The opinion of the court was delivered by: J. CURTIS JOYNER
This Motion for Judgment on the Pleadings is brought by Defendants Atwork Corporation and Kate Nell against Plaintiff, James Rogers. For the reasons that follow, the Motion is DENIED.
In June, 1993, Rogers, a Pennsylvania citizen, applied for a position as a sales consultant with Atwork, a Massachusetts corporation with a branch office in Pennsylvania. Nell, a Massachusetts citizen, is Atwork's Regional Sales Manager. In August, 1993, Nell traveled to Philadelphia to interview Rogers, at which time she allegedly told him that he would not be hired because he was too old. Rogers was 47 at the time.
In this Motion, Defendants seek Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c). This rule gives District Courts the power to enter judgment based solely on the pleadings. In order to grant a motion for judgment on the pleadings, it must be apparent that there are no issues of material fact and that only questions of law exist. Britamco Underwriters v. CJH Inc., 845 F. Supp. 1090, 1092 (E.D. Pa. 1994); Cardio-Medical Assoc. v. Crozer-Chester Medical Ctr., 536 F. Supp. 1065 (E.D. Pa. 1982); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1367 at 509-10 (1990). When a party raises matters that could have been raised in a 12(b) motion, a court may treat the motion as if it were a 12(b) motion. So, for example, "if a party raises an issue of subject matter jurisdiction on his motion for a judgment on the pleadings, the court will treat the motion as if it had been brought under Rule 12(b)(1)."
Wright & Miller, supra, § 1367 at 516.
Defendants assert three separate grounds to support their Motion. First, they assert that Rogers has not fulfilled his jurisdictional prerequisites under the ADEA because he has not filed his claim with the Pennsylvania Human Relations Commission (PHRC), as required under § 633(b) of the ADEA. Second, they assert that this Court does not have personal jurisdiction over Nell. Third, they assert that Nell has no liability under the ADEA in her individual capacity, but only in an official capacity. We address the last two contentions first.
A. Personal Jurisdiction over Nell
There are two types of personal jurisdiction. First is specific jurisdiction, which is based on whether a defendant "purposefully established minimum contacts within the forum state, . . . . such that it could reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 476, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985); (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)); Violanti v. Emery Worldwide A-CF Co., 847 F. Supp. 1251, 1255 (M.D. Pa. 1994). Second is general jurisdiction, which exists when "'there are sufficient contacts to justify an assertion of "personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum"'" Violanti, 847 F. Supp. at 1255 (quoting Covenant Bank for Sav. v. Cohen, 806 F. Supp. 52, 55 (D.N.J. 1992) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984))).
B. Individual Liability under the ADEA
Defendants allege that the claims against Nell must be dismissed because employees or agents of a violating employer cannot be sued in their individual capacity under the ADEA. Violanti, 847 F. Supp. at 1236; Crawford v. West Jersey Health Sys., 847 F. Supp. 1232, 1237 (D.N.J. 1994).
We note that there is a split among district courts concerning this issue. Violanti, 847 F. Supp. at 1236. We do not need to address this split, however, because we find that Nell is not being sued in her individual capacity.
The Complaint does not specifically state that Nell is being sued individually. It refers to her as an agent of Atwork (Complaint PP 8, 15), and all references to her are within the context of her position as Regional Sales Manager for Atwork. Complaint PP 17-20, 22-26. Moreover, in Plaintiff's Brief, Rogers argues that Nell is being sued in her official capacity.
The Brief states, "the Complaint alleges that defendant Nell was the ...