Opinion
Civil Action No. 03-1997.
June 25, 2004
Memorandum and Order
Plaintiff, Rachael Bootel, brings this action against defendant, Verizon Directories Corporation ("Verizon"), for unpaid commissions and unlawful employment practices under contract law and the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.1 et seq ("PWPCL"). Amended Compl. ¶ 1 (Doc. #8). She asserts that she should have been compensated $211,029.50 pursuant to the formula in Verizon's sales plan. Def's Exhibit D.
Currently pending before the court is the defendant's motion for summary judgment on Bootel's claims (Doc. # 15). Verizon bases its motion on the following grounds: 1) Verizon argues that granting summary judgment in its favor on Bootel's breach of contract and PWPCL claims (Counts I and II) is appropriate because Verizon explicitly reserved in its sales plan the broad discretion to review unanticipated sales compensation events such as the conditions that led Bootel to expect approximately $211,000 in commissions (more than double her highest annual salary); 2) Verizon also argues that it is entitled to summary judgment on Bootel's breach of contract claim (Count II) because the sales plan does not constitute a contract between Verizon and Bootel; 3) Verizon argues that if Bootel's breach of contract claim fails her PWCPL claim (Count I) must also fail because it is coextensive with her breach of contract claim; 4) Verizon also contends that Bootel's unjust enrichment claim (Count III) must also fail because the sales plan governs the parties' relationship; 5) finally, Verizon maintains that Bootel's promissory estoppel claim (Count IV) must also fail because Bootel's only possible remedies arise under contract law and that Bootel could not have reasonably relied on the sales plan or any purported representations by Verizon management because the sales plan provides that only approved written agreements are binding. Def.'s Brief at 1-3. For the reasons discussed below, I will deny the defendant's motion for summary judgment as to all counts except for Count III, Bootel's unjust enrichment claim.
PROCEDURAL HISTORY
Bootel filed her initial complaint in the Court of Common Pleas for Bucks County on January 10, 2003, bringing counts against Verizon for violation of the Pennsylvania Wage Payment and Collection Law for unpaid compensation. Verizon removed the case to this court on diversity grounds. Doc. # 1. On June 16, 2003, Bootel filed her first amended complaint, adding claims for breach of contract, unjust enrichment, and promissory estoppel. Doc. # 8.
FACTUAL BACKGROUND
Except where noted, the following facts are undisputed.
Plaintiff Rachel Bootel worked as a Verizon Customer Account Agent ("CAA"). Pl.'s Brief ¶ 6. She has been employed since June 1, 1990. Compl. ¶ 6. Bootel was responsible for securing payments on accounts for telephone directory advertisers who had placed orders with Verizon but had not paid their bills. Def.'s Statement of Facts ¶ 4 (Van Duren Dep. at 19, Def's Exhibit B). Bootel earned commissions based upon her success in persuading clients to pay outstanding bills. Id. ¶ 7 (Van Duren Dep. at 32).
Bootel's District Sales Manager was Odded Benjamin. Benjamin Dep. at 5 (Def.'s Exhibit A). Benjamin reported to Executive Director Ronald C. Merritt, who was responsible for the management of the Philadelphia Sales Division. Id. Merritt reported to Mark Van Duren, the Regional Vice President for the Philadelphia Metro Territory. Van Duren Dep. at 4 (Def.'s Exhibit B).Van Duren and Merritt provided local sales management. Franks Dep. At 30 (Pl.'s Exhibit 1). As the regional vice president, Van Duren had the discretion to invoke an open market period. Franks Dep. at 18 (Def.'s Exhibit H).
Kevin Dickman and Suzanne Franks were part of the National Sales Compensation Group. PL.'s Brief ¶ 5. This group clarified questions regarding payment incentives that could not be answered by local sales management. Id. ¶ 8. Franks and Dickman did not know what was contained in the open market rules in the Philly Blitz directive. Pl's Brief ¶ 31 (citing Dickman Dep. 13, 48-49 (Pl.'s Exhibit 2); Franks Dep. 7, 17-18, 27, 45-47 (Pl.'s Exhibit 1).
The parties dispute the amount of commissions that Bootel is owed for pay periods 16 through 21 (August 1, 2002 to October 19, 2002). Bootel argues that she is owed over $211,000 in commissions, but Verizon has only agreed to pay her $30,000. Pl.'s Brief ¶ 98.
Each pay period is two weeks.
Defendant's brief states that the figure was $30,600. Def.'s Brief at 12.
The Verizon SalesPay Plan ("the plan") outlines the formula for Bootel's compensation. Pl.'s Brief ¶ 11. The plan was effective from January 27, 2002 until December 28, 2002, spanning the time that Bootel worked as an agent for Verizon. Plaintiff avers that the plan was not modified or suspended during the period in which it was effective. Pl.'s Brief ¶ 16 (pursuant to Section V.A.4, Verizon had the authority to modify, suspend or terminate the plan).
Section V.A.3 of Bootel's sales plan included the Verizon SalesPay Plan that she signed and "any additional procedural documentation provided specific to the Sales Channel or Sales Position." Def.'s Exhibit D at 6. Pl.'s Brief ¶¶ 13-14. Bootel argues that the Philly Blitz directive, issued by Merritt and Van Duren, was part of this plan. The parties agree that the sales plan is not an employment contract; however, they do dispute whether the plan is a compensation contract or simply an internal policy establishing guidelines. Pl.'s Brief at 20.
The plan also states in Section V.E.4 that "the Plan, including any amendment hereto, constitutes the entire understanding of VIS with respect to incentive payments and cancels and supercedes all other agreements relating to such compensation. No other agreements relating to such compensation shall be binding on VIS unless such agreement is in writing and approved by the VIS Compensation Committee." Def's Exhibit D at 14.
Pursuant to Section V.C.3, Verizon sales management set quotas for agents using the guidelines therein, considering factors such as the introduction of new products and services, the impact of planned sales promotions and advertising, and unplanned sales opportunities. Def's Exhibit D at 8. Plaintiff argues that the Philly Blitz directive (establishing the open market period) could be either a planned sales promotion or an unplanned sales opportunity.
The plan specifies that "[n]o statement contained in this Plan, nor any other VIS Plan or procedure constitutes a contract of employment, express or implied, nor does any statement in this plan constitute a guarantee of continued employment or of any payment or benefit." Section V.E.3. Def.'s Exhibit D at 14.
Beginning in August, Verizon extended its standard two pay period open market for a series of six pay periods. Pl.'s Brief ¶ 47. An open market is an opportunity for sales representatives to sell new business to both current and new advertisers for a set period of time in an effort to "spike" the advertising sales results before a directory is sent to publication. Van Duren Dep. at 5-6 (Def.'s Exhibit B). Open markets are established by sales managers who issue a directive. In this case, that directive was the Philly Blitz (Pl's Exhibit 5), issued by Merritt and Van Duren. Pl.'s Brief ¶¶ 13; 43.
Open markets typically only run for a total of three weeks. Def.'s Statement of Facts ¶ 16; Pl.'s Brief ¶ 48 ("no one can remember one that lasted for six pay periods"); Van Duren Dep. at 41 (Def.'s Exhibit B).
Just before the close of the original open market period, Van Duren learned that the print deadline for the directory that was to be published had been postponed. Van Duren informed Merritt that the regularly scheduled two pay period open market for the Lower Bucks directory in the Philadelphia Sales Division would be extended through pay period 18 in order to give sales agents more time to collect on outstanding accounts and to bring in new business. Def.'s Brief at 6 (Merritt Dep. at 31-32, Def's Exhibit F). Merritt and Van Duren issued a directive, the Philly Blitz Market Rules, to establish an open market. Pl.'s Brief ¶¶ 13; 43. According to Bootel, sales made pursuant to the Philly Blitz directive were to be included in the incentive compensation calculations as compensable sales. Pl.'s Brief ¶¶ 13-14.
The request for an extension of the print deadline is called "long-life" request in the industry. Def's Brief at 6 n. 8.
Instead of lasting only two pay periods, the open market stretched to six pay periods. Pl.'s Brief ¶ 47. Rather than returning to the Philadelphia market, for pay period 19, Merritt's division was assigned to assist the Marlton office for the Camden, Burlington, and Woodbury directories. Def.'s Brief at 6; Merritt Dep. at 32 (Def's Exhibit F); Benjamin Dep. at 8 (Def's Exhibit A). Then, for pay periods 20 and 21, the Philadelphia Sales Division was directed to assist the Chadds Ford division with an open market extension of the Delaware County and Main Line directories. Def.'s Brief at 7; Merritt Dep. at 32-33 (Def's Exhibit F).
Extending the open market increased sales. Applying the formula for compensation in the plan, Bootel calculated that at the rate she was selling, she would receive a very large incentive payment. On August 27, 2002, the second day of pay period 18, Bootel brought the issue of a potentially large incentive payment to the attention of her manager Benjamin. Pl.'s Brief ¶ 55. Merritt relayed the information to Van Duren and the VISCC at the end of period 18. Pl.'s Brief ¶ 72. According to Bootel, Merritt's response was that she should "keep selling." Pl.'s Brief ¶¶ 60-61. Neither party has presented any evidence that Bootel was ever told, verbally or in writing, that her compensation during the open market period would be computed on any basis other than the plan.
According to Section V.D.9, "[a]ll questions pertaining to the payment of incentives should be directed to local Sales Management. In the event that clarification is needed, the local Sales Management should direct the question to the National Sales Compensation." Def's Exhibit D at 10. Plan participants could "request a formal review by submitting a request to Sales Operations along with all supporting materials," which would be "forwarded to the VIS Compensation Committee (VISCC) for review and final determination and resolution." Id.
Pursuant to the plan, Section V.C.4, payments to agents "for Sales incentive compensation will be paid as soon as results are known, and it is administratively possible to make the payout."
VICSS is the approval body, comprised of representatives from HR Compensation, Finance and Planning and Sales Management.
After all of the open market periods had expired, Dickman investigated the situation. Dickman Dep. at 16-17, 24, 29-30 and 37-38. Dickman and Suzanne Franks, the Executive Director of Talent Development and Sales also reviewed the plan's provisions. Franks Dep. at 18-19. Dickman and Franks recommended to the VISCC that it assign a quota to Bootel from the relevant pay periods equivalent to that of the job she was performing. Dickman Dep. at 30. The VISCC reviewed the recommendation and initially decided that Bootel should receive an incentive payment of $25,000 for certain sales generated during the open market period in 2002. Pl.'s Brief ¶ 73; Def.'s Brief at 11; Merritt Dep. at 17-18; Dickman Affidavit ¶ 7. Upon further consideration, the VISCC, headquartered in Dallas, decided that Bootel should receive $30,600 instead, to be paid out over several pay periods. Def.'s Brief at 12; Dickman Affidavit ¶ 7.
On October 3, 2002, Bootel was notified that she would be paid $30,000. Pl.'s Brief at 93. She received $66,478,43 in incentive pay. Def.'s Brief at 13. She was the most highly compensated agent nationwide in 2002. Id. at 12; Dickman Affidavit ¶¶ 12, 14. Verizon argues that had Bootel been paid based on her national sales ranking, she would have received only $17,813 in incentive payments for 2002. Def.'s Brief at 12; Dickman Affidavit ¶ 12.
Relying on the following modification clause, Verizon argues that it had the authority under the plan to modify Bootel's compensation:
V.A.4 Modification, Suspension or Termination of the Plan
The [Verizon Information Services Compensation] Committee has the sole authority and exclusive discretion to modify or suspend, at any time, in whole or in part, and if suspended, may reinstate any or all of the provisions of this Plan. Any modification or suspension shall not affect sales incentive compensation already paid under the Plan. Def's Exhibit D at 6.
Verizon also notes that the plan contains another provision that deals with review and modification. See Section V.D.15 below. Where a sales agent's performance would result in a payout exceeding 300% of the targeted compensation, Verizon reserved the right to review the quota:
V.D.15 Performance Review and Plan Evaluation
VIS recognizes that sales quotas should reflect a fair and equitable challenge for sales personnel. VIS also recognizes that certain events can impact a Sales Representative's ability to achieve his or her sales quota, e.g. customer acquisition/merger, bankruptcies, change in account base, and transfer/promotion to another position.
Sales Management in conjunction with HR Compensation will review Plans, Quotas and Performance of Individuals/Units significantly over-performing or under-performing during the Plan Term. The determination whether Individuals/Units are significantly over-performing or under-performing is at the sole discretion of Finance.
The review may or may not result in an adjustment to Plan, quota or compensation at the discretion of VIS.
A review of the quotas will take place when the year-to-date incentive payments would exceed 300% of the annual target for any individual component fo the plan. The review is required prior to any payout over 300%. Payout up to 300% may occur as scheduled with the remainder pending the review. Subsequent reviews should occur at additional 100% increments, i.e., 400%, 500% etc. prior to payout. Def's Exhibit D at 11.
Verizon also argues that it reserved the right under the sales plan to review unanticipated sales compensation events. See Section V.D.11 below. Although, the parties dispute whether the sales events at issue in this case were anticipated by the plan.
V.D.11 Events Not Covered by the Plan
Any event not anticipated by this Plan will be reviewed by the VIS Compensation Committee for appropriate resolution. The VISCC has the final authority to resolve any sales compensation event or issue it deems was not anticipated in the development of the Plan. Def's Exhibit at 10.
Verizon argues that it could not have anticipated the sales conditions at issue and that in any case the plan, Section V.A.4, supra, allows for review and revision of the plan.
Bootel argues that Verizon should have anticipated the effect of extending the open market. She argues that Van Duren knew the open market would last a long time: "We knew we would be selling news and nons for quite a long time" though he did not anticipate how it would impact agents' pay. PL.'s Brief ¶ 50; Van Duren Dep. at 44. She also points to Merritt's deposition: "I could have anticipated that [plaintiff] would have sold something, but I could not anticipate that after three pay periods [16-18] that the payment would end up going outside of the qualifications." Pl.'s Brief ¶ 53; Merritt Dep. at 23. Bootel also notes that Franks acknowledged that a salesperson would work extra hard and generate extra commissions during an open market period: "I can assume it could have been anticipated." Franks Dep. 23-24; Pl.'s Brief ¶ 87.
The parties also dispute whether Bootel's sales were even covered by the plan. According to the deposition of Kevin Dickman, "an event not covered by the plan" is anything outside the normal, customary job of selling or representing customers under the customer credit plan." Dickman Dep. at 9 (Pl.'s Exhibit 2).
Verizon argues that Bootel was acting outside of her job description and therefore she could not be compensated for those sales by the compensation rate provided for in the plan. Verizon argues that the plan was not designed to apply to selling to new customers and nonadvertisers ("news and nons" in the industry). Dickman Dep. at 47-48 (Pl.'s Exhibit 2). According to Franks, Bootel committed a job violation by acting as a P1 representative during the open market period. Franks Dep. at 43, 48, 49-50 (Pl.'s Exhibit 1). That is, she solicited new customers and non-advertisers when she was supposed to be restricted to dealing with delinquent customers. Dickman Dep. at 48.
Yet, Bootel points out that there are no provisions in the plan that discuss job design and the open market period, or place restrictions on agents from soliciting new business in an open market. Franks Dep. at 16, 29, 53. She also points to the Philly Blitz directive, which provided for the open market selling conditions, and argues that Franks and Dickman (at the national management level) were unaware of this local directive.
LEGAL STANDARD
Summary judgment may only be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In order to defeat a properly supported motion for summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Crissman v. Dover Downs Entertainment, Inc., 239 F.3d 357, 360-61 (3d Cir. 2001). All reasonable inferences are drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
DISCUSSION
Verizon argues that even if the sales plan is interpreted in accordance with contract principles, Bootel's breach of contract and WCPL claims cannot survive.
I. Breach of Contract
a. Whether the plan is a contract
In the first instance, Verizon argues that the plaintiff's breach of contract claim (Count II) must fail because the sales plan is not a contract, but rather it is a policy that provides guidelines for determining the circumstances under which the company will pay Bootel commissions. Def.'s Brief at 14. Defendant argues that the sales plan does not constitute a contract because Section V.E.3 of the plan indicates "that no statement contained in [the] Plan, nor any other VIS Plan or procedure constitutes a contract of employment, express or implied, nor does any statement in this Plan constitute a guarantee of continued employment or of any payment or benefit." Def.'s Brief at 14-15 n. 14.
Defendant argues that no contractual obligation was formed because Verizon made clear its intentions to avoid doing so through the language in Section V.E.3. Verizon argues that the plan is a statement of policy and procedure and as such, the failure to follow this policy does not form the basis for a breach of contract claim. Def.'s Brief at 14 n. 14.
Verizon cites Anderson v. Haverford College to argue that language in a personnel policy disclaiming the intent to form a contractual obligation does not modify the at-will employment relationship. 851 F. Supp. 179, 181-83 (E.D. Pa. 1994).
Plaintiff concedes that the plan is not an employment contract because of the language in Section V.E.3, but argues that it is a compensation contract, and that it should be interpreted according to its plain meaning. Pl.'s Brief at 20. Bootel also contends that her status as an at-will employee does not preclude her breach of contract claim for unpaid commissions. Pl.'s Brief at 38. Plaintiff argues that as long as she is still employed by the defendant, Verizon must pay her in accordance with the terms of the compensation contract, even if she is an at-will employee. Id. at 38-39. Bootel relies on Eastland v. DuPont, in which the court found that "[an employer's] right to discharge [the plaintiff] does not logically encompass a decision not to pay him, as agreed upon, for work already completed." 1996 WL 421940 at *2 (E.D.Pa. 1996).
Even though the relationship was terminable at will, it is not clear from the record that the sales plan was not an agreement between the parties for compensation. I find that there is a genuine issue of material fact whether the plan is a compensation contract that established the terms of payment, at least for the period of Bootel's employment with Verizon. Therefore, I will deny defendant's motion for summary judgment on the ground that the plan was not a contract.
b. Whether there was an unanticipated sales event (Section V.D.11)
Verizon's second argument is that under the terms of the plan, Bootel is not entitled to the commissions she claims because the VIS Compensation Committee (the "VISCC") properly exercised its authority under the plan "to resolve unanticipated sales events." Def.'s Brief at 15. Verizon points to Section V.D.11 of the plan, which states that "[a]ny event not anticipated by this Plan will be reviewed by the VIS Compensation Committee for appropriate resolution. The VISCC has the final authority to resolve any sales compensation event or issue it deems was not anticipated in the development of the Plan." Def.'s Exhibit D at 10 (emphases added). Defendant interprets this language to mean that its VISCC committee had the authority to review and revise compensation rates in the event of unanticipated sales. Def.'s Brief at 15.
The parties dispute whether the sales events that led to Bootel's unusually high commissions were "unanticipated" by the plan.
Verizon contends that the conditions that affected Bootel's sales results were unanticipated by the plan's formula for calculating commissions. Def.'s Brief at 15. The unforeseen sales activity led to a six pay period open market, which Verizon had never before experienced. Pl.'s Brief ¶ 48. Verizon also argues that Bootel was working outside her normal job, and that her activities of selling to "news and nons" were not covered by the plan. Def.'s Brief at 15. Without quota requirements for six pay periods, Verizon argues that Bootel produced exaggerated sales results. Id. Verizon contends that these circumstances constituted an unanticipated sales event and that the VISCC acted within its authority to resolve the situation by approving a payment to Bootel of $30,600, which was 25% of her annual income. Id. at 16. Verizon argues that denying its motion for summary judgment would mean holding the company to the six pay period average formula while ignoring the authority of the VISCC to identify and resolve unforeseen sales events.
"News and nons" are new business and non-advertisers.
In response, Bootel maintains that the sales events were not unanticipated. She argues that the Philadelphia Sales Division had established a practice of permitting agents to participate in open markets and to solicit new business in an open market in the Philadelphia region for many years. Pl's Brief at 22-23, 27. She argues that this practice was in force when she was a sales agent in 2002. Id. Furthermore, she contends that the plan was silent on any proscription. Pl's Brief at 22-23, 27. In support of this assertion, Bootel points to Franks' testimony that implementation of an open market was within Van Duren's authority. Id. at 27. She also points to the testimonies of Dickman and Franks who both testified that they were aware of the practice of implementing open markets to increase sales prior to closing a directory for the year. Pl.'s Brief at 28. Bootel contends that Verizon's past practices should be given great weight when interpreting the plan. Id. at 23.
She also notes that the plan specifically called for the incorporation of local agreements issued by sales management.
Bootel further argues that when Verizon issued its new plan in 2002 it did not add language that would curb its prior practice of running open markets as it had done every year. Pl.'s Brief at 28. Bootel notes that there are no provisions in the plan that define the term "unanticipated event" and that there are no guidelines issued by the defendant defining or illuminating the term. Pl.'s Brief at 26. She argues that in the absence of language that prohibits the practices of running open markets and soliciting new business, the plan must be read to include the practice. Pl.'s Brief at 27. Bootel relies on the testimonies of Dickman and Franks who admitted that there is no explicit language in the plan that prohibits agents from participating in open markets or from soliciting new business during open market periods. Pl.'s Brief at 28. Bootel also argues that if the drafters of the plan had intended to curb this practice of soliciting new business, they could have redefined the term "new issue compensation" in Section IV.A.1 to encompass only assigned, delinquent accounts rather than new business. Id. Alternatively, the drafters could have defined the term "new issue" in Section VII to exclude new advertising and limit the agents to servicing delinquent accounts. Id. at 28-29. Based on this evidence, Bootel argues that her pursuit of new business was clearly anticipated by the plan. Id. at 27.
Bootel argues that the Philly Blitz directive was an open market directive, which authorized the sale of new business, and that the sales plan encompassed this directive. Pl.'s Brief at 30. The sales plan indicates that an individual's sales plan is made up of the sales plan and "any procedural documentation provided specific to the Sales Channel or Sales Position." Id. (citing Section V.A.3). Bootel maintains that the Philly Blitz directive, distributed by the sales management in the Philadelphia region and co-authored by the regional vice president of sales, is "additional procedural documentation" and therefore part of Bootel's individual sales plan. Id. Bootel also argues that the Philly Blitz directive includes "news and nons," terms which have been used uniformly by defendant's employees to denote "new business." Id. at 29. Thus, Bootel argues that any sales generated by plaintiff during the 2002 open market periods must be included in the sales figures for calculating incentive compensation pursuant to Section IV of the sales plan.
In support of her position, Bootel points to the testimony of Bootel's manager, Odded Benjamin, to show that he thought Bootel would be paid for her efforts in accordance with the formula. Benjamin stated that "it never dawned on [him]" that while she was selling during the open market session, that she wouldn't be paid all the commissions she claims to be entitled to. Pl.'s Brief at 30. Bootel also relies on the testimonies of Merritt and Van Duren who said they expected and anticipated that plaintiff would sell new advertisements in the open markets. Id. Bootel also avers that Merritt and Benjamin even encouraged her to do so. Id.
Bootel also argues that the compensation amount she claims cannot be "unanticipated" because the plan anticipated "over performance." Pl.'s Brief at 27. She points to Section V.D.15 of the plan which provides that "sales management in conjunction with HR Compensation will review Plans, Quotas and Performance of Individuals/units significantly over-performing or under-performing." Id. at 30-31. Furthermore, plaintiff even conducted her own audit and brought the potential for a large over payment to the attention of the local sales management on August 27, 2002 (day 2 of pay period 18). Id. at 55. Bootel claims that neither Benjamin nor Merritt ever told plaintiff that she failed to understand the formula or misapplied it and that Verizon never questioned the amount calculated by plaintiff. Id. at 24. Bootel avers that no one sought to amend either the plan or the Philly Blitz directive to clarify the job design issue or remove agents from soliciting new business during open markets. Id. at 34. According to Bootel, when Verizon failed to take action in response to her audit, Verizon waived its right to change plaintiff's quota. Id. at 32.
Bootel also notes that the factors that sales management used to set agents' quotas and objectives are all "anticipated events." Pl.'s Brief at 31. For example, pursuant to Section V.C.3, management had the authority to make changes to individual targets due to changes in competition or other factors, such as the impact of planned sales promotions and advertising (factor no. 6) and unplanned sales opportunities (factor no. 8). Id. 31-32. Bootel argues that the open market opportunity and the extension of the open market period could be viewed as a "planned sales promotion" or as "an unplanned sales opportunity." Bootel contends that the extension was an anticipated event because the plan was drafted to account for planned and unplanned sales events. Id. at 32.
As for her working outside of the job position that the plan addressed, Bootel argues that if she was "committing a job design violation," that is, if she was not eligible to sell new business during an open market, Verizon never told her to stop. Pl.'s Brief at 23. Bootel argues that Verizon's management chose not to because they wanted her to keep selling. Id.
I find that there is a genuine issue of material fact whether the sales events at issue in this case were unanticipated under the plan. Viewing the evidence in a light most favorable to the plaintiff, a reasonable fact-finder could determine that the plan anticipated the sales conditions that caused such high commissions (especially since Verizon created the very conditions). Therefore, I will not grant summary judgment for the defendant on the basis that the sales conditions were unanticipated.
c. Whether incentive payments were earned
Next Verizon contends that Bootel had not "earned" any incentive compensation until such payments were actually paid and therefore Bootel was not entitled to incentive payments immediately after she consummated specific advertising sales. Def.'s Brief at 18.
Verizon argues that under the plan, incentive payments were not earned when sales were initially completed; instead, according to Verizon, the plan provides that incentive payments are earned when they are paid, after any necessary review by management. Def.'s Brief at 17. Section D.15 describes that review process: "[a] review of the quotas will take place when the year-todate incentive payments would exceed 300% of the annual target for any individual component of the plan. The review is required prior to any payout over 300%." Verizon contends that Bootel did not earn any incentive compensation until after management reviewed her quotas and paid her compensation.
In support of its contention that commissions are earned only after they are paid, that is, after any necessary management review, Verizon points to Section V.A.4 — which grants the VISCC the sole authority to modify or suspend the sales plan but specifies that such modification or suspension "shall not affect sales incentive compensation already paid under the plan." Def.'s Brief at 18 (emphasis added).
Bootel responds that she is entitled to incentive payments as soon as she consummated specific advertising sales. She argues that pursuant to Section V.C.4, incentive payments were to be "paid as soon as results are known and it is administratively possible to make the payment." Pl.'s Brief at 34. Bootel contends that there is no explicit language in Sections V.D.9,11 and 15 that authorizes Verizon to suspend payouts while reviews are conducted, and that it is clear from Section V.D.14 that defendant's policy was to pay incentives as soon as possible and then to recover overpayments when warranted. Id. at 34. Finally, Bootel argues that equity would prohibit retroactive application of changes to the plan. Id. at 34-35.
I find that the issue of when agents are entitled to payment is a genuine issue of material fact. That is, it is unclear from the language of the plan whether payment is "earned" upon the completion of sales (after the work has already been completed) or after defendant has had a chance to review the compensation formula and make modifications. Thus, I will not grant summary judgment on the basis that Bootel's commissions were not yet earned.
II. Pennsylvania Wage Payment and Collection Law ("PWPCL")
Bootel contends that the sales plan gives rise to Verizon's obligation to pay Bootel the commission she seeks, and invokes the PWPCL as an enforcement remedy to ensure payment. Pl.'s Brief at 21.
Verizon argues that where Bootel's breach of contract claim fails, her WCPL claim (Count I) must also fail. Verizon contends that the WCPL statute is merely a means to enforce rights existing under contract. The WCPL provides employees a "statutory remedy to recover wages and other benefits that are contractually due." Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990); Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997) (emphasis added). The court found that "because [plaintiff's] contract claims fail as a matter of law, so does his WPCL claim." McIntyre v. Philadelphia Suburban Corp., 90 F. Supp.2d 596, 602 (E.D. Pa. 2000).
I will not grant summary judgment in favor of the defendant on plaintiff's PWPCL claim on the basis Verizon proposes because I have already found that plaintiff's contract claim will not be disposed of by defendant's motion for summary judgment.
III. Unjust Enrichment
Verizon contends that unjust enrichment is not available when the relationship between the parties is based on a written agreement or express contract. Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir. 1987). Because there is a contract, Verizon contends that the terms of the agreement govern the dispute. Id. Verizon contends that Bootel cannot base her claim in contract and also recover payments under the quasi-contractual remedy of unjust enrichment. Def.'s Brief at 18-19.
Even if the plan is not a contract, Verizon argues that Bootel cannot show that it would be unconscionable for Verizon to retain the benefit it received from her sales activity. Def.'s Brief at 19. Bootel generated $170,000 in revenue for Verizon. Id. She seeks an incentive payment of $250,000, in addition to the $39,369.38 (23% commission) that she already received. Id. Thus, Verizon argues that summary judgment is appropriate. Id.
Bootel has not responded to these arguments. I agree with Verizon and therefore will grant Verizon's motion for summary judgment on plaintiff's unjust enrichment claim.
IV. Promissory Estoppel
Verizon also seeks summary judgment on Bootel's promissory estoppel claim. In Pennsylvania, the elements of promissory estoppel are 1) the defendant makes a promise that he reasonably expects to induce action or forbearance by the plaintiff; 2) the promise induces action or forbearance by the promisee; and 3) injustice can be avoided by enforcing the promise. Carlos v. Arnot-Ogden Mem'l Hosp., 918 F.2d 411, 416 (3d Cir. 1990). Because Bootel argues that the promise to pay her commissions arises from the sales plan formula, Verizon argues that her only remedy arises under contract law. Def.'s Brief at 19. Verizon also argues that Bootel cannot show that she reasonably relied on the formula in the sales plan as a promise because the other provisions in the plan make it clear that unforeseen sales events would be subject to review and resolution by the VICSS. Id. at 19-20.
Bootel relies on the representations by Verizon management to support her promissory estoppel claim. Pl.'s Brief at 21. She alleges that when she told Benjamin and Merritt that she believed she was going to receive a large pay-out in pay period 21, they responded "keep selling." Pl.'s Brief ¶¶ 60-61. In response, Verizon contends that Bootel cannot rely upon oral representations by Verizon management because Section E.4 of the sales plan provides that "only written agreements approved by the Compensation Committee are binding."
Bootel also avers that Verizon "was silent as to any plan to not pay her." Pl.'s Brief at 21. She also maintains that the sales plan clearly defines the type of compensation and provides a formula so that agents could calculate their incentive compensation and check their pay stubs for accuracy. Pl.'s Brief at 23-24. Based on this evidence, Bootel claims that she reasonably relied on the compensation formula and made efforts to sell more.
I find that there is a genuine issue of material fact as to whether Bootel reasonably relied on the compensation plan, and therefore I will not grant summary judgment in favor of the defendant on this claim.
Conclusion
I will deny defendant's motion as to all of the claims plaintiff raises except for the claim for unjust enrichment. An appropriate order follows.
Order
And now, this ____ day of June 2004, upon consideration of defendant's motion for summary judgment (Doc. #15) and plaintiff's response, it is hereby ORDERED that:1) Defendant's motion is granted as to Count III of plaintiff's complaint and judgment is entered in favor of the defendant and against plaintiff on Count III of the complaint.
2) The balance of defendant's motions is denied.
3) Trial is scheduled for August 16, 2004 at 10 a.m.