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GIANT FOOD STORES v. MARKETPLACE COMMUNS. CORP. SH

July 24, 1989

GIANT FOOD STORES, INC., Plaintiff
v.
MARKETPLACE COMMUNICATIONS CORP. , SHELFVISION, INC., MCC OF OREGON, INC., Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 Pursuant to Fed. R. Civ. P. 56, plaintiff, Giant Food Stores, Inc. (Giant), has moved for summary judgment against defendants, Marketplace Communications Corp. (Marketplace), Shelfvision, Inc. (Shelfvision), and MCC of Oregon, Inc. (MCC), in this diversity action controlled by Pennsylvania law, and removed here by the defendant, MCC. *fn1" Giant has sued for breach of contract, contending that defendants have failed to pay certain minimum guarantees owed to it under the terms of an agreement under which defendants were entitled to place advertising on the shelves of plaintiff's supermarkets. MCC opposes the motion. We will examine it under the well established standard, see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), bearing in mind the parties respective burdens on the motion. See Sorba v. Pennsylvania Drilling Co., 821 F.2d 200 (3d Cir. 1987), cert. denied, 484 U.S. 1019, 108 S. Ct. 730, 98 L. Ed. 2d 679 (1988).

 From the pleadings, affidavits and admissions on file, the following is the undisputed background to this litigation. On June 16, 1986, plaintiff and Marketplace entered into a "Standard License Agreement," permitting Marketplace to position small advertising displays on the shelves of plaintiff's supermarkets. This agreement was negotiated on behalf of Marketplace by Robert J. Ferrante, within the course and scope of his duties. (Ferrante affidavit, para. 3). In part, the agreement provided that Giant would receive a license fee based upon its "proportional share of thirty (30%) of the monthly net income" from the sale of the advertising space as further defined in the agreement. (second amended complaint, Exhibit A, para. 4.1). It also contained a clause permitting assignment by either party but requiring the written consent of the other party, "which consent [was] not [to] be unreasonably withheld." (Id., P 9) (brackets added). Finally, the agreement was integrated. Paragraph 13.2 provided as follows:

 
Modification. This Agreement contains the entire agreement between the parties, and unless otherwise provided in this Agreement, no modification or waiver of any of the provisions, or any future representation, promise, or addition shall be binding upon the parties unless made in writing and signed by both parties.

 On November 13, 1987, Shelfvision, without first receiving the written consent of Giant, assigned the agreement to Actmedia, Inc. (Actmedia), a stranger to this litigation. Thereafter, defendants made payments under the agreement until May 9, 1988. Plaintiff has received no payments from Actmedia. *fn2" In this action it seeks as damages the difference between payments received from defendants and the amount of certain minimum guarantees made by Ferrante at the time the agreement was executed but admittedly not included in that document.

 As proof of these guarantees, plaintiff has submitted a letter, dated June 2, 1986, from Ferrante to Allan Noddle of Giant who negotiated the deal on behalf of plaintiff. The letter stated, in pertinent part, as follows:

 
Dear Allan:
 
Please excuse the delay in getting back to you.
 
Using 39 stores with an average weekly customer count of 11,600, your guarantee for the first two years will be as follows:

  Year 1 $ 63,516.00 Year 2 84,689.00

 (second amended complaint, Exhibit B).

 Noddle responded by letter, dated June 10, 1986, which read, in relevant part:

 
This is a confirmation of our recently concluded negotiations in regards to the placement of Shelf Vision in Giant Food Stores. Accordingly, the following has been decided upon:
 
. . . .
 
4. GFS will open a new store within the 60 day period in Ephrata, Pa. This store has not been included in any figures listed above, and you need to respond to us as to what the additional payment will be for the added store.

 (second amended complaint, Exhibit E) (emphasis in original).

 The June 10th letter also enclosed two copies of the Standard License Agreement which had been executed on behalf of Giant by Noddle. As noted, ...


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