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Wieczorek v. Dempsey Partners, LLC

United States District Court, Third Circuit

December 16, 2013



THOMAS N. ONEILL, Jr., District Judge.

Before me is a motion for summary judgment by defendants Dempsey Partners, LLC, John Dempsey and Jill Dalton on the claims made by plaintiff Eric Wieczorek in his second amended complaint, plaintiff's response, and defendants' reply. Plaintiff brings a breach of contract and a Pennsylvania Wage Payment and Collection Law claim for defendants' alleged conduct in terminating his employment for cause without basis and for failing to pay severance due to him under his employment agreement. For the reasons that follow, I will deny defendants' motion.


Plaintiff was hired as Manager of Supply Chain Analytics by Dempsey Partners' predecessor entity Dempsey, Myers & Company, LLP on or about March 23, 2007. Dkt. No. 17-1 at ECF pp. 27-28 (Ex. D). His 2007 employment offer letter identified a base salary of $150, 000 per year and included the following provision:

This agreement is not an employment contract and does not provide for a guaranteed term of employment or guaranteed compensation. However it is the intention of the parties to work together for a minimum of three years. In the event of involuntary separation from the company, for any reason other than cause, you will be entitled to severance payments not to exceed six months base salary, payable with normal biweekly. You agree to make every reasonable effort to seek alternative employment during the severance period, and that severance payment will cease upon finding suitable new employment.


In or after March 2009, a new Dempsey partnership was formed and the partners agreed to an operating agreement executed in March 2009 that contained restrictive covenants. Id . at ECF pp. 15:13-22. The partners determined that a condition of employment for all Dempsey employees was the signing of an agreement with the same restrictive covenants. Id . All employees including plaintiff signed the backdated agreement of January 1, 2009 effective as of the same date.[1] Id . at ECF p. 16:20-21. The 2009 Agreement addressed only restrictive covenants regarding confidentiality, the disclosure and assignment of inventions, improvements, non-disparagement and non-solicitation of customers and employees. Dkt. No. 17-1 at ECF pp. 22-25 (Ex. C). It contained this merger clause:

ENTIRE AGREEMENT. This Agreement constitutes the entire understanding among the parties and supersedes all prior agreements among them. No modification, discharge or waiver, in whole or in part, of any of the provisions of this Agreement shall be valued unless in writing and signed by the parties.

Id. ¶ 3. The 2009 Agreement also provided that it was to be governed by and construed in accordance with the laws of the State of Connecticut. Id . ¶ 5. Around the same time, between the end of 2008 and beginning of 2009, plaintiff entered into a verbal agreement with John Dempsey, managing partner of Dempsey Partners, to have his salary raised to $175, 000 per year. Dkt. No. 17-1 at ECF pp. 6:21-7:12. In 2010, he also separately negotiated agreements for extra vacation time with Dempsey and Jill Dalton, a partner at Dempsey's New York office. Id . at ECF p. 6:9-20.

Dempsey testified that he first started to consider firing plaintiff in late 2011 after plaintiff's alleged erratic behavior at an industry conference. Id . at 18:6-24. Dalton testified that she and Dempsey discussed terminating plaintiff because plaintiff did not "follow through" on the instructions they gave him following the conference. Id . at ECF p. 36:11-19. Plaintiff was terminated for cause by Dempsey Partners on or about August 29, 2010. Dkt. No. 20 at ¶ 15.

Plaintiff alleges that defendants falsely terminated him for cause in order to avoid the severance due to him under the 2007 Offer Letter and claims a breach of contract and damages of $87, 000 which is the severance amount of six months of his base salary at the time of termination. Dkt. No. 20 at ¶¶ 18-23. Plaintiff also claims liquidated damages of 25 percent of his total unpaid severance, attorney's fees and costs pursuant to the Pennsylvania Wage Payment and Collection Law, 43 Pa. C.S. §§ 260.1, et seq. Id . at ¶¶ 24-29. Finally, plaintiff claims that Dempsey and Dalton are individually liable under the WPCL because each was a managing partner of the company and each participated in falsely alleging cause for his termination. Id . at ¶ 28. Defendants argue that the operative agreement between the parties does not provide the relief plaintiff seeks and move for summary judgment on all of plaintiff's claims.[2] Dkt. No. 16 at ECF p. 3.


Summary judgment will be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex , 477 U.S. at 322-23. If the movant sustains its burden, the nonmovant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id . A fact is material if it might affect the outcome of the case under governing law. Id.

To establish that a fact cannot be or is genuinely disputed, a party must:

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), ...

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