Thomas D. Horne, Judge
Martin C. Conway, Esquire
7926 Jones Branch Drive, Suite 930
McLean, Virginia 22102 Alan L. Briggs, Esquire
1201 Pennsylvania Avenue, NW
Washington, D.C. 20044-0407 Gentlemen:
In this garnishment proceeding, plaintiff seeks recovery of commissions earned as a result of his employment with the defendant, Aeroastro, Inc., as well as interest on such unpaid commissions and costs. The defendant/counterclaimant, Aeroastro, has sought to enjoin plaintiff's employment with Swales Aerospace and/or enforce the covenant against unfair competition contained in his employment contract. The Court finds that the plaintiff is entitled to recover some, but not all, of the commissions claimed and that the request for injunctive relief should be denied.
Plaintiff and the defendant entered into an employment agreement on March 19, 2001. That agreement provided, inter alia, for the plaintiff to receive a base salary of $102,500.00 and commissions on sales on accounts identified in accordance with the terms of the employment contract. This agreement was later amended on June 8, 2004, to expressly provide that commissions would be earned on negotiated contract growth elements on existing accounts. The understanding set forth in the amendment to the employment contract reflected a desire on the defendant to redirect the plaintiff's sales efforts to spend part of his time on sold accounts.
While this amendment to the employment agreement is, of itself, suggestive of an intent not to provide for the payment of the instant commissions on modifications to the STPSat1 contract, the inquiry respecting entitlement to commissions does not end here. The record does not support the conclusion that, as the procuring cause of the account, plaintiff would be entitled to a commission on modifications, including bookings after the termination of his employment. Assuming, without deciding, that the original employment agreement provided for the payment of commissions on modifications to contract line items, the plaintiff has failed to carry his burden of proving such modifications were sales attributable to his efforts and for which he should receive a commission.
Commissions due to the plaintiff represent a percentage of sales bookings on specifically identified accounts, payable when received by Aeroastro. Plaintiff's at-will employment contract with the defendant provided for payment of a base salary of $102,500.00 plus commissions. During the course of his employment with Aeroastro, the plaintiff agreed to a payment plan to accommodate the defendant's shortfall in cash flow. Upon the termination of his employment, the plaintiff was entitled to commissions due in the amount proffered by Aeroastro, that is, $42,143.37 with interest from July 28, 2004.
While the defendant would argue that the plaintiff has breached the covenant against unfair competition contained in his employment agreement, the record belies this fact. Any knowledge that the plaintiff took with him from his employment at Aeroastro and utilized in the service of its competitor was either in the public domain or not used by the plaintiff in his participation in the SAT-SIV project. Absent from the record is evidence that Mr. Muerer violated the terms of his employment agreement with Aeroastro or has infringed or threatened to infringe upon the rights accorded his former employer under the agreement. Accordingly, the record falls far short of justifying judicial intervention in plaintiff's employment with Swales AeroSpace, Inc. even though Swales is in direct competition with Aeroastro on the SAT-SIV project. The evidence is lacking that would undermine the conclusion that Swales AeroSpace, Inc. has, in fact, taken steps to "firewall" the plaintiff from involvement in the SAT-SIV project.
Accordingly, the plaintiff is entitled to recover the sum of $42,143.37 with interest from July 28, 2004, from the defendant. Defendant's motion for injunctive relief is denied.
Mr. Briggs may draw a final Order consistent with this opinion, to which counsel may note their exception.
Very truly yours,
Thomas D. Horne, Judge