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MASHMAN v. UNIVERSAL MATCH CORP.

September 8, 1989

ABRAHAM O. MASHMAN
v.
UNIVERSAL MATCH CORPORATION



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE.

 Plaintiff brought this action alleging various federal and state claims regarding the termination of his employment with defendant corporation. Before me now are plaintiff's Motion for Partial Summary Judgment and defendant's two separate motions for partial summary judgment. *fn1" For the rationale which follows I will deny defendant's motions and grant plaintiff's motion.

 I. Background.

 Plaintiff Abraham O. Mashman became an employee of defendant Universal Match Corporation ("Universal") in 1963 as a sales representative. There is some evidence that plaintiff throughout his career was a successful salesman for Universal. In October, 1984, plaintiff suffered a heart attack and later underwent angioplasty for his heart condition. Due to his medical condition plaintiff was out of work for six months. Effective May 1, 1985, plaintiff was cleared by his physician to resume his ordinary work routine.

 In May, 1987, as a result of continuing losses Universal decided to reduce its overhead by $ 800,000 per year. *fn2" Accordingly, Universal also determined that it would eliminate 27 of the 85 sales positions in the company. Deposition testimony indicates that Universal decided to eliminate sales personnel based primarily on then-recent sales performance, leaving such determination to the regional sales managers. Defendant's Ex. B at 89-90, 95-96.

 The decision as to which of the six salesmen in the Philadelphia Sales Region would be terminated was left to sales manager Milton Hirsch. Mr. Hirsch, basing his decision on then-recent sales performance, decided to terminate plaintiff. Accordingly, Universal terminated Mr. Mashman in June, 1987. At the time of the termination plaintiff was 66 years old. Mr. Hirsch informed plaintiff that he was being terminated for unsatisfactory sales performance. Defendant's Ex. A.

 At the same time, Universal offered Mr. Mashman the opportunity to retain a sales relationship with the corporation as an independent contractor. Plaintiff, subsequently agreed to enter into the relationship and signed a written Sales Agent Agreement ("Agency Agreement") with Universal. Defendant's Ex. D. Pursuant to the Agency Agreement Mr. Mashman was to receive, as his sole compensation, commissions on his sales. Id. Although there is some evidence that Mr. Mashman considered the Agency Agreement to represent a long-term relationship, there was a specific provision providing for termination of the Agency Agreement with thirty days notice by either party at-will.

 Universal's financial difficulties created further problems regarding the relationship of the corporation with plaintiff. At the same time that Universal terminated plaintiff it also eliminated the Philadelphia regional sales office placing the area within the larger Northeast Sales Region. The former manager of that office, Mr. Hirsch, was at that time relegated to performing direct sales duties. According to the defendant, Mr. Hirsch's duties were complicated, and to a certain extent hindered, by the sales operation of Mr. Mashman. Defendant's Ex. C. Defendant avers that the regional manager for the Northeast requested permission from the corporation to terminate the Agency Agreement with plaintiff.

 Defendant admits that it decided not to terminate the Agency Agreement with plaintiff at that time due to legal negotiations then underway regarding plaintiff's termination. Mr. Mashman had retained counsel and was claiming that Universal owed him commissions from his work prior to termination as an employee. The parties reached agreement regarding the past commissions.

 The defendant agreed to pay Mr. Mashman $ 4,500.00 for owed commissions. The plaintiff signed a general release (the "Release") which provides:

 
For the consideration of Four Thousand Five Hundred Dollars, ($ 4,500.00) paid by Universal Match Corporation to Abraham O. Mashman, the receipt and sufficiency of which is hereby acknowledged, Abraham O. Mashman does hereby release, acquit and forever discharge Universal Match Corporation, its successors and assigns, and all other persons, firms, and corporations, from any and all claims, demands, or causes of action arising out of his employment with Universal Match Corporation and termination thereof, with exception of the claims for pension benefits which said Abraham O. Mashman may have against the released parties.

 Defendant's Ex. F. Plaintiff executed the release on November 3, 1987.

 With the back commission problem resolved, defendant proceeded to give notice to Mr. Mashman on November 13, 1987, that it was terminating the Agent Agreement. Plaintiff then initiated the instant ...


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