can perceive no question of fact precluding the entry of summary judgment. Plaintiff clearly has no right under the Plans to receive commissions on sales made after his termination. In addition, the Plans preclude a finding that he is entitled to more than a 50% commission on large hardware contracts when the equipment was not installed during his term of employment. The commissions plaintiff seeks were not payable under the Plans and were thus not earned for the purpose of the WPCL.
Plaintiff agreed to the Plans and his commission rights are governed by their terms, including the terms defining the conditions under which commissions are payable. I cannot accept his argument that the Plans' provisions contravene public policy. Since the WPCL does not purport to outline what compensation is due in any particular case, a contractual restriction on when commissions are earned does not frustrate the statute's purpose. Defendant is entitled to summary judgment on plaintiff's claim that he was deprived of earned commissions.
II. Plaintiff's Claim for Wrongful Discharge
Under Pennsylvania law, an employee is presumed to "serve at the pleasure of an employer and the relationship may be terminated by either party and at any time." Adams v. Budd Co., 583 F. Supp. 711, 713 (E.D.Pa. 1984). This presumption may be overcome by a showing that termination violated a clearly established public policy. Novosel v. Nationwide Insurance Co., 721 F.2d 894, 898 (3d Cir. 1983). Moreover, an employer's custom or practice can create additional contractual rights. Id. at 902-03.
Plaintiff advances two separate contentions. First, he asserts that his November 6 termination violated the public policy underlying the WPCL in that Comten terminated him on November 6 for the purpose of depriving him of earned commissions. Plaintiff next asserts that Comten's personnel policy manual entitled him to at least two weeks' notice before being removed from the payroll.
Plaintiff's public policy argument is without merit. As I have already discussed, the WPCL is designed to ensure that employees receive the compensation provided for in their contracts. It does not create a new right to compensation, nor does it guarantee an employee a specific term of employment. In the case of a terminated employee, the WPCL applies only to wages earned prior to termination. It "has no application to wages agreed to be paid in the future for services to be rendered in the future." Weingrad v. Fischer & Porter Co., 47 Pa. D. & C. 2d 244, 250 (C.P. Bucks County 1968).
Sendi was paid all commissions which, according to the Plans, he had earned as of November 6. He thus received everything he was entitled to under the WPCL. Sendi nevertheless complains that Comten, in order to reduce his commissions, accepted his resignation earlier than the date he had requested, December 31. By claiming that defendant's choice of a termination date violated public policy, plaintiff in effect interprets the WPCL to grant an employee the right to earn compensation until whatever date the employee wishes to specify as his date of termination. Such an interpretation finds no support in the language or purpose of the statute.
I must also reject plaintiff's claim that he was entitled to remain at Comten and earn commissions for at least two additional weeks. That claim is based primarily on Comten's personnel policy manual, which states: "Employees are required to give at least two weeks written notice of termination." In support, plaintiff has submitted evidence to show that Comten has customarily kept resigning employees on the payroll for at least two weeks.
The Third Circuit has held that summary judgment on a claim such as this is appropriate if, after the plaintiff has had an opportunity to conduct discovery, the record shows no genuine issue of material fact. Wolk v. Saks Fifth Ave., Inc., 728 F.2d 221, 224 (3d Cir. 1984). After reviewing the evidence submitted, I conclude as a matter of law that the personnel policy manual does not create an enforceable contract right. The notice requirement is imposed only on employees, and is clearly a matter of convenience. The manual states that the notice is required in order to guarantee a terminating employee "timely receipt of his/her final paycheck." The only consequence of an employee's failure to give notice is that the final paycheck would be mailed instead of being handed to the employee on the last day of employment. Such administrative provisions in a personnel policy manual do not rise to an agreement by which the employer must abide. See, e.g., id. at 224-25; Sharon Steel Corp. v. VJR Co., 604 F. Supp. 420, motion for reconsideration denied, 603 F. Supp. 1199 (W.D.Pa. 1985); Boresen v. Rohm & Haas, Inc., 526 F. Supp. 1230, 1235-56 (E.D.Pa. 1981), aff'd mem., 729 F.2d 1445 (3d Cir. 1984); Beidler v. W.R. Grace, Inc., 461 F. Supp. 1013, 1016 (E.D.Pa. 1978), aff'd mem., 609 F.2d 500 (3d Cir. 1979); Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. Ct. 106, 466 A.2d 1084 (1983).
My conclusion with regard to the notice provision is reinforced by plaintiff's deposition testimony. Sendi, far from relying on the provision in question, was not even certain that Comten had a personnel manual and could not recall reading one. Plaintiff's Deposition at 52 (Dec. 14, 1984). Further, he conceded that he had no agreement with Comten as to the length of his employment or the conditions upon which he could be fired. Plaintiff's Deposition at 63-69 (Jan. 4, 1985).
The evidence concerning Comten's practices does not mandate a different result. Plaintiff has submitted deposition excerpts, affidavits and company records to show that a number of employees remained at Comten for at least two weeks after giving notice of resignation. Such evidence is insufficient to establish that a two weeks' notice requirement had become part of the contract between Comten and its employees. Sendi himself testified that Comten followed no set practice with regard to employees who resigned. Plaintiff's Deposition at 57-58 (Dec. 14, 1984). Robert Hartig, Sendi's successor, testified that whether a resigning employee would continue to receive commissions or would be terminated immediately was determined on a case by case basis. Deposition of Robert Hartig at 59-62 (May 2, 1985). Other Comten officials testified that the company's practice was to require immediate termination of employees with access to confidential information. Deposition of Dietrich Mittelstadt at 35-36 (April 25, 1985); Deposition of Edward J. Clark at 30-31 (April 25, 1985). Comten cannot be barred from exercising its judgment in individual cases merely because it has permitted certain employees to remain after submitting their resignation.
Sendi voluntarily submitted his resignation on November 2, after accepting a position with another company engaged in the same business as Comten. As his resignation letter shows, he was fully aware of the sales activity that would occur in December and he hoped to benefit from that activity even though he was leaving the company. Nothing in the WPCL or Comten's policies and practices compelled Comten to accept Sendi's proposal or to pay him commissions he had not earned under his contract. Defendant's motion for summary judgment will be granted as to plaintiff's claims for wrongful discharge and deprivation of earned commissions.
This 25th day of October, 1985, it is ORDERED that defendant's Motion for Summary Judgment is GRANTED, and judgment is entered in favor of defendant.
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