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DANIEL ADAMS ASSOCIATES v. RIMBACH PUBLISHING (01/09/87)

filed: January 9, 1987.

DANIEL ADAMS ASSOCIATES, INC., APPELLANT,
v.
RIMBACH PUBLISHING, INC., AND RICHARD J. RIMBACH, JR., APPELLEES. DANIEL D. ADAMS, APPELLEE, V. RIMBACH PUBLISHING COMPANY AND RICHARD J. RIMBACH, JR., APPELLANTS. DANIEL ADAMS, APPELLANT, V. RIMBACH PUBLISHING, INC., AND RICHARD J. RIMBACH, JR., APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 79-3135. Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 82-7890. Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 82-7890.

COUNSEL

Bernard M. Berman, Media, for appellant (at 1647 and 1649) and appellee (at 1648).

George J. McConchie, Media, for appellants (at 1648) and appellees (at 1647 and 1649).

Cirillo, President Judge, and Rowley and Wieand, JJ.

Author: Wieand

[ 360 Pa. Super. Page 75]

These cross-appeals require that we review post-trial orders entered by the trial court in actions for breach of an employment contract and for malicious interference with the contract existing between a sales representative and his employer, the publisher of a trade magazine. Although the history of the proceedings is lengthy and complex, the underlying issues concern (1) the terms of the contract of employment and (2) whether the vice president of a corporate employer who discharges an employee can be held individually liable for interfering with the contract of employment between the employee and the corporate employer. To place these issues in context, we begin the arduous task of reviewing the proceedings which brought this matter before the Superior Court for review.

[ 360 Pa. Super. Page 76]

In July, 1968, Daniel Adams was employed by Richard Rimbach, the publisher of a trade magazine, to solicit and sell advertising space. The written agreement provided that Adams was to be paid a commission of twenty percent of the net income derived from sales which he would make within the territory assigned to him. This agreement could be terminated by either party, with or without cause, upon written notice. In the event of termination by the employer, however, Adams was to be paid commissions for advertising which appeared in the three issues of the magazine published after his termination.*fn1

In 1972, the publishing firm was incorporated under the name of Rimbach Publishing, Inc. Rimbach's son, Richard Rimbach, Jr., received fifty percent of the stock of the new corporation, was elected a director, and was named corporate vice president. In 1973, following incorporation, new contracts of employment were mailed to all sales representatives, including Adams. Accompanying the new contracts were transmittal letters requesting each sales representative to sign the contract and return it to the employer. The letter of transmittal stated that the contract would thereafter be executed by the corporate employer, who would mail an executed copy to each employee. Adams signed his contract and returned it to his employer. It was thereafter signed on behalf of the corporate employer by Richard Rimbach, Jr., the vice president. Adams denied ever receiving an executed copy of the agreement, although the employer's evidence was that a copy had been given to Adams' secretary. The provisions of this agreement called for the same commissions, i.e., twenty percent, and again permitted termination by either party upon written notice. By the terms of this agreement, however, if Adams were terminated by the employer, his recovery of commissions was limited to those accruing in the next edition of the publication to

[ 360 Pa. Super. Page 77]

    be printed following his dismissal. His territory was also reduced in size by the elimination therefrom of northern New Jersey.

In June, 1978, Adams' contract was terminated, and written notice thereof was duly given. Adams contended that he had been discharged because he refused to discontinue doing work for Instrument Society of America, a competitor, who had previously recruited and taken from Rimbach a junior editor. The employer, on the other hand, premised Adams' discharge upon a poor sales record. In any event, Adams was paid commissions in the amount of $18,085.49, which sum represented advertising sold by Adams for the next edition of the magazine published after his termination. A demand for an additional $16,000, which was alleged to be the amount of commissions accruing for the two succeeding editions of the publication, was rejected by the employer.

In 1979, Adams filed an action in assumpsit based on an alleged oral agreement of employment which he had made with Richard Rimbach, Sr. in 1968. In 1982, Adams filed a second action in which he alleged that the corporate employer had breached the written agreement which had been executed in 1968. In a second count of the 1982 complaint, Adams alleged that Richard Rimbach, Jr. and his corporation were liable for wrongful discharge and for maliciously interfering with Adams' contract of employment. The two actions were consolidated for trial. At trial, the court directed a verdict in favor of all defendants in the 1979 action*fn2 and on the second count of the 1982 action. The

[ 360 Pa. Super. Page 78]

    first count of the 1982 action was submitted to a jury, which returned a verdict in favor of Adams in the amount of $150,000. All parties filed motions for post-trial relief. The defendants requested judgment n.o.v. or, at least, a remittitur with respect to the damages awarded for breach of contract; and the plaintiff asked the court to remove the directed verdict and remand for a new trial on the second count of the 1982 complaint. The trial court denied the employer's request for judgment n.o.v. but remitted that portion of the jury's verdict which exceeded $16,000. With respect to the cause of action for wrongful discharge, the court denied Adams' motion for new trial. However, the trial court vacated its directed verdict on the claim for malicious interference with contract and granted a new trial thereon. It is these actions by the trial court which are before us for review in this appeal.

I. MALICIOUS INTERFERENCE WITH CONTRACT

The cause of action for malicious interference with contract is defined in the Restatement (Second) of Torts ยง 766. This section of the Restatement, which was adopted by the Pennsylvania Supreme Court in Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175, 1 A.L.R.4th 1144 (1978), cert. denied, Epstein v. Adler, Barish, Daniels, ...


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