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Tisone v. Berardino

United States District Court, W.D. Pennsylvania

December 22, 2016

ANTHONY P. TISONE, Plaintiff,
v.
BILL BERARDINO AND ASCENT AUTOMOTIVE GROUP, LLC, Defendants.

          MEMORANDUM AND ORDER

          Cathy Bissoon, United States District Judge

         I. MEMORANDUM

         Pending before the Court is a motion (Doc. 14) by Defendants Bill Berardino (“Berardino”) and Ascent Automotive Group-TM, L.L.C. (“Ascent”)[1] to dismiss the First Amended Complaint filed by Plaintiff Anthony P. Tisone (“Tisone”). For the reasons that follow, Defendants' motion will be GRANTED in part and DENIED in part.

         A. Factual and Procedural Background

         Tisone held a managerial position at Toyota of Greensburg, a car dealership (at times hereafter, the “dealership”), from 2009 until his termination on February 3, 2016. (First Amended Complaint, “FAC, ” at ¶¶ 4, 14, 17-18, 101.) According to Tisone, the dealership was sold to Ascent, a Texas Limited Liability Company, in October 2011. (Id. at ¶¶ 13, 15.) Despite being employed at Toyota of Greensburg, Tisone maintains that he was always employed by a different entity, which he alternatively identifies as the “Friedkin Group” and/or “Friedkin Companies, Inc.” (hereafter, “Friedkin”). (FAC at ¶¶ 11, 16, 106.) The relationship between Friedkin and Ascent is not spelled out in the FAC, except to the extent Tisone alleges that “Thomas Dan Friedkin is a Director of Ascent.” (Id. at ¶ 103.)

         As of April 2013, the dealership adopted a “Workplace Violence Policy” known as “HR-POL 111.” (FAC at ¶¶ 108-109.) This policy stated, in relevant part, that: “Our Company is committed to providing a safe and secure workplace for all associates and business partners and will not tolerate workplace violence or threats of any kind, whether committed by or against our associates.” (Id. at ¶ 110.) Under the policy, “everyone is responsible for preventing and reporting workplace violence.” (Id. at ¶ 111.) Moreover, “anyone who believes that he or she has encountered or witnessed a threat or act of workplace violence must report the threat or act of workplace violence to the immediate supervisor or manager, Human Resources, Legal Department... [o]r a member of Senior Management.” (Id. at ¶ 112.) Prohibited conduct included “[a]ctions intended to frighten or stalking, ” (see id. at ¶ 113), and “[p]hysical violence such as throwing objects, shoving, pushing, hitting, or kicking.” (Id. at ¶ 114.) The policy applied “at all times” to “all[ ] [a]ssociates, independent contractors, part time, short schedule and temporary workers, vendors and those employed by others who have access to associates...” (Id. at ¶ 118.)

         Tisone claims he was “always instructed that enforcement of the workplace violence policy [was] a critical part of his managerial duties. . . .” (FAC at ¶ 116.) To that end, he had previously been called upon to discipline employees for engaging in workplace violence, consistent with the terms of the policy. (Id. at ¶ 115.)

         In June 2014, Tisone was promoted to General Manager for Toyota of Greensburg. (FAC at ¶¶ 17-18.) Shortly thereafter, Berardino[2] orchestrated a change in the dealership's ad agency. (Id. at ¶ 19.) This change resulted in fewer radio advertisements for Toyota of Greensburg and a drop in its new car sales. (Id. at ¶¶ 21-23.) Tisone made complaints to senior management about this drop off to no avail. (Id. at ¶24.)

         Thereafter, Berardino made regular visits to Toyota of Greenburg. (FAC at ¶ 25.) On almost every occasion, he was verbally abusive to Tisone and other members of the dealership's staff. (Id. at ¶ 26.) At times, Berardino used profanity toward Tisone and Brian Geiger (“Geiger”), the dealership's general sales manager. (Id. at ¶¶ 27-29, 46-47, 50.) On one occasion, he accused Tisone, Geiger, and another staff member of inflating the dealership's sales numbers. (Id. at ¶¶ 30-31.) During a December 14, 2015 meeting, Tisone witnessed Berardino push Geiger against a wall and poke him in the chest after Geiger attempted to leave the meeting. (Id. at ¶¶ 51-52.) Tisone claims that, under the terms of the Workplace Violence Policy, he “had a duty to report Berardino's ongoing and consistent verbal abuse and his physical battery of Geiger.” (Id. at ¶102.)

         Based on “advice from Friedkin management, ” (FAC at ¶ 38), Tisone outlined Berardino's abuses in a letter to Marc Watts (“Watts”), President of the Friedkin Group. (Id. at ¶¶ 38, 40.) Tisone also wrote letters about Berardino's conduct to Ascent's “Financial Officer, ” Chris Hough (“Hough”), and its Chief Operations Officer, Lee Butler (“Butler”). (Id. at ¶ 43.) Thereafter, Hough and Butler had numerous conversations with Tisone and assured him that his letter would get into the right hands. (Id. at ¶¶ 44-45.) They advised Tisone to “hang in there” because Berardino's contract would terminate at the end of December 2015. (Id. at ¶ 48.)

         Following the December 14, 2015 incident, Paige Larrabee (“Larrabee”), a senior lawyer at Friedkin Companies, Inc., contacted Tisone about reports of Berardino's abusive conduct. (FAC at ¶¶ 56-60.) Tisone discussed with Larrabee his firsthand knowledge of Berardino's abusive behavior. (Id. at ¶ 59.) Tisone later learned that the matter had been referred to more senior corporate personnel. (Id. at ¶ 80.) He was also informed by Hough and Butler that Ascent was having a critical board meeting on February 1, 2016, at which time the issues about Berardino's behavior would be addressed. (Id. at ¶ 84.) Butler informed Tisone that the Ascent Board of Directors was fully aware of Berardino's behavior and that the situation should get better. (Id. at ¶ 85.)

         On February 3, 2016, Tisone received a call from L. Alexander McAllister (“McAllister”), Ascent's Chief Financial Officer, and the two made arrangements to meet. (FAC at ¶¶ 92-95, 104.) According to Tisone, “McAllister explained that Ascent had held a board meeting and neither the Board nor Central Atlantic Toyota were pleased with the 2015 Toyota Greensburg store performance and, as a consequence, they had made a decision to terminate [Tisone's] employment.” (Id. at ¶ 96.) Tisone attempted to point out that, under his management, Toyota of Greensburg had become the number one dealership in the entire district for all of 2014 and 2015. (Id. at ¶ 97.) He claims he “told McAllister that the store had received nothing but praise from Toyota Central and from everyone at corporate except Berardino.” (Id. at ¶ 98.) Tisone “pointed out that the Hyundai store, which was less than 1/8 of a mile away, and not under [Tisone's] management, had lost some $700, 000 in one year and the General Manager at that store still retained his employment.” (Id. at ¶ 99.) According to Tisone, neither McAllister nor the human resources representative that accompanied him were willing to discuss these points. (Id. at ¶ 100.) Instead, Tisone was fired. (Id. at ¶ 101.)

         On May 3, 2016, Tisone filed the FAC (Doc. 12), the operative pleading in this case. Therein, Tisone asserted claims against the Defendants for intentional interference with contractual relations (Counts I and II), intentional infliction of emotional distress (Count III), and breach of contract (Count IV). Defendants filed the instant motion (Doc. 14) on May 17, 2016, requesting a dismissal of all claims.

         B. Standard of Review

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When faced with a motion to dismiss, a court “must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). See Henderson v. Borough of Baldwin, No. 15-1011, 2016 WL 5106945, at *2 (W.D. Pa. Sept. 20, 2016).

         C. Scope of Review

         Generally, a district court may not consider matters outside of the complaint when ruling on a Rule 12(b)(6) motion to dismiss. “If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). There is an exception to this rule, however: for Rule 12(b)(6) purposes, courts may consider (i) exhibits that are attached to the complaint; (ii) matters of public record; and, (iii) any undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the document is integral to or explicitly relied upon in the complaint. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

         In arguing the merits of the pending motion, both Defendants and Tisone rely on certain documents outside of the FAC. Certain of these materials are appropriate for consideration under Rule 12(b)(6) and others are not.

         Defendants' “Exhibit 1” consists of the following: (A) a copy of the Fictitious Name Amendment that TM-Greensburg, L.L.C. filed with the Pennsylvania Department of State, indicating its intent to operate under the fictitious name “Toyota of Greensburg” (Doc. 15 at 20-23); (B) a copy of the Texas Franchise Tax Public Information Report that Ascent filed with the Texas Department of State, indicating its one-hundred percent (100%) ownership of TM-Greensburg, L.L.C. (Doc. 15 at 24-26); and (C) a document entitled “TM-Greensburg, L.L.C. Written Consent of the Sole Manager, ” which purports to establish Berardino as President of TM-Greensburg, L.L.C., effective September 1, 2015 (Doc. 15 at 27-29). The first two documents are public records whose content may be judicially noticed and properly considered under Rule 12(b)(6). See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (court may consider matters of public record on a Rule 12(b)(6) motion); Fed.R.Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”). The third document appended to Exhibit 1- i.e., TM-Greensburg, L.L.C.'s “Written Consent of the Sole Manager” -- is not one that has been publicly filed as far as this Court can tell, nor can its contents be judicially noticed. Tisone also disputes the authenticity of this document, at least insofar as the date of its execution is concerned. Although the exhibit is potentially relevant to Tisone's claims, it is not intrinsic to his claims. Accordingly, the Court will not consider Defendants' Exhibit 1-C in disposing of the pending motion.

         Defendants also proffer three additional exhibits numbered 2 through 4. Exhibit 2 is a copy of a letter, ostensibly signed by Tisone on October 1, 2011, wherein he acknowledged and accepted an offer of employment by “TM-Greensburg, L.L.C.” (Doc. 15 at 30-32.) Defendants' Exhibit 3 is a copy of certain policies pertaining to “Employment at Will” and “Workplace Violence.” (Doc. 15 at 33-39.) Defendants' Exhibit 4 consists of documents that Tisone signed in 2009 and 2013 acknowledging and certifying his receipt and understanding of various employment-related policies and procedures. (Doc. 15 at 40-44.)

         For purposes of the pending motion to dismiss, the Court may consider the Workplace Violence Policy, dated April 1, 2013, which is appended as part of Defendants' Exhibit 3. In Count IV of the FAC, Tisone asserts a claim for breach of an implied employment contract based on the contents of the Workplace Violence Policy. His theory is that the policy constitutes a term of his employment and, to that end, he quotes certain portions of the policy directly in the FAC. Because Tisone expressly references and relies upon the provisions of the Workplace Violence Policy in Count IV, the Court may review the policy document without the necessity of converting Defendants' Rule 12(b)(6) motion into a motion for summary judgment. See In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426 (a “document integral to or explicitly relied upon in the complaint” may be considered “without converting the motion [to dismiss] into one for summary judgment”).

         The Court will not accept or consider the remainder of defense Exhibits 2 through 4 at this time. These documents are not matters of public record which can be judicially noticed, nor did Tisone rely on them in framing his pleading. See Schmidt, 770 F.3d at 249 (“‘[W]hat is critical is whether the claims in the complaint are based on an extrinsic document and not merely whether the extrinsic document was explicitly cited.'”) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426); see id. at 250 (documents were not integral to the complaint and could not be considered under Rule 12(b)(6) where the complaint was not “based” on them). Moreover, the “Employment at Will” policy included within Defendants' Exhibit 3 is dated July 5, 2005, and there is nothing of record to establish that this policy was in force during the time frame relevant to Tisone's claims. Therefore, the Court will not consider the foregoing documents in its analysis.

         In response to Defendants' motion to dismiss, Tisone has submitted three exhibits of his own. Exhibit 1 is a copy of his W-2 forms for tax years 2013, 2014, and 2015. (See Doc. 17-1.) Exhibit 2 is a “LinkedIn” page for “William Berardino.” (See Doc. 17-2.) Exhibit 3 is a copy of Toyota of Greensburg's “Policies and Procedures, ” including HR-POL 111 (the “Workplace Violence Policy”), HR-POL 112, pertaining to ...


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