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Golkow v. Esquire Deposition Services

September 23, 2009


The opinion of the court was delivered by: O'Neill, J.


Plaintiff Linda L. Golkow filed a complaint against defendant Esquire Deposition Services, LLC for breach of contract and an accounting with respect to certain commissions plaintiff alleges she is owed for generating business for defendant pursuant to an oral contract. Before me now are defendant's motion for summary judgment and plaintiff's response.


At issue is plaintiff and defendant's oral agreement with respect to plaintiff's rate of compensation for new business that she generated for defendant. Beginning around September 2005, Mr. Robert Ackerman, the national account manager and then-director of defendant's Pennsylvania, New Jersey and Delaware division, entered into an oral arrangement with plaintiff whereby she would receive 25% of revenues after reporter's expenses (RARE) on new business that she generated. The agreement had no fixed term. Plaintiff regularly received her commission checks from defendant on the twenty-fifth of each month which were accompanied by a commission report. This arrangement continued through August 2006 without any apparent incident.

In mid-September 2006, defendant arranged to have a meeting with plaintiff, the purpose of which was to discuss the terms of a new financial arrangement.*fn1 A few days prior to the meeting, plaintiff and Mr. Ackerman had a conversation about the issues to be discussed at the upcoming meeting.*fn2 The parties did not reach a consensus as to the terms of a new agreement at the meeting or thereafter.

On September 25th, just a few days after the meeting, plaintiff received a check for commissions earned in August and the customary commission report which continued to reflect the 25% commission rate. However, plaintiff received her commission check for the month of September on November 10th (instead of the customary October 25th) without a commission report. The check for September reflected a commission rate of 12.5%. She raised the issue of the reduced rate with Mr. Ackerman. Checks continued to arrive at the reduced rate until plaintiff terminated the agreement on January 9, 2007. Defendant also deducted previous commission payments that it had made to plaintiff from some of these checks in accordance with a policy it had of not paying commissions when clients failed to pay their invoices.


Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact. Id. at 322-23. If the moving party sustains the burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See Anderson, 477 U.S. at 255. Rule 56(e) provides that when a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The adverse party therefore must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion, and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the "existence of disputed issues of material fact should be ascertained by resolving 'all inferences, doubts and issues of credibility against'" the moving party. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978), quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 878 (3d Cir. 1972).


In her complaint, plaintiff alleges that defendant breached its oral agreement with plaintiff beginning in November 2006 when it began paying her commissions for generating new business at a rate of 12.5% rather than 25%. Defendant responds that the agreement it had with plaintiff to pay her at the rate of 25% was unilateral and that it effectively revoked the former agreement. Furthermore, plaintiff alleges that defendant wrongfully withheld certain commissions. Defendant moves that both issues related to the breach of contract claim be dismissed, along with plaintiff's claim for an accounting. For the reasons set forth below, I will grant defendant's motion to dismiss the claim for an accounting, but deny defendant's motion with respect to the breach of contract action.

I. Breach of Contract

Under Pennsylvania law,*fn3 a breach of an oral contract claim requires the plaintiff to prove "the existence and terms of the oral contract, defendant's breach of the contract, and resulting damages." Hanna v. SE Holdings, LLC, No. 04-1294, 2005 U.S. Dist. LEXIS 24407, at *31 (W.D. Pa. Oct. 20, 2005), citing Idell v. Falcone, 235 A.2d 394, 396 (Pa. 1967). The Pennsylvania Supreme Court stated, "[i]n order that a contract may be enforceable the promise or the agreement of the parties to it must be certain and explicit, so that their full intention may be ascertained to a reasonable degree of certainty." Seiss v. McClintic-Marshall Corp., 188 A. 109, 110 (Pa. 1936). "Once it is determined that the parties intended to form a binding agreement, certainty of terms is important only as a 'basis for determining the existence of a breach and for giving an appropriate remedy.'" Browne v. Maxfield, 663 F. Supp. 1193, 1198 (E.D. Pa. 1987), quoting Restatement (Second) of Contracts § 33.

Defendant argues that the agreement existing between plaintiff and defendant at the time of the September 2006 meeting was unilateral. Gnames Advantage, L.P. v. CPC Assocs., No. 00-4032, 2002 U.S. Dist. LEXIS 23490, at *10-9 (E.D. Pa. Nov. 20, 2002) summarizes Pennsylvania law on the formation of unilateral contracts. A unilateral contract is proven if the plaintiff can show that "one party made a promissory offer, which calls for the other party to accept by rendering performance." Id., quoting Bauer v. Pottsville Area Emergency Med. Serv., 758 A.2d 1265, 1269 (Pa. Super. 2000). The offer must contain "some language of commitment or some invitation to take further action without further communication." Id., quoting Bourke v. Kazaras, 746 A.2d 642, 644 (Pa. Super. ...

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