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KAPLAN v. MAY STERN & CO.

March 4, 1977

Herman H. Kaplan , Plaintiff
v.
May Stern & Co. , A Pennsylvania Corporation, Defendant


Marsh, D.J.


The opinion of the court was delivered by: MARSH

Plaintiff Herman H. Kaplan brought this action against his former employer, May Stern & Company, invoking jurisdiction pursuant to 15 U.S.C. § 4, 28 U.S.C. § 1332(a)(1) and 28 U.S.C. §§ 2201 and 2202. He alleges that he was coerced into executing the employment contracts annexed to the complaint; that said contracts are in restraint of trade in violation of the anti-trust laws, and that pursuant thereto he involuntarily contributed $32,500 into a deferred compensation fund into which the defendant contributed $16,250. He alleges the coercion constituted "extreme and outrageous tortious conduct" which caused him to suffer extreme emotional distress and was part of a scheme to deprive him of the opportunity to participate in a pension or profit-sharing plan of the defendant. He asks the court to declare the contracts invalid and to enter judgment in the amount of $146,250.00 together with attorneys' fees and costs pursuant to 15 U.S.C. § 15, or, in the alternative, to enter judgment in the amount of $48,750 together with interest and punitive damages.

 The defendant moved for summary judgment "for the reason that under the undisputed facts plaintiff has failed to state a claim that the provisions of the employment agreements have restrained interstate trade or commerce." We agree, and to that extent summary judgment will be entered.

 No per se violation of the anti-trust law is alleged. There is no contract, conspiracy, or combination involving defendant and any third-party or parties. No price fixing, division of markets, group boycotts, or tying arrangements are alleged. *fn1"

 It appears from the depositions and pretrial stipulation filed by the parties that plaintiff was employed by defendant from 1960 to 1972. He was promoted to vice president in 1966, and entered into a written employment contract containing a deferred compensation plan designed to provide substantial retirement income to a long-time employee of major importance to the company and to provide an incentive for such employee to remain with the company.

 The first employment contract was dated February 1, 1966 and executed July 28, 1966. Four subsequent contracts were executed, *fn2" each increasing plaintiff's salary, but otherwise containing the same provisions as the first contract. In 1972, plaintiff resigned and accepted employment at a higher salary with Marlo Furniture Company in Washington, D.C.

 The plaintiff was required to sign these contracts if he desired to be retained as vice president at the salaries stipulated, and he was required to waive participation in a pension plan in effect for middle management employees of defendant.

 Pursuant to the deferred compensation plan, the plaintiff contributed to the fund 50% of any annual bonus declared by defendant *fn3" and the defendant contributed to the fund an additional sum equal to 50% of the plaintiff's contribution. During the period from 1966 to 1972, plaintiff contributed $32,500 and the defendant contributed $16,250, making the total of $48,750. The bonus funds so contributed were commingled with the general corporate revenues. Plaintiff did not have to pay income tax on these bonus contributions. No interest accrued on them. The plaintiff could not withdraw money from the fund as long as he remained an employee of defendant.

 The amount of the annual bonus was fixed by defendant in its sole discretion; no bonus was mandated. Although there is considerable doubt, we assume the deferred compensation plan was contributive to the extent of the $32,500 which was included in the fund from the bonuses awarded to the plaintiff. *fn4"

 The employment contract provided that the deferred compensation would be forfeited under the following contingencies: (a) If within two years of his leaving the defendant's employ, the plaintiff worked for any retail department store or speciality store with gross annual sales in excess of one million dollars and in any city of the United States having a population of more than 200,000 without first having procured the written consent of the employer; or (b) if within three years of leaving the defendant's employ, the plaintiff were to work for any retail department or speciality store with gross annual sales in excess of one million dollars in any city in which the defendant maintains a retail store without first having procured the written consent of the defendant.

 Written permission for plaintiff to accept employment with Marlo Furniture Company in Washington, D.C. as of September 1, 1972, was given by defendant in a letter dated August 25, 1972.

 The above-mentioned provisions providing for forfeiture if plaintiff accepted other employment are now moot. *fn5" Since September, 1972, plaintiff has retained his employment with Marlo Furniture Company.

 Plaintiff has admitted that in each year since leaving defendant he has earned a larger salary than when he was employed by the defendant. *fn6"

 Paragraph 4(c) of the employment contract provided, inter alia, that after plaintiff ceased to be employed by defendant, payment of the amount obligated to plaintiff would be made in 15 equal annual ...


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