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PERSONAL TOUCH, INC. v. LENOX

March 13, 1989

THE PERSONAL TOUCH, INC.
v.
LENOX, INC.



The opinion of the court was delivered by: REED, JR.

 LOWELL A. REED, JR., UNITED STATES DISTRICT JUDGE

 Before the court in this breach of contract action is the motion of the defendant Lenox, Inc. for summary judgment. Because I find that there are no genuine issues of material fact, summary judgment is appropriate. Fed. R. Civ. P. 56(c). See Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). For the reasons set forth below, I will grant the motion of the defendant and enter summary judgment in its favor.

 I

 Factual Background

 On or about August 1, 1987, Lenox, without notifying Personal Touch, began publication and distribution of a brochure which included a photograph of a prototype of the Philadelphia Plate, imprinted in gold, for $ 20.00 per plate. The brochure was designed to showcase the ability of Lenox to imprint artwork on crystal and china. A total of 10,000 copies of the brochure were printed, of which 9,200 were distributed.

 On August 11, 1987, Personal Touch saw the Lenox brochure while visiting the Lenox offices. From and after that date, Personal Touch abandoned any efforts to market the Philadelphia Plate. The following day, Personal Touch sent a letter to Lenox cancelling their order for the Philadelphia Plates and requesting Lenox to cease distribution of its brochure pending legal action. Lenox declined to stop distribution of the brochure, but agreed to refer any inquiries concerning the Philadelphia Plate to Personal Touch and to eliminate the Plate from the next edition of its catalog. Personal Touch rejected defendant's offer and instituted this action.

 II

 Discussion

 Under the Federal Rules of Civil Procedure, summary judgment may be granted when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). For a dispute to be "genuine," the evidence must be such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). To establish a genuine issue of material fact, the non-moving party must introduce evidence beyond the mere pleadings to create an issue of material fact on "an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The evidence presented must be considered in a light most favorable to the non-moving party and that party must receive the benefit of all reasonable inferences arising from that evidence. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).

 Although defendant's motion for summary judgment addresses all six counts of the amended complaint, plaintiff, in its reply to the motion, notified the court that it will not pursue four of the six counts initially asserted in its amended complaint. Accordingly, I will only address Counts III (Breach of Contract) and VI (Breach of Trust) of the amended complaint.

 Personal Touch essentially alleges that Lenox breached an implied right to confidentiality and to exclusivity by offering the Philadelphia Plate to competitors for a reduced rate. As a result, plaintiff claims that its credibility with potential customers was injured. Because the breach of trust claim is also based on a right to confidentiality, I will discuss the two claims together.

 Although Personal Touch admits that the contract itself does not expressly provide for confidentiality or exclusivity, it offers two reasons for this court to find that such a duty exists under the terms of the contract. First, it contends that a right to confidentiality and exclusivity must be implied based upon common trade usage, and second, that such a duty must be implied based ...


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