JONES v. FLASTER/GREENBERG P.C.

Filing 15

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 12/30/13. 12/30/13 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TAFFIE JONES

F\lED

v.

DEC 3 o:zon

CIVIL ACTION

NO. 13-2771

FLASTERJGREENBERG P .C.
MEMORANDUM

Padova, J.

December 30, 2013

Plaintiff Taffie Jones has brought this breach of contract action against her former
employer, Plaster/Greenberg P.C. ("Plaster"), arising from Plaster's termination of her
employment eight months after she was hired. Plaster has moved to dismiss for failure to state a
claim upon which relief may be granted. For the following reasons, the Motion is granted in part
and denied in part.
I.

BACKGROUND

The Complaint alleges the following facts. On February 22, 2012, Plaster offered Jones
an associate attorney position in the intellectual property department of its Philadelphia office.
(Compl.

if 5, Ex. A.) At that time, Jones was self-employed as an attorney in Chicago, Illinois

and lived in Forest Park, Illinois, a suburb of Chicago. (Id.
the Illinois bar and the federal patent bar. (Id.

iii! 8,

10-11.) She was a member of

if 9.) Plaster promised Jones that, if she accepted

the offer, she would be mentored by Lynda Calderone, Esq., who was a Plaster shareholder and
chair of Defendant's intellectual property department.

(Id.

if 14.) The promise of this

mentorship was important to Jones because she wanted to obtain training and experience as a
patent attorney. (Id.

if 15.) Jones accepted the offer based on this promise, closed her practice

and moved to Philadelphia, where she began work with Plaster on March 12, 2012. (Id.
14.)

iii! 7,

Jones did not receive the mentoring she expected from Calderone. (Id.
Calderone berated and yelled at her. (Id.

if

if

18.) Rather,

20.) In addition, Jones worked fewer hours than

Plaster required because Calderone would not give her work. (Id.

if 21.)

Calderone also falsely

told others that Jones missed deadlines and made errors in her work. (Id. ii 22.) Jones spoke to
Calderone, other shareholders of Plaster, and the firm's Human Resources Director about
Calderone's treatment of her, but nothing helped. (Id.

if

24.) On November 9, 2012, Jones

reported the hostile work environment she was experiencing to Plaster's human resources
department. (Id.

if 25.)

On November 30, 2012, Plaster fired Jones. (Id.

if 26.)

Plaster claimed

it terminated Jones based on her performance even though Jones had been given a positive
performance review on November 2, 2012. (Id. iii! 26-27.)
As a result of Plaster's termination of Jones, she now has no job in Pennsylvania, where
she is not licensed to practice.

(Id.

if

29.)

Jones has also suffered a loss of income and

impairment to her professional reputation as a result of her termination. (Id. iii! 30-31.)
The Complaint asserts three claims for relief.

Count I asserts a claim for breach of

implied contract. Count II asserts a claim for promissory estoppel/detrimental reliance. Count
III asserts a claim for negligent misrepresentation. Plaster has moved to dismiss the Complaint
in its entirety for failure to state a claim upon which relief may be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6).

II.

LEGALSTANDARD
When considering a motion to dismiss pursuant to Rule 12(b)(6), we "consider only the

complaint, exhibits attached to the complaint, [and] matters of public record, as well as
undisputedly authentic documents if the complainant's claims are based upon these documents."
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v.
2

White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations
of the complaint as true and draw all reasonable inferences in favor of the plaintiff. DelRioMocci v. Connolly Props., Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Warren Gen. Hosp. v.
Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011)). Legal conclusions, however, receive no deference,
and the court is "not bound to accept as true a legal conclusion couched as a factual allegation."
Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
A plaintiffs pleading obligation is to set forth "a short and plain statement of the claim,"
Fed. R. Civ. P. 8(a)(2), which gives the defendant "'fair notice of what the ... claim is and the
grounds upon which it rests."'

Twombly, 550 U.S. at 555 (alteration in original) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint must contain "'sufficient factual
matter to show that the claim is facially plausible,' thus enabling 'the court to draw the
reasonable inference that the defendant is liable for [the] misconduct alleged."' Warren Gen.
Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)).
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a
sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). In the end, we will grant a motion to dismiss brought
pursuant to Rule 12(b)(6) if the factual allegations in the complaint are not sufficient '"to raise a
right to relief above the speculative level."'

West Run Student Hous. Assocs., LLC v.

Huntington Nat'l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (quoting Twombly, 550 U.S. at 555).

3

III.

DISCUSSION

A.

The Breach of Implied Contract Claim

The Complaint alleges that there was an implied contract of employment between Jones
and Plaster, created by Plaster's knowledge of the substantial hardship that Plaintiff incurred in
accepting Plaster's job offer. (Compl.

iii! 36-38.) The Complaint further alleges that Plaster

breached this implied contract of employment by firing Jones without just cause, within an
unreasonable amount ohime after she began her employment. (Id.

if 39.) Plaster argues that the

Complaint fails to state a claim for breach of an implied contract of employment upon which
relief may be granted because Jones was an at-will employee.
"The general rule in Pennsylvania is that employment is at-will unless there is a statutory
or contractual provision to the contrary." Wallett v. Pennsylvania Turnpike Comm'n, 528 P.
App'x 175, 180 (3d Cir. 2013) (citing Weaver v. Harpster, 975 A.2d 555, 556 (Pa. 2009)).
"[T]he at-will employment doctrine provides that absent a statutory or contractual provision to
the contrary, the employer and employee each have the power to terminate the employment
relationship for any or no reason." Weaver, 975 A.2d at 557 n.3 (citing Geary v. United States
Steel Corp., 319 A.2d 174, 176 (Pa. 1974)). The "presumption of at-will employment can be
overcome by showing that there is an express contract between the parties, with a provision
stating that an employee can only be terminated 'for cause."' Preobrazhenskaya v. Mercy Hall
Infirmary, 71 P. App'x 936, 940 (3d Cir. 2003) (citing Scott v. Extracorporeal, Inc., 545 A.2d
334, 336-37 (Pa. Super. Ct. 1988)). "An 'implied-in-fact' contract can also suffice, if additional
consideration passes from the employee to the employer 'from which the court can infer the
parties intended to overcome the at-will presumption.'"
College, 849 F. Supp. 1009, 1012 (E.D. Pa. 1994)).
4

Id. (quoting Raines v. Haverford

Additional consideration sufficient to overcome the at-will presumption exists where the
employee '"affords his employer a substantial benefit other than the services which the employee
is hired to perform, or when the employee undergoes a substantial hardship other than the
services which he is hired to perform."' Martin v. Safeguard Scientifics, Inc., 17 F. Supp. 2d
357, 369 (E.D. Pa. 1998) (footnote omitted) (citing Darlington v. General Electric, 504 A.2d 306,
315 (Pa. Super. Ct. 1986)).

Whether or not sufficient additional consideration exists is a

question of fact for the jury. Woods v. Era Med LLC, 677 F. Supp. 2d 806, 817 (E.D. Pa. 2010)
(citing Rapagnani v. Judas Co., 736 A.2d 666, 760-71 (Pa. Super. Ct. 1999)). "[T]he plaintiff
has the burden to present facts to overcome the at-will presumption." Preobrazhenskaya, 71 F.
App.x at 940 (citing Murray v. Commercial Union Ins. Co., 782 F.2d 432, 435 (3d Cir. 1986)).
Jones maintains that the Complaint alleges sufficient additional consideration to
overcome the at-will presumption and establish the existence of an implied-in-fact employment
contract between herself and Flaster. The Complaint alleges that, before Jones was contacted by
a legal recruiter on behalf of Flaster, she lived and worked in Illinois and had no interest in
looking for a new job or moving away from Illinois. (Compl.

~~

10-13.) However, in order to take

advantage of the terms of Plaster's offer of employment, Jones closed her law practice and moved 765
miles from Illinois to Philadelphia to begin her employment with Flaster. (Compl.

ii

14.) The

Complaint further alleges that Jones had no friends or family in Philadelphia when she moved
here and was not admitted to the Pennsylvania bar. (Id.

iii! 14, 29, 35.)

Flaster argues that Jones cannot overcome the at-will presumption for two reasons. First,
Flaster maintains that its Employment Manual unambiguously establishes that Jones was an atwill employee. Second, Flaster contends that the facts alleged in the Complaint do not establish
that Jones experienced hardship in connection with her employment with Flaster that was

5

sufficient to overcome the at-will presumption and create an implied-in-fact contract of
employment.
1.

The Employment Manual

Plaster contends that any hardship experienced by Jones in connection with her
acceptance of employment with Plaster is irrelevant because Plaster's Employment Manual
makes it clear that she was an at-will employee. Plaster relies on Walden v. Saint Gobain Corp.,
323 P. Supp. 2d 637 (E.D. Pa. 2004), which states that "the existence of a specific agreement for
at-will employment defeats any effort to supplant the at-will presumption." Id. at 647 (citations
omitted).
Plaster maintains that its Employment Manual unambiguously states that Jones was an atwill employee. Plaster has attached a copy of its Employment Manual to its Motion to Dismiss.
(See Def.'s Mot., Ex. 2A.) As we mentioned previously, when we decide a motion to dismiss
brought pursuant to Rule 12(b)(6), we can consider only the following documents:

"the

complaint, exhibits attached to the complaint, [and] matters of public record, as well as
undisputedly authentic documents if the complainant's claims are based upon these documents."
Mayer, 605 P.3d at 230 (citing Pension Benefit Guar. Corp., 998 P.2d at 1196).

Plaster's

Employment Manual is not mentioned in or attached to the Complaint, and none of Jones's
claims are based on that document. Plaster contends that we may consider the Employment
Manual anyway, because it is mentioned in the offer letter it sent to Jones, which is mentioned in
the Complaint and attached to the Complaint as Exhibit A. The offer letter does not, itself, state
that Jones will be an at-will employee if she accepts Plaster's offer of employment. (See Compl.
Ex. A.) Indeed, the offer letter makes only two references to Plaster's Employment Manual:

6

You will be entitled to participate in the firm's origination bonus program, a
description of which is outlined in the Firm Employment Manual, a copy of which
will be given to you at orientation. The Firm also has a discretionary bonus
program for attorneys who materially exceed the billable hours target of 1,850
hours.
Finally, you will be entitled to receive the vacation, health insurance, group life
insurance, group disability insurance and all other benefits that the firm makes
available to its associate attorneys, which is also specified in the Firm
Employment Manual.
(Compl. Ex. A. at 1.) We conclude that we cannot consider the portion of Flaster's Employment
Manual that describes its at-will employment policy in connection with Flaster' s Motion to
Dismiss because the Employment Manual is not mentioned in the Complaint, is not an exhibit to
the Complaint, and is not a matter of public record, and because Jones's claims do not rely on
that document. Mayer, 605 F.3d at 230 (citing Pension Benefit Guar. Corp., 998 F.2d at 1196).
The Motion to Dismiss is, therefore, denied as to Flaster's argument that Jones's claim for
breach of implied contract (Count I of the Complaint) fails to state a claim upon which relief
may be granted because its Employment Manual establishes that Jones was an at-will employee.
2.

Substantial hardship

Flaster also argues that Jones cannot overcome the at-will presumption because the facts
alleging hardship in the Complaint do not rise to the level necessary to create an implied contract
of employment. The hardships alleged in the Complaint primarily pertain to Jones's relocation
from Chicago, Illinois to Philadelphia, Pennsylvania in order to accept Flaster's job offer.
"Cases finding additional consideration sufficient to overcome the at-will presumption often
focus on the degree of hardship an employee endured to relocate to another region in comparison
to the length of time of the employment relationship." Woods, 677 F. Supp. 2d at 817. See also
Permenter v. Crown Cork & Seal Co., Inc., 38 F. Supp. 2d 372, 379 (E.D. Pa. 1999) (noting that

7

one of the factors considered by courts examining whether the at-will presumption has been
overcome by a showing of substantial hardship is "the relocation of an employee, particularly
when accompanied by relocation of a family." (citing Shaffer v. BNP/Cooper Neff, Inc., Civ. A.
No. 98-71, 1998 WL 575135, at *4 (E.D. Pa. Sept. 4, 1998))). Courts also consider whether the
employee had to give up other job opportunities or sell her home in order to take the job.
Permenter, 38 F. Supp. 2d at 379 (citing Marsh v. Boyle, 530 A.2d 491, 494 (Pa. Super. Ct.
1987).
Plaster argues that moving to a new place to accept a job is not sufficient hardship to
overcome the at-will presumption, even ifthe employee moves away from friends and family. In
Cashdollar v. Mercy Hospital of Pittsburgh, 595 A.2d 70 (Pa. Super. Ct. 1991), the Pennsylvania
Superior Court concluded that the hardships experienced by the plaintiff in accepting a job with
the defendant constituted "sufficient additional consideration to rebut the at-will presumption"
where the plaintiff left a secure job, moved from Virginia to Pennsylvania, "uprooted his
pregnant wife and two-year-old child and sold his home" and was terminated after working for
defendant for only sixteen days. Id. at 72, 73-74. Similarly, in News Printing Co., Inc. v.
Roundy, 597 A.2d 662 (Pa. Super. Ct. 1991), the Pennsylvania Superior Court found that there
was sufficient additional consideration to overcome the at-will presumption where the plaintiff
quit his job and rejected another job offer to accept an offer from the defendant, sold his home in
Massachusetts, purchased a home in Pennsylvania, and was fired less than four months after
beginning his new job with the defendant. Id. at 663, 665.
However, even if the employee experiences a substantial hardship in order to accept a
new job, the Pennsylvania courts will not recognize an implied contract of employment for an
unlimited period of time. Rather, the Pennsylvania courts will only recognize the creation of an
8

implied contract for a reasonable period of time.

See Woods, 677 F. Supp. 2d at 817 ("If

sufficient additional consideration is present in a case, a plaintiff is entitled to protection from
being discharged without cause for a reasonable time."). (citing Veno v. Meredith, 515 A.2d
571, 580 n.4 (Pa. Super. Ct. 1986)). "The length of time during which it would be unreasonable
to terminate, without just cause, an employee who has given additional consideration should be
commensurate with the hardship the employee has endured or the benefit he has bestowed."
Veno, 515 A.2d at 580. In Veno, the plaintiff argued that he had given his employer sufficient
additional consideration to create an implied contract of employment and could never be fired
except for "just cause," because he gave up another job and moved from New Jersey to
Pennsylvania to accept a job with the defendant and refused other jobs over the years. Id. at 57980. The Pennsylvania Superior Court disagreed, and determined that, since the Plaintiff had
been employed for eight years, "the 'reasonable length of time' ... has surely passed based on
the consideration given." Id. at 580 n.4. Similarly, in Zysk v. PPE Minerals USA Inc., 225 P.
Supp. 2d 482 (E.D. Pa. 2001 ), the district court held that, even if the plaintiff, who had moved
from Washington to Pennsylvania to accept a job, had established an-implied in-fact contract for
employment for a reasonable period of time, his "two-plus years of employment with Defendant
more than fulfilled the required 'reasonable period."' Id. at 502.
Plaster asks us to decide that the hardships alleged in the Complaint are insufficient as a
matter of law to create an implied contract of employment. This is ordinarily a question of fact
for the jury, Woods, 677 P. Supp. 2d at 817, and we may only take this issue from the jury if
"'the resolution of the issue is so clear that reasonable minds would not differ on its outcome."'
Id. (quoting DiBonaventura, 539 A.2d at 868). The Complaint alleges that, in order to accept
Plaster's job offer, Jones closed her successful law practice and moved 765 miles across the
9

country to Philadelphia, where she had no friends or family and was not admitted to the bar.
(Compl.

~~

14, 29.) Based upon the authority cited above and the facts alleged in the Complaint,

we conclude that the question of whether the hardship Jones allegedly experienced was sufficient
to overcome the at-will presumption is not so clear that reasonable minds would not differ on its
outcome.

See Woods, 677 P. Supp. 2d at 817.

Consequently, we also conclude that the

Complaint plausibly alleges that Jones suffered a substantial hardship in order to begin her
employment with Plaster, thus creating an implied contract for a reasonable period of
employment. Zysk, 225 P. Supp. 2d at 502. The Complaint further alleges that Jones was fired
without just cause eight months after she moved from Chicago to Philadelphia to begin her
employment with Plaster.

(Compl.

~

39.)

Therefore, we additionally conclude that the

Complaint plausibly alleges that Plaster breached its implied contract of employment with Jones
by terminating her in less than a reasonable period of time. Plaster's Motion to Dismiss is thus
denied as to its argument that Jones's claim for breach of implied contract (Count I of the
Complaint) fails to state a claim upon which relief may be granted because the facts alleging
hardship in the Complaint are insufficient to overcome the at-will presumption.

B.

Promissory Estoppel/Detrimental Reliance

The Complaint alleges that, in order to induce Jones to accept its job offer, Plaster
promised Jones "that she would be mentored, trained, and directed by senior attorneys and
shareholders, including Attorney Calderone." (Compl.

~

42.) The Complaint further alleges that

Jones relied on this promise in accepting the job. (Id.

~

43.) Plaster argues that the Complaint

fails to state a promissory estoppel/detrimental reliance claim upon which relief may be granted
because Plaintiff was an at-will employee and because the alleged promise is too vague to
support such a claim.
10

"Promissory estoppel and detrimental reliance claims are treated interchangeably by
Pennsylvania Courts." CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 634 n.15 (3d Cir.
2013) (citing Rinehimer v. Luzerne Cnty. Cmty. Coll., 539 A.2d 1298, 1306 (Pa. Super. Ct.
1988)). The elements of a claim for promissory estoppel and detrimental reliance are: (1) a
promise made by the defendant to the plaintiff, which the defendant expected would induce
action on the part of the plaintiff; (2) which does induce the expected action by the plaintiff; and
(3) "injustice can only be avoided by enforcing the promise." Id. at 634 (internal quotation
omitted); see also C&K Petroleum Prods., Inc. v. Equibank, 839 F.2d 188, 192 (3d Cir. 1988)
(citations omitted).
Flaster argues that Jones's claim for promissory estoppel/detrimental reliance should be
dismissed because "Pennsylvania courts do not recognize a cause of action for promissory
estoppel in the context of at-will employment." Walden v. Saint Gobain Corp., 323 F. Supp. 2d
637, 646 (E.D. Pa. 2004) (listing cases). We have determined that the Complaint states a
plausible claim for breach of an implied contract of employment. Consequently, we deny the
Motion to

Dismiss

as

to

Flaster's

argument that

Jones's

claim

for

promissory

estoppel/detrimental reliance fails to state a claim upon which relief may be granted because the
Pennsylvania courts do not recognize such claims in the at-will employment context.
Flaster also argues that Jones's promissory estoppel/detrimental reliance claim should be
dismissed because its alleged promise that Plaintiff would be "mentored, trained and directed by
senior attorneys, including Attorney Calderone" (Compl.

~

42), is too vague and indefinite to

support such a claim. Under Pennsylvania law, "[t]he first essential element of promissory
estoppel requires an express promise between the promisor and promisee. A 'broad or vague
implied promise' will not suffice." Burton Imaging Grp. v. Toys "R" Us, Inc., 502 F. Supp. 2d
11

434, 439 (E.D. Pa. 2007) (quoting C&K Petroleum Prods., 839 P.2d at 192).

See also

Ankerstjerne v. Schlumberger, Ltd., 155 F. App'x 48, 51 (3d Cir. 2005) (explaining that a
promise made by a defendant that the plaintiff would be compensated pursuant to the terms of
his compensation plan is "simply too vague and indefinite to constitute a 'promise' for purposes
of promissory estoppel" where the defendant did not "specify how much the plaintiff would be
paid, by whom he would be paid, how payment was to be calculated, or when the plaintiff would
be paid" (internal quotation omitted)).
The Complaint alleges that Plaster promised Jones that, if she accepted the job offer, "she
would be mentored by Lynda Calderone" and "trained, directed and mentored by senior
attorneys, including Attorney Calderone." (Compl. ilil 14, 15, 42.) The Complaint also alleges
that Calderone did not mentor, train or direct Jones, but insulted and yelled at her, complained
about her work, and refused to give her any work. (Id. ilil 18-22.) We conclude that the promise
alleged in the Complaint, which specifically identified Calderone as an individual who would
train, direct and mentor Jones, is not "too vague and indefinite to constitute a 'promise' for
purposes of promissory estoppel," Ankerstjerne, 155 P. App'x 48 at 51. Plaster's Motion to
Dismiss is, therefore, denied as to Jones's claim for promissory estoppel/detrimental reliance
(Count II of the Complaint).
C.

Negligent Misrepresentation

The Complaint alleges that Plaster falsely assured Jones that, if she accepted the job, "she
would have the opportunity to learn and grow as a patent attorney with the direction, training and
mentorship of senior attorneys, specifically Attorney Calderone."

(Compl.

iI

47.)

Complaint further alleges that Jones relied on these assurances to her detriment. (Id.

The

iI

50.)

Plaster argues that the Complaint fails to state a negligent misrepresentation claim upon which
12

relief may be granted beause Jones was an at-will employee and because the alleged
misrepresentation is not actionable.
The elements of a claim for negligent misrepresentation brought under Pennsylvania law
are:
(1) a misrepresentation of a material fact; (2) made under circumstances in which
the misrepresenter ought to have known its falsity; (3) with an intent to induce
another to act on it; and (4) which results in injury to a party acting in justifiable
reliance on the misrepresentation.
Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 277 (Pa. 2005) (quoting
Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999)).
Flaster argues that Jones' s negligent misrepresentation claim should be dismissed
because she was an at-will employee and some courts in this state "have refused to recognize
such a claim for at-will employees."

(Def.'s Mem. at 11.)

We have determined that the

Complaint states a plausible claim for breach of an implied contract of employment.
Consequently, we deny the Motion to Dismiss as to Flaster's argument that Jones's negligent
misrepresentation claim fails to state a claim upon which relief may be granted because the
Pennsylvania courts do not recognize such claims in the at-will employment context.
Flaster also argues that Jones's negligent misrepresentation claim should be dismissed
because the Complaint does not allege the misrepresentation of a present fact that was untrue
when it was made. Specifically, Flaster asserts that the Complaint does not allege facts that
would establish that it did not intend to provide Calderone with "the opportunity to learn and
grow as a patent attorney with the direction, training and mentorship of senior attorneys,
specifically Attorney Calderone" (Compl.

~

47), at the time that representation was made.

Claims for negligent misrepresentation must be based on misrepresentations regarding present
13

facts, not unfulfilled promises to do acts in the future. Summit Trust Co. v. Paul Ellis Inv.
Assoc., LLC, Civ. A. No. 12-6672, 2013 WL 3967602, at *6 (E.D. Pa. Aug. 2, 2013)
("Negligent misrepresentation claims must concern a 'present, material fact,' not merely a
'promise[] to do a future act."' (alteration in original) (quoting Bennett v. Itochu Int'l, Inc., 682
P. Supp. 2d 469, 479-80 (E.D. Pa. 2010))).

Consequently, an allegation that a defendant

eventually failed to keep a promise is insufficient to support a claim for negligent
misrepresentation. See Developers Sur. & Indem. Co. v. Mathias, Civ. A. No. 12-2216, 2013
WL 6504751, at *9 (M.D. Pa. Dec. 11, 2013) (citing Pidurski v. Hammill, 195 A. 3, 4 (Pa.
1937); Bash v. Bell Tel. Co. of Pa., 601A.2d825, 832 (Pa. Super. Ct. 1992)). See also Pidurski,
195 A. at 4 ("An unperformed promise does not give rise to a presumption that the promisor
intended not to perform when the promise was made, and a fraudulent intention will not be
inferred merely from its nonperformance." (citing Warren Balderston Co. v. Integrity Trust Co.,
170 A. 282 (Pa. 1934); McCreary v. Edwards, 172 A. 166 (Pa. Super. Ct. 1934)).
The promise at issue in this claim, that Jones "would have the opportunity to learn and
grow as a patent attorney with the direction, training and mentorship of senior attorneys,
specifically Attorney Calderone" (Compl.

~

47), if she accepted Plaster's job offer, was a

promise regarding actions that would take place in the future. This promise did not concern a
"present, material fact." Summit Trust Co., 2013 WL 3967602, at *6. Moreover, the fact that
Plaster did not fulfill this promise cannot raise an inference that this representation was false
when it was made or that Plaster should have known this representation was false when it was
made. Developers Sur. & Indem., 2013 WL 6504751, at *9. We conclude, accordingly, that the
Complaint does not allege facts that would establish the first two elements of a claim for
negligent misrepresentation and, therefore, that the Complaint fails to state a claim for negligent
14

misrepresentation upon which relief may be granted. Plaster's Motion to Dismiss is, therefore,
granted as to Jones's claim for fraudulent misrepresentation (Count III of the Complaint).
IV.

CONCLUSION

For the foregoing reasons, the Motion to Dismiss is denied as to Jones's claim for breach
of implied contract (Count I) and Jones's claim for promissory estoppel/detrimental reliance
(Count II). The Motion is granted as to Jones's claim for negligent misrepresentation (Count
III). An appropriate order follows.

15