisbano’s
could
no
employment
-
longer work
after
with
CVS
had
Bisbano
-
interfered in anyway with the relationship between CVS and Bisbano.
Bisbano asserts that “a dispute of material fact exists”
15
whether Umberto’s directive was communicated to Strine Printing “to
remove the Plaintiff from the Strine/CVS account, and, if he was
not removed, CVS would cease to provide printing work to Strine”
Obj. 7.
As noted in the summary fact section herein, the second
part of
that
statement
was
not
Instead, Umberto explained that
part
of
Umberto’s
testimony.
“[w]e would enter into a contract
with Strine, but my direction, like it has been on even other
accounts, if I don’t feel that the account rep. is what we need for
the company, then I will ask that the account rep. be switched
off.” Defs.’ Ex. D, 14:6-12. Moreover, it is undisputed by Bisbano
that Umberto decided that she was “not comfortable with [Bisbano]
as our account rep. on the Strine account or any other account;”
that she instructed Sanchez and Cappelletti to inform Strine
Printing to remove Bisbano from the vendor’s account with CVS; and
that Cappelletti informed Umberto that he had done so.
SUF ¶¶ 35-
38.
Based
on
the
foregoing,
Bisbano’s
contention
that,
by
terminating his employment, Strine Printing caused “the cessation
of [Bisbano’s] relationship with CVS” is entirely unsupported. The
relationship between Bisbano and CVS (which was not, as Bisbano
describes it, “contractual”) ceased because of Bisbano’s conduct
that occurred years before he even entered Strine Printing’s
employment. Put another way, the end of Bisbano’s relationship with
CVS was of Bisbano’s own making and unrelated to any action taken
16
by Strine Printing before or after the termination of Bisbano’s
employment. Given the undisputed facts of this case, Bisbano’s
claim of Intentional Interference with Prospective Contractual
Relations cannot withstand the Defendants’ motion for summary
judgment.
C.
Breach of Contract
Bisbano’s breach of contract claim is based on the contention
that certain communications between Bisbano and Strine, as a
representative
of
Strine
Printing,
“created
an
express
oral
contract or, at the very least, an implied contract.” Obj. 9.
Essentially,
Bisbano
takes
the
position
that,
because
Strine
Printing continued to perform printing services for CVS even after
Bisbano’s
employment
was
terminated,
Bisbano
was
entitled
to
continued employment at Strine Printing. Id. at 10.
An implied-in-fact contract “‘is a form of express contract
wherein the elements of the contract are found in and determined
from the relations of, and communications between the parties,
rather than from a single clearly expressed written document.’”
Haviland
v.
Simmons,
45
A.3d
1246,
1257
(R.I.
2012)(quoting
Marshall Contractors, Inc. v. Brown University, 692 A.2d 665, 669
(R.I.1997)). For parties to form a valid contract, “each must have
the intent to be bound by the terms of the agreement.” Weaver v.
Power Conversion Corp., 863 A.2d 193, 198 (R.I.2004)(citing Rhode
Island Five v. Medical Associates of Bristol County, Inc., 668 A.2d
17
1250, 1253 (R.I.1996)). “‘Under traditional contract theory, an
offer and acceptance are indispensable to contract formation, and
without such assent a contract is not formed.’”
Weaver v. Power
Conversion Corp., 863 A.2d at 198 (quoting Smith v. Boyd, 553 A.2d
131, 133 (R.I.1989)). “The long-recognized elements of a contract
are ‘competent parties, subject matter, a legal consideration,
mutuality of agreement, and mutuality of obligation.’” Rhode Island
Five v. Medical Associates of Bristol County, Inc., 668 A.2d at
1253(quoting Black’s Law Dictionary 322 (6th ed. 1990)).
It is well-established law in Rhode Island that employees “who
are hired for an indefinite period with no contractual right to
continued employment are at-will employees subject to discharge at
any time for any permissible reason or for no reason at all.”
DelSignore v. Providence Journal Co., 691 A.2d 1050, 1052 n. 6
(R.I. 1997)(citing Volino v. General Dynamics, 539 A.2d 531, 532
(R.I.1988);
Pacheo
v.
Raytheon
Co.,
623
A.2d
464,
465
(R.I.1993)(“It is not the role of the courts to create rights for
persons whom the Legislature has not chosen to protect.”)).
Rhode
Island
courts
are
reluctant
to
imply
“employment
contracts from manuals, handbooks, or any other extra-contractual
sources.” Day v. City of Providence, 338 F.Supp.2d 310, 320 (D.R.I.
2004) (citing In Roy v. Woonsocket Inst. for Savings, 525 A.2d 915
(R.I.1987)); see also DelSignore v. Providence Journal Co., 691
A.2d at 1052 (rejecting plaintiff’s unsupported contention that
18
defendant’s employee manuals created an implied contract).
In Galloway v. Roger Williams University, which Bisbano seeks
to distinguish, the plaintiff, a former dean of admissions, brought
claims of breach of contract and misrepresentation against the
University after his employment was terminated. Galloway v. Roger
Williams University, 777 A.2d 148 (R.I. 2001). Galloway, an at-will
employee, contended that he relied on assurances by the V.P. of
human resources and by the University President that his position
was secure and that he would be re-appointed. The Rhode Island
Supreme Court affirmed summary judgment in the University’s favor,
concluding that Galloway’s reliance on the “so-called promises ...
was neither reasonable nor actionable.” Id. at 150.
In this case, it is undisputed that Bisbano was an employee
at-will; he had no employment contract with Strine Printing.
Bisbano acknowledged his awareness of that fact when he signed the
Acknowledgment at the commencement of his employment with Strine
Printing, Defs.’ Exh. C., and he also conceded that fact at his
deposition.
Defs.’
Acknowledgment,
Ex.
Strine,
B,
as
10:5-14.
President
As
of
set
Strine
forth
in
the
Printing,
was
“authorized to enter into an employment contract or to change the
at-will employment relationship.” Defs.’ Ex. C. However, there is
no indication in the record that Strine intended to change the
terms of Bisbano’s at-will employment.
According to Bisbano, over the course of his employment with
19
Strine Printing, Strine communicated to him that “as long as
[Bisbano] continued to bring in CVS printing business, he would be
employed at [Strine Printing]”. Id. Bisbano further explains that,
throughout the course of his employment with Strine Printing,
“there was a continual saying, stroking, whatever you want to say,
as long as we do CVS, we’re going to be all right, we’ll prosper,
your whole family with [sic] be back working here again.” Id.,
75:3-8. In addition, Bisbano relies on various communications he
received from Strine in which Strine (1) points out how important
the CVS account is to both Strine Printing and Bisbano, Pltf.’s SUF
¶¶ 12-14; (2) expresses his appreciation for Bisbano’s efforts, id.
¶ 16; and (3) advises Bisbano that Strine Printing is “willing to
purchase any and all additional printing equipment necessary to
meet CVS’s printing needs.” Id. ¶ 15. None of those communications
from Strine expressed unequivocally that Strine promised to change
Bisbano’s at-will status.
Bisbano also maintains that Strine repeatedly told him that
“as long as [Strine Printing] did work for CVS that he [Bisbano]
would be employed as a sales representative at [Strine Printing]
and that it
would be impermissible
for
[Strine
Printing]
to
terminate his [Bisbano’s] employment.” Pltf.’s SUF 17. The only
support for this contention, however, is Bisbano’s own deposition
testimony, in which he voiced his understanding that, because
Bisbano “was the one that brought CVS to them,” Strine Printing had
20
to keep him on as a sales representative as long as Strine Printing
was performing printing services for CVS. Pltf.’s Ex. A, 73:4-9.
None
of
Strine’s
communications
to
Bisbano
support
this
interpretation. Strine states in a July 14, 2007 e-mail to Bisbano:
“WE MUST make things work out for BOTH of us. CVS can take care of
all of it. As you know I’ll do whatever it takes to get business
and please your/our customers.” Pltf.’s Ex. I.
In a December 3,
2007 e-mail, Strine responds to Bisbano’s announcement that Strine
Printing
had
been
awarded
the
CVS
Easter
promotion.
Strine
acknowledges the importance of this event for both Strine Printing
and Bisbano, and he assures Bisbano that “[e]verything in my (our)
power will be done to make sure everything goes perfect.” Pltf.’s
Ex. J. While Strine expressed his appreciation for Bisbano’s work,
the evidence offered by Bisbano fails to establish that Strine
promised him something more than his own best efforts to please
CVS.
Moreover, Bisbano’s interpretation is inconsistent with other
assertions he has raised in that respect. In the Complaint, Bisbano
alleges that, if he “delivered” CVS printing work, “both Strine and
Bisbano,
Sr.
both
[sic]
would
prosper
and
their
employment
relationship would continue,” Complaint ¶ 25, and that, “as long as
Bisbano, Sr. continued to bring in CVS printing business, Bisbano,
Sr. would be employed at Strine on terms the same as those of his
21
current term of employment.4” Complaint ¶ 29. There is nothing in
the
record
to
support
Bisbano’s
contention
that
his
at-will
employment status would be changed or that his employment would
continue
as
long
as
Strine
Printing
was
performing
printing
services for CVS.
In sum, even when considered in the light most favorable to
Bisbano, Bisbano’s position is unsupported by any evidence in the
record apart from his own interpretation of Strine’s communications
and, as such,
it is insufficient to withstand a motion for summary
judgment. The undisputed facts reveal that Bisbano was able to
increase sales to the CVS account and that his commission based
compensation was increased accordingly. There is no evidence that
Strine Printing asked Bisbano to perform additional, uncompensated
tasks in order to improve the company’s relationship with CVS, or
that Bisbano’s performance of such tasks resulted in a change to
Bisbano’s at-will employment status.
Likewise, Bisbano’s assertion that he and his son were “solely
responsible for the process in which Strine [Printing] obtained
‘preferred vendor status’ with CVS” is unsupported by the record.
As explained by Strine, Strine Printing was required to go through
several steps to obtain “preferred vendor status,” which included
making a presentation to a combined Marketing and Procurement Group
4
Under the current terms of his employment, Bisbano, Sr. was an
at-will employee.
22
(an event that Bisbano “helped orchestrate.”). Pltf.’s Ex. D,
71:18-24.
Moreover, Bisbano conceded that, notwithstanding the
contract between Strine Printing and CVS, Strine Printing was
required to bid for each printing project and CVS could award a
project to other vendors. SUF ¶ 24.
Even if, as Bisbano contends, Strine’s comments to Bisbano
were construed as constituting an implied-in-fact contract, those
comments, at most, establish that Strine intended to continue
Bisbano’s employment as long as Bisbano made sales to CVS and not,
as Bisbano contends, as long as Strine performed printing services
for CVS. It is undisputed, however, that Bisbano was no longer able
to fulfill his side of the purported bargain once CVS had decided
to cut all ties with Bisbano. Under those circumstances, any
additional sales to CVS on Strine Printing’s behalf would be made
by someone other than Bisbano, and the condition upon which,
according to Bisbano, his continued employment with Strine Printing
depended, could no longer be met by Bisbano.
For all of those reasons, the Court is of the opinion that
Bisbano has not met his burden of raising an issue of material fact
sufficient to avoid the Defendants’ motion with respect to his
breach of contract claim. In the absence of a binding contract
between the parties, Bisbano’s claim for breach of the implied
covenant of good faith and fair dealing must fail as well. See
Centerville Builders, Inc. v. Wynne, 683 A.2d 1340, 1342 (R.I.
23
1996)(requirement
that
“virtually
every
contract
contain[]
an
implied covenant of good faith and fair dealing between the parties
... applies only after a binding contract is formed”).
D. Misrepresentation
Bisbano has raised claims of both intentional and negligent
misrepresentation that are nearly identical.5 Specifically, Bisbano
alleges that Strine represented to Bisbano that, as long as Bisbano
brought in CVS printing business, Bisbano’s employment at Strine
Printing would continue “on terms the same as those of his current
terms of employment and that Strine and Bisbano, Sr. would both
prosper.” Complaint ¶¶ 75, 83.
relied
on
such
Bisbano states that he justifiably
representation
and
that,
but
for
those
representations, he “would not have cultivated a direct business
relationship with CVS.” Id. ¶¶ 79, 87. Leaving aside the fact that
the “current terms of employment” made Bisbano an at-will employee
and that the cultivation of a direct relationship with CVS (after
discontinuing the use of a broker) increased Bisbano’s commission
to more than $300,000, these claims also suffer from lack of
factual support.
To recover for a claim of intentional misrepresentation, a
plaintiff must show that the defendant “in making the statement at
5
In the intentional misrepresentation claim, Bisbano alleges
that the Defendants “knew” that the representations were false; in
the negligent misrepresentation claim, Bisbano alleges that the
Defendants “knew or should have known” this. Complaint ¶¶ 77, 85.
24
issue, knew it to be false and intended to deceive, thereby
inducing [the
plaintiff]
to
rely
on the
statements
to [his]
detriment.” Katz v. Prete, 459 A.2d 81, 84 (R.I.1983)(listing
cases). To support a claim of negligent misrepresentation, the
plaintiff bears the burden to “establish the following elements:
‘(1) a misrepresentation of a material fact; (2) the representor
must
either
know
of
the
misrepresentation,
must
make
the
misrepresentation without knowledge as to its truth or falsity or
must make the representation under circumstances in which he ought
to have known of its falsity; (3) the representor must intend the
representation to induce another to act on it; and (4) injury must
result
to
the
party
misrepresentation.’”
acting
in
justifiable
reliance
on
the
Francis v. American Bankers Life Assur. Co.
of Florida, 861 A.2d 1040, 1046 (R.I.2004)(quoting Zarrella v.
Minnesota
Mutual
Life
Insurance
Co.,
824
A.2d
1249,
1257
(R.I.2003)).
It
is
undisputed
that
Bisbano
was
an
employee
at-will
throughout his employment at Strine Printing and that, unless his
status was changed by an authorized representative of the company,
Bisano’s employment could be terminated at any time. As discussed
in Section VII C. herein, none of Strine’s communications to
Bisbano served to establish a contractual obligation on the part of
Strine Printing to offer continued employment to Bisbano. See,
supra.
Moreover, there is nothing to support Bisano’s contention
25
that any of Strine’s communications to Bisano were false and that
they
were
performing
intended
his
to
work
induce
as
a
Bisbano
sales
to
do
anything
representative.
beyond
Bisbano’s
compensation depended on making sales of printing services to CVS;
therefore, it was not only in the best interest of Strine Printing,
but in that of Bisbano to direct his efforts to preserve and
strengthen
the
relationship
with
CVS.
To
interpret
Strine’s
acknowledgment of that fact and his general words of encouragement
to Bisbano as a binding commitment for continuing employment particularly in the absence of any specific terms - was not
reasonable.
E. Quantum Meruit
Although the Complaint includes a claim of quantum meruit
(Count VIII) that was not expressly dismissed, Bisbano states in
his objection to the Defendants’ motion for summary judgment that
he “has pled an unjust enrichment claim as opposed to a quantum
meruit claim,” Obj. at 4 n. 2 (emphasis added). The Defendants seek
summary judgment as to all of the remaining counts pled in the
Complaint; however, Bisbano has offered no argument with respect to
the quantum meruit claim. In light of Bisbano’s statement that he
has pled an unjust enrichment claim instead and, in the absence of
any argument by Bisbano regarding the quantum meruit claim, the
Court takes this as an indication that Bisbano no longer intends to
26
pursue that claim.
Conclusion
For the reasons stated herein, the Defendants’ motion for
summary judgment is hereby GRANTED and Counts II through VIII are
DISMISSED. The clerk is instructed to enter judgment in favor of
the Defendants.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
May 8, 2013
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?