                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-1994

Lindsey v. M. A. Zeccola & Sons, Inc.
Precedential or Non-Precedential:

Docket 93-7426




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               ___________

                               No. 93-7426
                               ___________


                         SUSAN R. LINDSEY,
                                      Appellant

                                    v.

                  M.A. ZECCOLA & SONS, INCORPORATED,
                a Delaware corporation; M.A. ZECCOLA,
                                       Appellees

                               ___________

          Appeal from the United States District Court
                  for the District of Delaware
                (D.C. Civil Action No. 90-00283)

                               ___________

                     Argued:    February 17, 1994

     PRESENT:    BECKER, HUTCHINSON and COWEN, Circuit Judges

                    (Opinion Filed June 9, 1994)

                               ____________


Marc P. Niedzielski, Esquire         (Argued)
Donald J. Detweiler, Esquire
White & Williams
Suite 1202
Three Christina Centre
201 North Walnut Street
Wilmington, DE     19801
               Attorney for Appellant

David A. Roeberg, Esquire            (Argued)
Roeberg & Associates
Twelfth & French Streets
P.O. Box 712
Wilmington, DE     19899
               Attorney for Appellees


                                    1
____________




     2
                             ____________

                         OPINION OF THE COURT
                             ____________


HUTCHINSON, Circuit Judge.



          In this diversity case appellant Susan R. Lindsey

("Lindsey"), a licensed real estate agent, appeals an order of

the United States District Court for the District of Delaware

granting summary judgment in favor of her former employer,

appellees M. A. Zeccola & Sons, Inc. and Michael A. Zeccola

(collectively and individually "Zeccola").      She asserts the

district court erred in concluding the statute of frauds barred

her claim for breach of an eighteen month employment contract.

Lindsey also asserts the court erred in concluding the one year

statute of limitations barred her claim for a sales commission.

She contends a three year statute of limitations which would not

bar her claim applies.

          We hold the district court correctly concluded

Delaware's statute of frauds barred Lindsey's breach of contract

claim and we will affirm that part of its order.      We agree with

Lindsey, however, that the district court should have applied the

three year statute of limitations to her commission claim.        We

will therefore reverse the part of the district court's order

granting summary judgment to Zeccola on Lindsey's claim for a

sales commission.0
0
 Lindsey also argues the district court erred in dismissing her
claims for wrongful discharge and intentional infliction of
emotional distress. We hold Lindsey's arguments concerning these


                                  3
          I.    Statement of Facts and Procedural History

          The facts, viewed in the light most favorable to

Lindsey, follow.   In 1989, Zeccola sought to hire a person to

sell homes at its development in Hampton Pointe, Delaware

("Hampton Pointe").    At the time, Lindsey worked for another

broker on a straight commission basis but was looking for a

position which would provide her with a steadier income.

          Lindsey and Michael Zeccola first met at Zeccola's home

in November of 1989.    They next met at Zeccola's Hampton Pointe

office on November 29, 1989 and discussed benefits, salary and

commission.    Lindsey informed Zeccola she was not willing to work

weekends and Zeccola responded he did not expect her to do so.

Zeccola handed Lindsey a typed document containing the terms of

proposed employment.    The document proposed alternative terms of

a weekly salary plus commission, or a straight commission with

weekly draws against commission.     Lindsey told Zeccola neither

proposal was acceptable.

          Lindsey and Zeccola met again on December 4, 1989 at

the Hampton Pointe office.    Zeccola handed Lindsey a one-page,

handwritten proposal headed "calculated on 18 month's,"0

containing the word "Susan," Lindsey's telephone number and the

date "1/24/90" across the top.   Appendix ("App.") at 2.    Below

claims lack merit. Therefore, we will affirm the district
court's order dismissing them.
0
 The apostrophe noting the possessive case in the heading is a
grammatical error unless it was meant to limit a missing term
such as "salary." As we conclude infra in Part III, it is
ambiguous in either case.


                                 4
this information were two columns, each describing a different

pay option.    Lindsey testified at her deposition that Zeccola,

when he presented the proposal to her, said "this is a contract

for 18 months, and this is what I am willing to pay you [left

column].    This [right column] is what you wanted, and this [left

column] is what I am willing to pay."     Lindsey v. M. A. Zeccola &

Sons, Inc., No. 92-283-SLR, slip op. at 2 (D. Del. May 24, 1993).

Lindsey testified she responded that she "accepted that contract

[the left column] for 18 months of employment at that salary and

those terms."    Id.    Neither Lindsey nor Zeccola signed the

proposal.     Lindsey also says they discussed weekend work and

Zeccola understood that she was not going to work every weekend

because "our original plan was that I was to have off every other

weekend."   Id. at 3.

            Lindsey began working for Zeccola on February 2, 1990.

Lindsey testified her hours were Monday through Thursday 1:00

p.m. to 5:00 p.m., with Fridays off and work on weekends from

either 11:00 a.m. or 12:00 noon to either 4:00 p.m. or 5:00 p.m.

Lindsey claims she procured buyers for a home in Hampton Pointe.

On May 3, 1990 the buyers, Rakesh K. and Beeny Gupta

(collectively the "Guptas") signed a sales contract, conditioned

on their ability to obtain certain financing arrangements.

Zeccola fired Lindsey on May 17, 1990, allegedly because Lindsey

did not work in April on either Easter weekend or the weekend

thereafter.    On November 28, 1990, Zeccola and the Guptas held a

settlement meeting and the Hampton Pointe sale was closed.

Lindsey received no commission.

                                   5
            On May 12, 1992 Lindsey, a Pennsylvania resident, filed

suit against Zeccola, a Delaware resident, claiming damages in

excess of $50,000 for breach of contract, wrongful discharge and

emotional distress.    Zeccola denied the existence of any

employment contract beyond one for employment at-will and moved

to dismiss the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) or for summary judgment pursuant to Federal

Rule of Civil Procedure 56.    The district court granted Zeccola's

motion for summary judgment as to all claims on May 24, 1993.

Lindsey filed a timely notice of appeal on June 17, 1993.



      II.   Statement of Jurisdiction and Standard of Review

            The district court had subject matter jurisdiction over

this diversity case pursuant to 28 U.S.C.A. § 1332 (West 1993).

We have appellate jurisdiction over the district court's final

order pursuant to 28 U.S.C.A. § 1291 (West 1993).   We apply the

substantive law of the forum state, Delaware.0   Clark v. Modern

Group Ltd., 9 F.3d 321, 326 (3d Cir. 1993).

            When reviewing an order granting summary judgment we

exercise plenary review and apply the same principles the

district court should have initially applied.    Under Federal Rule

of Civil Procedure 56(c), we ask whether there are any genuine

issues of material fact and, if not, whether the moving party is

entitled to judgment as a matter of law.   Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).     We view

0
 Neither party argues that choice of law principles indicate any
law other than that of the forum should apply.


                                 6
the facts in the light most favorable to the nonmoving party and

draw all inferences in that party's favor.   Id.   The evidence,

however, must be sufficient for a jury to return a verdict in

favor of the nonmoving party; if it is merely colorable or not

significantly probative, the court should grant summary judgment.

Id.



                III.   The Statute of Frauds Issue

          Lindsey argues that the district court erred in

concluding her breach of contract claim was barred by Delaware's

statute of frauds. It provides:
          § 2714. Necessity of writing for contracts;
                   definition of writing; evidence.

               (a) No action shall be brought to
          charge any person upon any agreement . . .
          that is not to be performed within the space
          of one year from the making thereof . . .
          unless the contract is reduced to writing, or
          some memorandum, or notes thereof, are signed
          by the party to be charged therewith, or some
          other person thereunto by him lawfully
          authorized in writing . . . .



Del. Code Ann. tit. 6, § 2714(a) (1993).0

          Lindsey argues the statute is satisfied by five written

documents when they are considered together with the parties'

testimony and other evidence and that her part performance brings

this eighteen month contract within the part performance

0
 The statute of frauds applies to employment contracts which
"cannot possibly be performed within one year." Kirschling v.
Lake Forest Sch. Dist., 687 F. Supp. 927, 930 (D. Del. 1988)
(citation omitted). Lindsey alleges her contract was for
eighteen months.


                                7
exception to the statute.   The five documents include the two

written proposals; Lindsey's federal employment eligibility

verification form; a document containing copies of Lindsey's pay

stubs and canceled pay checks; and a document containing copies

of canceled checks drawn on Zeccola's account for health

insurance reimbursements that were signed by him and made payable

to Lindsey.

          In Delaware a collection of several writings, only one

of which is signed, may satisfy the Delaware statute of frauds.

Abramson v. Delrose, Inc., 132 F. Supp. 440, 442 (D. Del. 1955).

In determining whether any particular writing or writings satisfy

the statute, Delaware relies on section 131 of the Restatement

(Second) of Contracts which requires that at least one of the

writings be signed by the party to be charged and that all the

writings taken together:
               (a) reasonably identif[y] the subject
          matter of the contract,

               (b) [are] sufficient to indicate that a
          contract with respect thereto has been made
          between the parties or offered by the signer
          to the other party, and

               (c) state[] with reasonable certainty
          the essential terms of the unperformed
          promises in the contract.



Restatement (Second) of Contracts § 131 (1981); see Kirschling v.

Lake Forest Sch. Dist., 687 F. Supp. 927, 931 (D. Del. 1988).

          It is undisputed that Zeccola's signature appears on

some of the five documents.   The dispute is over the other three

requirements of Restatement section 131.   After the district


                                8
court reviewed all the documents, it held that none of them,

singly or together, sufficiently identified the subject matter,

duration, job description or hours of employment with the

precision needed to satisfy the statute:
               Plaintiff's first unsigned document
          . . . contains two different salary
          proposals. Since plaintiff did not accept
          either of these proposals, it cannot be
          considered as identifying the subject matter
          of the contract. Plaintiff's second unsigned
          document . . . also sets forth two salary
          proposals. Although plaintiff eventually
          accepted one of the two proposals on this
          page, the document standing alone is
          deficient since 1) defendant did not sign it
          and 2) it fails to set forth any specific
          terms of employment. Moreover, the notation
          "calculated on 18 month's" does not
          conclusively demonstrate an offer for an 18-
          month contract.

               Plaintiff's employment verification form
          . . . payroll records . . . and canceled
          checks for health insurance . . . all fail to
          provide job description, hours or other terms
          of employment. Moreover, none of these three
          documents contain any internal or direct
          connection with each other or with the first
          two documents.



Lindsey, slip op. at 7.

          Lindsey argues that the district court erred in making

these determinations.     She relies heavily on section 132 of the

Restatement.    It states "[t]he memorandum may consist of several

writings if one of the writings is signed and the writings in the

circumstances clearly indicate that they relate to the same

transaction."   Restatement (Second) of Contracts § 132 (1981).

Lindsey stresses illustration five.    It states:



                                  9
           A agrees orally to employ B for two years. An
           unsigned memorandum of the contract, stating
           its terms, is prepared at A's direction.
           Later B begins work and payroll cards are
           made and initialed by A which state some of
           the terms but not the duration of the
           employment. If it is clear that the unsigned
           memorandum and the payroll cards refer to the
           same agreement, they may be read together as
           a sufficient memorandum to charge A.



Id. at § 132 cmt. c, illus. 5.    This illustration is drawn from

Crabtree v. Elizabeth Arden Sales Corp., 110 N.E.2d 551 (N.Y.

1952).    Id. at § 132 reporter's note.   In Crabtree the documents

at issue included two payroll cards signed by the defendant's

agents.   They contained the parties' names, plaintiff's position

and his salary.   Crabtree, 110 N.E.2d at 553.     Significantly, the

second payroll card, prepared by defendant's comptroller at

plaintiff's insistence that the original agreement entitled him

to a pay raise, noted "'Salary increase per contractual

arrangements with [the defendant.]'"      Id. at 555.    The court

found this statement "certainly constitutes a reference of sorts

to a more comprehensive 'arrangement . . . .'"      Id. at 555.      It
therefore considered parol evidence to show defendant's consent

to the terms of the unsigned office memorandum.         Id.   Reasoning

that a sufficient connection between writings is established by a

clear reference in them to the same subject matter or

transaction, the court found all three documents at issue

"refer[red] on their face to the same transaction" because all of

the information contained in the office memorandum was entirely

consistent with the detailed information in the payroll cards, so



                                 10
that "it is hardly possible that such detailed information could

refer to another or a different agreement."        Id. at 554-55.

          In Crabtree the term of employment at issue was the

length of the contract.    Id. at 555.   The court decided the

unsigned memorandum's notation "two years to make good"

designated the term of employment.     Id.   The court concluded this

notation could not be given meaning unless it was read as a

reference to the duration of employment.      To the extent the

statement was ambiguous, the New York court concluded that it

could consider parol evidence to interpret its meaning.       Id.     The

Crabtree court reasoned "[w]hat purpose, other than to denote the

length of the contract term, such a notation could have, is hard

to imagine."   Id.   Unless the notation were meaningless, the

court had to relate it to the length of the employment contract.

Id.   After considering the wage scale, the plaintiff's periodic

pay increases, the parties' relationship, the course of

negotiations and the plaintiff's insistence upon employment

security, the court found "the purpose of the phrase . . . was to

grant plaintiff the tenure he desired."      Id.

          We, like the district court, believe that Crabtree is
distinguishable.     In Crabtree each of the two signed payroll

cards contained all but one of the essential terms of the

employment contract and the terms embodied in the payroll cards

exactly matched the terms in the unsigned office memorandum.0 We

do not have such specific and unequivocal evidence here.        The

0
 This is also true of the facts in illustration five to section
132 of the Restatement.


                                  11
signed documents we have are a Department of Justice Employment

Eligibility Form I-9 ("Form I-9"), canceled payroll checks and

canceled health insurance reimbursement checks.   They do not

describe Lindsey's job or her work hours, and none of them

"clearly indicate that they relate to the same transaction."

Restatement (Second) of Contracts § 132.   Form I-9 is dated

February 6, 1990 and is signed by Lindsey and Robert Cook,

Zeccola's bookkeeper.   It provides no employment terms but simply

verifies Lindsey's eligibility to work in the United States.     It

contains no reference to any of the other documents and does not

even show that Lindsey was employed by Zeccola.

          The weekly payroll checks starting February 8, 1990 and

ending May 17, 1990 are signed by Michael or Lawrence Zeccola and

show Lindsey received a net pay of $481.84 per week.   The

corresponding pay stubs show a weekly gross pay of $647.00.

Lindsey's weekly gross or net pay, multiplied by the seventy-

eight weeks that make up an eighteen month term, does not match

any of the three salary figures Zeccola offered her in the two

written proposals.0   The pay checks and stubs show that Lindsey

worked for Zeccola from February to May 1990 but they do not show

her position, hours or term of employment.0
0
 The documents at issue purportedly offer salaries of $31,200.00,
$50,400.00 and $52,500.00. Lindsey's weekly net pay of $481.84
multiplied by seventy-eight weeks equals $37,583.52. Her gross
pay of $647.00 multiplied by seventy-eight weeks equals
$50,466.00. While some of the numbers are close, neither
Lindsey's gross pay nor her net weekly pay match any of the
proposed salaries Zeccola offered her.
0
 One of the pay stubs appears to show the number "40.00" under
the area marked "Date." This number could relate to forty hours
per week, but the reproduction is poor and we are unable to tell


                                12
            The two checks Michael Zeccola made payable to Lindsey

to reimburse health insurance premiums which Lindsey had advanced

pose the same problem as the payroll checks.     Lindsey says they

show the parties' performance was in accord with the provision

for health insurance in the second written proposal Zeccola

offered her, but the amounts of these checks, $886.40 and

$289.26, are not shown to have any relation to the $9,000.00

figure opposite the notation "insurance."     App. at 2.   Neither

the checks nor the insurance premium notices show Lindsey's

position, hours, salary or duration of employment.

            Accordingly, Lindsey's argument that these checks, read

together with the two written proposals, disclose all the

essential terms of her contract fails.     They do not show Lindsey

had a position whose hours, fringes, or salary coincided with any

of Zeccola's offers.     They do not help us tell which of the three

proposals memorializes the essential terms of the employment

contract the parties finally agreed upon.

            Lindsey argues, however, that the only real dispute in

this case concerns the length of the employment contract and that

the eighteen month term is evidenced in writing by the statement

"calculated on 18 month's" which heads both columns of the second

proposal.   App. at 2.    Unless this statement clearly and

explicitly identifies the length of employment as eighteen

months, Delaware's presumption in favor of employment at-will

what the "40.00" represents. This notation on the stubs does not
correspond to her testimony that she worked approximately 34-36
hours per week. Even if it could be interpreted to indicate her
hours per week, our conclusion would not be changed.


                                  13
comes into play to defeat Lindsey's claim.    "Delaware Courts will

not hold an employment relationship to be anything but at-will

absent clear and explicit terms providing otherwise."    Mann v.

Cargill Poultry, Inc., No. 88C-AU37, 1990 Del. Super. LEXIS 225,

at *22 (June 13, 1990), aff'd, 584 A.2d 1228 (Del. 1990); see

Merrill v. Crothall-American, Inc., 606 A.2d 96, 102 (Del. 1992)

("[Delaware] law provides a heavy presumption that a contract for

employment, unless otherwise expressly stated, is at-will in

nature, with duration indefinite.") (citation omitted).

           With this presumption in mind, we consider the

statement "calculated on 18 month's."    We note it is underlined

and appears near the top of the page; directly beneath it are two

columns, one beginning "salary (2,800 per mo) 50,400" and the

other beginning "Susan," and underneath that "(2,916 per mo)

52,500."   App. at 2.   Zeccola asserts that the statement merely

explains how the calculations of earnings were done.    Lindsey

admitted that the eighteen month period involved in the

calculations was based on the time the parties estimated that it

would take to sell-out the Hampton Pointe project.     We believe

the calculations could likewise imply either that the contract

was for eighteen months, as Lindsey argues, or, as Zeccola

contends, that the parties were using the time it ultimately

would take to sell out the Hampton Pointe project in order to

predict total wages during a sell-out phase whose future duration

was not fixed or known.   Zeccola's interpretation of the proposal

as no more than a calculation based on the estimated period of

the sell-out phase is supported by the proposal's estimate that

                                 14
Lindsey would also earn commissions from the sale of "18 homes."

Id.   At best, the statement "calculated on 18 month's" could mean

either that the salary was calculated based on an estimated, but

yet unknown, eighteen month sell-out phase or that it is an offer

of employment for eighteen months.0   Thus, it is ambiguous and we

believe such ambiguity in the written description of the parties'

agreement on a term is fatal to Lindsey's case because of

Delaware's "heavy presumption" in favor of employment at-will.

          To establish an agreed upon eighteen month term of

employment, Lindsey is wholly dependent on an ambiguous written

statement whose interpretation is in turn dependent on the

resolution of a conflict in oral testimony.   In Delaware all the

provisions of an employment contract must be clearly expressed in

writing to create an employment agreement that is not one for

employment at-will.   Crabtree was decided under New York law and

it is not controlling because Delaware's general adherence to

Restatement principles is modified by a strong presumption in

favor of employment at-will which affects Lindsey's case.    We do

not believe the notation "calculated on 18 month's" refers to the

length of Lindsey's employment with the clarity we believe is

needed to avoid Delaware's presumption in favor of construing

employment contracts as contracts for employment at-will.

          Lindsey also argues that partial performance of her

contract with Zeccola brings it within the statute of frauds'


0
 There is no evidence suggesting that Lindsey would continue to
be employed by Zeccola after all the Hampton Pointe homes were
sold.


                                15
exception for contracts evidenced by part performance.    In

rejecting Lindsey's part performance argument the district court

distinguished Quillen v. Sayers, 482 A.2d 744 (Del. 1984).

Lindsey argues that the district court erred in drawing that

distinction.   In Quillen the Delaware Supreme Court recognized "a

well settled general exception to . . . the statute of frauds

[which] exists when there is evidence of actual part performance

of an oral agreement" and applied the exception to an oral

agreement concerning a mortgage foreclosure.    Id. at 747

(citations omitted).    The district court distinguished Quillen

because Quillen enforced an oral agreement between a buyer and

seller of land.   It concluded that the statute of frauds'

exception for part performance of contracts does not extend to

employment contracts.    Lindsey, slip op. at 9 (citing Hull v.

Brandywine Fibre Prods. Co., 121 F. Supp. 108, 114 (D. Del.

1954)) ("It is . . . uncontroverted that partial performance of

services under an oral contract not to be performed within a year

does not remove the contract from the operation of the Statute of

Frauds so as to affect the portion of services not performed.").

          In Hull the plaintiff alleged his former employer
breached an oral employment agreement for a five year term by

terminating plaintiff after three years.    Plaintiff argued the

statute of frauds did not apply because plaintiff had partially

performed the contract when he worked for three of the five

years.   Hull, 121 F. Supp. at 114.   The argument rejected in Hull

illustrates the difficulty of applying the partial performance

exception to determine whether an employment contract falls

                                 16
within the statute of frauds.   "'The act relied on as part

performance should be such as would not have been done

independent of [the] contract or agreement . . . because as you

are from the act performed to infer a contract, it must therefore

be an act of that description, which will not admit any other

inference.'"   Durand v. Snedeker, 177 A.2d 649, 653 (Del. Ch.

1962) (quoting Houston v. Townsend, 1 Del. Ch. 416 (1833), aff'd,

1 Harr. 532 (1835)).   When the duration of an employment contract

is not specified in writing, the partial performance exception

assumes the fact at issue and allows any employee who claims an

oral employment contract for a term in excess of one year to

avoid the statute of frauds without written proof of the

contract's duration.   This is precisely what the statute of

frauds' provision requiring a writing before employment contracts

in excess of one year will be enforced is intended to prevent:
          [T]o allow the fact that an employee worked
          and was paid for part of that year to act as
          such a bar [to application of the statute of
          frauds] would make the relevant provision of
          the statute of frauds totally meaningless.
          Any contract where the employee had started
          work and received a paycheck would be
          protected from the application of the
          statute. . . . A check stub or even a signed
          paycheck indicates nothing except what a
          particular employee has been paid for a
          particular period. It does not act as a
          contract to pay the employee the same amount
          for even the next pay period, much less for
          an entire year. . . .




                                17
Lessman v. Universal Spray Applications, Inc., 690 F. Supp. 679,

681 (N.D. Ill. 1988) (quoting Mapes v. Kalva Corp., 386 N.E.2d

148 (Ill. App. Ct. 1979)).

          Lindsey, in arguing that the district court should not

have distinguished Quillen, refers us to other Delaware cases

applying the partial performance exception to disputes between

buyers and sellers of real estate that do not involve their

contracts of sale.   She cites Nepa v. Marta, 348 A.2d 182, 185

(Del. 1975).   In Nepa the Delaware Supreme Court considered

whether a real estate broker was entitled to a sales commission

and rejected the defendant's statute of frauds defense by

applying the statute's exception for partial performance and

alternately relying on a determination that "the terms of any

such agreement could be performed within a year."   Nepa, 348 A.2d

at 185.   Nepa concerns contracts to pay a real estate broker a

commission.    It does not concern Delaware's statute of frauds

relating to employment contracts.

          Lindsey also relies on John Julian Const. Co. v.

Monarch Builders, Inc., 306 A.2d 29 (Del. Super. Ct. 1973), aff'd
on other grounds, 324 A.2d 208 (Del. 1974).   It too did not deal

with the statute of frauds covering employment contracts.    In

Monarch a judgment creditor sought payment from stockholders who

had succeeded to the assets of a dissolved debtor corporation.

The Delaware Superior Court held the statute of frauds did not

prevent the plaintiff from seeking payment on the stockholders'

oral promise that they would assume the debtor's liabilities,

because "it clearly appears that the assumption of liability--if

                                 18
it in fact included the liability to [the plaintiff]--has been

partially performed."    Id. at 34.

            Delaware does not apply the partial performance

exception to employment contracts with a fixed duration of over

one year.    Enforcement of oral service contracts for a specified

period exceeding one year is precluded by the statute of frauds,

even if it is possible to perform them within one year.     See

Guyer v. Haveg Corp., 205 A.2d 176, 181 (Del Super. Ct. 1964)

(citing Hull), aff'd, 211 A.2d ___ (Del. 1965).    Lindsey's

argument that her partial performance permits oral proof an

eighteen month contract of employment despite the statute of

frauds fails.

            Moreover, even if the partial performance exception

were to apply to oral contracts of employment, Lindsey's argument

would still founder against Delaware's already discussed heavy

presumption in favor of employment at-will.    As we have

demonstrated, that presumption requires Lindsey to present clear

and convincing evidence of all the essential terms of the

eighteen month employment contract she is trying to enforce.      See

Durand, 177 A.2d at 652.   Both state and federal courts applying

Delaware law continue to follow Hull and so will we.    See, e.g.,

Behr Salyard & Partners, L.P. v. Leach, 1992 U.S. Dist. LEXIS

9584, *32 (E.D. Pa. July 13, 1992) (no partial performance

exception to statute of limitations in case involving purported

ten-year contract to form leveraged buyout fund under Hull).      We

reject Lindsey's arguments and will affirm the part of the



                                 19
district court's order granting summary judgment against her on

her claim that Zeccola breached her employment contract.0




0
 Lindsey argues Zeccola admitted that a contract existed in
depositions and in the course of their negotiations over her
employment. She contends these admissions, coupled with the
terms of employment shown by the documents she produced, are an
adequate substitute for the written memorandum required by the
statute of frauds. This argument is made for the first time on
appeal. Therefore, we will not address it at this time. Frank
v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir. 1990). Moreover,
Lindsey gives no citations to the record showing the alleged
admission(s). Zeccola denies he made them.


                               20
              IV.   The Statute of Limitations Issue

          Lindsey also claims a sales commission from Zeccola for

a home she arranged to sell while working for him.0     The district

court also entered summary judgment against her on this claim,

concluding it was barred by a one year statute of limitations.

Lindsey contends the district court should have applied a three

year statute of limitations.   We agree with Lindsey.

          The relevant three year statute of limitations

provides, in relevant part:
          § 8106. Actions subject to 3 year
                   limitation.

               No action . . . based on a promise . . .
          shall be brought after the expiration of 3
          years from the accruing of the cause of such
          action . . . .



Del. Code Ann. tit. 10, § 8106 (1975).   The relevant one-year

statute of limitations provides:
          § 8111. Work, labor or personal services.

               No action for recovery upon a claim for
          wages, salary, or overtime for work, labor or
          personal services performed, or for damages
          (actual, compensatory or punitive, liquidated
          or otherwise), or for interest or penalties
          resulting from the failure to pay any such
          claim, or for any other benefits arising from
          such work, labor or personal services
          performed or in connection with any such

0
 Although the remaining claim is less than $50,000, the district
court retains diversity jurisdiction. When diversity exists at
the time the case is filed, it is not affected by the dismissal
of one of the claims even though the amount recoverable on the
remaining claim is less than the required $50,000. Nationwide
Mut. Fire Ins. Co. v. T & D Cottage Auto Parts & Serv., Inc., 705
F.2d 685, 687 (3d Cir. 1983) (citing Wade v. Rogala, 270 F.2d
280, 285 (3d Cir. 1959)).


                                21
          action, shall be brought after the expiration
          of one year from the accruing of the cause of
          action on which such action is based.



Del. Code Ann. tit. 10, § 8111 (1975).

          In concluding that the one year statute of limitations

applied, the district court stated, "[t]he critical date to focus

upon is the date when the work was performed, not the date when

plaintiff could be paid."   Lindsey, slip op. at 12.   The court

reasoned Lindsey completed her work on May 3, 1990 when she sold

the home and her claim was time-barred under section 8111 because

approximately two years had passed before she filed suit.   We

think the court erred.

          The district court relied principally on dicta in Brown

v. Colonial Chevrolet Co., 249 A.2d 439, 441 (Del. Super. Ct.

1968):
               The one-year statute applies to claims
          based on work or services that have been
          completed, even though the work may have
          originally been undertaken on the strength of
          a promise. Since the services have been
          completed, the action is based upon the
          service performed rather than on the original
          promise. The three-year statute applies to
          claims based on work or services not yet
          completed as to which a promise has been
          made. Since the work remains uncompleted, an
          action with respect to such work is
          necessarily based upon the underlying
          promise.



In Brown, however, the Delaware Superior Court held that the

three year statute of limitations applied.   Brown had sought a

promised year-end bonus for work which had not yet been performed



                                22
because he was terminated before the end of the year.     The court

reasoned "[t]he suit here is for what would have been earned had

the employment continued rather than for something already

earned."   Id.

           In Delaware "the general rule is that a broker may

recover a commission only when he is the procuring cause of a

consummated transaction."     B-H, Inc. v.   "Industrial America,"

Inc., 253 A.2d 209, 213 (Del. 1969); see also Nepa, 348 A.2d at

184.   A broker is not entitled to a commission until the sale

actually takes place.      A.I.C. Ltd. v. Mapco Petroleum Inc., 711

F. Supp. 1230, 1242 (D. Del. 1989), aff'd without opinion, 888

F.2d 1378 (3d Cir. 1989).

           Section 8106 applies to actions based on a promise.

Zeccola allegedly promised to pay Lindsey a commission for any

home that she sold.     It was not certain if or when Lindsey would

be paid because the May 3, 1990 sale agreement was contingent

upon the Guptas' ability to obtain financing.     Lindsey was fired

before the sale was finalized.     Delaware law did not entitle her

to a commission until the settlement took place.     Her right to

payment did not accrue until after her employment was terminated.

A real estate broker's duties in connection with a sale do not

end with the signing of the sales agreement, but often continue

until, and sometimes after, settlement.

           We believe Delaware case law supports application of

the three year statute of limitations to Lindsey's claim for a

commission.      In Nepa the Delaware Supreme Court applied the three
year statute of limitations to an action for a broker's


                                   23
commission.    Nepa, 348 A.2d at 184.    Zeccola's attempt to

distinguish Nepa on the ground that it involved an independent

broker rather than an employee does not persuade us.       Lindsey is

not suing for back wages.    She, like the broker in Nepa, is suing

for a commission.   Her receipt of a weekly salary is not

dispositive on the issue of which statute of limitations applies

to her demand that her employer perform its promise to pay her

commission on sales she procured after the sales were later

consummated.   If it were, we would have to treat Lindsey's right

to the commission she was promised as a part of her weekly wage.

We do not think it was.

          As the district court recognized in an earlier case,

there may sometimes be an overlap between the two statutes:
          There is seeming overlapping of [sections
          8106 and 8111] because nearly every claim for
          wages is based upon an underlying promise,
          express or implied, to pay the wages. The
          two sections have been reconciled by the
          Supreme Court of Delaware in Goldman v.
          Braunstein's, 240 A.2d 577 (Del. Supr. 1968).
          There the court distinguished between an
          action for wages for services already
          performed to which section 8111 is relevant,
          and an action based on a contract for its
          breach prior to performance for which section
          8106 is controlling. This distinction
          between the coverage of sections 8106 and
          8111 is clearly explained by Judge Stiftel in
          Brown v. Colonial Chevrolet, 249 A.2d 439,
          441 (Del. Super. 1968).



Wilmington Housing Auth. v. Rocky Marciano Constr. Co., 407

F. Supp. 228, 232 (D. Del. 1976).       The Delaware Supreme Court has

concluded that any doubt as to which statute of limitations



                                 24
applies should be resolved in favor of the longer period.      Sonne

v. Sacks, 314 A.2d 194, 196 (Del. 1973).    Thus, we believe

Delaware case law also indicates, on the record now before us,

that the three year statute should be applied to Lindsey's claim

for a commission.

          Brown itself is consistent with the Delaware Supreme

Court's conclusion that section 8111 applies "to claims arising

out of services [already] performed," while section 8106 applies

to claims arising or ripening after the employment ended. Goldman

v. Braunstein's, Inc., 240 A.2d 577, 578 (Del. 1968) (suit for

breach of employment contract for damages for future services

subject to three year statute of limitations); see also Advocat

v. Nexus Indus., Inc., 497 F. Supp. 328, 334 (D. Del. 1980)

(three year statute of limitations applied to action for fraud

and negligent misrepresentation regarding alleged promises made

by employer for future pension benefits).   Applying the three

year statute of limitations, the court in Goldman reasoned "any

recoverable loss . . . arose upon or after termination of the

employer-employee relationship."    Goldman, 240 A.2d at 578. Both

Goldman and Advocat involved an employer/employee relationship.
Nevertheless, because their claims were for promises of future

payments, they fell within section 8106 rather than 8111.

          Still other cases on future payments consistently hold

that section 8106 applies to actions seeking payment for services

by a licensed broker, attorney or other independent contractor.

Compare Devex Corp. v. General Motors Corp., 579 F. Supp. 690,
702 (D. Del. 1984) (attorneys fees), aff'd without opinion, 746


                               25
F.2d 1466 (3d Cir. 1984); cf. Nepa, 348 A.2d at 184 (applying

three year statute of limitations in action seeking broker's

commission) with Sorensen v. The Overland Corp., 142 F. Supp.

354, 360 (D. Del. 1956) (right to indemnity was benefit of

employment as officer or director of corporation, therefore one

year statute applied), aff'd, 242 F.2d 70 (3d Cir. 1957).0

          Considering the Delaware Supreme Court's instruction

that courts sitting in that state should apply the longest

statute of limitations in case of doubt, we think Lindsey's

claim, like those of independent contractors who are normally

paid after their services are rendered, falls under section 8106

rather than section 8111.   Accordingly, we hold Lindsey's

commission claim is not time-barred and we will reverse the part

of the district court's order granting summary judgment against

Lindsey's claim for a sales commission and remand for further

proceedings.0

0
 We are not unmindful of the district court's statement in Aero
Serv. Corp. v. E. S. Gordy, 109 A.2d 393, 394 (Del. Super. Ct.
1954) that "[t]he very language of [section 8111] demonstrates
that it has reference to the claims of servants, or members of
the laboring classes and salaried employees," as opposed to
independent contractors whose fees normally do not arise a week
at a time but rather when their work is completed. Id. (applying
three year statute of limitation to action for payment of
services of independent contractor). We do not believe, however,
the distinction between a promise to pay an independent
contractor for services and a promise to pay an employee a
commission in addition to the employee's regularly accruing wages
is controlling.
0
 Lindsey also argues section 8111 is tolled because Zeccola
actively concealed her entitlement to a commission. This
argument is also presented for the first time on appeal. In any
event, we need not consider it because of our conclusion that the
three year statute of limitation applies and Lindsey's claim for
a commission was therefore timely filed.


                                26
                         V.   Conclusion

          We will affirm the part of the district court's order

that granted summary judgment to Zeccola on Lindsey's claims for

breach of an eighteen month employment contract, wrongful

discharge and emotional distress.    We will reverse that part of

the district court's order granting Zeccola summary judgment on

Lindsey's claim for a sales commission and remand the case for

further proceedings consistent with this opinion.




                                27
Susan R. Lindsey v. M.A. Zeccola & Sons, Incorporated, a Delaware

Corporation; M.A. Zeccola

No. 93-7426

BECKER, Circuit Judge, concurring and dissenting.

             I join in Part IV of the opinion of the court. However,

I dissent from Part III for two reasons.    First, I believe that

the majority has construed the requirements of Delaware's statute

of frauds much too rigorously; a memorandum need not be as

complete, precise and detailed as the majority suggests to

satisfy the statute.    Second, the majority has compounded this

error by conflating with the statute of frauds Delaware's strict

jurisprudence on employment-at-will unnecessarily raising the

barrier to suit even higher.

             I agree with appellants that the statute of frauds is

fully satisfied here by the contract proposal written in

Zeccola's longhand and by the other written documents.     All that

the statute of frauds requires is that the writings reasonably

identify the subject matter of the contract.    Restatement Second

of Contracts, § 131(a) (1981) (quoted by majority typescript at

7-8).   The writing need not set out all the details of the

contract; only the "essential terms" of unperformed promises must

be stated.    Restatement (Second), § 131(c) (quoted by majority,
typescript at 7-8).    Exhibit "B2," written in Zeccola's own hand,

sets out all the unperformed promises of the defendants: an 18-

month term of employment, a salary of roughly $647.00 per week,




                                  28
health insurance, and the payment of commissions.0   Although

Exhibit B2 was not signed by Zeccola, signed payroll cards, as in

the Restatement example, see majority typescript at 9, referred

to the same agreement as Exhibit B2, evidenced by the fact that

they contained essentially the same terms.0   Thus, the signatures

on the payroll cards apply to Exhibit B2 which contained the

essential 18 month term of employment.

          In short, the purpose of the statute of frauds is to

require objective evidence of a contract in order to prevent and

avoid fraud so that parties and witnesses cannot just make up

claims out of whole cloth.    See Quillen v. Sayers, 482 A.2d 744,

747 (Del. Supr. 1984).    The statutory purpose was satisfied here.

The statute does not require a comprehensive memorial.   The

remaining details may be fleshed out (and would have been here)

by the testimony and by documents other than those signed by the

"party sought to be charged."   Only at that point does Delaware's

presumption in favor of employment at will become relevant in

evaluating whether, based on all of the evidence, defendant

breached the agreement.




0
 The law does not require writings on points not in dispute.
Restatement (Second), § 131(c).
0
 The differences in pay between the payroll cards and exhibit B2,
see majority opinion at 11-12, were so insignificant that they do
not cast doubt on the conclusion that the writings referred to
the same agreement.


                                 29
