Arasimowicz in writing that it was terminating his
distributorship as a result of company restructuring. Bestfoods
offered to pay Arasimowicz $30,627.00 in exchange for releasing
all his rights and claims against Bestfoods. (McLeod letter to
Arasimowicz, undated). In a subsequent letter dated July 13,
1999, Bestfoods notified Arasimowicz that, based on "plans to
restructure [Bestfoods'] distribution system in this market
area," effective August 28, 1999, his distributorship would be
terminated. (McLeod letter to Arasimowicz, July 13, 1999). The
letter to Arasimowicz indicated that Harrington and Meyung's
sub-distributorships would also be affected by the termination:
Harrington was offered a position as a non-equity route driver;
Meyung was to be terminated. Arasimowicz rejected the offer.
On August 17, 1999, Plaintiffs filed this action. Plaintiffs
then moved for a preliminary injunction pursuant to Rule 65(a) to
enjoin Defendants from terminating or otherwise adversely
impacting Plaintiffs' distributor rights, which they claimed
arose from the oral discussions made between Arasimowicz and
Kalinger in October 1967.
B. Legal Conclusions
Judge Yanthis based his recommendation on two findings: (1)
that Plaintiffs failed to show irreparable harm and (2) that
Plaintiffs failed to show a likelihood of success on the merits.
I address each of these findings in turn.
(1) Irreparable Harm.
I adopt in toto Judge Yanthis' findings of fact and
conclusion of law that Plaintiffs failed to show irreparable harm
or that a remedy at law is inadequate. (Nov. 9, 1999 R & R at
(2) Likelihood of Success on the Merits
Having affirmed the determination that Plaintiffs have an
adequate remedy at law, I am not required to address whether
Plaintiffs are likely to succeed on the merits. But as Judge
Yanthis spent some time discussing the merits, and because these
issues go to the heart of the case (as well as the remaining
claims in Smith, which I am consolidating with this case), I
address them in turn.
The first issue raised by the objections is whether the copy of
the letter that was contained in the Arasimowicz file at
Bestfoods was properly admitted into evidence by Judge Yanthis. I
find that it was.
a. Evidentiary Issues
Under the "ancient documents" doctrine of the Federal Rules of
Evidence, a document that cannot be authenticated in the usual
ways, e.g. through direct testimony, can nonetheless be admitted
into evidence. See Fed.R.Evid. 901(8). In order to fall under
this exception, the document must meet the following
requirements: "(A) be in such a condition as to create no
suspicion concerning its authenticity, (B) was in a place where
it, if authentic, would likely be, and (C) has been in existence
20 years or more at the time it is offered." Fed.R.Evid. 901(8)
The letter was written on October 5, 1967. The copy produced by
Defendants is a carbon copy of the letter, with the initials
"S.K." in the area where a signature would be on an original.
Jeffrey Adair, the current Regional Sales Manager for the
Northeast Region of Bestfoods baking Company, submitted a sworn
affidavit that the carbon copy was a true and correct copy of the
October 5, 1967 letter and that he had obtained the carbon copy
from Arasimowicz's distributor file, which was kept in his
office. (Adair Aff.) In addition, Stephen Kalinger testified that
he had knowledge of the letter and that it was what it claimed to
be. He specifically stated that the document was "a form letter
that was sent out with some minor changes specific to the case
involved that was used for every new distributor." (Kalinger Dep.
at 13). Kalinger's testimony confirmed the regularity of sending
such letters to new distributors, making carbon ("onion skin")
copies of the letters, and the standard procedure of placing the
carbon copy in each distributor's "permanent file." (Id. at
Plaintiffs offer no evidence that directly contradicts
Kalinger's or Adair's authentication of the letter. Plaintiffs
note that Kalinger signed a sworn affidavit in August 1999, in
which he stated that, when Arasimowicz asked him in 1967 for a
written "franchise" agreement like the one he received from
Pepperidge Farm, Kalinger told Arasimowicz that it was not S.B.
Thomas' policy to do so. In the August 1999 affidavit, Kalinger
went on to say that he had assured Arasimowicz at the time that
"the oral commitment given to him by S.B. Thomas was far stronger
than anything that could be put in writing and that he was
dealing with a company whose integrity and morality was beyond
reproach." (Kalinger Dep. at ¶ 7.) However, this testimony — even
assuming it to be an accurate recollection of events that
occurred 32 years earlier — does not contradict Kalinger's
authentication of the letter.
Arasimowicz claimed he never received the Confirmation Letter,
although he stated at the October 12 evidentiary hearing that it
was "possible" he might have received it. (Tr. Oct. 12, 1999
Hearing at 5) He also testified that he routinely destroys or
discards all records that are over three years old. Thus,
Arasimowicz's own testimony does not controvert the authenticity
of the letter.
Kalinger's testimony, along with Adair's affidavit indicating
that the carbon copy was found in the Arasimowicz file at
Bestfoods, was therefore sufficient to meet the requirements of
the ancient documents doctrine under Rule 901(8). I affirm Judge
Judge Yanthis further found that the letter was admissible into
evidence under the business records exception to the hearsay
rule. See Fed.R.Evid. 803(6). I agree, and note that it is also
admissible under the ancient documents exception to the hearsay
rule. See Fed.R.Evid. 803(16). Although not raised by either
party or discussed by Judge Yanthis, I also note that, given the
fact that the Confirmation Letter was a legally operative
document (see below), once it was authenticated, the copy of the
letter would be admissible as non-hearsay under Rule 801(c).
b. Contract Claim
Judge Yanthis determined that the October 5, 1967 Confirmation
Letter, which is admissible evidence, represented the fully
integrated agreement of the parties. I affirm this finding.
It is well settled at common law that a letter of confirmation
sent to the other party to an oral agreement is deemed to be a
total integration of the terms of the agreement where the other
party makes no response to it and the other party subsequently
performs under the terms. See Calamari & Perillo, Contracts §
3-3. A letter of confirmation may be deemed a partial integration
if it is clear from the letter that the terms are incomplete.
See id. That is not the case here, as the letter was a
comprehensive-and on this record, was the only-statement of the
terms of the relationship between Arasimowicz and Thomas.
As noted above, the Second Circuit addressed the legal effect
of Thomas' Confirmation Letters in Petereit:
A prospective distributor usually began its business
relationship with Thomas by a meeting with a district
or regional sales manager. At such meeting the Thomas
representative would lay out the terms of the
proposed business relationship. In these early
informal years, the distributor would begin
delivering product within days of the meeting; in
some cases, he might have already started
distributing Thomas products in the days immediately
before the meeting. It was [Thomas'] business
practice to have the sales manager send a letter to
the distributor shortly after the meeting or the
commencement of the distributorship to confirm the
terms previously agreed upon. Petereit, 63 F.3d at
The Petereit court noted that "[a]lthough brief, the letters
comprehensively reviewed the important aspects of the
manufacturer-distributor relationship." Id. The Second Circuit
went on to hold that "even if the letters were only partial
articulations of the parties' agreements, the parol evidence rule
would still operate to exclude oral testimony of contract terms
inconsistent with those contained in the writings." Id. at 1177
(citing Connecticut law). Pennsylvania courts interpret the parol
evidence rule in the same way. See LeDonne v. Kessler,
256 Pa. Super. 280, 389 A.2d 1123 (1978).
As in the letter purportedly sent to Arasimowicz, the letters
at issue in Petereit specifically noted that distributor
territory was not permanently assigned: "It is understood that we
do not assign territory on a permanent basis, and our decision to
continue to ship products for your distribution is contingent
upon our satisfaction with this arrangement in the future." Id.
at 1179. This is the exact language of the Confirmation Letter
from Kalinger to Arasimowicz on October 3, 1967.
Under both Pennsylvania and New York law, a letter that is sent
is presumed to be received. See Berkowitz v. Mayflower
Securities, Inc., 455 Pa. 531, 317 A.2d 584, 585 (1974)
(presumption of receipt cannot be rebutted by mere denial); Leon
v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993) (citing Nassau
Insurance Co. v. Murray, 46 N.Y.2d 828, 829-30, 414 N.Y.S.2d 117,
386 N.E.2d 1085 (1978)) (New York presumption). The
Petereit Court concluded, if the plaintiff distributor can be
presumed to have received the letter, and the letter reduced to
writing any understanding that existed between the parties, the
fact that a distributor had carried out his duties in conformity
with the terms of that letter for over thirty years would lead to
the justifiable conclusion that he had accepted its terms. The
Second Circuit noted:
[T]o hold otherwise, the recipient of a writing
confirming the terms of a contemporaneous oral
agreement could escape an unfavorable written
provision that the recipient believes differs from
the oral understanding simply by silence. The
recipient could perform under the agreement and years
later renounce the written terms of the contract to
the surprise of the offeror. Such a rule would
nullify the benefits of reducing an agreement to
written form, and is one we decline to make.
Petereit at 1178.
Arasimowicz's testimony that he did not receive the letter is
irrelevant to this issue. In Petereit, some of the plaintiffs
claimed never to have received the letters. Nevertheless, as to
all plaintiffs for whom Bestfoods produced copies of the letters
from its files, the Second Circuit deemed the letters to have
been sent and received.