1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Lindsey v. M. A. Zeccola & Sons, Inc." (1994). 1994 Decisions. Paper 43.

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1 

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 
2 

____________ 
3 

____________ 

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

 

0Lindsey 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 
4 

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. 

0The 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. 
5 

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. 
6 

 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 

 

0Neither party argues that choice of law principles indicate any 

law other than that of the forum should apply. 
7 

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 

 

0The 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. 
8 

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 
9 

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: 
10 

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 
11 

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 

 

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

132 of the Restatement. 
12 

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 seventyeight 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

 

0The 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. 

0One 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 
13 

 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. 
14 

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 
15 

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' 

 

0There is no evidence suggesting that Lindsey would continue to 

be employed by Zeccola after all the Hampton Pointe homes were 

sold. 
16 

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 
17 

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. . . . 
18 

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 
19 

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 
20 

district court's order granting summary judgment against her on 

her claim that Zeccola breached her employment contract.0

 

0Lindsey 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. 
21 

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 

 

0Although 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)). 
22 

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 
23 

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 
24 

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 
25 

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 
26 

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

 

0We 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. 

0Lindsey 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. 
27 

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. 
28 

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, 
29 

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. 

 

0The law does not require writings on points not in dispute. 

Restatement (Second), § 131(c). 

0The 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.