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February 4, 1993


The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPEN


 February 4, 1993


 The plaintiff, Andrew C. Hardtke ("Hardtke"), brought this action against his former employer, the defendant, Exide Corporation ("Exide") for separation pay under Exide's "Separation Payment Policy For Salaried Employees" ("Separation Plan"). In the spring of 1984, a company known as the Richardson Division ("Richardson") of the Witco Corporation entered into an agreement with Exide to purchase Exide's Stokes Molded Products Division ("Stokes"). On or about December 14, 1984, Hardtke was denied separation pay on the grounds that 1. Richardson had made him an offer of continued employment and 2. he had been terminated prior to the sale for acts that were detrimental to Exide.

  On December 10, 1992, a bench trial was held in the above-captioned matter. *fn1" After reviewing the testimony, the exhibits presented at trial, and the deposition of Gerald E. Turner, *fn2" we make the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a). *fn3"


 1. Hardtke was employed as a salesman at Exide's Stokes Division in Trenton, New Jersey from April 13, 1959 to December 14, 1984. He was continually employed by Exide during this period.

 2. In the spring of 1984, Richardson entered in an agreement with Exide to purchase Stokes.

 3. In August of 1984, Hardtke met several times with Richardson representatives, including Gerald Turner, who was Vice President of Marketing, to discuss his continued employment as an industrial battery sales representative.

 4. Richardson offered Hardtke continued employment at its Clark, New Jersey facility in the same sales position as he had held at Stokes, with comparable duties and responsibilities.

 5. The Clark, New Jersey facility was 39 miles further from Hardtke's residence than his last place of employment with Exide in Trenton, New Jersey. Hardtke measured this distance on his car's odometer, using the most direct route. *fn4" Richardson never offered Hardtke reimbursement to relocate.

 6. Exide had compensated Hardtke on the basis of a base salary plus commissions. In 1984, Exide paid Hardtke $ 27,683.74 in salary and $ 10,914 in commissions. In 1983, Hardtke received $ 26,061.64 in salary and $ 5,348 in commissions.

 7. Exide's incentive program was set up to afford Hardtke the opportunity to earn the same or more commissions as the previous year.

 8. Richardson does not pay any of its salesman on a commission basis, so it offered Hardtke a straight salary instead. This offer was calculated using Hardtke's base salary and its determination of his average commissions over several years prior to 1984.

 9. Hardtke and Richardson were unable to agree as to his salary level. Hardtke indicated to Richardson that he could not accept their offer at such a salary. Richardson believed its offer was fair and never offered any additional compensation.

 10. Hardtke never received an offer of employment from Exide, any of its subsidiaries, or affiliates.

 11. On November 27, 1984, Arthur G. Koch, then-President of the Stokes Division met with Hardtke to inquire whether he would seek employment with Hardigg Industries ("Hardigg"), which was Stokes' primary competitor for the sale of industrial battery products, if he did not take the job with Richardson. Koch was concerned because Hardtke had access to confidential marketing strategies and both Hardigg and Stokes called upon the same customers.

 12. During their November 27, 1984 conversation, Koch asked Hardtke whether he had considered working for Hardigg. Hardtke responded that working for a competitor was a possibility as that was the type of work that he was familiar with, but that he was uncertain at that point.

 13. Later that day, Koch told Hardtke to go home, not to perform any of his normal duties, and to await further instructions from him. The basis for this decision was Koch's determination that Hardtke's continuing in his present capacity while considering employment with a competitor was a conflict of interest.

 14. Koch terminated Hardtke effective December 14, 1984. Koch was told by various members of his staff, including Marty Sessa, who was Hardtke's functional supervisor at Stokes, that they had heard rumor in the industry that Hardtke was negotiating for a job with Hardigg. Therefore, Koch terminated Hardtke because, in his judgment, for Hardtke to continue calling on customers while at the same time maintaining a relationship with Hardigg was detrimental to Stokes.

 15. Neither Koch, nor his staff had any personal knowledge that Hardtke was negotiating for a position with Hardigg during the time that he was employed by Stokes.

 16. Koch had planned to employ Hardtke until the date of the sale in early 1985.

 17. The industry for industrial battery products is small and limited with very few competitors.

 18. In September of 1984, Hardtke inadvertently encountered Jerry Custeau, a Hardigg's salesman, at the office of a mutual customer. Custeau knew that Stokes was about to be sold and, therefore, informed Hardtke that there was a possibility of an opening for his position at Hardigg because he was retiring in November.

 19. Prior to his termination on December 14, 1984, this conversation was Hardtke's sole contact with anyone from Hardigg with respect to obtaining employment with Hardigg.

 20. After his termination on December 14, 1984, Hardtke contacted Hardigg about employment and arranged to meet them at their plant in Massachusetts on December 17, 1984.

 21. On December 17, 1984, Hardtke met with Hardigg Industries and arranged to take a physical examination on December 18, 1984. Hardtke took the physical and was hired by Hardigg on December 20, 1984. He was retroactively placed on Hardigg's payroll as of ...

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