MEMORANDUM

BARTLE, District Judge

Plaintiff Omid Kia ("Kia") in this diversity action asserts a variety of state law claims against his former employer, Imaging Sciences International, Inc. ("ISI"), and ISI's former owners, Edward Marandola ("Marandola"), Arun Singh ("Singh"), Alan Keim ("Keim"), Henry Tancredi, and John Tancredi.

Before the court is the motion of defendants for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on all counts in Kia's First Amended Complaint (the "Amended Complaint").

I.

We grant summary judgment "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). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is "material" when it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248.

To decide if a dispute regarding a material fact is "genuine," we ask whether any reasonable jury could return a verdict in favor of the non-moving party. Id. at 248-49. In making this determination, we view the evidence in the light most favorable to, and draw all reasonable inferences in favor of, the non-moving party. Am. Eagle Outfitters, 584 F.3d at 581. The non-moving party bears a burden to "provide admissible evidence containing specific facts showing that there is a genuine issue for trial." Pa. Prot. Advocacy, Inc. v. Pa. Dep't of Pub. Welfare, 402 F.3d 374, 379 (3d Cir. 2005) (internal quotation marks omitted); see also Fed.R.Civ.P. 56(e). If the non-moving party establishes that "there is a disagreement about the facts or the proper inferences to be drawn from them," a trial becomes necessary "to resolve the conflicting versions of the parties."Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

II.

Kia filed this action on December 2, 2008 and amended his complaint on January 22, 2009. Although the Amended Complaint originally contained fifteen counts, Kia has since decided not to pursue the following: Count II (breach of oral contract against the individual defendants); Count III (fraudulent inducement of oral contract against all defendants); Count IV (breach of written contract against ISI); Count V (fraudulent inducement of written contract against all defendants); Count VI (negligent misrepresentation against Marandola); Count IX (promissory estoppel) as to Singh, Keim, and John Tancredi; Count X (tortious interference with contract) as to Marandola; Count XIV (defamation) as to Marandola; and Count XV (misappropriation of trade secrets against ISI).

The remaining claims are as follows: Count I against ISI for breach of oral contract; Count VII against all defendants for a declaratory judgment that the Confidential Information and Invention Assignment Agreement signed by Kia is invalid and unenforceable; Count VIII against ISI for promissory estoppel; Count IX against defendants Marandola and Henry Tancredi for promissory estoppel; Count X against Singh for tortuous interference with contract; Count XI against all defendants for fraudulent conveyance; Count XII against Marandola, Singh, Keim, Henry Tancredi, and John Tancredi for unjust enrichment; Count XIII against Marandola, Singh, Keim, Henry Tancredi, and John Tancredi for conversion; and Count XIV against Singh for defamation.

III.

A summary of the facts relevant to the instant motion, taken in the light most favorable to Kia, are as follows.

ISI, a Delaware corporation, was founded in 1992 by defendants Singh, Henry Tancredi, and John Tancredi for the purposes of designing, manufacturing, and selling high-end dental imaging systems. Marandola joined ISI as a co-owner in the fall of 1992, followed by Keim, who joined as a co-owner in 1995. All of the outstanding voting shares of ISI were divided equally among the five individual defendants, with each owner holding a 20% interest.

In 2003, ISI developed a 3-D, digital, imaging machine known as the I-CAT, which the company expected would be highly successful. The I-CAT was capable of creating a three-dimensional, digital image of a patient's jaw. This image was produced using special "reconstruction" software which ISI licensed from Xoran Technologies.

In December 2003, ISI expressed interest in hiring Kia, an electrical engineer with experience in digital imaging technology, to work on the I-CAT software. In his second interview, Kia was offered a salary of $85,000, which he rejected as too low. Kia later appeared for a third interview, at which only he and Marandola were present. During this third interview, Marandola offered to Kia a yearly salary of $108,000. According to Kia, this new offer prompted the following exchange between Kia and Marandola:

I said that that's still very low, that that might — a going rate in a place like this would be around $125,000. And 108 is way too low.

To which I believe he said, If we can start on this, and we don't have a product yet, we don't have a large revenue stream, is that as things pick up, yours — your salary, your — your compensation would improve as such.

To which I said, Okay, well, we can make $108,000 work, given that you guarantee that I would be taken care of as the company moves forward, starts making the extra salary.

To which he said, What do you — What do you mean exactly?

To which I described, Well, other companies utilize different tactics, like golden parachutes, golden handcuffs, to take care of their key people. And I'm asking something in that — in that sense to make sure that I'm taken care of once the value of the company goes up, the company starts making money.

And he — he said that, Well, I don't exactly know what — what you mean by golden parachutes, by golden handcuffs, but be assured of one thing; that you would be one of the senior management team, you would be one of us, and that the value that you bring to the company will be measured in terms of the success of the company, and that you would be compensated in par with respect to the rest of us, meaning the owners.

Kia Dep. 425:3-426:9, Feb. 16, 2010. Kia asserts that the above exchange constitutes an oral agreement between Kia and ISI pursuant to which Kia is entitled to a one-sixth interest in any increased value of ISI. While defendants deny the substance of the exchange as described by Kia and refute his claim that an oral contract exists, the parties do agree that none of the terms of the alleged oral agreement was ever reduced to writing.

Kia accepted ISI's offer of employment and began work as a "Chief Scientist" on January 2, 2004. Kia states that he worked to develop and improve software used in the I-CAT machine, and facilitated the launch of a successor device, known as the ICAT Platinum.

While at ISI, Kia reported directly to defendant Singh. The relationship between Kia and Singh was contentious, to say the least. They frequently disagreed about the decisions Kia made with respect to his work and his interactions with third parties. Sometime in 2006, Singh drafted a performance review of Kia in which he specifically criticized Kia's performance on a project known as "DICOM," his failure timely to submit certain patent applications, his failure to meet deadlines for filing grant applications with the National Institute of Health, and his failure to manage properly engineers working at an office in Delhi, India. Singh also stated that Kia "[b]ecomes dysfunctional and disorganized in any long term task," "lacks tact and constructive communication skills whenever confronted with anything that disagrees with his point of view" and "has used disparaging and confrontational language."

As early as 2005, outside companies expressed interest in purchasing ISI, and in late 2005 or early 2006, Kia learned that ISI had found a number of potential suitors. It was around that time that the individual defendants began negotiations to sell ISI to a company known as Danaher Corporation ("Danaher"). In order to facilitate the sale, ISI required Kia, along with all of its other employees, to sign a Confidential Information and Invention Assignment Agreement ("IAA") which, among other things, assigned to ISI any rights that he may have had to intellectual property developed in connection with his employment at ISI. Kia was also required to identify any inventions developed prior to his employment at ISI, as such inventions were excluded from the agreement.

Kia was initially reluctant to sign the IAA, because he had concerns regarding some of its terms and believed the agreement to be a "one-sided" deal. However, after negotiating with ISI's legal counsel, Cheryl Slipski ("Slipski"), and apparently receiving assurances from Henry Tancredi that he would be "taken care of," Kia signed the IAA. ISI then requested that Kia complete and sign a second IAA as his list of prior inventions in the first IAA was overly vague. Kia again negotiated the terms of the agreement with Slipski and eventually signed a modified IAA which, due to the inability of Kia to articulate accurately any prior inventions, simply declared that

no such prior inventions had been incorporated into ISI's products.

On January 2, 2007, the five owners of ISI sold all of their voting shares in ISI to Danaher for a gross sale price of $140 million. The majority of the net proceeds was divided equally between the five owners: Marandola, Singh, Keim, Henry Tancredi, and John Tancredi. However, a portion was set aside in a "pool" used to pay discretionary bonuses to employees. The owners held private, informal meetings to determine the amount that each employee would receive, considering such factors as the amount of time an employee had worked for ISI, the value an employee added to the company, and whether an employee was a "team player." The calculation of bonuses was not rigidly formulaic, however, as much weight was placed on intangible factors such as whether an employee had persevered through ISI's early years when hours were high and compensation was low. After an initial bonus amount was proposed for a given employee, each owner was given an opportunity to express his views on the appropriateness of that amount, and the owners debated among themselves until consensus was reached.

The starting proposal for Kia's bonus was approximately $350,000. Defendant Singh believed that this amount was too high because: (1) unlike other employees who worked for ISI during its early years and received a salary well below market rate, Kia joined the company after it had already become profitable and received compensation that Singh believed to be significantly greater than market rate; and (2) Singh believed that Kia was disruptive, undermined the company, demoralized people, and was generally a source of negativity within ISI. After considering Singh's concerns, the owners decided to award Kia a bonus of $50,000.

Kia was apparently not told the amount of his bonus until June 2008. He asserts that, prior to June 2008, he was assured by Marandola and Henry Tancredi that bonus money had been "put aside for him" or that Danaher "had something special planned for him." When Kia was told by Marandola that his bonus would be $50,000, he protested that it was an insult to him and that, pursuant to the alleged oral contract between him and ISI, he should have shared equally in the proceeds received by the five owners from Danaher.

Kia describes the alleged oral contract as follows: "Marandola thus promised Dr. Kia that in exchange for accepting a lower salary, Dr. Kia would be fairly compensated by a reasonable share of the increased value if ISI Inc were to become successful." Kia maintains that the "increased value of ISI" is to be measured as the difference between $2.5 million (the alleged "value" of ISI at the time Kia was hired) and $140 million (the alleged "value" of ISI at the time it was sold to Danaher).

IV.

We turn first to Kia's claim against ISI for breach of oral contract in Count I of the Amended Complaint. The parties dispute: (1) the words used by Kia and Marandola during the conversation from which the oral contract allegedly arose; (2) the intentions of the parties with regard to the meaning of those words; and (3) the existence of an oral agreement. Having reviewed the language as a whole, it appears that, at this stage of the litigation, there are genuine issues of material fact with regard to this count. See Anderson, 477 U.S. at 248-49. Accordingly, we will deny defendants' motion for summary judgment as to Kia's Count I claim for breach of oral contract.

V.

In Count VII, Kia seeks a declaratory judgment that the IAA is unenforceable for lack of consideration. In this diversity action, we apply the substantive law of Pennsylvania. Chamberlain v. Giampapa, 210 F.3d 154, 158-59 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

In Pennsylvania, so long as the parties express their consent to be legally bound a contract will not be found invalid for lack of consideration. McGuire v. Schneider, Inc., 534 A.2d 115, 118 (Pa. Super. Ct. 1987), aff'd per curiam, 548 A.2d 1223 (Pa. 1988). The Pennsylvania Uniform Written Obligations Act ("UWOA") provides that "[a] written release or promise, hereafter made and signed by the person releasing or promising, shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound." 33 Pa. Cons. Stat. Ann. § 6.

Section 7.1 of the IAA, entitled "Binding Effect; Assignment; Amendment," states, in relevant part: "This Agreement shall be binding upon me, my heirs, executors, assigns and administrators and is for the benefit of the Company and its successors and assigns." This provision constitutes "an . . . express statement . . . that the signer intends to be legally bound" under the UWOA, and therefore the IAA cannot be invalid or unenforceable for lack of consideration. See e.g., Laudig v. Laudig, 624 A.2d 651, 654-55 (Pa. Super. Ct. 1993) (citing Kay v. Kay, 334 A.2d 585, 587 (Pa. 1975)); McGuire, 534 A.2d at 118. Accordingly, we will grant defendants' motion for summary judgment as to Count VII.

VI.

Kia pleads claims for promissory estoppel in Count VIII against ISI, and in Count IX against Marandola and Henry Tancredi as an alternative to his claim for breach of oral contract.

Under Pennsylvania law, where an agreement is not enforceable due to lack of consideration, a plaintiff may recover in equity under a promissory estoppel theory. Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000). Pennsylvania has adopted § 90 of the Restatement (Second) of Contracts, which provides, "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."Thatcher's Drug Store of Goshen, Inc. v. Consol. Supermarkets, 636 A.2d 156, 160 (Pa. 1994) (quoting Restatement (Second) of Contracts § 90(1)); see also Lobolito, Inc. v. N. Pocono School Dist., 755 A.2d 1287, 1292 n. 9 (Pa. 2000). To make out such a claim, a plaintiff must establish that: "1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; 2) the promisee actually took action or refrained from taking action in reliance on the promise; and 3) injustice can be avoided only by enforcing the promise." Crouse, 745 A.2d at 610;see also Health Robotics, LLC v. Bennett, No. 09-0627, 2009 WL 5033966, at *8 (E.D. Pa. Dec. 22, 2009).

Kia appears to premise his promissory estoppel claims in Counts VIII and IX on two separate theories. First, he maintains that the alleged promise by Marandola during Kia's third interview to provide Kia with a reasonable share of the increased value of ISI induced Kia to accept a job with ISI rather than some other company. Kia, however, presents no evidence, such as alternative employment opportunities, to show that such reliance caused him to suffer any detriment at all, let alone that justice requires enforcement of the alleged promise. See Ankerstjerne v. Schlumberger, LTD., No. 03-3607, 2004 WL 1068806, at *6 (E.D. Pa. May 12, 2004), aff'd 155 Fed. App'x 48, 51-52 (3d Cir. 2005). It is well settled that "[a] party who invokes the rule of promissory estoppel as a basis for relief has the burden of proving that he acted to his detriment in reliance on the promise." Kaufman v. Mellon Nat'l Bank Trust Co., 366 F.2d 326, 332 (3d Cir. 1966) (citing Berry v. Maguire, 56 A.2d 282 (Pa. Super. Ct. 1948)). In doing so, a plaintiff defending against a motion for summary judgment "must adduce more than a mere scintilla of evidence in [his] favor, . . . and cannot simply reassert factually unsupported allegations contained in [his] pleadings." Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). Thus, even if we were to assume that Kia was induced to accept employment at ISI due to the alleged oral promise by Marandola, Kia's failure to present any proof to support his assertion of detrimental reliance is fatal to his claim.

Kia's second theory of promissory estoppel is premised on alleged promises by Marandola and Henry Tancredi in relation to Kia's signing the IAA. According to Kia, Marandola and Henry Tancredi assured Kia that, if he signed the IAA, he would be "taken care of" and that he relied on these promises to his detriment in assigning his intellectual property rights to ISI. Although Kia formulates this claim as one for "promissory estoppel," it is actually an improper attempt to vary the terms of an integrated, written agreement based on alleged oral statements make prior to his signing it. Under Pennsylvania

law, "[w]here parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement." Scott v. Bryn Mawr Arms, Inc., 312 A.2d 592, 594 (Pa. 1973). Thus, "[a]ll preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, . . . and unless fraud, accident, or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence." Gianni v. R. Russel Co., 126 A. 791, 792 (Pa. 1924) (internal quotation marks omitted). Kia does not allege fraud, accident, or mistake, and he therefore cannot insert into the IAA terms which do not appear in the writing.

For the above reasons, we will grant defendant's motion for summary judgment as to Counts VIII and IX of Kia's Amended Complaint.

VII.

In Count X, Kia asserts that Singh intentionally interfered with the alleged oral contract between Kia and ISI by preventing Kia from receiving the full compensation allegedly due him upon the sale of ISI to Danaher. This claim is based on Kia's allegation that Singh was instrumental in persuading his co-owners to reduce Kia's bonus from $350,000 to $50,000 during meetings involving Singh, Marandola, Keim, Henry Tancredi, and John Tancredi to determine the amounts to be awarded each employee from the proceeds of the sale of ISI to Danaher.

The Pennsylvania Supreme Court has adopted the following definition of tortious interference with contract as set forth in Restatement (Second) of Torts § 766:

[o]ne who intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct.

Tortious interference with contract thus requires the involvement of at least three parties — the two contracting parties and a third person who interferes with that contract. As a general rule, corporate officers are immune from interfering with the contracts of their corporation, as the officers and the corporation are considered a single entity when the officer is acting within the scope of his employment. See Michelson v. Exxon Research and Eng'g Co., 808 F.2d 1005, 1007-08 (3d Cir. 1987);Am. Trade Partners, L.P. v. A-1 Int'l Importing Enters., Ltd., 757 F. Supp. 545, 555 (E.D. Pa. 1991); Daniel Adams Assoc., Inc. v. Rimbach Pub., Inc., 519 A.2d 997, 1000-03 (Pa. Super. Ct. 1987). Thus, a corporate officer can be liable for tortious interference only if he "was acting in a personal capacity or outside the scope of his authority." Am. Trade Partners, L.P., 757 F. Supp. at 555; see also Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 173 (3d Cir. 2001).

Here, Kia alleges that Singh, an officer of ISI, tortiously interfered with an oral contract between ISI and Kia. However, absent evidence from which a reasonable fact finder could conclude that Singh acted in his personal capacity or outside the scope of his authority, he cannot be liable for interfering with a contract to which ISI is a party. See Emerson Radio Corp., 253 F.3d at 173. Kia provides no such evidence. To the contrary, he bases his claim entirely on unspecified statements allegedly made by Singh during a meeting between Singh and the other four individual defendants, a meeting which was held for the sole purpose of determining employee compensation. Any statements by Singh during this meeting regarding Kia's work-related performance or the amount Kia was to receive as a discretionary bonus were clearly made pursuant to his authority as an owner and officer of ISI. In the absence of any evidence to support his allegation that Singh acted outside the scope of his authority, Kia cannot survive the defendants' motion for summary judgment.See Anderson, 477 U.S. at 249; Belas v. Juniata County School Dist., No. 04-505, 2005 WL 2100666, at *12 (W.D. Pa. 2005),aff'd, 202 Fed. App'x 585 (3d Cir. 2006).

Accordingly, we will grant defendants' motion for summary judgment with respect to Kia's Count X claim against Singh for tortious interference with contract.

VIII.

In Count XI, Kia asserts a claim for fraudulent conveyance against ISI, Marandola, Singh, Keim, Henry Tancredi and John Tancredi. He alleges that, in light of the oral agreement between him and ISI regarding his right to one-sixth of the increased value of ISI, he was a creditor of ISI at the time the company was sold to Danaher. Kia maintains that ISI's transferring to the individual defendants the proceeds from that sale rendered ISI insolvent and was done with the intent to hinder, delay, or defraud him as a creditor of ISI. See 12 Pa. Cons. Stat. Ann. § 5104. Thus, he seeks to set aside those transfers as fraudulent conveyances. Id. At this stage of the litigation, there are genuine issues of material fact with regard to this issue. As such, we will deny defendants' motion for summary judgment with regard to Kia's Count XI claim for fraudulent conveyance.

IX.

We next consider Kia's Count XII claim for unjust enrichment against all of the individual defendants. Kia alleges that, with an expectation that he would be compensated according to the alleged oral agreement, Kia conferred benefits on the individual defendants by contributing to the increased value of ISI, a benefit that the individual defendants readily accepted by disbursing to themselves the proceeds from the sale of their voting shares to Danaher. It would be unjust, argues Kia, to allow ISI's owners to retain this benefit without providing restitution to him for his contribution to the sale value.

To recover under the equitable doctrine of unjust enrichment, otherwise known as "quasi-contract" or "implied-in-law contract," a plaintiff must establish the following: "`benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.'" Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616, 622 (Pa. Super. Ct. 1999) (quoting Styer v. Hugo, 619 A.2d 347, 350 (Pa. Super. Ct. 1993), aff'd per curiam, 637 A.2d 276 (Pa. 1994)); see also EBC, Inc. v. Clark Bldg. Sys., Inc., No. 09-1182, 2010 WL 3239475, at *14 (3d Cir. Aug. 18, 2010).

To determine if the doctrine applies, we focus on whether the enrichment of the defendant was unjust. Stoeckinger v. Presidential Fin. Corp. of Del. Valley, 948 A.2d 828, 833 (Pa. Super. Ct. 2008). Although the answer to this question "depends on the unique factual circumstances of each case, . . . [t]he doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff." Styer, 619 A.2d at 350. Finally, a plaintiff cannot recover under an unjust enrichment theory where a contract exists between the parties. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. Ct. 1999); Birchwood Lakes Cmty. Ass'n Inc. v. Comis, 442 A.2d 304, 309 (Pa. Super. Ct. 1982).

Assuming, as we must at this stage, that Kia's work at ISI actually contributed to the increased value of the company and therefore conferred a benefit on the individual defendants who profited from the sale of ISI to Danaher, Kia's quasi-contract claim nevertheless must fail as there is no evidence that the enrichment of the individual defendants, under the circumstances here, was unjust. As noted above, a plaintiff cannot recover under an unjust enrichment theory where a contract exists between the parties. Thus, Kia's claim presupposes the jury's rejecting the existence of the alleged oral contract between Kia and ISI under which ISI promised him a share of the increased value of the company in exchange for his accepting employment. However, in the absence of this contract, Kia could have no expectation that he would be provided any of the proceeds from the sale of ISI. Indeed, Kia "has not shown that he provided the defendants with anything more than the work he was hired to do." Ankerstjerne, 2004 WL 1068806, at *7; see also Herbst v. Gen. Accident Ins. Co., No. 97-8085, 1999 WL 820194, at *9 (E.D. Pa. Sept. 30, 1999). That his work may have indirectly contributed to the profits realized by ISI's owners upon the sale of the company does not give Kia a legal right to share in those profits under an implied-in-law contract. We will therefore grant defendants' motion for summary judgment with respect to Count XII of the Amended Complaint.

X.

In Count XIII, Kia pleads a claim of conversion against all of the individual defendants. He alleges that Marandola, Singh, Keim, Henry Tancredi, and John Tancredi deprived him of his share of the proceeds from the sale of ISI and converted those profits for their own personal benefit without his consent.

Conversion is defined as "the deprivation of another's right of property in, or use or possession of, a chattel, without the owner's consent and without lawful justification." Francis J. Bernhardt, III, P.C. v. Needleman, 705 A.2d 875, 878 (Pa. Super. Ct. 1997) (internal quotation marks omitted). Money may be the subject of a conversion only where the plaintiff had a property interest in the money at the time of the alleged conversion. Montgomery v. Fed. Ins. Co., 836 F. Supp. 292, 300 (E.D. Pa. 1993); Shonberger v. Oswell, 530 A.2d 112, 114-15 (Pa. Super. Ct. 1987); Lee Tire and Rubber Co. v. Bonholtzer, 81 Pa. D. C. 218, 221 (Ct. Comm. Pl. Del. Cty. 1951) (citing Pearl Assur. Co., LTD. v. Nat'l Ins. Agency, Inc., 30 A.2d 333, 337 (Pa. Super. Ct. 1943)). Thus, the mere failure to pay a debt is not conversion. Needleman, 705 A.2d at 878.

Kia's conversion claim fails for two reasons. First, there is nothing in the record to show that he had any property interest in the money allegedly converted by the individual defendants. That money was paid to the defendants in exchange for their voting shares of ISI. Kia does not now and has never alleged that he owned shares in ISI or otherwise had an ownership interest in the company. He therefore has no evidence that the money allegedly converted by the individual defendants "belonged" to him. See Rahemtulla v. Hassam, 539 F. Supp. 2d 755, 777 (M.D. Pa. 2008); Binns v. Flaster Greenberg, P.C., 480 F. Supp. 2d 773 (E.D. Pa. 2007); NovaCare, Inc. v. S. Health Mgmt. Inc., No. 97-5903, 1998 WL 470142, at *2 (E.D. Pa. Aug. 11, 1998); Pearl Assur. Co., LTD., 30 A.2d at 337; Lee Tire and Rubber Co., 81 Pa. D. C. at 221-22. At best, Kia claims that he was owed a one-sixth share of the proceeds as compensation for his services per the terms of the alleged oral contract between him and ISI. In other words, he seeks to recover a debt. As noted above, a claim

of conversion does not lie under such circumstances. See NovaCare, 1998 WL 470142, at *2.

The second reason Kia cannot go forward with this claim is that it is barred by the "gist of the action" doctrine. That doctrine "operates to preclude a plaintiff from re-casting ordinary breach of contract claims into tort claims." Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 581 (Pa. Super. Ct. 2003). Accordingly, "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.'" eToll, Inc. v. Elias/Savion Advert., Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) (quoting Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 104 (3d Cir. 2001)). The gist of the action principle bars tort claims under the following circumstances: (1) where the claim arises solely from a contract between the parties; (2) where the duties allegedly breached were created by a contract; (3) where liability is derived from a contract; or (4) where the success of the tort claim is dependent on the terms of a contract. See Griffith, 834 A.2d at 582.

Here, Kia alleges that the individual defendants converted money owed to him under the terms of the alleged oral agreement between him and ISI, that is, the agreement on which Kia has pleaded his Count I claim for breach of contract. Kia's conversion claim is therefore entirely dependent on the existence and validity of that agreement, as there can be no liability in its absence. As explained in Pittsburgh Construction Co. v. Griffith, "[Kia's] tort and breach of contract claims are inextricably intertwined, the success of the conversion claim depending entirely on the obligations as defined by the contract." 834 A.2d at 584. Therefore, the gist of the action doctrine requires that Kia proceed solely on the basis of his breach of contract claim. Id.

We will grant summary judgment in favor of the defendants with respect to Kia's Count XIII claim for conversion.

XI.

As his final claim, Kia seeks to hold defendant Singh liable for defamation in Count XIV. In an action for defamation, the plaintiff bears the burden of proving:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

In 2006, Singh prepared a written review of Kia's work performance, which was distributed to Marandola, Henry Tancredi, David Cowan (Vice President of Engineering), Anthony Reynolds (Vice President of International Sales and Strategic Alliances), Elizabeth Qualtier (Director of Technical Marketing), Stephanie Mandell (Human Resources), and Karen Kirchner (Human Resources Consultant). That review contained four statements which Kia considers defamatory. First, Singh asserted that Kia's participation in the DICOM project caused significant delay and forced the company to incur unnecessary costs. Second, with respect to certain patents that ISI was required to file within the 12-month period beginning in May, 2005, Singh wrote,

Omid [Kia] had led the effort of working with the patent attorney to draft these [provisional patents], and it was his responsibility to complete the filing in the ensuing 12-month period. However, he had not lifted a finger in the next 10 months . . . [t]his necessitated me to take over this task, and I had to spend enormous hours with the patent attorney along with Uwe's help to get this done. Another example of poor time and task management.

Third, with regard to the filing of certain applications to the National Institute of Health ("NIH"), Singh said, "Omid [Kia] was supposed to file NIH grant applications for certain research projects we had identified, but missed several filing deadlines in a row. Ultimately, we approved $14,000 in March to hire a consultant that he recommended . . ., but even he has missed the next 2 deadlines due to lack of definition of what needs to be done." Finally, he wrote,

The engineers in the Delhi office reported directly to Omid [Kia], but he totally lost control of the personnel and did not have the slightest idea what they were actually doing, not to mention unclear project definition and guidance. . . . The 2 quite capable engineers diverted themselves to their own Ph.D. and outside work, blatantly throwing sand in Omid's eyes, and he did not have the slightest clue. This went on for about 1 year, while Omid failed miserably in defining and leading any project there, except for certain short term items, until I realized what was really going on.

On December 21, 2006, Singh wrote an email to Marandola and Henry Tancredi, which Singh then forwarded to Stephanie Mandell. Singh stated, "This stretched out pattern of behavior has been truly damaging to the entire company in terms of divisiveness, adversarial situations affecting teamwork and morale, not to mention Omid's total lack of productivity and inability to complete any single project."

On April 25, 2007, emails were exchanged between a number of ISI employees who were working to set up a virtual private network (VPN) to allow remote access to certain information in the company's computer system. After proposing a solution, Kia wrote: "Please, for the love of god since no one seems to care as much about this, verify that this is sufficient protection to limit exposure to not only our source code in the dev folder but also to the rest of the LAN network." Singh copied and pasted the beginning portion of this sentence into a reply email, and added the following commentary, "This is the same person [referring to Kia], who despite unequivocal caution from Mike, opened up our customers to unobstructed virus attacks via his version of VPN for remote access to computer sites." Singh's reply was sent to Kia, Marandola, Mike Bowen (IT technician), Dave Cowan, and Stephanie Mandell.

Defendants first contend that Kia's defamation claim is barred by Pennsylvania's one-year statute of limitations, as all of the allegedly defamatory statements were made more than one year prior to Kia's filing his complaint on December 12, 2009. See 42 Pa. Cons. Stat. Ann. § 5523(1). Kia responds that, although the statements were made more than one year prior to his filing the initial complaint, he did not know that he had been injured by those statements until he was made aware that his bonus was reduced from $350,000 to $50,000 largely due to comments made about him by Singh, comments which were supposedly buttressed by the allegedly defamatory statements listed above.

According to Kia, he did not learn this information until June of 2008, which was less than a year prior to his initiating this action. Kia asserts that his claim is therefore saved by the discovery rule, under which "the statute of limitations does not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury." Gallucci v. Phillips Jacobs, Inc., 614 A.2d 284, 287-88 (Pa. Super. Ct. 1992) (internal quotation marks omitted). Because there is a genuine issue of material fact regarding the date on which Kia learned the amount of his bonus, we cannot grant defendants' motion for summary judgment on the statute of limitations issue.See Am. Eagle Outfitters, 584 F.3d at 581.

Next, defendants contend that the statements contained in the 2006 performance review memorandum are incapable of defamatory meaning. "A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him" or if it "ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession." Maier v. Maretti, 671 A.2d 701, 704 (Pa. Super. Ct. 1995).

It is for the court to decide whether a statement is capable of defamatory meaning. Zelik v. Daily News Publ'g Co., 431 A.2d 1046, 1048 (Pa. Super. Ct. 1981). In doing so, we must consider the statement in context, including the audience to which it was published. Baker v. Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987). We then evaluate "the effect the statement would fairly produce, or the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate." Maier, 671 A.2d at 704. In the employer/employee context, the law distinguishes between "statements about a person's actual job performance" and "statements about a person's fitness to perform his job."Sheehan v. Anderson, No. 98-5516, 2000 U.S. Dist. LEXIS 3048, at *8 (E.D. Pa. Mar. 17, 2000), aff'd, 263 F.3d 159 (3d Cir. 2001). The later may support a claim for defamation while the former will not. Id. (citing Maier, 671 A.2d at 705-06; Wendler v. DePaul, 499 A.2d 1101, 1102 (Pa. Super. Ct. 1985); Gordon v. Lancaster Osteopathic Hosp. Ass'n, Inc., 489 A.2d 1364, 1368-69 (Pa. Super. Ct. 1985)); see also Baker, 532 A.2d at 402-03.

The cases of Sheehan v. Anderson and Wendler v. DePaul are instructive here. In Sheehan, a co-worker of the plaintiff informed fellow employees that the plaintiff made negative remarks about their company and about a female employee, that he "fostered an antagonistic work environment," and that he "sat around the work place every morning for approximately one to one and a half hours talking and drinking coffee." 2000 U.S. Dist. LEXIS, at *3. This led to the plaintiff being reprimanded by a superior. In granting summary judgment against the plaintiff on his defamation claim, this court determined that the statements, made to co-workers in the context of plaintiff's employment, were not capable of defamatory meaning. Id. at *9.

In Wendler, the plaintiff, a laborer, was terminated in response to a negative report prepared by the plaintiff's supervisor in connection with an incident in which the plaintiff suffered a work-related injury. The report stated that the plaintiff "had willfully disregarded instructions in proper material handling procedures," "had improperly attached the equipment," and had refused to properly attach the equipment despite being ordered to do so by a fellow employee. It further noted that he "was not able to adequately perform the functions of his job," and that "the job performance of [the plaintiff] is marginal and many times borders on the unsafe." 499 A.2d at 1102. The court ruled that these statements, in the context of an employment-related report prepared by the plaintiff's supervisor, were not capable of defamatory meaning. Id. Although his job performance was criticized, the court explained that the plaintiff "was not accused of dishonesty or anything else that would blacken his reputation or expose him to public hatred, contempt, or ridicule." Id. (internal quotation marks omitted).

Here, in the 2006 performance review, Singh critically assessed Kia's actual job performance, and, in the email of December 21, 2006, alluded to Kia's "total lack of productivity." Singh made these statements as a co-owner of ISI and directed them to other owners, executives, and human resource personnel within the company. The purpose of such communication was to inform the recipients of Singh's belief that Kia was inadequately performing the responsibilities of his job. As in Wendler, Singh did not accuse Kia of dishonesty, criminal conduct, or anything else that would tend to "blacken his reputation." Id. Under these circumstances, Singh's statements were incapable of defamatory meaning.

As for Singh's email of 2007 regarding Kia's involvement in the VPN security breach, defendants argue that the allegedly defamatory statements are covered by a conditional privilege. Pennsylvania law recognizes a conditional privilege where "the [speaker] reasonably believes that the recipient shares a common interest in the subject matter and is entitled to know." Daywalt v. Montgomery Hosp., 573 A.2d 1116, 1118 (Pa. Super. Ct. 1990). The question of whether a privilege applies is an issue of law for the court to decide. Miketic v. Baron, 675 A.2d 324, 327 (Pa. Super. Ct. 1996) (citing Agriss v. Roadway Exp. Inc., 483 A.2d 456, 463 (Pa. Super. Ct. 1984)). The Pennsylvania Superior Court in Maier v. Maretti held that statements among management-level personnel concerning an employee's job performance are privileged communications necessary for the operation of a business. 671 A.2d at 706 (citing Rutherfoord v. Presbyterian-Univ. Hosp., 612 A.2d 500 (Pa. Super. Ct. 1992)); see also Foster, 2010 Pa. Super. LEXIS 2097, at *15-16.

To determine whether Singh could have reasonably believed that Marandola, Mike Bowen, Dave Cowan, and Stephanie Mandell had a common interest in subject matter of the publication, we must determine what Singh was actually communicating. A follow-up email from Singh to Kia sent later that same day provides some insight. In it, Singh explained, "I was merely venting in reaction to your `for the love of God' statement, an epitome of double standards that consistently apply to your view of others vs. yourself, which was very obviously pointed at Uwe [Mundry] I, infering we didn't care about the security of our proprietary/sensitive data." This explanation is consistent with the comments made previously by Singh in the 2006 performance review memorandum, in which he stated that Kia had attempted to discredit him and Uwe Mundry, that Kia "lacks tact and constructive communication skills," has an "unconstructive team spirit," and "used disparaging and confrontational language."

Thus, it appears that Singh sent the email to Marandola, Dave Cowan, and Stephanie Mandell not for the purpose of blaming Kia for the security breach, but rather to highlight Kia's "for the love of god" remark as an example of what he felt was a pattern of negative interpersonal behavior on the part of Kia. In this context, Singh's statement is protected by a conditional privilege, as it was reasonable for Singh to believe that ISI's owners, executives, and Human Resources personnel had a common interest in Kia's behavior and attitude towards his fellow employees. It was also reasonable for Singh to believe that Mike Bowen had a common interest in the subject of his communication because, not only was Bowen included in the list of recipients to which Kia's "for the love of god" comment was sent, he was the IT technician directly involved in setting up the VPN that was the subject of discussion.

A conditional privilege can be overcome by the plaintiff if he proves that the defendant abused the privilege. Miketic, 675 A.2d at 329 (citing Elia v. Erie Ins. Exch., 634 A.2d 657, 661 (Pa. Super. Ct. 1993)).

Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or included defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.

Here, Kia cannot establish abuse of privilege because he has offered no facts which would allow a reasonable jury to find that Singh acted with malice or negligence, that the publication was for a purpose other than that for which the privilege was given, that it was made to a person not reasonably believed to be necessary for the accomplishment of the purpose, or that it included defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.See Moore, 889 A.2d at 1262; Miketic, 675 A.2d at 331. Although Kia accuses Singh of acting with malice or negligence, the only evidence to which he points consists of: (1) the statement by Singh, in the email of December 21, 2006, regarding Kia's "total lack of productivity," and (2) a statement allegedly made by Marandola in June of 2008, more than a year after the allegedly defamatory email was sent, that Singh was "discriminating against" Kia with regard to the reduction of Kia's bonus. This evidence has no relevance to the question of whether Singh wrote the April 25, 2007 email with negligence or reckless disregard for the truth of the statements contained therein, and is therefore insufficient to allow a reasonable jury to find that Singh abused the conditional privilege.

For the above reasons we will grant summary judgment in favor of the defendants with respect to Kia's Count XIV claim against Singh for defamation.

ORDER

AND NOW, this 20th day of August, 2010, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:

(1) the following Counts in the First Amended Complaint are DISMISSED for lack of prosecution: Counts II, III, IV, V, VI, and XV in their entirety, Count IX as to defendants John Tancredi, Arun Singh, and Alan Keirn, and Counts X and XIV as to defendant Edward Marandola; and

(2) the motion of defendants Imaging Sciences International, Inc., Edward Marandola, Arun Singh, Alan Keirn, Henry Tancredi, and John Tancredi for summary judgment is GRANTED as to all remaining Counts in the First Amended Complaint except that it is DENIED with respect to Counts I and XI.

JUDGMENT

AND NOW, this 20th day of August, 2010, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that judgment is entered in favor of the following defendants and against plaintiff Omid E. Kia with respect to the following Counts in the First Amended Complaint:

(1) in favor of defendants Imaging Sciences International, Inc., Edward Marandola, Arun Singh, Alan Keirn, Henry Tancredi, and John Tancredi and against plaintiff Omid E. Kia as to Count VII;

(2) in favor of defendant Imaging Sciences International, Inc. and against plaintiff Omid E. Kia as to Count VIII;

(3) in favor of defendants Edward Marandola and Henry Tancredi and against plaintiff Omid E. Kia as to Count IX;

(4) in favor of defendant Arun Singh and against plaintiff Omid E. Kia as to Count X;

(5) favor of defendants Edward Marandola, Arun Henry Tancredi, and John Tancredi and against Kia as to Count XII;

(6) favor of defendants Edward Marandola, Arun Henry Tancredi, and John Tancredi and against Kia as to Count XIII; and

(7) favor of defendant Arun Singh and against Kia as to Count XIV.