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AMERICAN MUT. LIAB. INS. CO. v. KOSAN

May 21, 1986

AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, a Massachusetts corporation, Plaintiff
v.
STEPHEN KOSAN, an individual and RITENOUR & BRADLEY INSURANCE AGENCY, INC., a Pennsylvania corporation, Defendants



The opinion of the court was delivered by: WEBER

 This is an action brought by an insurance company against a former employee to enforce non-competition and trade secret protection provisions in an employment contract. Additional claims were made against plaintiff's former employee, Kosan, and Kosan's new employer, Ritenour & Bradley Insurance Agency, Inc. alleging tortious interference with contractual relations as well as with prospective contractual relations, conspiracy and unfair competition. Plaintiff seeks injunctive relief, compensatory and punitive damages. After an evidentiary hearing, this court earlier granted injunctive relief against defendant Kosan according to the terms of the employment contract. The court also granted plaintiff's earlier motion to dismiss defendant's counterclaim for wrongful discharge. Now before the court is plaintiff's motion for summary judgment which addresses Count II, the breach of contract claim against Kosan. In support thereof plaintiff has supplied the court with copious evidentiary materials including transcripts of the testimony of plaintiff's prior customers who are now customers of Ritenour & Bradley, and the deposition testimony of defendants John Ritenour and Stephen Kosan. In opposition, defendant Kosan has filed an answer and affidavit which asserts that he did not violate the Employment Agreement. Thus the motion is ready for determination by the court.

 In order to succeed with a summary judgment motion, plaintiff must establish that there exists no dispute as to any material issue of fact, and that it is entitled to judgment as a matter of law. Adickes v. S. H. Kress and Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Every favorable factual inference is to be drawn to the benefit of the non-moving party. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). However, when confronted by clear evidentiary material in affidavit or other admissible form, defendant may not rest on mere allegation, but must come forward with some evidence of his own to establish a material issue of fact. Tilden Financial Corp. v. Palo Tire Service, Inc., 596 F.2d 604 (3d Cir. 1979).

 Kosan first asserts that there exists here a purely factual issue and therefore the matter is not susceptible to summary judgment. We disagree. We cannot discern any new or contradictory facts in defendant Kosan's Affidavit. Kosan does not say that his actions varied in any way from the facts presented in the evidence submitted by the plaintiff. Rather Kosan presents us with his conclusions that nothing he did violated the contract. Kosan argues that the inferences raised by his Affidavit are sufficient to give rise to a factual issue precluding summary disposition. However, conflicting conclusions as to the interpretation of a written contract which is clear and unambiguous as to its terms will not create a material issue of fact to bar disposition by summary judgment. County of Erie v. American States Insurance Co., 573 F. Supp. 479 (W.D. Pa. 1983), affd., 745 F.2d 45 (3d Cir. 1984). Such interpretation is a matter of law for the court to decide. Whether or not Kosan's activities constitute violations of his Employment Agreement as a matter of law is the question now before the court and the only one which we decide at this time.

 
3. Employee agrees that all rights created in the expiration, rights of renewal and good will of the business procured by Employee or assigned to him for service during the term of employment shall, as between Company and Employee, be and remain the exclusive property of Company and, in recognition of the fact that he will have access to confidential information and materials which, if communicated would or could result in irreparable damage to Company, further agrees that all such information and materials, whether made by Employee or not, including, but not limited to all correspondence, applications, expiration dates, forms, manuals, prospects, documents and papers, are regarded as confidential in nature and will remain the exclusive property of Company and will forthwith be delivered to Company by Employee upon termination of this Agreement and that upon such termination he will in no way disclose or use, either directly or indirectly, any such information or materials.
 
. . .
 
5. Employee agrees that for a period of 18 months following the termination of this Agreement or should Company find it necessary to institute Court action against Employee to enforce any provision of this Agreement, for one year after the date Company is granted relief, whichever period is longer, he will not and will not attempt to, either directly or indirectly :
 
(a) Be licensed or act as an agent, advisor, solicitor, salesman, sales representative, district manager, sales manager, group specialist, special agent, or broker for any other company, firm, agency or other person or organization engaged in the Fire, Casualty, Accident and Health or Life Insurance business or businesses or be employed or act in any other capacity whereby he will be involved in the sale of Fire, Casualty, Accident and Health or Life insurance or involved in contacting customers, prospective customers, policyholders or prospective policyholders for the purpose of writing or selling such insurance within 50 miles of any office to which Employee was . . . assigned. . . .
 
(b) By himself or through others procure, solicit, accept, refer or encourage the discontinuance of policies of, applications for or inquiries about insurance from:
 
1. Any person, firm, corporation or association which, at the time of termination was insured by a policy or policies issued by Company or any of its affiliated companies and which was serviced by, through or from any office to which Employee was assigned on Company's Personnel Recommendation Form (Form 0433 or any subsequent form which may replace said Form 0433) at any time during the 18 months immediately preceding the termination or
 
2. any person, firm, corporation or association which at the time of termination was insured by Company or any of its affiliated companies under a policy or policies, sold or serviced by Employee.
 
. . . (Emphasis ...

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