not of itself sufficient to require the other to make restitution therefor." Restatement, Restitution § 1, Comment (c) (1937).
For purposes of this Rule 12(b)(6) motion, I must liberally construe the complaint in plaintiff's favor. I therefore assume that plaintiff's promotional work did, in fact, benefit, and thereby "enrich," defendant. See Complaint, P 13. Nevertheless, plaintiff has not pleaded sufficient facts which make out successfully the second element of this test. I will therefore grant defendant's motion to dismiss count II.
Initially, I must point out that plaintiff has misconceived the effect of the actions of the parties after April 10, 1975. Because plaintiff and defendant continued to deal with one another as they had in the past, the original agreement did not expire on this date. Rather it continued in effect-but it was terminable at the will of either party. The contract did not terminate until defendant began acting inconsistently with the exclusive distribution terms. Until this time, however, the terms of the April 10, 1970 agreement defined the rights and obligations of the parties. For instance, if plaintiff had alleged defendant's failure to pay the appropriate $ .20 per case compensation, see Complaint, Exhibit A at 1, for plaintiff's sales activities from April 10, 1975 to April 3, 1979, plaintiff would have pleaded a valid cause of action. But plaintiff does not seek compensation according to his enumerated contract rights. Instead, he seeks recovery for expenditures which, according to the specific language of the contract, are costs to be borne exclusively by the plaintiff. See Complaint, Exhibit A at 2 ("Except as hereinafter stated, Agent shall pay all of the costs of conducting the agency hereunder ... but excluding expenses which Principal and Agent hereinafter agree shall be charged back to Principal." There is no later mention that Principal is responsible for development or promotional costs.) Because the contract remained in effect after April 10, 1975, albeit terminable at will, plaintiff must be compensated according to its agreed upon terms. He cannot, in addition, seek other elements of compensation.
Therefore, denying recovery for defendant's enrichment would not result in injustice. On the contrary, it would further the original intentions of the two contracting parties as expressed in their written contract of April 10, 1970. Were I to hold otherwise, defendant would be compelled to pay for services performed under circumstances which did not put him on notice that plaintiff expected to be paid. This is directly counter to Pennsylvania law. Sachs v. Continental Oil Co., 454 F. Supp. at 619; Colish v. Goldstein, 196 Pa.Super.Ct. 188, 192-93, 173 A.2d 749, 751 (1961). " "[Chagrin], disappointment, vexation, or supposed ingratitude cannot be used as a subsequent basis for a claim for compensation where none was originally intended or expected.' " Bloomgarden v. Coyer, 156 U.S. App. D.C. 109, 479 F.2d 201, 212 (D.C.Cir.1973), quoting Bellanca Corp. v. Bellanca, 53 Del. 378, 380, 169 A.2d 620, 623 (1961).
By dismissing plaintiff's restitution claim, I am holding the parties to the terms of their original agreement. This accords with the principle that "the quasi-contractual doctrine of unjust enrichment (is) inapplicable when the relationship between the parties is founded on a written agreement or express contract." Schott v. Westinghouse Electric Corp., 436 Pa. 279, 290, 259 A.2d 443, 448 (1969) (citing cases). Resort to the equitable doctrine of unjust enrichment is therefore precluded because defendant has not been unjustly enriched: a legal contract controlled the relationship of the parties for the period, April 10, 1975 to April 3, 1979; and this contract did not provide reimbursement for the costs plaintiff incurred in marketing defendant's product.
C. Tortious Interference with Contractual Relations Count
In count III of his complaint, plaintiff alleges that defendant tortiously interfered with the contacts and relationships that plaintiff developed while it was defendant's exclusive selling agent. Apparently, plaintiff refers to defendant's sales to, and consequent appropriation of, plaintiff's customers-a course of action that began in June, 1978. See Complaint, PP 32, 34 & 35. Pennsylvania courts recognize that intentional and unprivileged interference with contractual relations of third parties with a plaintiff constitutes a cause of action in tort. See, e.g., Sachs v. Continental Oil Co., 454 F. Supp. at 618; Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1975) (adopting Restatement (Second) of Torts § 766); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Glenn v. Point Park College, 441 Pa. 474, at 272 A.2d 895 (1971). The elements of this tort are: "the (defendant) must act (1) for the purpose of causing the specific type of harm to the plaintiff, (2) such act must be unprivileged, and (3) the harm must actually result." Glenn v. Point Park College, id at 479, 272 A.2d at 898-99, quoting Birl v. Philadelphia Electric Co., 402 Pa. 297, 301, 167 A.2d 472, 474 (1960). See Sachs v. Continental Oil Co., supra ; Restatement (Second) Torts § 766.
Plaintiff argues that defendant's alleged contractual interference was unprivileged because "defendant has been able to market Ramlosa Mineral Water only by reason of the customers and clients which the plaintiff (at considerable expense and with great diligence) has established and developed in its promotion of Ramlosa Mineral Water throughout the United States." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss for Failure to State a Claim at 13. Defendant's refusal to continue the exclusive sales agency contract may in fact prevent plaintiff from recouping his marketing expenditures. But defendant's effective termination notification, and his subsequent refusal to grant an exclusive agency contract, see supra, should have put plaintiff on notice that plaintiff's exclusive business relationship with defendant would soon end. Surely it is not improper for defendant to further its commercial interests so long as its actions do not breach its contractual obligations with plaintiff. Having held that plaintiff is precluded from contract recovery, see supra, it would be anomalous to allow tort recovery for the very same alleged improper behavior of defendant. "To permit a promissee to sue his promissor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions. Most courts have been cautious about permitting tort recovery for contractual breaches and we are in full accord with this policy." Glazer v. Chandler, 414 Pa. 304, 308, 200 A.2d 416, 418 (1964).
Plaintiff has therefore failed to demonstrate that defendant's acts were unprivileged. In light of this holding, it is unnecessary to discuss the other two elements of the tortious interference with contract test. I will therefore grant defendant's motion to dismiss count III of plaintiff's complaint.
© 1992-2004 VersusLaw Inc.