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McGOVERN v. JACK D'S

February 3, 2004.

JENNIFER LYNN McGOVERN, Plaintiff,
v.
JACK D'S, INC., t/a JACK D'S RESTAURANT AND BANQUET HALL AND THE BACKDOOR BAR AND NIGHTCLUB; and GIACOMO DiMAIO AND LESLIE DiMAIO, husband and wife, Defendants



The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge

MEMORANDUM AND ORDER

Plaintiff has filed a complaint with this court against Defendants Jack D's, Inc., ("Jack D's") and Giacomo and Leslie DiMaio ("the DiMaios"), individually, for sexual harassment (Count I), sexual discrimination (Count II), wrongful termination (Count III), intentional infliction of emotional distress (Count IV), negligence (Count V), and employment discrimination under the Pennsylvania Human Relations Act (PHRA) (Count VI). Before us now is Defendants' Motion to Dismiss all claims against the DiMaios, individually, and Counts III, IV, V, and VI against Jack D's, and Defendants' Motion to Strike Plaintiff's demand for a jury trial on her PHRA claim. For the reasons stated below we grant Defendants' Motion to Dismiss in part and deny it in part, and deny Defendants' Motion to Strike as moot.

I. Statement of Facts

  Plaintiff has alleged the following facts. On or about January 1, 2003, Plaintiff began Page 2 working as a waitress at Jack D's, a restaurant and bar located in Hamburg, Pennsylvania. Jack D's is owned by Jack and Leslie DiMaio. From the outset of her employment at Jack D's, Plaintiff was subjected to sexual comments, innuendos, and groping by two male co-workers, Gaspare DiMarco and Corey Cummings. Although Plaintiff repeatedly complained to them about the conduct of her co-workers, the DiMaios did not investigate the matter or take any sort of disciplinary action against DiMarco or Cummings. The harassment continued and on February 12, 2003, DiMarco forced Plaintiff into a dark area of the bar and raped her. Plaintiff reported the incident to the DiMaios and police, whereupon Mr. DiMaio called Plaintiff a "liar" and terminated her employment.

  II. Standard of Review

  Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a claim in whole or in part "for failure to state a claim upon which relief can be granted." In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all the allegations set forth in the complaint and must draw all reasonable inferences in favor of plaintiff's. See Ford v. Schering — Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998). Dismissal is proper only if plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Id.

  III. Discussion

 A. Defendants' Motion to Dismiss the DiMaios in their Individual Capacities

  Defendants argue that Plaintiff's complaint against the DiMaios individually should be dismissed because piercing the corporate veil of Jack D's is not warranted. The issue of whether a corporate veil may be pierced is a matter of state law. See Star Creations Investment Co., Ltd. v. Alan Amron Development, Inc., 1995 U.S. Dist. LEXIS 11967, *34 (E.D. Pa. 1995). In Page 3 Pennsylvania, there is no specific test for determining whether the corporate veil may be pierced. Plastipak Packaging, Inc. v. DePasquale, 75 Fed. Appx. 86, 88 (3d Cir. 2003), citing First Realvest, Inc. v. Avery Builders, Inc., 410 Pa. Super. 572, 600 A.2d 601, 604 (Pa. Super. 1991). Rather, the courts employ a "totality of the circumstances test." Plastipak, 75 Fed. Appx. at 88. Using this test, Pennsylvania courts have generally been willing to pierce the corporate veil "whenever necessary to prevent injustice." Id., citing Rinck v. Rinck, 363 Pa. Super. 593, 526 A.2d 1221, 1223 (Pa. Super. 1987). Such a broad standard has invited the consideration of a variety of factors and theories when determining whether to pierce the corporate veil. As we understand her complaint, the principle theories which Plaintiff apparently relies on here are the equitable doctrine of piercing the corporate veil, the participation theory, and/or the "alter ego" theory.

  Plaintiff argues that we should disregard the corporate entity in this case because it was used to "defeat public convenience, justify wrong either to third parties dealing with the corporation, or internally or between shareholders (derivative suits), perpetrate fraud or similar reprehensible conduct." Sam's v. Redevelopment Authority of New Kensington, 431 Pa. 240, 244, 244 A.2d 779, 781 (Pa. 1968). This is essentially the equitable doctrine of piercing the corporate veil, which is invoked "to prevent the perpetration of wrong; to prevent its use as a shield for illegal and wrongful conduct; or where its use, as a technical device, brings about injustice or an inequitable solution so that justice and public policy demand it be ignored." Wicks v. Milzoco, 503 Pa. 614, 620-21 (Pa. 1983). However, Plaintiff offers little to support the application of this doctrine to this case, merely stating that "[i]n the instant case, there has been both tortious and criminal conduct . . . Even accepting the allegations contained in Plaintiff's Page 4 complaint as true, the existence of tortious and criminal conduct alone is not sufficient grounds for piercing the corporate veil. Pennsylvania courts generally find that "the corporate entity should be upheld unless specific, unusual circumstances call for the application of an exception." Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir. 1967). Moreover, they have imposed limitations on the use of the "equitable doctrine of piercing the corporate veil," declining to apply it "where the rights of innocent parties are involved and the corporation is used for a legal purpose, as otherwise the entire theory of the corporate entity would be made useless." Wicks, 503 Pa. at 620-21. It is not enough, therefore, to allege that illegal or wrongful activities occurred at a corporation. The corporation itself must have been organized for the purpose of perpetrating the wrongs or shielding them when they occur. Plaintiff has not alleged here that Jack D's was created for an illegal purpose or that it exists to act as a shield for wrongful conduct or injustice. Therefore, the equitable doctrine of piercing the corporate veil does not compel us to pierce the corporate veil in this case.

  Although she does not articulate it as such, Plaintiff alternatively, and indirectly, asserts the "participation theory," under which a corporate officer can be held individually liable as an actor for participating in tortious activity. See Wicks, 503 Pa. at 621. The Supreme Court of Pennsylvania has endorsed the following definition of "participation theory":
The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein.
Id. at 621-22, citing 3 A Fletcher, Cyclopedia of the Law of Private Corporations § 1137, p. 207 (perm. ed. rev. 1975). Page 5 It appears from this definition that a corporate officer may only be held individually liable if he or she has taken some sort of affirmative act in furtherance of the alleged tort. Indeed, the court noted that corporate officers may only be held liable for misfeasance, and not "mere nonfeasance." Id. at 622. Accordingly, the Wicks court reasoned that the fact that "a corporate officer should have known the consequences of the liability — creating corporate act . . . is insufficient to create liability." Id. at 622-23. Since the plaintiff in Wicks alleged not only that the corporate officers of a home building company knew of an unreasonable risk, but that knowing this, they still ordered construction to proceed, the court held that such allegations were sufficient to defeat a motion to dismiss. Id. at 623.

  Returning to the case at hand, we find that Plaintiff has failed to allege facts which would show that the DiMaios directed, participated, or cooperated in tortious conduct. Plaintiff has alleged that tortious and criminal conduct occurred, but she has not alleged that the DiMaios were complicit in it. Furthermore, although Plaintiff has alleged that she complained to the DiMaios and that they did nothing in response to investigate or stop the harassment, we believe that this failure to act does not rise to the level of affirmative action required by the court in Wick, and is more akin to nonfeasance than misfeasance. As such, we find that under the facts alleged, the DiMaios could not be held individually liable under the "participation theory."

  Finally, Plaintiff argues that the DiMaios should be held individually liable under the "alter ego" theory. Under the alter ego theory, the court may pierce a corporate veil in order to "prevent fraud, illegality or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from public liability for a crime." Kaplan v. First Options of Chicago. Inc., 19 F.3d 1503, 1521 (3d Cir. 1994). citing Carpenter's Health & Welfare Fund, Page 6 727 F.2d 279, 284 (3d Cir. 1983). A court will only proceed under this theory "if it is also shown that a corporation's affairs and personnel were manipulated to such an extent that it became nothing more than a sham used to disguise the alter ego's use of its assets for his own benefit in fraud of its creditors." Kaplan at 1521. Indicators that a corporation is an alter ego of an individual include:
failure to observe corporate formalities, non — payment of dividends, insolvency of the debtor corporation at the time, siphoning of funds of the corporation by the dominant shareholder, non — functioning of other officers or directors, absence of corporate records, and the fact that the corporation is merely a facade for the operations of the dominant stockholder or stockholders.
Id., citing United States v. Pisani, 646 F.2d 83, 88 (3d Cir. 1981).
  In furtherance of her claim that the DiMaios are alter egos of Jack D's, Plaintiff alleges in her Amended Complaint that
8. The assets of Individual Defendants, Jack DiMaio and Leslie DiMaio, are one and the same as those of corporate Defendant, and the Individual Defendants and Corporate Defendant are alter egos of each other.
9. Corporate Defendant, is so closely affiliated with as to be an alter ego of the Individual Defendants. The actions of one are attributable, in whole or in part to the actions of the other.
Defendants argue that these statements are insufficient to withstand a Motion to Dismiss because they are conclusions of law and thus do not contain facts which could support a claim against the DiMaios. Defendant analogizes the instant case to Lumax Industries v. Mary Carol Aultman, 543 Pa. 38, 669 A.2d 893 Pa. 1995), in which the Pennsylvania Supreme Court held that a demurrer was improperly denied where the plaintiff merely alleged that the individual was the only person involved in the corporation and acted on behalf of herself and used the corporation to unjustly seek protection from the corporate form. Id. at 41. However, as Plaintiff correctly Page 7 points out, Pennsylvania state courts require "fact pleading," which is a higher standard than the "notice pleading" required in federal courts. See Fed.R.Civ.P. 8. In support of this argument, Plaintiff cites a recent case from this court, in which the court denied a motion to dismiss an alter ego claim because "a plaintiff is not required to specifically plead the alter ego theory." Meshkov v. UNUM Provident Corp., 209 F. Supp.2d 459, 461 (E.D. Pa. ...

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