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SUROVCIK v. D & K OPTICAL

July 18, 1988

DENNIS A. SUROVCIK, Plaintiff
v.
D & K OPTICAL, INC. and LARRY JOEL, individually, Defendants



The opinion of the court was delivered by: RAMBO

 SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE.

 Procedural Background

 On July 30, 1986 plaintiff, Dennis A. Surovcik, filed a complaint claiming breach of an employment contract and fraudulent misrepresentation. On May 5, 1987 the court entered an order denying defendant Larry Joel's motion to dismiss, 702 F. Supp. 1166. Defendants have filed a motion for summary judgment. This motion has been fully briefed and is ripe for consideration. The court exercises jurisdiction pursuant to 28 U.S.C. section 1332(a)(1).

 Factual Background

 Plaintiff Surovcik became acquainted with defendant Joel during the negotiation and acquisition process between defendants Joel and D & K Optical, Inc. (D & K Optical), and Duling Optical Corporation (Duling) and Dentsply International, Inc. (Dentsply), the owner of Duling. The transaction involved defendants purchasing Duling (which consisted of retail optical stores) from Dentsply. Joel, a Kentucky resident, first contacted plaintiff, a Pennsylvania resident, in April 1982 about the purchase of Duling. Plaintiff was (and is) employed by Dentsply. On April 20, 1982 plaintiff received a document indicating defendant Joel was the authorized representative of a group of three people who later formed D & K Optical, a Minnesota corporation. The three were Joel, Orien Kirschbaum, and Brian Krasnik. The document was signed by the three men. Contact between the parties in the following months included telephone calls and Joel's and his partners' visits to Pennsylvania on various occasions to discuss the purchase of Duling.

 After several weeks of negotiations, plaintiff contends during one of the telephone calls which plaintiff received at his home in York, Pennsylvania, Joel inquired whether plaintiff would be interested in leaving Dentsply and accepting a position with a new business entity to be created by the group to acquire Duling. Plaintiff alleges following this offer of employment numerous telephone conversations took place between plaintiff and Joel to negotiate the terms of this contract. Plaintiff drafted a document, an alleged employment agreement, and it was signed by plaintiff and Joel at the O'Hare International Airport in Chicago, Illinois on August 17, 1982.

 Plaintiff contends he provided Joel with valuable information which helped in his procurement of Duling. These alleged exchanges of information continued until March 4, 1983, when Duling was purchased by D & K Optical. After the purchase of Duling, Surovcik repeatedly informed Joel both orally and in writing he was available for employment pursuant to the terms of their agreement. Plaintiff alleges defendants D & K Optical and Joel have refused to honor the employment agreement.

 Discussion

 Federal Rule of Civil Procedure 56(c) states, summary "judgment . . . shall be rendered forthwith if . . . there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Third Circuit has instructed "the nonmoving party must produce specific facts showing that there is a genuine issue for trial . . .; a genuine issue means that the evidence must create a fair doubt, and wholly speculative assertions will not suffice." Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir. 1985). With the standard for summary judgment in mind, the court examines the parties' respective positions.

 Construction of the Contract

 Defendants argue summary judgment should be granted on the breach of contract claims because neither of two contingencies expressly provided for in the alleged contract occurred, and material terms necessary for the creation of a contract are lacking.

 Taking the lack of material terms argument first, the court is unpersuaded the alleged contract is deficient. The alleged contract is merely an agreement to enter into a future employment relationship. "To be enforceable, a contract must be complete. . . . It must represent a meeting of the parties' minds on the essential terms of the agreement." Yellow Run Coal Co. v. Alma-Elly-Yv Mines, Ltd., 285 Pa. Super. 84, 426 A.2d 1152, 1154 (1981). The document in question contains specifics on whom plaintiff was to work for, his compensation (outlined in detail), and the term of employment. That the agreement does not contain specifics on job title, duties, and financing arrangements does not render it unenforceable.

 The contingencies theory is based on the following language in the alleged contract:

 
I, Dennis A. Surovcik, an individual residing at 4196 Caldwell Rd., York, Pa. 17402 (Party of the First Part), hearby [sic] agree to accept employment for and in behalf of Dr. Larry Joel, an individual residing at (Party of the Second Part) as of upon the satisfactory completion of the following events:
 
1) The successful purchase by the Party of the Second Part of the Retail Optical Companies owned by Dentsply International Inc. (DII)
 
2) The execution of an employment contract between the Party of the First Part and the Party of the Second Part . . . .

 Complaint, Exhibit B at 1.

 It is defendants' position the language of the alleged contract is plain and unambiguous. They contend the term "Party of the Second Part" refers to Joel as an individual only. From that premise, they conclude the two contingencies (Party of the Second Part purchasing the Dentsply companies and the Parties then executing an employment contract) did not occur. It is uncontested Joel himself did not purchase the Dentsply companies; D & K Optical, of which Joel had been president, purchased the Dentsply companies. And, Joel and Surovcik never executed an employment contract.

 Plaintiff counters defendants' contingencies theory with his contention that the term "Party of the Second Part" does not refer to Joel as an individual, but rather refers to Joel in his representative capacity as agent for the group which formed D & K Optical. It is plaintiff's contention the name of the party Joel represented was undetermined at the time the alleged contract was executed, and that is why there are blank spaces after the words "(Party of the Second Part) as." Plaintiff argues those spaces would have been filled-in to indicate Joel's position, i.e., president, secretary, etc., and the name of the corporate entity or partnership. In further support of his agency theory, plaintiff points out paragraph seven of the alleged contract. It reads:

 
The Party of the Second Part, and his associate Brian Krasnik, an individual residing at , agree to personally guarantee the performance of the employment contract in their ...

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