United States District Court, M.D. Pennsylvania
JOHN W. MORRISON, Plaintiff,
ACCUWEATHER, INC.; BARRY MYERS; and VINCENT McDONALD, Defendants.
MATTHEW W. BRANN, District Judge.
Defendants AccuWeather, Inc. (hereinafter "AccuWeather"), Barry Myers, and Vincent McDonald, filed the instant motion to dismiss Count III of Plaintiff John W. Morrison's amended complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff's amended complaint was filed in response to this Court's disposition of Defendants' previous motion to dismiss, in which the Court dismissed Plaintiff's claim for fraudulent misrepresentation without prejudice for failure to plead in accordance with Rule 9(b) of the Federal Rules of Civil Procedure. Defendants now seek to dismiss this same count on the basis of the gist of the action doctrine, the economic loss doctrine, and the parol evidence rule.
The Court retains diversity jurisdiction pursuant to 28 U.S.C. § 1332. Consequently, Pennsylvania substantive law applies. See, e.g., Erie R. Co. v. Tompkins, 304 U.S. 64, 91-92 (1938). For the following reasons, Defendants' motion to dismiss is denied.
On February 6, 2014, Plaintiff John W. Morrison initiated the above-captioned civil action by filing a Complaint with this Court alleging breach of contract, violations of Pennsylvania's WPCL, fraudulent misrepresentation and negligent misrepresentation.
This case arises from the employment relationship between Plaintiff John Morrison and Defendant AccuWeather, Inc. On or about May 27, 2013, Plaintiff received an unsolicited telephone call from an executive recruiter, Rick Linde, informing Plaintiff of a job opportunity with Defendant AccuWeather, Inc., in State College, Pennsylvania. Plaintiff was then employed as CFO of gen-E, a market-leading information technology company located in California. Plaintiff consequently conducted an interview via Skype with Mr. Linde and subsequently traveled to New York City to meet with him in person.
As a result of these two favorable interviews, Plaintiff took part in an exhaustive interview process with Defendants, including Defendant Vincent McDonald, the Chief Human Resources Officer (hereinafter "CHRO") and Defendant Barry Myers, the Chief Executive Officer (hereinafter "CEO"), for the position of CFO of AccuWeather. This process included several telephone interviews, a few in-person interviews, and a four-hour-long psychological profile questionnaire, all of which spanned the course of several weeks. During one of the telephone interviews with Defendant Myers, Plaintiff pointedly inquired as to Mr. Myers' plans for the future of AccuWeather, specifically the financial prospects of the company and the long-range business plans for AccuWeather. Defendant Myers assured Plaintiff that Defendants' search was for a long-term CFO to replace the current incumbent CFO as an agent to drive change and reform AccuWeather's financial policies and procedures from within the company and to strengthen the company and its position in the competitive marketplace.
Throughout all of the interviews with Defendants McDonald and Myers, both in-person and electronic/telephonic, Plaintiff stated and reiterated that in order to uproot his family in a move to Pennsylvania and to forego his then-existing employment relationship in California, Plaintiff needed security in a promise of long-term employment. Defendants specifically assured Plaintiff that neither Defendants' leadership team nor Defendant AccuWeather's shareholders were considering sale, merger or other corporate transactions that could result in a material change of control of Defendant AccuWeather. Furthermore, Defendants repeatedly provided reassurance that their long-range business plans were consistent with Plaintiff's repeated statements that he would only consider a long-term commitment to his engagement as CFO of Defendant AccuWeather.
On July 30, 2013, Defendants provided Plaintiff with an oral offer of employment for the CFO position at AccuWeather. The oral offer provided for a minimum term of employment of two years, an annual salary of $235, 000 and guaranteed bonuses of $115, 000 for year one and $125, 000 for year two. In addition, the oral employment offer provided for 100, 000 Class B stock options during the first year, to be provided on the first day of employment and 150, 000 Class B stock options during the second year, to be provided on the first anniversary of the employment start date. Moreover, the oral offer included an allowance for out-of-pocket and incidental costs of moving Plaintiff and his family to Pennsylvania and payment for up to four months of temporary housing. Finally, the oral offer provided for payment to Plaintiff if his employment was terminated early due to a corporate change in control.
On July 31, 2013, Plaintiff accepted the offer of employment with the caveat that his base salary would be changed to $250, 000. On August 2, 2013, Plaintiff received a written agreement which Defendants represented reflected the terms of the oral employment offer.
In preparation for his move to Pennsylvania and in reliance on Defendants representations regarding their long-term plans for the company, Plaintiff disposed of substantial and valuable electronic equipment as well as furniture and other property, and he undertook substantial repairs and improvements to his California residence to prepare it for sale or rental.
When Plaintiff began work on September 9, 2013, he discovered that contrary to the repeated representations of Defendants Myers and McDonald, the incumbent CFO was still in a position at AccuWeather in which he was described to Plaintiff as responsible for "special projects." Defendants stated that the former CFO would remain on-site and continue to be located in his executive suite offices, which were still identified as the offices of the CFO, while Plaintiff was assigned to "temporary" office space located in the human resources department. Furthermore, it was not until three days after the commencement of Plaintiff's employment that a memorandum was issued to all AccuWeather employees that formally introduced Plaintiff as the new CFO.
Moreover, Plaintiff came to learn within days of his arrival that he was being excluded from chief executive team meetings and emails. To address this confusion, Plaintiff arranged with Defendants Myers and McDonald to personally meet with all of the chief executives and key divisional executives over the next two weeks to explain his role as CFO and his plans for the position, as well as to learn their plans for their respective areas of responsibility and discuss how they could all work together for the betterment of the company as a whole. Plaintiff communicated the results of these meetings to Defendant Myers, who stated that he appreciated Plaintiff's efforts to address the executives' confusion and concerns regarding Plaintiff's role within the company.
On September 22, 2013, thirteen days after starting the new CFO job at AccuWeather, Defendant Myers called Plaintiff to notify him that he was immediately terminated from his employment as CFO, despite Defendant Myers' agreement that Plaintiff had the skills, knowledge, and expertise to do the job as it was offered to Plaintiff. Defendant Myers stated that he would not reconsider immediate termination because he was concerned that an "executive, " who Defendant Myers would not identify, had expressed concern that Defendants "brought in" Plaintiff because AccuWeather was "being sold." On September 23, 2013, Plaintiff received a written memorandum from Defendant Myers documenting ...