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Diodato v. Wells Fargo Ins. Servs., USA, Inc.

United States District Court, M.D. Pennsylvania

September 8, 2014

DARRELL DIODATO, Plaintiff
v.
WELLS FARGO INSURANCE SERVICES, USA, INC., Defendant

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For Darrell D. Diodato, Plaintiff, Counterclaim Defendant: Frank P. Clark, LEAD ATTORNEY, Clark & Krevsky, LLC, Lemoyne, PA; Bruce Jeffrey Warshawsky, Cunningham & Chernicoff, P.C., Harrisburg, PA.

For Wells Fargo Insurance Services USA, Inc., Defendant, Counterclaim Plaintiff: Michael R. Galey, LEAD ATTORNEY, James P. McLaughlin, Fisher & Phillips, LLP, Radnor, PA.

For Marsh USA Inc., Third Party Custodian: Kate S. Arduini, William J. Leahy, Littler Mendelson, P.C., Philadelphia, PA.

For Wells Fargo Insurance Services USA, Inc., Counterclaim Plaintiff: Michael R. Galey, LEAD ATTORNEY, James P. McLaughlin, Fisher & Phillips, LLP, Radnor, PA.

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MEMORANDUM

Christopher C. Conner, Chief United States District Judge.

Presently before the court in the above-captioned matter are the motion (Doc. 63) for summary judgment by defendant and counterclaimant Wells Fargo Insurance Services, USA, Inc. (" Wells Fargo" ) and the motion (Doc. 66) for partial summary judgment by plaintiff and counterdefendant Darrell Diodato (" Diodato" ), each pursuant to Federal Rule of Civil Procedure 56(a). These motions present manifold issues, several of which are nuanced and complex. For the reasons that follow, the court will grant in part and deny in part each motion.

I. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a " genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See Fed.R.Civ.P. 56(a). The

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burden of proof is upon the non-moving party to come forth with " affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004); Fed.R.Civ.P. 56(e); also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Fed.R.Civ.P. 56(a), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F.Supp.2d at 315.

II. Statement of Material Facts[1]

Darrell Diodato (" Diodato" ) was employed by Wells Fargo Insurance Services USA, Inc. (" Wells Fargo" ) and its predecessor entities for thirty-six years as an insurance producer. (Doc. 65 ¶ 3; Doc. 73 ¶ 3). In that role, Diodato serviced existing insurance business and originated new insurance business. (Doc. 65 ¶ 4; Doc. 73 ¶ 4). Wells Fargo paid Diodato an annual salary of approximately $230,000, provided benefits, and purportedly covered his overhead costs and business expenses. (Doc. 65 ¶ ¶ 5-8; Doc. 73 ¶ ¶ 5(a)). Diodato contends that he paid certain business expenses directly, without reimbursement, including: (1) contributions to support fundraising activities; (2) funds to entertain business contacts at annual meetings of the Bowling Proprietors Association of Pennsylvania (" BPAP" ) and the Bowling Proprietors Association of America (" BPAA" ); (3) a $12,000 annual deduction from his gross commission revenue to account for costs relating to the annual endorsement of the BPAP; and (4) various amounts paid to maintain the goodwill of the two Wells Fargo account executives (" AEs" ) who supported him. (Doc. 73 ¶ 6).

Diodato specialized in brokering insurance for bowling alleys and family entertainment centers. (Doc. 65 ¶ 10; Doc. 73 ¶ 10). Diodato developed " numerous personal and business relationships with owners of family entertainment centers (including bowling centers)" and considers himself to be " the godfather" of the bowling alley insurance industry. (Doc. 65 ¶ ¶ 10-11; Doc. 73 ¶ ¶ 10-11). Diodato also developed relationships with the principals of four other entities who were insured as part of a captive insurance program: Caretti, Inc., Sun Motor Cars, Inc., United Drilling, Inc., and Meckley Limestone Products, Inc. (Doc. 73 ¶ 10). Throughout his employment, Diodato gained an encyclopedic knowledge of bowling center operators and their specific insurance needs and risk management issues. (Doc. 65 ¶ 14; Doc. 73 ¶ 14). Diodato testified that approximately seventy percent (70%) of the revenue he generated was derived from bowling center owners and operators. (Doc. 65 ¶ 15; Doc. 73 ¶ 15).

At the request of his supervisor, James Voltz (" Voltz" ), Diodato executed the Wells Fargo Agreement Regarding Trade Secrets, Confidential Information, Non-Solicitation, and Assignment of Inventions (the " TSA" ) subject to this litigation on December 17, 2009. (See Doc. 65 ¶ 18; Doc. 73 ¶ 18; see also Doc. 65-3, Diodato Dep. Ex. A at 1-3, July 3, 2013 (" Diodato Dep." )). Diodato simultaneously executed the Wells Fargo Producer Plan (" Producer Plan" ). (See Doc. 65 ¶ 19; see also Diodato Dep. Ex. E)). According to Diodato, Voltz

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forced him to sign the TSA and Producer Plan without an opportunity to review them and verbally represented that: (1) all producers were required to sign the TSA; (2) that Diodato would be terminated if he did not sign the TSA; and (3) that Diodato would receive one percent (1%) additional compensation for his entire book of business. (Doc. 73 ¶ 18(a)). Ostensibly, at least one producer, John Ford, was not required to execute a TSA. (See Doc. 73 ¶ 45(a)).

The TSA identifies the consideration supporting the agreement as follows: " continued employment by a Wells Fargo company . . ., the ability to participate in a new compensation plan containing new and additional benefits which include, but are not limited to, a guaranteed draw and an increased commission percentage for new and net new revenue generated in 2010." (Diodato Dep. Ex. A at 1). The TSA also contains a confidentiality and non-disclosure provision. This provision expressly identifies the following information as falling within the ambit of protected trade secrets: " the names, address, and contact information for any of the Company's customers and prospective customers, as well as other personal or financial information relating to any customer or prospect." (Id.) The TSA further contains a non-solicitation provision, which provides, in pertinent part:

I agree that for a period of two (2) years immediately following termination of my employment for any reason, I will not do any of the following, directly or indirectly or through associates, agents, or employees:
* * *
b. solicit, participate in or promote the solicitation of any of the Company's clients, customers, or prospective customers with whom I had Material Contact and/or regarding whom I received Confidential Information, for the purpose of providing products or services that are in competition with the Company's products or services (" Competitive Products/Services" ). " Material Contact" means interaction between me and the customer, client or prospective customer within one (1) year prior to my last day as a team member which takes place to manage, service or further the business relationship; or
c. Accept insurance business from or provide Competitive Products/Services to customers or clients of the Company:
i. with whom I had Material Contact, and/or
ii. were clients or customers of the Company within six (6) months prior to my termination of employment.
This two-year limitation is not intended to limit the Company's right to prevent misappropriation of its Confidential Information beyond the two-year period.

( Id. at 2). The TSA contains an integration clause acknowledging that the document constitutes the entire agreement between the parties and is a final expression of their collective intent. (Id. at 3). It explicitly states that Diodato's employment with Wells Fargo is " at will," and that the TSA does not alter or modify his employment status. (Id. at 3). The companion Producer Plan identifies the " TSA Consideration" as follows: " For the 2010 Plan year only (January 1, 2010, through December 31, 2010), Participant will receive the following consideration for signing the new TSA for [Wells Fargo]: Additional 1% on New Revenue and Additional 1% on Net New Revenue." (Id. Ex. E at 1). The Plan defines " Net New Revenue"

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as " new revenue recorded in 2010 less lost business." (Id.)

On April 27, 2011, Wells Fargo placed Diodato on administrative leave with pay, and on May 16, 2011, terminated his employment. (See Doc. 65 ¶ ¶ 37, 41; Doc. 73 ¶ ¶ 37(a), 41). Unsurprisingly, the parties offer drastically different accounts as to the reasons for Diodato's discipline and ultimate termination. Diodato alleges that the TSA and Producer Plan were never a condition of producer employment with Wells Fargo. He contends that these agreements were part of an elaborate scheme by Wells Fargo to end his employment and eliminate Diodato's access to his book of business. (Doc. 73 ¶ 18). According to Diodato, Voltz's end game was to increase profitability by shedding Diodato's salary while retaining revenues from his original book of business. (Id. ¶ 18(c)). The court notes that the only evidence supporting this version of events is Diodato's declaration. (See id. (citing Doc. 73-1, Diodato Dec. ¶ ¶ 18-24 (" Diodato Dec. II" )).

Contrarily, Wells Fargo asserts that Diodato brokered business without a properly executed brokerage agreement, solicited insurance business without a license, bound insurance coverage without the proper documentation, attempted to issue " dummy invoices", and instructed staff to disregard rules, all in violation of Wells Fargo's company policy. (Doc. 65 ¶ 27; Doc. 65-6, Voltz Dep. Ex. 40 July 12, 2013 (" Voltz Dep." ) (formal disciplinary notice identifying concerns)). In a formal warning letter to Diodato, Voltz also asserts that Diodato disrupted sales meetings " with abrasive and angry comments." (Id.)

Wells Fargo identifies an April 2011 incident as the final trigger for its decision to terminate Diodato. (Doc. 65 ¶ 29). According to Wells Fargo, Diodato forged the signature of Sun Motor Cars' (" Sun" ) chief financial officer on a warranty form appended to Sun's insurance application, warranting that vehicles valued over $75,000 would be garaged overnight. (Id. ¶ ¶ 29-31). Diodato concedes that he signed the form as Sun's chief financial officer, but he claims that he simply sought to obtain a quote for Sun's insurance coverage. (See Doc. 73 ¶ ¶ 30-31). He flatly denies that his actions constitute " forgery," noting that Sun's officer ultimately signed the final application before coverage was bound. (See id.) The issue of the forged signature came to the surface when a luxury vehicle was stolen from Sun's outdoor lot in April of 2011. (Id. ¶ 33). The insurer denied coverage because Sun did not garage the vehicle as warranted. (Id. ¶ ¶ 30, 33). Wells Fargo eventually reimbursed Sun for the $82,107 loss in lieu of the booked insurance. (See id. ¶ 34). Wells Fargo thereafter placed Diodato on administrative leave. (Id. ¶ 37). Following an audit in which many of Diodato's accounts scored poorly,[2] Wells Fargo terminated his employment on May 16, 2011. (See Doc. 65 ¶ ¶ 39-41; Doc. 67 ¶ 3).

Following Diodato's termination, Wells Fargo generated and distributed to its clientele approximately fifty three (53) insurance-related documents which identified Diodato as the producer on their respective accounts. (See Doc. 65 ¶ 48; Doc. 73 ¶ 48). Wells Fargo continued to run advertisements in Roller Skating International

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Association's magazine, Roller Skating Business, using Diodato's name until at least February of 2012 and continued to identify him as a producer on the Wells Fargo website months after his termination. (Doc. 73 ¶ 49). Diodato did not consent to the continued use of his name by Wells Fargo. (Id.) On July 20, 2011, Wells Fargo issued a letter to Diodato's former clients advising of a " personnel change" and informing them that Diodato's AEs, Kay Plank (" Plank" ) and Noreen McKendrick (" McKendrick" ), " have a combined 35 years of experience with bowling alley clients" and " are still here to work with you." [3] (Doc. 65 ¶ ¶ 52-55; Doc. 73 ¶ 52). Diodato personally advised his non-bowling industry accounts that he was no longer with Wells Fargo. (Doc. 65 ¶ 57; Doc. 73 ¶ 57).

In approximately July of 2011, Diodato began working with Christian Baker Company (" Christian Baker" ), a competitor of Wells Fargo. (Doc. 67 ¶ 45; Doc. 77 ¶ 45). Diodato remained with Christian Baker from July of 2011 until " early 2013," when he began working for American Insurance Administrators, Inc. (" AIA" ), another competitor of Wells Fargo. (See Doc. 67 ¶ ¶ 45-46; Doc. 77 ¶ ¶ 45-46). In his declaration, Diodato " denies that he solicited contacts that he previously managed at [Wells Fargo]" but also " freely acknowledges that he maintained long-standing personal connections with many of his contacts and regards many of these persons as personal friends." (Doc. 67 ¶ ¶ 47-48; Doc. 77 ¶ ¶ 47-48). Diodato admits that many of the clients he serviced at Wells Fargo " left or removed their accounts from [Wells Fargo] in the period following [his] termination." (Doc. 67 ¶ 51; Doc. 77 ¶ 51). He also acknowledges that some of these customers asked him how to transfer their business from Wells Fargo to another broker. (Doc. 67 ¶ 54; Doc. 77 ¶ 54). Diodato does not deny that he was in regular business-related contact with his Wells Fargo customers throughout the duration of the non-solicitation period. (See Doc. 67 ¶ ¶ 65-69; Doc. 77 ¶ ¶ 65-69 (citing inter alia Doc. 75, Ex. A, Diodato PP (email response to Diodato from client noting that he " sent that request for transfer to Wells Fargo as you had asked" ))). Wells Fargo sent cease and desist letters to Christian Baker and AIA in September of 2011 and September of 2012, informing both firms of Diodato's breach of the TSA and demanding that each ensure Diodato's compliance with the TSA's terms. (See Doc. 67-6 at 12-27). As of June 2013, approximately seventy three (73) of Diodato's former accounts had transferred to another broker. (Doc. 67 ¶ 73; Doc. 77 ¶ 73).

III. Procedural History

Diodato commenced this civil action by filing an eleven (11) count complaint (Doc. 1-2) on November 9, 2012, in the Court of Common Pleas for Cumberland County, Pennsylvania. Wells Fargo timely removed the litigation to this court on December 10, 2012, pursuant to 28 U.S.C. § 1446, (Doc. 1), and filed an answer and counterclaim (Doc. 5)[4] on December 17, 2012. Diodato filed an answer (Doc. 9) to Wells Fargo's counterclaim on January 16, 2013. After a period of discovery, and several discovery disputes addressed by

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Chief Magistrate Judge Martin C. Carlson, both parties moved for summary judgment. (Docs. 63, 66). The motions are fully briefed (Docs. 64, 68, 74, 75, 79, 80) and supplemented by lengthy statements and counterstatements of fact. (Docs. 65, 67, 73, 77). This matter is ripe for disposition.

III. Discussion

A. Wells Fargo's Motion for Summary Judgment

Diodato asserts the following eleven claims in his complaint: fraudulent misrepresentation and inducement (Count I); breach of contract -- good faith and fair dealing (Count II); breach of contract (Count III); violation of Pennsylvania's Wage Payment and Collection Law (" WPCL" ), 43 Pa. Stat. § 260.1 et seq. (Count IV); defamation (Count V); commercial disparagement (Count VI); unauthorized use of name or likeness in violation of 42 Pa. Cons. Stat. § 8316 (Count VII); unjust enrichment (Count VIII); declaratory judgment (Count IX); unfair competition (Count X); and violation of 15 U.S.C. § 1125 (the " Lanham Act" ) (Count XI). Wells Fargo moves for summary judgment as to each claim, asserting that the record is devoid of evidence supporting Diodato's theories of liability and that it is entitled to judgment as a matter of law.

1. Count I: Fraudulent Inducement

The gravamen of Diodato's fraudulent inducement claim [5] is that Wells Fargo induced him to sign the TSA as a precursor to termination of his employment and cutting off access to his long-time clients. (Doc. 1-2 at ¶ ¶ 102-19). In other words, Diodato contends that Wells Fargo fraudulently induced him to agree to the restrictive TSA and " actively concealed" its intent to terminate his employment thereafter. (Id. ¶ 108). Wells Fargo argues that the fraudulent inducement claim is a misguided, transparent attempt by Diodato to circumvent Pennsylvania's at-will employment doctrine and to assert an otherwise prohibited claim for wrongful termination. (Doc. 64 at 13). Wells Fargo also posits that Diodato has adduced no evidence of fraud or fraudulent intent, and that the gist of the action and economic loss doctrines bar his claim. (Id.)

At the outset, the court rejects Wells Fargo's argument with respect to at-will employment. Wells Fargo is correct that the courts of the Commonwealth generally adhere to the employment at-will doctrine, which allows employers to terminate employees " for any reason or for no reason" unless a contract between the parties provides otherwise. Pipkin v. Pa. State Police, 548 Pa. 1, 693 A.2d 190, 191 (Pa. 1997) (quoting Stumpp v. Stroudsburg Mun. Auth., 540 Pa. 391, 658 A.2d 333, 335 (Pa. 1995)); see also Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 111 (3d Cir. 2003) (noting the general rule in Pennsylvania that " at-will employees may be terminated for any reason or for no reason . . . [unless] doing so would offend . . . public policy" ). The doctrine does not bar every claim arising from at-will employment relationships; rather, it precludes only those claims arising from the decision to terminate the employee. See Martin v. Hale, 699 A.2d 1283, 1287 (Pa. S.Ct. 1997). Pennsylvania courts have held, for example, that tort claims arising independently of the decision to terminate employment are not barred by the at-will

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employment doctrine. E.g., id. at 1287 (observing that " a torts action grounded on an assertion of fraudulent inducement to accept employment is distinct from and does not depend upon a wrongful discharge claim or breach of employment contract claim" ) (citing Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405, 410 (1985)). Diodato challenges not only his termination, but also representations purportedly made to induce him to agree to the TSA. His theory of fraud liability falls squarely within this established exception. (See Doc. 74 at 13 (" Rather, Count I alleges that [Wells Fargo] made fraudulent inducements to obtain [Diodato's] signature on the TSA, which [Wells Fargo] then used as an improper restraint against his ability to engage in lawful employment." )).

That the claim is not barred outright does not end the court's inquiry, however, because Wells Fargo also lodges a three-fold attack at the merits of the fraudulent inducement claim, contending: first, that the gist of the action and economic loss doctrines bar the claim; second, that Diodato fails to adduce evidence of fraud; and third, that the parol evidence rule precludes admission of the evidence Diodato does cite. Because the court concludes that Diodato's fraudulent inducement claim sounds in contract and is barred by the gist of the action doctrine, the court will not address Wells Fargo's remaining arguments.

For breach of a contract to constitute an actionable common law tort, the allegedly tortious conduct at issue " must be the gist of the action, the contract being collateral." eToll, Inc. v. Elias/Savion Adver., Inc., 2002 PA Super 347, 811 A.2d 10, 14 (Pa. S.Ct. 2002). The gist of the action doctrine bars a tort claim when (1) the claim arises from a contract between the parties; (2) the duties breached were created by the contract; (3) liability derives from the contract; or (4) the success of the tort claim is wholly dependent upon the contract's terms.[6] Id. at 19. When applying the gist of the action doctrine, the Pennsylvania Superior Court has explained that " a claim should be limited to a contract claim when 'the parties' obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.'" Id. at 14 (quoting Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 104 (3d Cir. 2001)). In other words, the court must inquire as to the source of the duties allegedly breached: " if the duties in question are intertwined with contractual obligations, the claim sounds in contract, but if the duties are collateral to the contract, the claim sounds in tort." Knit With v. Knitting Fever, Inc., *13-14 (E.D. Pa. Oct. 20, 2009) (quoting Sunburst Paper, LLC v. Keating Fibre Int'l, Inc., No. 06-3957, at *2 (E.D. Pa. Oct. 30, 2006)).

Diodato cites Sullivan v. Chartwell Investment Partners, LP, 2005 PA Super 124, 873 A.2d 710 (Pa. S.Ct. 2005) for the proposition that the gist of the action doctrine does not operate to " bar a fraud claim stemming from the fraudulent inducement to enter into a contract." (Doc. 74 at 14 (citing Sullivan, 873 A.2d at 719)). Diodato ignores a crucial caveat in the Sullivan decision: the Commonwealth's Superior Court did not find that the doctrine is categorically

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inapplicable to fraudulent inducement claims; rather, the court observed that the gist of the action doctrine " would not necessarily bar a fraud claim stemming from the fraudulent inducement to enter into a contract." Sullivan, 873 A.2d at 719 (citing eToll, 811 A.2d at 19) (emphasis added). As a consequence of this equivocal language, case law as developed in the wake of eToll and Sullivan is less than pellucid. As one court recently observed, " [t]he most that can be said of the case[]law in this area is that the gist-of-the-action doctrine will not always bar a fraudulent inducement claim." Guy Chem. Co. v. Romaco N.V., No. 3:06-96, at *17 (W.D. Pa. Jan. 22, 2007) (emphasis added).

This court recently had the opportunity to analyze the current state of this area of law in Agrotors, Inc. v. Ace Global Markets, No. 1:13-cv-1604, at *11-13 (M.D. Pa. Feb. 22, 2014) (Conner, C.J.). Rejecting Agrotor's position that all fraudulent inducement claims are necessarily collateral to the contract, the court observed that, in reality, " the state of the case law is much more complex." Id. at *11. In Agrotors, this court adopted the comprehensive analysis of the doctrine undertaken by the Honorable Stewart Dalzell in Vives v. Rodriguez, 849 F.Supp.2d 507 (E.D. Pa. 2012), summarizing that decision as follows:

In Vives, the court recognized that the Pennsylvania Superior Court has adopted a bright line rule providing that the " gist of the action" doctrine bars claims of fraud in the performance of a contract but does not bar claims for fraud in the inducement. However, the Vives court also recognized that the Third Circuit, as well as district courts within the Third Circuit, have determined that the " gist of the action" doctrine may bar claims for fraud in the inducement " where the false representations concerned duties later enshrined in the contract." These federal cases also warned against any reliance on the distinction between fraudulent inducement and fraudulent performance claims, instead emphasizing that the doctrine requires a fact-intensive analysis. The Vives court ultimately sided with the authority within the Third Circuit and predicted that the Pennsylvania Supreme Court would find that the " gist of the action" doctrine bars fraudulent inducement claims based upon " misrepresentations as to a party's intent to perform under a contract."

Agrotors, at *11-13 (citing Vives, 849 F.Supp.2d at 518-20). Other district courts within the Third Circuit Court of Appeals have adopted the Vives decision. See Irish Isle Provision Co., Inc., v. Polar Leasing Co., Inc., No. 4:12-cv-00778, at *14-18 (M.D. Pa. Nov. 19, 2013); Oldcastle Precast, Inc., v. VPMC, Ltd., No. 12-6270, at *27-30 (E.D. Pa. May 13, 2013); Bengal Converting Servs. v. Dual Printing, Inc., No. 11-6375, at *8-11 (E.D. Pa. Mar. 12, 2012). Neither the Pennsylvania Supreme Court nor the Third Circuit has ruled otherwise since this court's decision in Agrotors.

Hence, the court must examine the relationship between Diodato's simultaneously pleaded fraudulent inducement and contract claims and determine whether the two are " interwoven," precluding his tort claim, or whether the fraud claim is " collateral" to the TSA. See Bengal, at *10 (" In other

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words, if the duties in question are intertwined with contractual obligations, the claim sounds in contract, but if the duties are collateral to the contract, the claim sounds in tort." ) (citing Sunburst Paper, at *2). Viewed thusly, the doctrine bars Diodato's fraudulent inducement claim. Diodato contends that Voltz induced him to sign the TSA by representing that: (1) Wells Fargo producers were required to sign the TSA as a condition of their continued employment, and (2) as consideration for the TSA, Diodato would receive an additional one percent (1%) payment on the commissions from his 2009 book of business.[7] (See Doc. 74 at 10-11; Diodato Dec. ¶ ¶ 18-19). Each of these representations is expressly addressed by the plain terms of the TSA and Producer Plan. (Diodato Dep. Ex. A at 1 (acknowledging TSA is executed " [i]n consideration for my continued employment by a Wells Fargo company" ); Ex. E at 1 (" For the 2010 Plan year only (January 1, 2010 through December 31, 2010), [Diodato] will receive the following consideration for signing the new TSA . . . : Additional 1% on New Revenue and Additional 1% on Net New Revenue." )). These representations similarly are integral to Diodato's breach of contract claim. (See Doc. 1-2 ¶ ¶ 128-34 (alleging that the Producer Plan provided, and Voltz promised, that Diodato would receive additional one percent (1%) payment and that Wells Fargo failed to make said payment, in breach of its contract)).

In fact, Diodato's fraudulent inducement claim is not based on a single representation that is not contemplated by his breach of contract claim. In other words, nothing in the record establishes that Wells Fargo made a representation beyond the scope of the TSA. Cf. Williams, 93 F.App'x at 386 (when defendants induced plaintiffs to buy gaming assets for a set price on an exclusive basis while secretly marketing to other buyers, fraud in the inducement claim sounds in contract and is barred by gist of the action doctrine); Plexicoat Am., LLC v. PPG Architectural Finishes, Inc., No. 2:13-cv-3887, 9 F.Supp.3d 484, at *9-10 (E.D. Pa. Mar. 21, 2014) (observing that gist of the action doctrine bars fraudulent inducement claim unless " pre-contractual statements were outside the scope of the eventual contract" ); Irish Isle Provision Co., at *17 (dismissing fraudulent inducement claim when statements " do not demonstrate a relationship collateral to the contract as required to survive the gist of the action doctrine" ); Penn City Invs., Inc. v. Soltech, Inc., No. 01-5542, (when " pre-contractual statements concerned specific duties that the parties later outlined in the ...


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