United States District Court, E.D. Pennsylvania
D. WOLSON, J.
USI Insurance Services LLC (“USC”) seeks
dismissal of each of the three claims asserted against it by
Plaintiff Joseph Cathcart. Because Cathcart fails to state a
claim against USI, the Court will grant USI's Motion to
worked for USI as a Practice Leader in USI's King of
Prussia office. (ECF No. 4 ¶ 21.) In June 2018,
Defendant John Micale took over as Cathcart's supervisor.
(Id. ¶ 23.) Over the next five months, Micale
criticized Cathcart's job performance, chided Cathcart
for perceived mistakes, and make loud pejorative comments to
aggravate, annoy, and intimidate Cathcart. (Id.
¶ 24.) The friction between the two men came to a head
on November 14, 2018, during a USI leadership conference.
(Id. ¶ 26.)
and five other USI leaders were sitting in the lounge at the
hotel at which they were staying during the conference.
(Id. ¶ 27.) Unprovoked, Micale approached the
group and began to “yell and hurl insults” at
Cathcart for five-to-ten minutes. (Id. ¶ 28.)
Humiliated and fearful of Micale, Cathcart retreated to his
hotel room. (Id. ¶ 29.) The next day, Micale
tendered an insincere apology to Cathcart and continued to
threaten Cathcart's employment with USI. (Id.
¶ 31.) Cathcart feared for his continued employment with
USI. (Id. ¶ 32.)
November 16, 2018, Cathcart submitted a written complaint to
USI's Head of Human Resources. (Id. ¶ 33.)
Eileen Webb, a member of the Human Resources Department,
investigated Cathcart's complaint. (Id.
¶¶ 34-36.) Ms. Webb determined that Cathcart's
complaint against Micale was well-founded, and USI issued a
warning to Micale. (Id. ¶¶ 37, 39.) In
addition, Ms. Webb assured Cathcart that his
“employment and [his] future with the Company would not
be affected by this complaint or the remedial action taken by
the Company.” (Id. ¶ 40.)
February 22, 2019, USI informed Cathcart that it was
eliminating his position and would terminate him, effective
March 31, 2019. (Id. ¶ 43.) Cathcart contends
that “[t]he sole reason USI terminated [his] employment
was in retaliation and reprisal for his ongoing complaints
against defendant Micale.” (Id. ¶ 47.) As
a result of his termination, Cathcart alleges he has suffered
lost wages and diminished earning capacity, inter
alia. (Id. ¶¶ 50-51.)
filed a complaint against Micale and USI on April 29, 2019.
(ECF No. 1.) On May 10, 2019, he filed an Amended Complaint,
which is the operative pleading. (ECF No. 4.) In Count I,
Cathcart brings an assault claim against Micale. In Counts
II, III, and IV, Cathcart brings claims against USI for
negligent misrepresentation, promissory estoppel, and breach
of unilateral contract, respectively. On July 2, 2019, USI
moved to dismiss each of these three claims. (ECF No. 10.)
Cathcart responded to the motion (ECF No. 14), which is ripe
district court may dismiss a plaintiff's complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). Rather than require detailed
pleadings, the “Rules demand only a short and plain
statement of the claim showing that the pleader is entitled
to relief[.]” Connelly v. Lane Const. Corp.,
809 F.3d 780, 786 (3d Cir. 2016) (quotation omitted).
“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.”
Id. (same). A claim has facial plausibility when the
complaint contains factual allegations that permit the court
“to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(same). In doing so, the court must “draw on its
judicial experience and common sense.” Id.
(same). Under the governing “pleading regime[, ]”
a court confronted with a 12(b)(6) motion must take three
steps. First, it must identify the elements needed to set
forth a particular claim. Id. at 878 (same). Second,
the should identify conclusory allegations, such as legal
conclusions, that are not entitled to the presumption of
truth. Id. (same). Third, with respect to
well-pleaded factual allegations, the court should accept
those allegations as true and “determine whether they
plausibly give rise to an entitlement to relief.”
Id. (same). The court must “construe those
truths in the light most favorable to the plaintiff, and then
draw all reasonable inferences from them.” Id.
at 790 (citations omitted).
Cathcart Has Not Stated A Claim For Breach Of Unilateral
contract exists where there is an offer, acceptance, and
consideration. See Gardiner v. Virgin Islands Water &
Power Auth., 145 F.3d 635, 644 (3d Cir. 1998); see
also Kendall v. OneBeacon Am., No. 06-cv-1895, 2007 WL
1031249, at *3 (E.D. Pa. Mar. 30, 2007) (setting forth
elements of unilateral contract). Here, Cathcart asserts that
Webb's promise to him that USI would not terminate him in
retaliation for his complaints against Micale created a
unilateral contract. Even assuming that Webb's statement
constitutes an offer and Cathcart's continued employment
constitutes acceptance, Cathcart has not alleged facts to
establish any consideration.
Opposition, Cathcart argues that his continued employment
constitutes such consideration. However, to defeat the
at-will presumption, Cathcart must demonstrate “that he
gave his employer additional consideration other than the
services for which he was hired.” Donahue v. Fed.
Exp. Corp., 753 A.2d 238, 245 (Pa. Super. Ct. 2000)
(quotation omitted). Additional consideration exists
“when an employee affords his employer a substantial