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Atchinson v. Sears

August 17, 2009


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court is the Motion of Plaintiff Gerard W. Atchinson, Sr. ("Atchinson") requesting leave of court to amend his Complaint. Also before the Court is the Motion of Defendants, Sears, Sears Holdings Corporation, Sears Holdings, Sears, Roebuck and Co., and Sears Home Improvement Products (collectively, "Sears"), requesting leave to file a sur-reply in opposition to the Motion to Amend. We will grant Sears's Motion for Leave to File a Sur-reply. Atchinson's Motion to Amend is granted in part, and denied in part.


Atchinson was an employee of Sears for approximately forty years.At some point in or around September, 2007, Atchinson was diagnosed with rheumatoid arthritis. Thereafter, Atchinson applied for and was approved for both short-term disability benefits and for leave pursuant to the Family and Medical Leave Act, 29 U.S.C. § 2601 ("FMLA"), sometime on or about November 8, 2007.*fn1 On November 27, 2007, Atchinson received a letter from Chuck Klinzing, Regional Human Resources Director of Sears, stating that Atchinson's position at Sears had been eliminated, and that his short term disability benefits were being terminated as of November 15, 2007.

On July 11, 2008, Atchinson filed a Complaint against Sears in this Court asserting the following three claims: Count I asserted a claim for violation of ERISA, 29 U.S.C. § 1140; Count II asserted a claim for interference with Atchinson's rights under the FMLA; and Count III asserted a claim for retaliation under the FMLA. After several motions for extensions of time, the deadline for the filing of substantive motions in this case was set for July 24, 2009. During the course of discovery, Atchinson learned through the deposition testimony of two Sears employees that Sears's short-term disability plan was self-funded and was not governed by ERISA.*fn2

Subsequently, on July 1, 2009, Atchinson filed a Motion seeking leave to amend his Complaint. In the Motion to Amend, Atchinson seeks to withdraw his ERISA claim, as well as to add several state law claims that he asserts would have been preempted had he had a viable claim under ERISA. Thus, in addition to the two FMLA claims that were pled in the original Complaint, he seeks leave to add the following claims under Pennsylvania state law: a claim for wrongful discharge (Count III), a claim for wrongful discharge retaliation (Count IV), a breach of contract claim (Count V), and a claim for intentional/negligent infliction of emotional distress (Count VI).

Sears responded to Atchinson's Motion to Amend on July 15, 2009, arguing that Atchinson should have pled the state law claims in the alternative, that Atchinson was to blame for delaying the scheduling of the depositions and that, despite the delay in scheduling the depositions, Atchinson was aware or should have been aware that Sears's short-term disability plan was ERISA exempt as earlyas December 8, 2008, when Sears provided Atchinson with a copy of its Human Resources Policy Manual.


The decision whether to grant or deny a motion to amend rests in the sound discretion of the trial court. Massarsky v. Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). Federal Rule 15(a)(2) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The Third Circuit has identified "undue delay, bad faith, dilatory motive, prejudice, and futility" as factors justifying a court's decision to deny a party leave to amend. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). The Third Circuit has also held that "prejudice to the nonmoving party is the touchstone for denial of an amendment." Cornell & Co. v. Occupational Safety & Health Rev. Comm'n, 573 F.2d 820, 823 (3d Cir. 1978). Thus, while Rule 15(a)(2) contemplates a liberal standard for the amendment of pleadings, a court is justified in denying a motion to amend where these equitable factors weigh against allowing the amendment. Forman v. Davis, 371 U.S. 178, 182 (1962).


Atchinson seeks leave to withdraw the ERISA claim set forth in the original Complaint and to file an Amended Complaint asserting various state law claims that, he asserts, would have been preempted under the ERISA statute. Specifically, Atchinson seeks leave to amend to include claims for wrongful discharge and wrongful discharge retaliation (Counts III and IV), a breach of contract claim (Count V), and a claim for intentional/negligent infliction of emotional distress (Count VI). Sears argues that Atchinson has demonstrated undue delay in moving to amend his Complaint, that the amendments would be futile, and that Sears would be prejudiced by allowance of the amendments. See Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000) (finding courts have discretion to deny a request to amend a complaint if: "(1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party").

A. Claims for Wrongful Discharge and Wrongful Discharge Retaliation

In the absence of an employment contract, employment in Pennsylvania is assumed to be at-will employment, which can be terminated for any reason or no reason at all. McKiernan v. Smith-Edwards-Dunlap Co., No. 95-1175, 1995 WL 311393, at *5 (E.D. Pa. May 17, 1995). Thus, "Pennsylvania law generally does not recognize a common law cause of action for the wrongful discharge of an at-will employee." Blake v. UPMC Passavant Hosp., No. 06-193, 2008 WL 936917, at *10 (W.D. Pa. Apr. 4, 2008) (citing Geary v. U.S. Steel Corp., 319 A.2d 174, 184 (Pa. 1974)). However, an employer's ability to terminate an at-will employee's employment with or without cause may be limited by certain public policy concerns. Shick v. Shirley, 716 A.2d 1231, 1233 (Pa. 1998). "Narrow exceptions have been recognized in circumstances where discharge of an at-will employee threatens or violates a clear mandate of public policy of the Commonwealth." Blake, 2008 WL 936917, at *10. "A 'clear mandate' of public policy must be of a type that 'strikes at the heart of a citizen's social right, duties and responsibilities.'" Id.; Novosel v. Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir. 1983). Nonetheless, these narrow public policy exceptions do not generally apply to situations where statutory remedies are available. Novosel, 721 F.2d at 898.

Atchinson's wrongful discharge claim is premised upon the public policy exception to Pennsylvania's at-will employment rule, the crux of which is that Atchinson was wrongfully discharged and retaliated against for filing for FMLA leave, and that such conduct is a violation of public policy. ...

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