MEMORANDUM OPINION

MATTHEW W. BRANN, District Judge.

I. BACKGROUND:

A. Procedural History

Duoline Technologies, L.P., hereinafter "Duoline", a company that provides products and services to the oil and gas industry, filed a complaint on August 11, 2011 against Polymer Instrumentation and Consulting Services, Ltd., trading and doing business as Polymics, Ltd., hereinafter "Polymics".1 On October 19, 2011, Duoline filed an amended complaint which additionally named Dr. Tim Hsu hereinafter "Dr. Hsu" or "Hsu", the President and CEO of Polymics, as a defendant.2

Duoline and Polymics/Hsu had a seemingly positive working relationship for several years prior to the filing of the complaint. Polymics had been retained by Duoline to produce accessory products for Duoline's use with the manufactured articles it sells to the oil and gas industry. The amended complaint is a three count pleading that alleges breach of contract at both Counts I and II and conversion at Count III for failure to return the molds used to make the accessory products.3 The amended complaint asserts that after Duoline lawfully terminated its contract with Polymics and Hsu, they failed to return the molds used to make the accessory products.

Polymics and Hsu filed an answer and three counterclaims to the complaint on December 5, 2011,4 and subsequently an amended answer and amended counterclaims on June 7, 2012.5 The amended counterclaims also assert three counts. Counterclaim I is a request for declaratory relief declaring that Polymics is the owner of the molds; counterclaim II is a breach of contract claim for profits that Duoline has allegedly failed to pay to Polymics; and counterclaim III is a misrepresentation claim, asserting that Duoline placed an `exceptionally large' order for parts immediately before it terminated the business relationship — this caused Polymics to produce additional molds to fulfill this large, (and unbeknownst to Polymics and Hsu) final order.

Pending now before the Court are the parties cross motions for summary judgment.6 As discussed below, final judgment will be entered in favor of Duoline and against Polymics and Hsu.

II. DISCUSSION:

A. Undisputed Facts

In 2000, Robroy Industries, Inc. and its then wholly-owned subsidiary, Rice Engineering Corporation, began working with Performance Polymers, LLC and Dr. Hsu to develop a thermoplastic high temperature reinforced extrusion liner for use in certain oil and gas industry applications.7 Duoline is the successor in interest by asset transfer and name change to Rice Engineering Corporation.8 Duoline manufacturers fiberglass liners for use in the oil and gas industry.9 Duoline also provides accessory products including "rings" and "flares"10 to connect the liners and the piping.11 These accessory products are used at the end of the liner to prevent corrosive fluids from escaping.12 The rings and flares are placed in the metal pipes to ensure a tight connection at the place where the two liners inside the pipes meet.13

Polymer Instrumentation and Consulting Services, Ltd. is the successor in interest, by way of merger, to Performance Polymers, LLC, and it trades and does business as Polymics, Ltd.14 Polymics develops and manufactures polymers.15 Dr. Hsu is the founder of Polymics, and, as noted above, its president.16 In 2000, attempting its first foray into the oil and gas industry, Duoline (then

Rice Engineering) approached Polymics about developing a thermoplastic high-temperature reinforced extrusion liner.17 On December 13, 2000, the parties entered into their first, of several, agreements as to both confidentiality and development of the materials.18 The parties agree that they jointly contributed to the development of the materials.19

The parties entered into several other confidentiality and development agreements prior to the creation and execution of two agreements at issue here.20 In approximately August 2002, the parties began to develop rings and flares that could be made inexpensively, yet also be compatible with Duoline's existing liners.21 Polymics and Duoline collaborated on making the molds. Specifically,

"Duoline provided Polymics with drawings of each accessory product that contained Duoline's performance specifications for that product; the drawings were marked confidential."23

In October 2003, Duoline, Polymics, Hsu, and a Taiwanese company, Lih Kwang (a third-party vendor that manufactured the parts for Polymics to then sell to Duoline) entered into a confidentiality and development agreement, hereinafter "the 2003 agreement".24 This agreement is the first of two at issue in this case, and because the language is material to the disposition of the instant cross motions for summary judgment, I reproduce the text in its entirety here.

The parties therefore with to expand the existing agreements as follows:

Five years later, the parties entered into another agreement also at issue in this matter. A September 14, 2008 agreement, hereinafter "the 2008 agreement," signed by Dr. Hsu on behalf of Polymics, and a representative of Duoline, critical to the disposition of the instant motion is likewise reproduced verbatim:

On June 28, 2011, Duoline informed Polymics that it was terminating their business relationship.27 Prior to terminating the relationship with Polymics, Duoline was able to purchase molds from other suppliers.28 Because Duoline was able to contact other manufacturers to make its molds prior to terminating business with Polymics, Duoline did not lose any of its customers.29 Additionally, prior to terminating its business relationship with Polymics, Duoline placed a "larger-than-normal" order from Polymics "to create a stockpile of parts while Duoline developed an alternative network that could supply its rings and flares.30

In its termination letter to Polymics, Duoline enclosed a list of items to be returned, including the molds at issue. Polymics refused to return the accessory product molds.31

The molds are currently in Taiwan in the possession of a company called Advanced Polymer Materials, hereinafter "APM".32 APM is owned by Hsu and a man named Henry Shen.33

These are the detailed, material, undisputed facts at issue in this case. Although the Court has engaged in an in depth review of all of the exhibits submitted in support, this rendition of the undisputed facts makes clear that Duoline is the rightful owner of these accessory products molds. As there remains no genuine dispute as to any material fact and the Court concludes, for the reasons set forth below, that Duoline is entitled to judgment as a matter of law, this matter can be appropriately concluded.

B. Standard of Review:

Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."34 Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact.35 The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial.36 Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law.37

In opposing summary judgment, the non-moving party "may not rely merely on allegations or denials in its own pleading; rather its response must ... set out specific facts showing a genuine issue for trial."38 The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial."39 Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion."40 However, the facts and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party.41

Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them.42 Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment."43

C. Analysis:

1. The three breach of contract claims. Plaintiff Duoline's First Count: Breach of Contract (re: the 2003 agreement) against Polymics and Dr. Hsu;44 Plaintiff Duoline's Second Count: Breach of Contract (re: the 2008 agreement) against Polymics; and Counterclaim Plaintiffs' Polymics and Dr Hsu's Second Counterclaim: Breach of Contract

Duoline argues that both the 2003 and the 2008 contracts provide that it owns the molds, as the contract uses the phrase "RICE owned tooling," and the word "tooling" is to be defined to include the molds at issue. Polymics and Hsu counter that Duoline does not own the molds, but only the steel used to make the molds. However, Defendants' argument is not supported by the clear, unequivocal language of the contracts, nor even Hsu's own testimony.

Dr. Hsu testified at his December 17, 2012 deposition that "[t]he definition of tooling in my mind is the cost of the tooling, which is what's contributed by RICE initially, right, so by that I meant the hardware or in the laymen's term, the steel required to make the mold."45 Hsu also testified that he agreed that RICE had the exclusive use to the intellectual property.46 Hsu further testified that "tooling includes molds," mold bases, and mold inserts.47 He also seemed to understand that his assertion that Duoline only owns the steel, but not the molds itself, is not in accordance with the 2003 agreement. He testified that "if you read this aggressively, it doesn't make sense, but if you follow the spirit..."48

"The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties."49 "The intent of the parties to a written agreement is to be regarded as being embodied in the writing itself."50 "When a writing is clear and unequivocal, its meaning must be determined by its contents alone."51

"Only where a contract's language is ambiguous may extrinsic or parol evidence be considered to determine the intent of the parties."52 "A contract contains an ambiguity "if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.""53 "This question, however, is not resolved in a vacuum. Instead, "contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.""54

"In the absence of an ambiguity, the plain meaning of the agreement will be enforced."55 "The meaning of an unambiguous written instrument presents a question of law for resolution by the court."56

In the matter sub judice, the contracts are clear and unequivocal. Duoline owns the tooling and Polymics must return it to Duoline.

Admittedly, the contracts could have been drafted more thoroughly. The parties could have included a definition of "tooling," but did not. Be that as it may, it is clear from the language in the 2003 agreement that tooling includes the molds at issue. Paragraph 2 of the 2003 agreement states "RICE will purchase the initial tooling to make the accessory products."57 Defendants' argument that tooling is narrowly defined as the steel used to make the molds, but not the molds once formed, is not supported by the contract. Even Dr. Hsu acknowledged in his deposition that the term "tooling" includes molds and mold inserts.58

Additionally, it is clear that Duoline, as successor in interest to RICE, owns the tooling. Paragraph 3 of the 2003 agreement uses the term "RICE owned tooling."59 This language makes it clear and unambiguous that RICE owns the tooling. Furthermore, paragraph 6 of the 2003 agreement states that "RICE shall be granted exclusive use of the tooling and intellectual property that is developed to make these accessory products."60

Moreover, it is clear that as the owner of the tooling, Duoline, formerly RICE, now may to choose what is to be done with the tooling, whether it should be destroyed or returned. Paragraph 9 of the 2003 agreement states that "In the event either RICE or PP, LLC terminate this Agreement or the pre-existing development and production relationship, PP, LLC, agrees that the tooling acquired pursuant to this Agreement will either be destroyed or transferred to RICE or RICE's designee..."

Finally, it appears that the Court has the authority to order Polymics to return the molds in accordance with the 2008 agreement between the parties. Paragraph 1 of the 2008 agreement defines confidential information in such a way that it clearly contemplates the tangible molds at issue which were invented jointly by Duoline and Polymics. "As used in this agreement, the "Confidential Information" of Duoline means all information concerning or related to the business, operations, financial condition or prospects of Duoline or any of its affiliates, regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form and regardless of whether such information was previously disclosed or is hereafter disclosed to Vendor, and specifically includes ... (b) all inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how of Duoline and its affiliates... Confidential Information also includes the discussions giving rise to this agreement and the fact that there have been or will be discussions or negotiations concerning a possible business relationship between Duoline and Vendor."61

The 2008 agreement goes on to explain what the parties had intended for the return of tangible property if the business relationship should cease. Paragraph 3 of the agreement states that "If the business relationship between Duoline and Vendor shall cease for any reason then Vendor shall return to Duoline all Confidential Information of Duoline which is in tangible form and which is then in Vendor's possession (or in the possession of any of its affiliates or their respective officers, directors, employees, equity holders, or agents.)"62

The Court is also authorized to order the return of the molds at issue pursuant to paragraph 5 of the agreement between the parties which states, "Accordingly, Vendor agrees that Duoline shall be entitled to an injunction or injunctions to prevent breaches of this agreement and shall have the right to specifically enforce this agreement and the terms and provisions hereof in addition to any other remedy available at law or in equity."63

Accordingly, the Court will rule in Duoline's favor on both of its breach of contract claims. The Court will rule against Polymics and Hsu on their counterclaim that Duoline breached the 2003 agreement pertaining to them.

Polymics and Hsu assert they are owed monies as to the "profits associated with the molding and creation processes that Polymics developed and owns."64 There is simply no contractual language in the 2003 agreement to support this contention. In fact, payments, profits, due dates and the likes are never mentioned in this agreement. Moreover, paragraph 6 of the 2003 agreement states "RICE shall be granted exclusive use of the tooling and intellectual property that is developed to make these accessory products."65 Dr. Hsu testified that RICE was to purchase the initial tooling, and that "we each contribute[d] a cost [of] the initial part."66 There is no evidence to suggest that Polymics is entitled to the profits as to the creation of the molds.67

2. Plaintiff Duoline's Third Count: Conversion against Polymics and Dr. Hsu

Duoline argues that Polymics is liable for conversion. The law relating to conversion is well established in the Commonwealth of Pennsylvania. "A conversion is the deprivation of another's right of property in, or use or possession of, a chattel, or other interference therewith, without the owner's consent and without lawful justification."68 "Conversion may be committed by [u]nreasonably withholding possession from one who has the right to it."69

Here, Polymics and Hsu admitted that they have refused to return the molds.70 The parties further agree that the molds are in Taiwan in the possession of a company (APM) that Hsu co-owns.71 The molds are the property of Duoline. The refusal to return them results in the conversion of the molds by Defendants. Accordingly, Duoline's motion for summary judgment will also be granted as to the conversion count.

3. Counterclaim Plaintiffs' Polymics and Dr. Hsu's First Counterclaim: Declaratory Relief

The request of Polymics and Hsu that declaratory relief be granted in its favor by the Court declaring that the molds belong to them and not Duoline is rejected by the above discussion. Declaratory relief will not be granted in Polymics and Hsu's favor.

4. Counterclaim Plaintiffs' Polymics and Dr Hsu's Third Counterclaim: Misrepresentation

Polymics argues that by placing a large order prior to terminating the business relationship, Duoline misrepresented the continuing nature of the relationship to Polymics. I disagree. In Pennsylvania, "a misrepresentation may be actionable pursuant to three theories: Intentional Misrepresentation, Negligent Misrepresentation, and Innocent Misrepresentation."72 Although Defendants do not assert under which theory they are proceeding, the Court presumes it must be intentional misrepresentation. "The elements of intentional misrepresentation are as follows:(1) A representation;(2) which is material to the transaction at hand;(3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;(4) with the intent of misleading another into relying on it;(5) justifiable reliance on the misrepresentation; and,(6) the resulting injury was proximately caused by the reliance."73

Polymics and Hsu have provided no evidence of a misrepresentation on the part of Duoline. Perhaps Polymics hopes that the Court infers misrepresentation by the fact that Duoline placed a "larger than normal" order for accessory products. However, that, standing alone, is insufficient to state a claim for misrepresentation, let alone for the Court to grant summary judgment in counterclaim Plaintiffs' favor. There is simply no evidence of any sort of false representation by Duoline as to the continuing nature of the parties business relationship.

5. Relief

It is clear that Polymics and Hsu must return the molds to Duoline. Because the parties have not briefed the desired relief and an appropriate timeline within which to return the molds, I will retain jurisdiction and schedule a telephone conference call with the parties to discuss the relief due Duoline.

III. CONCLUSION:

"Rule 56 allows the trial court to grant summary judgment if it determines from its examination of the allegations in the pleadings and any other evidential source available that no genuine issue as to a material fact remains for trial, and that the moving party is entitled to judgment as a matter of law."74 "The purpose of the rule is to eliminate a trial in cases where it is unnecessary and would only cause delay and expense."75 For all of the foregoing reasons, Duoline is entitled to judgment as a matter of law on its claims. Therefore, its Motion for Summary Judgment will be granted in full, Polymics and Hsu's Motion for Summary Judgment will be denied in full, and final judgment will be entered in Plaintiff and counterclaim Defendant Duoline's favor.

An appropriate Order in accordance with this Memorandum will follow.