Opinion
Civil Action No. 3:00-CV-1368-D, (Consolidated with 3:00-CV-1490-D)
February 21, 2002
MEMORANDUM OPINION AND ORDER
Two employees sue their former employer for breach of contract contending they are owed unpaid commissions. One plaintiff also sues certain of the company's officers and employees for violations of the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 Pa. Cons. Stat. § 260.1 et seq. On cross-motions for summary judgment, the court grants defendants' motion to the extent of dismissing one plaintiff's suit in its entirety, grants in part and denies in part defendants' motion as to the other plaintiff, and denies both plaintiffs' motions.
I
Defendant CompUSA, Inc. ("CompUSA") hired plaintiff Louis Caccamo ("Caccamo") to work in its King of Prussia, Pennsylvania store. He began in retail sales and was promoted to Corporate Sales Representative ("CSR"). As a CSR he sold computer training to CompUSA corporate clients. CompUSA later promoted him to Training Center Account Executive ("TCAE"), a position that required that he work not only on the corporate accounts he opened but on other large accounts at the store. Caccamo alleges that CompUSA's Commission Plan for Training Center Account Executive ("TCAE commission plan") guaranteed TCAEs certain commissions on all training sales creditable to the King of Prussia store. Under CompUSA's Key Accounts Program, the store that originated certain large corporate accounts — Key Accounts — was to receive credit for all sales to that account. Caccamo was later demoted to a CSR and resigned shortly thereafter.
Although both sides have filed motions for summary judgment, because the court is denying plaintiffs' motions and granting in part defendants' motion, it will recount the evidence favorably to plaintiffs as the summary judgment nonmovants.
CompUSA also employed plaintiff Richard L. Andrews, Jr. ("Andrews") at the King of Prussia store. He started in retail sales and was later promoted to TCAE. Andrews alleges that his supervisor later informed him that he would be treated as an Account Manager and would receive none of the commissions payable to him as a TCAE, including those compensable through the Key Accounts Program. Andrews later resigned from CompUSA.
Throughout Caccamo's and Andrews' employment with CompUSA, UNISYS Corporation ("UNISYS") was a Key Accounts creditable to the King of Prussia store. Caccamo informed CompUSA of the potential for a lucrative subcontract with UNISYS to provide training to employees of the Social Security Administration ("the SSA subcontract"). After negotiations, CompUSA obtained the SSA subcontract. Shortly thereafter, Andrews and Caccamo requested that the usual administrative process be followed in distributing sales commissions. They maintained that CompUSA was obligated to (1) credit all UNISYS sales, including those under the SSA subcontract, to the King of Prussia store under the terms of the Key Accounts Program, and (2) pay them commissions on those sales under the terms of the TCAE commission plan. CompUSA posited that this was not required, and it demoted Caccamo and Andrews as a result of this dispute. Caccamo and Andrews contend they were forced to resign as a result of their decreased compensation.
Caccamo and Andrews sue CompUSA for breach of contract. Andrews sues CompUSA and certain of its officers and employees for violations of the WPCL. Plaintiffs seek to recover unpaid commissions from sales under the SSA subcontract and other commissions that they allege are due but unpaid. Defendants move for summary judgment, and Andrews and Caccamo separately move for partial summary judgment.
James Halpin, Gloria Peterson, Paul Poyfair, Scott C. Seay, and Tony Weiss.
Andrews also filed a January 3, 2002 motion for leave to file an amended complaint. Because he has withdrawn the motion, the court need not consider it.
II A
CompUSA moves for summary judgment dismissing Caccamo's breach of contract claims relating to the SSA subcontract and other commissions allegedly due on sales to UNISYS. It contends that Caccamo cannot recover commissions for work as a CSR or TCAE because he cannot establish the existence and one of the essential elements (a definite and specific offer) of a contract; even if Caccamo was contractually entitled to receive commissions on the SSA subcontract, there was no breach because Caccamo resigned his employment well before the relevant sales were invoiced to the customer; concerning non-SSA subcontract sales to UNISYS, there is no evidence to support the claim; and, any rights that Caccamo had to the commissions in question vested no later than February 1995 and are therefore time-barred.CompUSA supports its motion for summary judgment by pointing to Caccamo's lack of evidence that it entered into a binding contract to pay the commissions he seeks. When a summary judgment movant will not have the burden at trial concerning a cause of action, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once CompUSA has done so, Caccamo must then go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Moreover, he must produce evidence to establish the existence of each element for which he bears the burden of proof. See Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991). Here, because CompUSA has pointed to the lack of evidence of a binding contract, Caccamo must produce evidence that would permit a reasonable trier of fact to find the existence of the required elements of a contract. Summary judgment is mandatory if Caccamo fails to meet this burden. Little, 37 F.3d at 1076. Caccamo's failure to adduce proof as to any one essential element renders all other facts immaterial. Celotex Corp., 477 U.S. at 323.
Because the court grants summary judgment in favor of CompUSA on this ground, it need not reach defendant's other arguments. If the court reached the limitations defense, it would apply a different summary judgment standard. CompUSA would have the burden on the affirmative defense of limitations and would be required to establish that defense "beyond peradventure," see discussion infra at § V concerning Andrews' summary judgment burden, rather than, as here, the obligation simply to point the court to the absence of evidence to support Caccamo's cause of action.
Caccamo responds that while he can point to no evidence of a written contract mandating the payment of the commissions he seeks, his right to such compensation is supported by CompUSA's failure to contradict the contract and the words and actions of three separate individuals.
His opposition arguments to CompUSA's other grounds are immaterial because the court does not reach these grounds of the motion.
B
Before turning to the merits of defendants' motion, the court must address a procedural issue that significantly impacts the resolution of this part of defendants' motion. N.D. Tex. Civ. R. 56.5(a) requires that Caccamo's response "be accompanied by a brief that sets forth the argument and authorities on which [he] relies[.]" Rule 56.6(a) states that "[a] party who relies on affidavits, depositions, answers to interrogatories, or admissions on file to support or oppose a motion for summary judgment must include such evidence in an appendix." Rule 56.5 (c) provides that "[a] party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." In his brief in opposition to defendants' summary judgment motion, Caccamo has attempted to incorporate globally by reference the brief he filed in support of his own motion for partial summary judgment. See Caccamo Resp. Br. at 2, 4. In opposing defendants' motion, he has in a few instances cited specific parts of the appendix filed in support of his motion, but he has neither filed nor cited an appendix in support of his opposition response to CompUSA's motion.Under Rule 56.5(a), the court in deciding CompUSA's motion for summary judgment will generally only consider the arguments and authorities that Caccamo as nonmovant has specifically set forth in response to the motion. And pursuant to Rule 56.5(c) the court will only take into account evidence that the party has cited in the manner required — that is, to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence. Otherwise, Rules 56.5(a) and (c) would not mean what they say. Due to the nature of summary judgment and its potential to end a meritorious lawsuit, however, the court will examine other pleadings on file provided they are cited in the manner mandated by the court's rules. So, for example, if a summary judgment nonmovant files a brief but not a supporting appendix, but cites another appendix already on file and does so as Rule 56.5(c) requires — that is, he cites each page of the appendix that supports each assertion that he makes concerning the summary judgment evidence — the court will consider that evidence even though it is not included in an appendix formally filed in support of the opposition brief.
The court will not, however, undertake a search of the appendix or other document for evidence that would be sufficient to defeat summary judgment. The court would not perform that task with respect to an opposition appendix much less an ancillary appendix. The court is not required to "comb the record" in search of a genuine issue of material fact. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)). "Rule 56, therefore, saddles the non-movant with the duty to `designate' the specific facts in the record that create genuine issues precluding summary judgment, and does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant's opposition." Jones, 82 F.3d at 1338. Nor will the court overlook Rule 56.5(c), a valuable tool for busy trial courts that requires a party to place a fact issue clearly in focus by citing in its brief each page of the appendix that supports each assertion that he makes concerning the summary judgment evidence. If the court disregards or "relaxes" the rules in this case, on what principled basis could it apply them again or justify why it has enforced them literally in prior cases? Therefore, even though Caccamo may in his opposition brief cite his own summary judgment appendix to oppose CompUSA's motion, he must cite it with the same requisite specificity that would be required had he filed it in support of his response.
It is immaterial that Andrews in his brief presents arguments in which he refers to Caccamo or that can logically be applied to Caccamo's claims. Caccamo did not expressly adopt Andrews' brief and summary judgment evidence.
To the extent that Caccamo has cited evidence in his own appendix in the manner required by Rule 56.5(c), the court will consider that proof in determining whether there is a genuine issue of material fact as to CompUSA's intent to create a binding compensation contract. As will be seen, aside from his attempts to incorporate by reference other documents in their entirety — something Rule 56.5(c) does not permit — Caccamo's response only cites a few pieces of evidence that he contends point to a genuine issue of material fact on the intent to create a contract.
C
Caccamo argues first that CompUSA has not contradicted the existence of a contract. When CompUSA pointed the court to the absence of evidence of such an agreement, however, Caccamo was obligated to produce proof that would permit a reasonable trier of fact to find in his favor. His ipse dixit assertion of uncontradicted evidence is inadequate. So also is his contention that "when given an opportunity to produce such evidence [the lack of existence of the contract] at deposition, they utterly failed to do so." Caccamo Resp. Br. at 2. Caccamo, not CompUSA, has the burden.
Caccamo concedes at one point in his brief that "[t]here is no question that the commission plan presented by the Defendant for Mr. Caccamo [is] indefinite and uncertain." Caccamo Resp. Br. at 3.
Caccamo also states that three separate individuals testified to the existence of a commission arrangement. Id. But Caccamo fails to point the court to this evidence by citing the relevant documents in his appendix. Because Rule 56.5(c) requires that he do so, and because the court will not comb the summary judgment record to find this evidence and decide whether it supports the assertion made, see Doddy, 101 F.3d at 463, the mere contention contained in the brief is not enough to create a genuine issue of material fact.
Caccamo also states that "this [ i.e., the contract that existed by words and actions] was the basis upon which he had been paid by the Defendant." Caccamo Resp. Br. at 2 (citing Caccamo MPSJ App. 140). But because he has failed to point the court to the evidence that supports the specific words and actions, this related assertion, while citing the appendix, does not raise a genuine issue of material fact concerning the formation of a contract.
Caccamo also relies on a CompUSA designee's inability to explain the basis of the commission plan upon which he was paid. See Caccamo Resp. Br. at 2 (citing Caccamo MPSJ App. 160). This evidence would not permit a reasonable trier of fact to find, however, what were the essential terms of the agreement, and thus to find that Caccamo and CompUSA had entered into a binding contract.
None of the evidence that Caccamo cites in his response, viewed independently or together and in the light most favorable to Caccamo, would allow a reasonable trier of fact to find that CompUSA intended to enter into a compensation contract with Caccamo based on the commissions he seeks.
Accordingly, the court grants summary judgment in favor of CompUSA and denies Caccamo's cross-motion for partial summary judgment. Caccamo's action against CompUSA is dismissed with prejudice by Rule 54(b) judgment filed today.
III
CompUSA moves for summary judgment dismissing Andrews' breach of contract claim for 8.5% commissions allegedly due him for work as a TCAE and 11% commissions allegedly due him for work as an Account Manager. CompUSA maintains that Andrews sues on the basis of two commissions plans — the TCAE commission plan and the Commission Plan for Account Managers ("Account Manager commission plan") — that are not contracts because CompUSA did not intend them to be legally binding offers, Andrews could not reasonably believe the plans were contracts, and CompUSA disclaimed any intent to create a contract. It argues that even if the TCAE commission plan is a contract, the SSA subcontract was not a training sale from the King of Prussia store because the Key Accounts Listing does not establish that the SSA subcontract was the King of Prussia store's training sale, the Key Accounts Listing is not a contract, and the Key Accounts Program is not a contract.
CompUSA also posits that even if the Account Manager commission plan is a contract, the SSA subcontract was not booked under his individual number. As to non-SSA subcontract sales to UNISYS, CompUSA contends it is unclear whether Andrews' allegation relates to commissions allegedly due him as a TCAE, an Account Manager, or both, and that there is no evidence to support the claim. The court holds below that Andrews has failed adequately to address his claims for commissions in his capacity as Account Manager and as a TCAE for non-SSA subcontract sales to UNISYS. See infra note 10 and § III (D). It therefore need not address these arguments.
A 1
CompUSA first urges that the two commission plans on which Andrews relies are not contracts. It points to provisions in the company's employee handbook that state that the handbook is not a contract, that the document contains general company practices and policies, and that CompUSA may in is sole discretion institute new practices and policies and change, supplement, or eliminate these policies without prior notice, and that it reserves the right to terminate or change any incentive or commission program at anytime. CompUSA then proffers this three-part argument: (1) CompUSA wrote and revised the plans unilaterally; there is no evidence, as required under Pennsylvania law, that it intended to confer on employees a contractual right to commissions, and there is conclusive, contrary evidence that CompUSA expressly renounced such an intention in the plans; (2) Andrews could not reasonably have believed the plans were binding because CompUSA unilaterally distributed them and expressly retained the right to alter them unilaterally, frequently revised plans, and the plans themselves denied any intention to create a contract; and (3) the TCAE and Account Manager commission plans expressly disclaimed any intention to create a contract.Focusing on his claim for 8.5% in TCAE commissions for King of Prussia store training sales involving the SSA subcontract rather than on non-SSA subcontract sales or on Account Manager commissions, Andrews opposes CompUSA's motion on the following grounds: (1) CompUSA's compensation practices before the large UNISYS SSA subcontract was obtained, and testimony from CompUSA decisionmakers and Andrews' predecessor at the King of Prussia store establish that TCAEs were entitled to commissions of 8.5% on training sales attributable to their store; (2) it is irrelevant that CompUSA changed commission plans because it did not change his plan during the relevant time period; (3) the TCAE commission plan, see Andrews App. 1-2, is the only commission plan or document reflecting compensation that is contained in Andrews' personnel file; (4) the TCAE commission plan explicitly provides that TCAEs will be paid a commission of 8.5% of their store's training sales based solely on the store's entitlement to credit for the sale, regardless whether the TCAE secured the account; (5) most of the cases that CompUSA cites are inapposite because they pertain to former at-will employees who sued for wrongful discharge and asserted under an implied contract that they could not be terminated, and do not involve plaintiffs, like Andrews, who do not contest their employer's right to discharge them but who sue to recover compensation they earned under an express contract while employed; and (6) under Pennsylvania law, a party has a contractual duty of good faith and fair dealing, and CompUSA committed an independent contractual breach when it established surreptitiously a separate account to avoid paying commissions on the UNISYS SSA subcontract.
For reasons set out infra at § III (D), Andrews' claim based on non-SSA subcontract sales is dismissed. Because Andrews does not adequately address his claim for commissions as an Account Manager, this aspect of his suit is also dismissed.
Andrews also contends that CompUSA has offered only argument, but not evidence, to support its position that it did not intend to be bound by the TCAE commission plan. See Andrews Br. at 12-14. This argument misunderstands CompUSA's burden. As the court explains supra at § II(A) in addressing CompUSA's motion for summary judgment addressed to Caccamo's action, CompUSA is entitled simply to point the court to the absence of evidence supporting Andrews' breach of contract claim. It need not adduce any evidence. Andrews then compounds this analytical error by discussing the summary judgment burden that applies to a nonmovant, and contending that CompUSA cannot rely on conclusory allegations and unsubstantiated assertions. See Andrews Br. at 14. But the case that Andrews cites for this proposition clearly states, as Andrews notes, that it is discussing the nonmovant's burden, which pertains to Andrews, not CompUSA.
2
Under Pennsylvania law, employment relationships and compensation arrangements are governed by standard principles of contract law. See Darlington v. General Elec., 504 A.2d 306, 311 (Pa.Super.Ct. 1986) (noting application of general principles of contract formation to employment contracts). The essential elements of a breach of contract cause of action are "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1059 (Pa.Super.Ct. 1999). A contract's essential terms are an offer, acceptance, and consideration. Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa.Super.Ct. 1993). In the case of a unilateral contract, only one party makes a promise or offer, and the other party accepts by rendering performance. Darlington, 504 A.2d at 320 (Beck, J., concurring)."In order to provide an enforceable contract in which an employer grants a specific benefit to an employee, the employee must prove that the employer communicated an intentional offer with definite terms, that the employer intended to be bound by the offer, and that the employer made the offer to induce the employee to accept or continue employment with the company." Nicholas v. Pa. State Univ., 227 F.3d 133, 145 (3d Cir. 2000) (applying Pennsylvania law). "A handbook [or other policy statement] distributed to employees as inducement for employment may be an offer and its acceptance a contract." Morosetti v. La. Land Exploration Co., 564 A.2d 151, 152 (Pa. 1989); see also Darlington, 504 A.2d at 320 (Beck, J., concurring) ("In the employment context, the communication to employees of certain rights, policies and procedures may constitute an offer of an employment contract with those terms. The employee signifies acceptance of the terms and conditions by continuing to perform the duties of his or her job; no additional or special consideration is required."). The mere existence of a policy is not enough, however, to prove intent. Rather, there must be evidence of the employer's volition "to offer it as a binding contract. Nor can [that] intention be proved by bits and pieces of [the employer's] policy given individual employees at different times and under varying circumstances." Morosetti, 564 A.2d at 152-53.
In addition to any direct evidence of the employer's intent, the court in determining the existence of a contract must also consider whether an employee could reasonably have expected the handbook, policy, or other form of material distributed by the employer to be binding. See Ruzicki v. Catholic Cemeteries Assoc. of Diocese of Pittsburgh, 610 A.2d 495, 497 (Pa.Super.Ct. 1992). To ascertain the intent of the parties, "the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement." Price v. Confair, 79 A.2d 224, 226 (Pa. 1951).
3
CompUSA contends first that Andrews lacks evidence of CompUSA's intent to create a contract. Andrews responds by citing this deposition testimony of Paul Poyfair ("Poyfair"), CompUSA's Executive Vice President of new business development:
Q. Now, [TCAEs] would be hired during those three years understanding that their compensation — their commission based compensation would be paid in accordance with the plan that is marked Exhibit A-1, correct?
* * *
A. Yes.
* * *
Q. A [TCAE] would receive eight and a half percent of training sales that he or she did not participate in but that another salesperson in [his] store participated in, correct?
A. Yes. When you say participated in it was common to have a training center salesperson encourage corporate salespeople to sell training because they would be compensated on that sale.
Q. Exactly. And that is exactly why [TCAEs] received their commission based on revenues, because there is an assumption or there is an incentive for them to motivate other people in the store to produce training sales, correct?
A. Yes.
Andrews Resp. App. at 345-46. Because this evidence pertains to Poyfair's view of an employee's understanding of the import of the TCAE commission plan, it is probative of whether an employee could reasonably have expected the terms of the plan to constitute a binding contract. A reasonable trier of fact could view the language "would be hired . . . understanding that their compensation . . . would be paid in accordance with the plan" as indicating that Andrews could reasonably have expected the plan to serve as a contract that required CompUSA to pay him an 8.5% commission on training sales attributable to his store. Moreover, Poyfair's testimony indicates something about CompUSA's motivation in formulating and distributing the TCAE commission plan to its sales representatives — it wanted to create "an incentive for them to motivate other people in the store to produce training sales." A reasonable trier of fact could view Poyfair's testimony as demonstrating CompUSA's intention, or Andrews' reasonable belief that CompUSA intended, to offer the TCAE commission plan unilaterally to Andrews in exchange for his acceptance of it by continuing to work at the King of Prussia store and motivating his coworkers to produce training sales. Andrews has therefore adduced evidence sufficient to create a genuine issue of material fact as to intent.
4
CompUSA also argues that, as a matter of law, company handbooks and statements of policy are not legally binding. This contention is based on a misreading of Morosetti. In Morosetti the Pennsylvania Supreme Court held that although the plaintiff in that case did not meet his burden in attempting to prove intent, the distribution of a handbook or other statement of policy could in certain instances constitute offer and acceptance of a contract. See Morosetti, 564 A.2d at 152. As discussed above, Andrews has adduced evidence that would allow a trier of fact reasonably to find that such offer and acceptance occurred in this case.
5
CompUSA also relies on the following disclaimer contained in the commission plan documents to argue that it is entitled to summary judgment:
CompUSA reserves the right to change this plan. Additionally, nothing in this plan is to be construed as an employment contract or guarantee of continued employment or earnings.
D. App. at 237-38. The court disagrees.
This language is consistent with Andrews' theory of recovery. As to the first sentence, there is evidence that despite CompUSA's right to change the plan, it did not do so before Andrews accepted the offer by his performance. Moreover, although CompUSA stated that it had the right to alter the plan, a reasonable employee could have expected that it intended to be bound by it, provided it did not change the plan before the employee undertook his performance. Regarding the second sentence, Andrews does not contend he had an employment contract or a guarantee of continued employment or earnings. What he alleges is that CompUSA offered him a commission of 8.5%, in his capacity as a TCAE, for sales attributable to his store, and that he accepted the offer by performing according to that offer. Because a reasonable trier of fact could view Andrews' claims as consistent with the disclaimer contained in the commission plan, CompUSA is not entitled to summary judgment on this basis.
CompUSA discusses extensively a line of Pennsylvania state court cases that deals with the issue of at-will employment contracts, and it argues that these decisions require the court to dismiss a plaintiff employee's claims when they are based on documents unilaterally distributed by the defendant company and that contain explicit disclaimers of an intent to enter into an employment contract. Andrews correctly argues, however, that these employment cases and employment-status-related disclaimers are not relevant to the question whether the commission plan at issue here constitutes a compensation contract. See Kotlinski v. Mortgage Am., Inc., 40 F. Supp.2d 298, 306 (W.D. Pa. 1998) (indicating that a disclaimer of guaranteed employment does not operate as a disclaimer of compensation obligation during period of actual employment).
B
CompUSA next contends Andrews cannot recover because, even if the TCAE commission plan is a contract, the SSA subcontract was not a training sale from the King of Prussia store because the Key Accounts Listing does not establish that the SSA subcontract was the King of Prussia store's training sale, the Key Accounts Listing is not a contract, and the Key Accounts Program is not a contract. It argues that, to demonstrate his entitlement to commissions on the SSA subcontract, Andrews relies on the premise that all UNISYS sales were necessarily considered King of Prussia sales because a notation on the July 31, 1996 Key Accounts Listing so provided. CompUSA urges that the Key Accounts Listing was an information compilation or summary of training contracts from various training centers, and that it frequently changed. It maintains that the Key Accounts Listing was produced by the same people who support Andrews' commission claim, that someone from the King of Prussia store wrote the comments about UNISYS on the Key Accounts Listing, and that the UNISYS comments radically changed at about the time Andrews sought credit for the SSA subcontract. CompUSA also maintains that the Key Accounts Listing has nothing to do with the SSA subcontract. Instead, the national agreement to which the Key Accounts Listing refers is the UNISYS Resale Agreement, which establishes as a matter of law that it has nothing to do with the SSA subcontract and does not create a commitment by CompUSA to give King of Prussia credit for all sales, or even training sales, to UNISYS. CompUSA also posits that the Key Accounts Listing is not a contract but merely lists data about contracts, there was no offer with definite terms, CompUSA per se did not author it, and it is a compilation of data from forms that CompUSA employees completed.
1
The court turns first to CompUSA's contention that the Key Accounts Listing is not a contract. Andrews does not contends that it is. He alleges instead that it is incorporated by reference into the Key Accounts Program, which he does contend is a contract. Moreover, Andrews has not attempted to adduce any evidence in response to CompUSA's argument that he lacks proof that the Key Accounts Listing was intended to be contractually binding. The court holds that the Key Accounts Listing is not an independent contract.
2
CompUSA argues that the Key Accounts Program is not a contract, but is literature that it distributed to employees. It contends the program described was intended to provide consistent pricing guidelines, procedures, and resources for handling actual and potential agreements between CompUSA and its customers. Its purpose was to clarify procedures and established programs and answers to commonly-asked questions and provide consistency in pricing guidelines for frequently requested products.
Andrews contends the Key Accounts Program is contractual because it was intended to motivate employees, by the promise of large commissions, to report large national accounts to corporate instead of concentrating on small local accounts. He cites the deposition testimony of Georgia Peterson ("Peterson"), a CompUSA employee involved in administering the SSA subcontract, in which she agrees that the Key Accounts Program "[informs TCAEs] and training people at the stores that if they report a potential key account to corporate the revenues arising from the sales of training under that key account will be attributed to the store for the purpose of the award of commissions at the store that are based on gross revenues and gross margins[.]" Andrews Resp. App. at 340. Andrews also refers to CompUSA's citation of the following excerpt from the Key Accounts Program literature:
If I report a potential Key Account to Corporate, will my training center get credit for the sale?
YES! Remember, Corporate does not have cash registers. If there aren't any cash registers, then sales cannot be rung.
D. App. at 331.
Although neither citation presents evidence of the direct intent of CompUSA to be contractually bound by the terms of the Key Accounts Program, together this evidence is enough to allow a reasonable trier of fact to conclude that a reasonable person could have believed the Key Accounts Program was a contract. Each citation refers to specific communications by CompUSA to its employees to the effect that the store that brings in an account will get credit for it, and that credit will be the basis of commissions for store employees. Viewed in the light most favorable to Andrews, he could reasonably have interpreted these specific statements to be offers by CompUSA to its sales representatives, in exchange for their working to bring in accounts, that they would be compensated according to these terms. Andrews could thus have interpreted these statements as offers of a unilateral contract under Pennsylvania law, which he accepted by rendering performance — i.e., by working at the store and seeking to secure new accounts.
CompUSA cites several pieces of evidence that it contends show it did not intend the Key Accounts Program to be a contract. See D. Br. at 30-32. It also maintains that Andrews has taken out of context the statement about cash registers in the program literature. See id at 30-31. Although the jury may ultimately find in CompUSA's favor in this respect, this possibility does not warrant the conclusion that there is no genuine issue of material fact as to intent to create a contract. Evidence at the summary judgment stage must be viewed favorably to the nonmovant, and all reasonable inferences must be drawn in favor of the nonmovant. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
3
CompUSA contends that, assuming arguendo that the Key Accounts Program is a binding contract, the SSA subcontract is not a training sale creditable to the King of Prussia store. It argues that Andrews' position that the SSA subcontract must be designated a Key Account and credited to the King of Prussia store merely because someone from that store informed corporate about the opportunity ignores other sections of the Key Accounts Program literature that establish that an integral part of any Key Account is a store's extensive and continual involvement in the contract. CompUSA maintains that the King of Prussia store did not negotiate, coordinate, or administer the SSA subcontract.
In response, Andrews points to evidence of a notation on the July 31, 1996 Key Accounts Listing that requires that all UNISYS sales count as training sales creditable to the King of Prussia store. The document states that "[a] new Agreement is in place with King of Prussia. Absolutely ALL SALES are to go through King of Prussia. If you are currently marketing directly to UNISYS, please cease and desist immediately." D. App. at 264. CompUSA argues that someone at the King of Prussia store improperly changed the notation from the previous one effective on the June 30, 1996 Key Accounts Listing. It posits that contracts, not customers, are Key Accounts, and that the listing only refers to the UNISYS Resale Agreement, which has nothing to do with the SSA subcontract.
CompUSA's first argument may ultimately prove to be true when the case is tried and the evidence is weighed, but it does not deprive Andrews of a basis to avoid summary judgment because a reasonable trier of fact could find that CompUSA intended that the King of Prussia store receive credit for all sales under the SSA subcontract.
Concerning the second contention, the "ALL SALES" language in the notation is itself adequate to give rise to a genuine issue because a reasonable trier of fact could find that the language refers to sales to UNISYS under the SSA subcontract. Andrews also offers Poyfair's testimony that King of Prussia employees had a right to every dollar generated in UNISYS sales. See Andrews Resp. App. at 350. He offers similar testimony from Helene Lebowitz. See id. at 338. Andrews adduces documentary evidence that CompUSA considered the term "account" to refer to its relations with an entire company, such as UNISYS, rather than to a particular contract with a company, such as the UNISYS Resale Agreement. Id. at 50. Finally, in the evidence that CompUSA offers and to which Andrews points. UNISYS, rather than specific contracts such as the UNISYS Resale Agreement, is always listed as the "Key Account." D. App. at 242, 243-50, 251-63, 64. This proof is sufficient in the aggregate to allow a reasonable trier of fact to find that the SSA subcontract was included in the "ALL SALES" language on the July 31, 1996 Key Accounts Listing, and therefore that SSA subcontract sales were training sales creditable to the King of Prussia store.
C
CompUSA contends that even if Andrews has established that the TCAE commission plan and the Key Accounts Program are legally binding contracts, it is entitled to summary judgment on Andrews' claims for commissions from sales invoiced after his July 5, 1997 date of resignation from the company. CompUSA cites both the TCAE commission plan's and the Account Manager commission plan's requirements to this effect. Ds. App. 237-38, 292-93.
Andrews responds that CompUSA committed anticipatory breaches of the contracts by stating its unwillingness to pay him the commissions he alleges were due him and then by demoting him. He contends that these actions forced his resignation but did not insulate the company from his claims to commissions from sales invoiced after July 5, 1997. But Andrews misconstrues the doctrine of anticipatory breach. That doctrine allows a prospective plaintiff, under certain conditions, to anticipate a future breach by the other party to a contract and therefore to commit a breach himself rather than wait for the other party actually to do so, while still retaining his right to full recovery of expectation damages under the contract. It therefore does not apply to a unilateral contract such as the one that Andrews alleges. See In re Pew Mem'l Trust, 5 Pa. D. C.3d 627, 639 (Pa. Com. Pl. 1977). Here, because Andrews was an at-will employee, there were no obligations for him to breach in anticipation of CompUSA's alleged breach of its obligation to pay him commissions from the SSA subcontract sales. The doctrine of anticipatory breach does not apply to Andrews' claims, and the court therefore grants summary judgment to CompUSA as to all commissions from sales invoiced after July 5, 1997.
D
CompUSA contends that Andrews has failed to adduce evidence of unpaid TCAE commissions for non-SSA subcontract sales to UNISYS. Because Andrews points to no such evidence in response, the court grants summary judgment in favor of CompUSA as to such claims.
E
In sum, the court grants summary judgment dismissing the parts of Andrews' breach of contract claim that seek 11% commissions as Account Manager and 8.5% commissions for non-SSA subcontract sales to UNISYS. It also grants summary judgment dismissing the parts of Andrews' breach of contract claim that seek commissions on sales invoiced after July 5, 1997. In all other respects, CompUSA's motion for summary judgment concerning this claim is denied.
IV
Defendants move for summary judgment on Andrews' WPCL claims against them.
The WPCL does not itself create a right to substantive compensation; it merely provides statutory remedies to an employee otherwise due earnings. Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990). Here, the alleged contract between the parties governs whether specific commissions were earned. Sendi v. NCR Comten, Inc., 619 F. Supp. 1577, 1579 (E.D. Pa. 1985), aff'd, 800 F.2d 1138 (3d Cir. 1986). The court therefore grants summary judgment in favor of defendants as to the components of Andrews' WPCL claim that rely on assertions of liability that the court has dismissed by summary judgment, which include those based on the Account Manager commission plan, those based on sales invoiced after July 5, 1997, and those based on anything other than the SSA subcontract. Otherwise, the court denies summary judgment dismissing the WPCL cause of action.
V
Andrews moves for partial summary judgment establishing that CompUSA is liable for breach of contract and that the individual defendants are liable under the WPCL.
To be entitled to summary judgment on an issue on which he will bear the burden of proof at trial, such as the existence of contractual compensation obligations, Andrews "must establish `beyond peradventure all of the essential elements of the claim[.]'" Bank One, Tex., N.A. v. Prudential Life Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenoy v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Andrews has not done so here, and his motion is denied.
* * *
The court grants defendants' October 1, 2001 motion for summary judgment as to Caccamo's action and dismisses his lawsuit by Rule 54(b) judgment filed today. The court grants in part and denies in part defendants' motion as to Andrews' action. The court also denies Andrews' October 1, 2001 motion for partial summary judgment and denies Caccamo's October 10, 2001 motion for partial summary judgment.
SO ORDERED.