United States District Court, M.D. Pennsylvania
JOHN M. WARTELLA, Plaintiff
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA Defendant
D. MARIANI UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation
("R&R") of Magistrate Judge Martin Carlson
(Doc. 16) in which Judge Carlson recommends that the
Defendant's motion to dismiss Counts I, II and III of the
Plaintiffs complaint be granted as time-barred.
John M. Wartella, filed objections to the R&R on June 9,
2016. (Doc. 17).
R&R describes the dispute before the Court as one
"concerning the timeliness of Wartella's complaint,
" noting that it "plays out against a factual
background where it is undisputed that Mr. Wartella's
employment with Guardian came to an end in May 2007, yet the
plaintiff did not bring this lawsuit until some seven years
later, in May 2014." (Doc. 16, at 1).
Magistrate Judge, in determining that Counts I, II and III of
Plaintiffs Complaint should be dismissed as barred by the
applicable 4-year statute of limitations, correctly
enunciated the rule in this Circuit with respect to the
dismissal of a complaint as barred by the statute of
limitations when that defense is raised in a motion to
[I]n this circuit...., we permit a limitations defense to be
raised by a motion under Rule 12(b)(6) 'only if "the
time alleged in the statement of a claim shows that the cause
of action has not been brought within the statute of
limitations."' Id. (quoting Hanna v.
U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d
Cir. 1975)). However, “(I]f the bar is not apparent on
the face of the complaint, then it may not afford the basis
for a dismissal of the complaint under Rule
12(b)(6).'" Id. (quoting Bethel v.
Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir.
1978))." Schmidt v. Skolas. 770 F.3d 241, 249
(3d Cir. 2014).
(Id. at 8-9).
careful review of the Plaintiffs Complaint, the R&R and
the briefs submitted in support of and in opposition to
Plaintiffs objections, this Court cannot say with the
requisite certainty needed for the issuance of an order
dismissing Counts I, II and III of Plaintiffs Complaint with
prejudice that the bar of the statute of limitations clearly
appears on the face of Plaintiffs complaint. At the same
time, the Plaintiffs complaint lacks the necessary
allegations to allow it to proceed into the discovery phase
of this litigation. Accordingly, Counts I, II and III of
Plaintiffs complaint will be dismissed but such dismissal
shall be without prejudice and with the right afforded to
Plaintiff to amend his complaint in an attempt to state a
cause of action not subject to dismissal as having been filed
beyond the statute of limitations.
Allegations of Plaintiff's Complaint
Wartella alleges he was hired by Guardian as a field
representative on or about January 1, 1986. (Doc. 1-3,
at¶6). He alleges he entered into an employment
agreement with Guardian (id. at ¶ 8), but in a
footnote states that he is "no longer in possession of
the employment agreement" and that "Guardian has
been unable to provide any such agreement executed by Mr.
Wartella". (Id. at n.1).
then alleges that pursuant to the employment agreement he was
"to be paid a monthly, fixed salary by Guardian, "
and against this fixed salary, Wartella alleges he was
"entitled to a commission on each new policy sold and
each policy renewed." (Id. at ¶¶ 9,
then asserts that, again pursuant to the employment agreement
which is referred to but produced by neither party to this
action, "Wartella was entitled to continue to receive
his commission for all policy renewals throughout his
employment and ten (10) years afterward, regardless of the
reason his employment with Guardian ended."
(Id. at ¶ 11).
further alleges that he was provided another benefit by
Guardian, specifically the option to purchase a group
disability insurance plan, which "could be purchased
with either pre-tax or post-tax dollars." (Id.
at ¶¶ 12, 13).
then alleges that he "elected to purchase a group
long-term disability insurance plan (the 'Disability
Insurance') with post-tax dollars." (Doc. 1-3, at
Wartella recites in his complaint the medical issues which
led to his placement on short-term disability with Guardian
for a period of five months, his return to work thereafter
and his inability to perform his duties for Guardian, which
resulted in him again being placed on short term disability.
(Id. at ¶¶ 17-22).
Wartella alleges he remained on short term disability
"until in or about 2007, when his six (6) months of
short-term disability was exhausted." (Id. at
complaint then alleges in paragraph 24 of his complaint:
"Upon exhaustion of his short-term disability, in or
about May, 2007, Guardian terminated Mr. Wartella." Mr.
Wartella then alleges that at the time of his termination, he
was receiving commissions on "life and disability
renewals which produced earnings to him in excess of $160,
000.00 annually." (Id. at ¶¶ 25-26).
being terminated, Wartella began to collect the disability
insurance which he had purchased, (Id. at ¶
alleges that upon receiving group disability benefits, 55% of
those benefits were reported as being paid with pre-tax
dollars and were, therefore, taxable. (Id. at ¶
alleges that he applied for Social Security as required by
Guardian since the Social Security benefits "would serve
as an offset of his Disability Insurance benefits, and,
therefore, these payments were solely ...