STERN, District Judge
Plaintiff, James C. Morgart, was general agent in the State of New Jersey for Union Mutual Life Insurance Company from 1971 until 1983. The agency agreement between Morgart and Union Mutual contains a provision giving each party the right to terminate on thirty days notice. Morgart alleges that this provision was modified by several written representations, confirmed orally, that the company would not terminate as long as Morgart met his minimum sales quotas. On November 1, 1983, however, Union Mutual announced that all such general agency contracts would be terminated as of December 31, 1983. Morgart alleges in this suit that the termination was in breach of his contract with Union Mutual, and adds claims for breach of a promise enforceable by application of promissory estoppel, fraud and misrepresentation, breach of a franchise agreement, breach of the duty of good faith and fair dealing, negligence, and unjust enrichment.
Jurisdiction in this matter is based on diversity of citizenship. Morgart is a citizen of New Jersey. He is the sole shareholder and president of Financial Ecology, Inc., which for a time served as a vehicle for his relations with Union Mutual. Financial Ecology is a New Jersey corporation with its principal place of business in New Jersey. Union Mutual is a Maine corporation with its principal place of business in Maine.
Union Mutual has moved to dismiss and also for summary judgment. I previously ruled on the motion to dismiss; I now find that I must deny the motion for summary judgment.
The Choice of Law Issue
Before I turn my attention to the summary judgment motion, however, there is a preliminary matter I must address. On June 16, 1986, I heard oral argument on a motion to apply the substantive law of New Jersey to this lawsuit. The motion was made in response to a March 21, 1986 order of Magistrate Ronald J. Hedges that unless such a motion was made, the substantive law of Maine would apply.
At argument I observed that neither party had pointed to a difference in the laws of Maine and New Jersey as they applied to this case. Applying the choice-of-law principles of the forum state, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), I denied the motion as premature, without prejudice to renew should a true conflict emerge. Rohm and Haas Co. v. Adco Chemical Co., 689 F.2d 424, 420 (3d Cir. 1982) (in cases of false conflict, "New Jersey conflicts of law rules permit the resolution of the case without a choice between the laws of the two states."); State Farm Insurance Company v. Simmon's Estate, 84 N.J. 28, 41 n.1, 417 A.2d 488 (1980) (if the same result would obtain by application of law of different states, "there would be no actual conflict of law between the two states, obviating the necessity to choose between them.")
On August 13, 1986, Magistrate Hedges entered an order that "until the parties concretely establish a different outcome resulting from the application of a particular forum's choice of law, the law of Maine shall continue to govern the action, as per my Order of March 27, 1986."
The Magistrate's order of August 13 was not made in connection with a "matter pending before the court," nor did I designate Magistrate Hedges to make any determination in regard to the choice of law issue. Under the Magistrate's Act, 28 U.S.C. § 636(b)(1)(A), therefore, Magistrate Hedges had no jurisdiction to enter his order of August 13, In re Morrissey, 717 F.2d 100, 102 (3d Cir. 1983).
In order to clarify the record on this matter, I will vacate Magistrate Hedges' order of August 13, 1986, as having been entered without jurisdiction. I reiterate my decision of June 16: unless and until a true conflict arises, I will decide this matter in accordance with legal principles accepted by both Maine and New Jersey.
The Motion for Summary Judgment
Union Mutual moves for summary judgment on two grounds. First, it argues, Morgart was not terminated, but accepted early retirement voluntarily. Second, it points to an agreement entered into between Morgart and Union Mutual on January 3, 1984, and asserts that any surviving rights under Morgart's general agency agreement were merged into that agreement and have been extinguished.
I. Voluntary Retirement
Morgart learned on November 1, 1983 that his general agency contract was to be terminated on December 31, 1983. Before the termination date, Morgart requested and was approved for "early retirement," which was one of several options offered to the terminated agents, and which, Morgart claims, would have been available to him whether or not his agency had been terminated. The other options included continuing agency relationships with the company under new terms.
As a result of his early retirement, Morgart was eligible for and on December 15, 1983 entered into a "Floored Commission Lending Agreement," or "Floored Oates" Agreement, with Union Mutual. The Floored Oates Agreement sets up an annuity account funded by the commission payments due to Morgart on insurance he had sold. It guarantees him a certain level of monthly payments for fifteen years, with lower payments after that.
Retirement, says Union Mutual, is the "antithesis" of wrongful termination, Young v. Western Electric Co., 189 N.J. Super. 1, 17, 458 A.2d 511 (App. Div. 1982), Mod. 96 N.J. 220, 475 A.2d 544 (1984). Because Morgart retired, it argues, he cannot now claim that his agency was wrongfully terminated. Furthermore, Union Mutual points out that Morgart admits not only that he has retired, but that he freely requested early retirement out of a number of options available to him. On these undisputed facts, Union Mutual would have the court grant it summary judgment.
Union Mutual leans heavily on the case of Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th Cir. 1982) to support its assertion that Morgart's consent to early retirement rids this case of any genuine issue of fact to be determined at trial. Ackerman was an action for discriminatory discharge under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. As a case interpreting a federal employment discrimination statute, Ackerman is only roughly analogous to the issue before this Court which turns on contractual or employment relations principles. More importantly, however, Ackerman is bad law.
The plaintiff in Ackerman swore that he had been told that his job was to be terminated. His retirement was voluntary, he claimed, only in the sense that he had the choice to retire or be fired. If he chose the latter, he would lose his rights to retirement benefits, which had been accumulating over twenty-three years of employment. Nevertheless, the Sixth Circuit panel approved the trial judge's finding that Ackerman retired voluntarily and of his own free will, Ackerman, 670 F.2d at 69.
The court's findings on this record could only have been reached by turning a blind eye to the predicament facing the plaintiff. As another court has pointed out, "were defendant's argument accepted on this point, all persons under sixty-five who were entitled to pension benefits could be terminated because of their age and foreclosed from an age discrimination claim if they elected to receive their pension benefits," Havelick v. Julius Wile Sons & Co., 445 F. Supp. 919, 925 (S.D.N.Y. 1978).
Furthermore, the Ackerman court simply ignored the widely accepted doctrine of constructive discharge, which is often applied in the context of federal employment suits to find discharge when an employee appears at first glance to have acquiesced in his or her termination, e.g., Williams v. Caterpillar Tractor Co., 770 F.2d 47, 49 (6th Cir. 1985); Goss v. Exxon Office Systems, Co., 747 F.2d 885, 888 (3d Cir. 1984); Calhoun v. Acme Cleveland Corp., 798 F.2d 559 (1st Cir. 1986). In Goss, a constructive discharge was found when a salesperson was taken off her usual territory, and was told to accept an inferior substitute territory or resign, 747 F.2d at 888. In Calhoun, a court upheld a jury decision that an employee had been constructively discharged, in spite of the fact that he had agreed to take early retirement, slip op. at 4. These cases lead inexorably to the conclusion that Ackerman was wrongly decided.
II. Merger into Substituted Contracts.
Of course, all of the cases cited above -- including Ackerman -- arose in the context of adjudications of federally-protected employment rights. Such rights have not been involved in this dispute. The exact nature of Morgart's relationship to Union Mutual, however, is not clear. The general agency agreement recites that "the General Agent shall be an independent contractor, and nothing in this agreement shall be deemed to create the relationship of employer and employee between the company and the General Agent." General Agent's Contract § 1, Ex. A to plaintiff's complaint. However, as Union Mutual itself has observed, the concept of "retirement" is usually linked to employment, Young v. Western Electric Co., 189 N.J. Super. at 17. Furthermore, it appears from the record that Morgart's "Floored Oates" Agreement has been approved by the State of New York as a "retirement benefit," letter of 11/30/83 from Mark W. DeTora to James C. Morgart, Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, Exh. 10. The record does not reveal what such approval entails, nor what sort of relationship the New York regulations contemplate between the grantor and the beneficiary of a "retirement benefit." In the absence of information on this and other potentially relevant points, I cannot say to what extent the relationship between Morgart and Union Mutual is to be governed by traditionally accepted principles of contract law, and to what extent its construction should be influenced by recent developments in the law governing employment relations. Nor can I say, at this point, whose law of employment relations I should apply.
However, even if the agreement were to be governed by black-letter contract law principles, I could not hold that Morgart's willingness to accept his termination, and his subsequent execution of new agreements with Union Mutual, terminated any rights he may have had under his general agency contract.
After Morgart was told that Union Mutual intended to terminate his agency contract, he entered into a brief period of negotiations with the company. These negotiations resulted in the execution of three new agreements: the Floored Oates Agreement, dated December 15, 1983; a one-year "Consulting Agreement," also dated December 15, 1983; and a "Personal Producing General Agent Emeritus Agreement," effective as of January 1, 1984 and signed by Morgart on December 21, 1983. Putting the concept of retirement to one side, Union Mutual must show that the parties intended to substitute these new contracts for any rights and duties remaining under the original agency agreement. It may do so with evidence intrinsic to the contracts, Rosenberg v. D. Kaltman & Co., 28 N.J. Super. 459, 464, 101 A.2d 94 (Ch. Div. 1953), or by a course of dealing between the parties, Maine Mortgage Co. v. Tonge, 448 A.2d 899, 901 (Me. 1982). The key question, however, is the intent of the parties, 6 Corbin on Contracts § 1293.
In our case, the parties have submitted to the Court documents which show that the original draft of the Consulting Agreement contained a clause releasing Union Mutual from any claims Morgart might have. On December 12, 1983 Morgart wrote a letter to Union Mutual Vice President Mark De Tora, with whom he had negotiated the terms of the Consulting Agreement. Morgart wrote:
You will note that I have deleted in it's [sic] entirety, your paragraph seven - Release, and paragraph eight - Termination.
The Release was not discussed at our meeting. When we reached an agreement and shook hands it was on the basis that you had need for my services, you were hiring me as a Consultant, based upon fulfillment of that need. To include your paragraph seven as part of the transaction is grossly inappropriate. You want hire [sic] me, fine. I'll do the job I'm hired for. The money involved in this Consulting Agreement, if it is designed solely to secure the Release is a lousy offer.
On the other hand, I have made no secret of the fact that I had been exploring other alternatives. Legal action being only one of them. However, that has nothing to do with the fact that you came to me and wished to retain me as a Consultant.