Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TOTAL CONTROL, INC. v. DANAHER CORPORATION

July 1, 2004.

TOTAL CONTROL, INC., Plaintiff,
v.
DANAHER CORPORATION, et al. Defendants.



The opinion of the court was delivered by: ANITA BRODY, District Judge

EXPLANATION AND ORDER

Plaintiff Total Control, Inc. ("Total Control") promotes and sells products for the manufacturers it represents. Defendant is a group of interlocking corporations that plaintiff collectively refers to as Danaher Corporation ("Danaher")*fn1 that manufactures digital equipment and controls as well as other products. Total Control formerly represented some product lines for Danaher, but their relationship terminated on December 31, 2001.

On January 31, 2003, plaintiff filed a four count amended Complaint alleging violations of state law.*fn2 Only two counts remain: Count I, a claim for Breach of Contract, and Count III, a claim for Violation of the Pennsylvania Commissioned Sales Representative Law (PCSRL).*fn3 In Count I, Total Control argues that Danaher's breach of contract resulted in at least six categories of products for which it was not paid commissions or not paid the full commissions to which it was entitled: 1) commissions earned, but not paid, for sales made as of December 31, 2001, the effective date of termination; 2) commissions due on products sold into Total Control's territory for which they customarily received commissions, but which were not paid; 3) commissions earned from the effective date of termination, until the end of the 120-day notice period;*fn4 4) commissions earned on products converted from the "I"mmature category to the "M"ature category; 5) commissions on Veeder-Root products #s 7303, 7305, 7443, 7444, 7445, 7456, and 9930, and 6) commissions on Veeder-Root vote counting machines, Veeder-Root MINGRP 2030, and Veeder-Root 8010 (same as 2030, but was renumbered in 2001). Danaher disputes that it breached the Agreement and also argues that it was discharged from its obligations under the Agreement because of Total Control's non-performance.*fn5

  On April 20, 2004, Defendant Danaher filed a motion for summary judgment. Oral arguments on the motion for summary judgment were held on June 18, 2004. For the reasons that follow, I grant Danaher's motions for summary judgment only with respect to two discrete issues in Count I: 1) Total Control is entitled to commissions on (a) digital equipment and controls and (b) products merged into the Dynapar product line that were sold by the Veeder Root Digital Product Group in 1991, and 2) Total Control is not entitled to commissions sought on products converted from the "I"mmature to the "M"ature categories. Because there are outstanding questions of material fact that apply to each, I deny defendant's motion for summary judgment with respect to the balance of the commissions claimed in Count I,*fn6 including Danaher's defense of non-performance on the part of Total Control, and with respect to Count III, the claim under the Pennsylvania Commissioned Sales Representative Act.

  I. Facts

  On June 30, 1986, Total Control entered into an Agency Agreement (the "Agreement") with Dynapar, an Illinois Corporation. (Pl. Mem. Opp'n D's Mot. Summ. J. Ex. 3.) Dynapar drafted the Agreement. (Id. Ex. 2 at ¶ 4.) Dynapar manufactures digital equipment and controls and other products.

  The introductory paragraph to the Agreement states:
Whereas, Dynapar is a manufacturer of digital equipment and controls and desires to provide for the sale of its products in the States of Eastern Pennsylvania, Maryland, Delaware, Southern New Jersey and the District of Columbia.
Whereas, the Agent [Total Control] desires a right to sell Dynapar's digital equipment and controls in the States of Eastern Pennsylvania, Maryland, Delaware, Southern New Jersey, and the District of Columbia.
(Id. Ex. 3.)
  Section 1 of the Agreement states:
Dynapar hereby appoints Agent [Total Control] as a sales agent of all Dynapar name brand digital equipment and controls (hereinafter sometimes referred to as "Products") . . .
(Id.) Section 1.A.2. of the Agreement states:
Dynapar reserves the right to handle directly any account in the agent's assigned territory.
(Id.)
  Section 7 of the Agreement states:
Dynapar agrees to pay the AGENT [Total Control] fifty percent (50%) of the applicable commission rate on or about the fifteenth (15th) day of the month following the month in which the shipment is made.
(Id.)
  Section 8 of the Agreement states in relevant part:
The AGENT [Total Control] agrees that it will not sell or promote the sale of any line of products, either directly or indirectly, which compete in any way with Dynapar's products, without the express written approval of Dynapar, nor will the AGENT [Total Control] enter into any agreement for the pooling and dividing of commissions with competitors or the agents or representatives thereof.
(Id.)
  Section 11 of the Agreement states:
The term of this Agreement shall be twelve (12) month from the date hereof, provided, however, that either party shall have the option of cancelling this Agreement without cause upon thirty (30) days' advance written notice. If this Agreement is not cancelled by notice of either party, or for any other reason, before the expiration of the agreed period herein, the Agreement shall automatically renew itself from year to year, provided, however, that either party shall have the option at any time, of cancelling this Agreement without cause upon one (1) months' (sic) advance notice during any renewal period.
(Id.)
  Section 13 of the Agreement in relevant part states:
The validity, effect, and construction of this Agreement shall be governed by the laws of the state of Illinois, except insofar as the laws of the United States of America are clearly applicable hereto.
(Id.)

  On December 13, 1988, the Marketing Manager of Dynapar sent the President of Total Control a letter which stated in relevant part: For 1989, we are extending the normal 30 day cancellation period from 30 days to 120 days. Furthermore, this 120 day provision shall remain a condition of your contract in subsequent years, conditional to your sales increasing by 10 percent over ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.