The court finds those assertions inconsistent. If ICS was indeed designed to carry over Sprint employees until a second-month invoice could be generated, then there ultimately had to be some comparison between estimated and actual commissions. Indeed, the ICS plan itself contemplated that "there may be some instances that require adjustments to the commissions paid under the Interim Commission Support system." Although Sprint may have intended to compare actual and estimated revenue on a monthly basis rather than on a product-by-product basis, it did not clearly so indicate in the language of the compensation plans.
Although the compensation plans do contemplate certain adjustments in commissions paid under ICS to reflect the actual commission earned, they do not require that such an adjustment be made in every instance. The attachments distributed with the description of the ICS plan indicate that in general commission payments were to be made in the fourth month after a sale based either on actual commission or on an alternative estimated commission. Only in certain unspecified instances would a post-payment adjustment be necessary. Although the various plans do not set forth when such an adjustment would be appropriate, the court finds that Sprint must make such a comparison where it is necessary to avoid a substantial deviation from an employee's expected earnings under the 1986 and 1987 Plans.
There is an implied covenant of good faith in every contract pursuant to which neither party shall do anything that will destroy or injure the right of the other party to receive the fruits of the contract. Onderdonk v. Presbyterian Homes, 85 N.J. 171, 182, 425 A.2d 1057 (1981); Association Group Life, Inc. v. Catholic War Veterans of the United States, 61 N.J. 150, 153, 293 A.2d 382 (1972) (per curiam); Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 130, 207 A.2d 522 (1965); Kislak Co. v. Geldzahler, 210 N.J. Super. 255, 263, 509 A.2d 320 (Law Div. 1985). See generally E. Farnsworth, Contracts § 7.17, at 526-28 (1982). This duty of good faith proscribes certain undesirable conduct and in some instances requires affirmative action. See id. at 527. Reading into the compensation plans a duty of good faith and fair dealing, the court finds that Sprint is obliged not to interfere with the mechanism through which its employees earn their commission. It could not, for example, intentionally delay installation or billing to avoid paying commission. Similarly, where Sprint unintentionally cannot produce timely invoices and therefore creates an income maintenance plan to assist its employees, it cannot use that plan to deny the employees the commissions they have actually earned and should have been paid but for its failure to send invoices.
By its own description, Sprint's ICS plan is a supplement to rather than a modification of the otherwise existing compensation plans. Consequently, nothing in the ICS can work to undermine any expectancy an employee has under either the 1986 or 1987 Plan. If the court were to read the combined compensation plans to allow Sprint to benefit by delaying billing and therefore limiting employees to $ 10,000 estimated commission for a given month rather than $ 40,000 actual commission, it would allow Sprint to benefit unjustly by its inability to generate timely invoices. Sprint insists that the compensation plans must be read together, and reading them together indicates that Sprint must make future adjustments based on actual billings where not to do so would violate its implied covenant of good faith.
The court reads the compensation plans to require Sprint to compare sales on a product-by-product basis. Consequently, the plaintiff earned the disputed commissions before he resigned and he is entitled to the difference between the estimated ICS payments already made and the amounts he actually earned based on the 1986 and 1987 Plans. The court will therefore deny defendant's motion for summary judgment on count I and will grant plaintiff's cross-motion on that count on the question of liability. However, there remains a material factual question as to the amount due to Feldman: he must establish the amount to which he is entitled based upon second invoices generated after he left Sprint for products he sold prior to his departure.
B. Plaintiff's Other Claims
(1) Wage and Hour Law Claim
Plaintiff claims he is entitled summary judgment on his claim under New Jersey's wage and hour law, N.J. Stat. Ann. § 34:11-4.3, because there is no factual issue in dispute and because the statute requires Sprint to pay him the disputed commissions. The statute provides in part,
Whenever an employee quits, resigns, or leaves employment for any reason, the employer shall pay the employee all wages due not later than the regular payday for the pay period during which the employee's termination, suspension or cessation of employment (whether temporary or permanent) took place, as established in accordance with section 2 of this act; or, in the case of employees compensated in part or in full by an incentive system, a reasonable approximation of all wages due, until the exact amounts due can be computed . . . .
N.J. Stat. Ann. § 34:11-4.3 (1988) (footnote omitted). Sprint's response to Feldman's wage and hour law claim is that it is a statutory version of his breach of contract count. The court agrees. To the extent that Sprint has breached its obligations under the various compensation plans it has also violated its statutory duty under the wage and hour law. For the same reasons the court denied defendant's motion for summary judgment and granted plaintiff's cross-motion for summary judgment on the contract claim, it must deny defendant's summary judgment motion and grant plaintiff's cross-motion for summary judgment on this claim. As with the contract claim, there remains a material question of fact as to damages.
(2) Unjust Enrichment
Count II of plaintiff's complaint alleges unjust enrichment. However, such a remedy is unavailable in this case because there is an express agreement setting forth the measure of the plaintiff's compensation and the plaintiff has not breached his obligations under the agreement. See Callano v. Oakwood Park Homes, 91 N.J. Super. 105, 108-09, 219 A.2d 332 (App. Div. 1966); see also E. Farnsworth, supra, § 12.20, at 913 ("Restitution will be denied if the injured party has fully performed, and all that remains is for the party in breach to pay a definite sum in money as the price of that performance.") The court will therefore grant defendant's motion for summary judgment on count II.
Count V of plaintiff's complaint alleges fraud. Sprint seeks dismissal of plaintiff's fraud claim on two grounds: (1) the allegedly fraudulent statements were made in the fulfillment of the contract rather than the inducement, and therefore are not actionable; and (2) plaintiff has failed to allege detrimental reliance. In support of the first ground Sprint cites Anderson v. Modica, 4 N.J. 383, 73 A.2d 49 (1950), wherein the Supreme Court of New Jersey held that to be actionable "fraud must be in the original contract or transaction and not in the nonfulfillment of the contract." Id. at 392. But unlike Modica, the contract at issue in this case is a continuing one, which Sprint could modify at any time. In essence, each time a Sprint employee sells a product he or she enters into the equivalent of a new agreement with Sprint, the terms of which are defined by the then-existing compensation plan. Consequently, Sprint could have fraudulently induced the plaintiff to sell more products and therefore enter into the equivalent of successive new agreements with Sprint. In addition, the second ground for Sprint's objection to plaintiff's fraud count is without basis. It is clear from plaintiff's complaint that he continued to sell Sprint products in reliance on representations about the compensation he would receive. The court, therefore, will deny defendant's motion for summary judgment on count V.
(4) Gross Negligence
Plaintiff boldly asserts in count VI of his complaint that Sprint committed gross negligence because, inter alia, it failed properly to oversee the order entry system, it delayed installation of products, it failed to purchase sufficient access to telephone lines to handle plaintiff's sales, it failed to supervise installation crews, and it failed to generate customer invoices until after plaintiff resigned. However, plaintiff fails to cite a single case supporting a theory of recovery sounding in negligence. The court holds that there can be no recovery for the alleged negligence because there is no duty owed to plaintiff other than that arising out of the contract that the defendant allegedly breached. See Coyle v. Englander's, 199 N.J. Super. 212, 226, 488 A.2d 1083 (App. Div. 1985). The court must therefore grant defendant's motion for summary judgment on count VI.
The essence of this dispute requires the court to interpret the various Sprint compensation plans in effect while Sprint employed the plaintiff as a major account representative. The court reads those plans to require the defendant to pay the plaintiff the actual commission he earned on products sold based on actual second invoices, regardless of whether those invoices were generated prior or subsequent to plaintiff's departure from the company. The court cannot, however, summarily resolve the question of damages because factual issues remain in dispute about the amount of money owed to Feldman. In addition, the court will apply its ruling on plaintiff's contract claim to his New Jersey wage and hour law claim; the court will deny defendant's motion for summary judgment on plaintiff's fraud claim; and the court will dismiss plaintiff's unjust enrichment and gross negligence claims.
An appropriate order will be entered.
ORDER - June 8, 1989, Entered
This matter having come before the court on defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment; and
The court having considered the submissions of the parties; and
For the reasons set forth in the court's opinion filed this date;
IT IS on this 7th day of June, 1989, hereby
ORDERED that defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART and that counts II and VI of plaintiff's amended complaint are DISMISSED; and it is
FURTHER ORDERED that plaintiff's cross-motion for summary judgment is GRANTED as to liability on counts I and IV.
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