WEBER MILLER v. CEREBAIN BIOTECH CORP. et al

Filing 11

ORDER THAT DEFENDANTS' MOTION TO DISMISS IS DENIED. IT IS FURTHER ORDERED THAT DEFENDANTS SHALL FILE AN ANSWER TO THE COMPLAINT ON OR BEFORE 11/28/2016. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 11/8/2016. 11/8/2016 ENTERED AND COPIES E-MAILED.(kp, )

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

MIRIAM WEBER MILLER
v.
CEREBAIN BIOTECH CORP. and
ERIC CLEMONS

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CIVIL ACTION
NO. 16-3943

O’NEILL, J.

November 8, 2016
MEMORANDUM

The present action involves a claim for wages and/or compensation by plaintiff Miriam
Weber Miller against defendants Cerebain Biotech Corp. and Eric Clemons. Defendants have
filed a motion to dismiss all of plaintiff’s claims for failure to state a claim upon which relief
may be granted. For the following reasons, I will deny the motion.
FACTUAL BACKGROUND
According to the facts set forth in the complaint, plaintiff was hired by Cerebain in May
2014 to be a senior member of its management team. Compl., ECF No. 1, ¶ 6. Miller was to
provide services and support relating to Cerebain’s public relations, investor relations and
corporate growth strategies and was to be an advisor available to the Chief Executive Officer for
any specific needs or projects, as required. Id. ¶ 7. The parties agreed that plaintiff would
receive compensation in the amount of $140,000 per year, plus $400 per month in on-going
expenses. Id. ¶ 8. Plaintiff then memorialized the details of the parties’ negotiations in an email
dated May 22, 2014, to Cerebain’s CEO, defendant Eric Clemons. Id. ¶ 9 & Ex. A. That e-mail
stated, in pertinent part:

Hi Eric,
I hope this note finds you well. As we discussed, I am sending
you this summary of our conversation from my personal email
account. Please use this email for me going forward:
Okay, here goes:
Overview of Long-Term Agreement
1. Base salary of $140,000/year beginning on July 1.
2. $400/month in on-going expenses to offset office costs.
Please let me know if I need to provide receipts
3. Benefits: I am planning to secure my own package of benefits
at this time. In lieu of my participation in the Company’s
benefits package, we discussed me receiving a stipend equal to
the amount of money the company would be spending on my
behalf if I participated in the company plans. I am not asking
the company to come out-of-pocket for anything additional
beyond what you would spend. This will be helpful to me so
that I can keep my benefits in tact [sic] once the sale of the
company occurs.
4. Stock/Stock Options: We discussed some level of stock
and/or stock option award, which can occur in whatever
timeframe you feel appropriate. We agreed we would solidify
these details after my formal start date of July 1.
5. Title: TBD
The Month of June
1. I will come on-board as a consultant for the month of June.
2. My suggestion is we agree to a one-time payment of $12,000.
This is 140,000/12 + $333 in expenses. If you don’t want to pay
expenses in June, I am fine with that. We can just do
$140,000/12. PLMK
Question: Do travel expenses get reimbursed?
Okay, so I am VERY excited about the chance to work with
you! I love what you are doing and I am ready to make this
happen, so thank you!
Id., Ex. A. Cerebain subsequently released an announcement over the Business Wire naming
plaintiff as Executive Vice President. Id. ¶ 10 & Ex. B.

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Plaintiff thereafter provided all requested services to Cerebain, including creating the
content for and managing the development and launch of the corporate website, preparing a
strategic outreach plan, preparing a community outreach plan, preparing an Alzheimer’s Month
Observation plan and preparing a social media strategy. Id. ¶ 11. She also prepared and
maintained a comprehensive social media list, prepared and presented a plan for Cerebain’s
visibility at the Chase/JP Morgan Annual Health Conference, created an investor road show,
prepared a corporate fact sheet and remained available to the CEO on an “as needed” basis. Id. ¶
12. Finally, plaintiff functioned as the “corporate spokesperson” for Cerebain and carried out the
rebranding of Cerbain, including the creation of a new corporate logo, color scheme, business
card, marketing material and slogan. Id. ¶ 13.
Per the parties’ employment agreement, plaintiff submitted monthly invoices to
defendants for her services. Id. ¶ 14 & Ex. C. Nonetheless, and despite repeated promises to the
contrary, defendants failed to pay plaintiff. Id. ¶ 15 & Ex. D. The last bill submitted to Cerebain
representing plaintiff’s wages due was sent in December 2015.
On July 21, 2016, plaintiff initiated litigation setting forth three claims: (1) breach of
contract; (2) violation of the Pennsylvania Wage Payment and Collection Law and (3) unjust
enrichment. Defendants moved to dismiss the complaint on October 3, 2016. Plaintiff
responded on October 13, 2016 and defendants filed a reply brief on October 19, 2016.
STANDARD OF REVIEW
Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has
not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic Corporation v. Twombly, 550
U.S. 544 (2007), the United States Supreme Court recognized that “a plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555.
Following these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662
(2009), subsequently defined a two-pronged approach to a court’s review of a motion to dismiss.
“First, the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 678. Thus, although “Rule 8
marks a notable and generous departure from the hyper-technical, code-pleading regime of a
prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 678–79.
Second, the Supreme Court emphasized that “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint
states a plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. A complaint does not show an
entitlement to relief when the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232–
34 (3d Cir. 2008) (holding that: (1) factual allegations of complaint must provide notice to
defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the
complaint’s factual allegations must be enough to raise a right to relief above the “speculative
level.”), quoting Twombly, 550 U.S. at 555.
Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of
review have remained static. Spence v. Brownsville Area Sch. Dist., No. 08-626, 2008 WL
2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short

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and plain statement of the claim showing that the pleader is entitled to relief and need not contain
detailed factual allegations. Fed. R. Civ. P. 8(a); Phillips, 515 F.3d at 233. Further, even after
Iqbal, the court must “accept all factual allegations as true, construe the complaint in the light
most favorable to plaintiff, and then determine whether a reasonable inference may be drawn that
the defendant is liable for the alleged misconduct.” Argueta v. U.S. Immigration & Customs
Enforcement, 643 F.3d 60, 74 (3d Cir. 2011).
DISCUSSION
I.

Wage Payment and Collection Law Claim
Plaintiff’s first claim seeks unpaid wages under the Wage Payment and Collection Law

(WPCL), 43 Pa. Cons. Stat. § 260.1, et seq. The WPCL provides that “[e]very employer shall
pay all wages, other than fringe benefits and wage supplements, due to his employes [sic] on
regular paydays designated in advance by the employer.” 43 Pa. Cons. Stat. § 260.3(a). “Any
employe or group of employes [sic], labor organization or party to whom any type of wages is
payable may institute actions provided under this act.” Id. § 260.9a(a). “The purpose of the
WPCL is to allow employees to recover wages and other benefits that are due from employers
pursuant to agreements between the parties.” Killian v. McCulloch, 850 F. Supp. 1239, 1255
(E.D. Pa. 1994), aff’d, 82 F.3d 406 (3d Cir. 1996). Accordingly, as a prerequisite to relief under
the WPCL, a plaintiff must allege that he or she (a) is an employee and (b) is under a contract
with his or her employer for wages to be paid. Lehman v. Legg Mason, Inc., 532 F. Supp. 2d
726, 734 (M.D. Pa. 2007).
Defendants now argue that plaintiff has not satisfied either of these requirements for
recovery under the WPCL. First, they assert that plaintiff was not an employee of Cerebain, but
rather an independent contractor, thereby rendering the WPCL inapplicable. Second, they
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contend that even if plaintiff could be characterized as an employee, she has failed to establish a
valid employment agreement pursuant to which her wages were due. Addressing each of these
arguments separately, I find that plaintiff has sufficiently pled a claim under the WPCL.
A.

Whether Plaintiff Was an “Employee”

Defendants’ first challenge to plaintiff’s WPCL claim asserts that because plaintiff was
not an “employee” of Cerebain, she cannot invoke the protections of this statute. The WPCL
applies only to employees, not to independent contractors. Spyridakis v. Riesling Grp., Inc., 398
F. App’x 793, 798 (3d Cir. 2010). Although the WPCL does not define the term “employee,”
Pennsylvania courts have looked to a series of factors to determine whether an individual is an
employee or an independent contractor, including:
[T]he control of the manner that work is to be done; responsibility
for result only; terms of agreement between the parties; the nature
of the work or occupation; the skill required for performance;
whether one employed is engaged in a distinct occupation or
business; which party supplies the tools; whether payment is by the
time or by the job; whether the work is part of the regular business
of the employer, and the right to terminate the employment at any
time.
Williams v. Jani-King of Phila. Inc.,

F.3d

, No. 15-2049, 2016 WL 5111920, at *4 (3d

Cir. Sept. 21, 2016), quoting Morin v. Brassington, 871 A.2d 844, 850 (Pa. Super. Ct. 2005),
quoting Lynch v. WCAB, 544 A.2d 159, 160 (Pa. Commw. Ct. 1989). “Paramount for [the
court’s] consideration among these factors is the right of an individual to control the manner that
another’s work is to be accomplished.” Morin, 871 A.2d at 850; see also Williams, 2016 WL
5111920, at *5.
The factual allegations of the present complaint allow a reasonable inference that plaintiff
qualifies as an employee under the WPCL. Plaintiff alleges that she was hired by Cerebain as a
senior member of its management team to provide services and support relating to Cerebain’s
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“public relations, investor relations, corporate growth strategies, and was to be an advisor who
was available to the Chief Executive Officer (“CEO”) for any specific needs or projects as
required.” Compl., ECF No. 1, ¶ 7. She goes on to assert that the details of her employment
were memorialized in an employment agreement, under which she was to receive $140,000 per
year plus $400 per month in on-going expenses. Id. ¶¶ 8– 9. This allegation is substantiated by
a copy of the e-mail attached to her complaint 1 reflecting that she would be given a “[b]ase
salary” and was entitled to some type of participation in Cerebain’s benefits package—language
suggestive of an employer-employee relationship. Id., Ex. A. That same e-mail states that
plaintiff would be a consultant with Cerebain for the month of June and have a formal start date
of July 1, evidencing the parties’ intent to convert plaintiff into an employee. Id. Further,
Cerebain publicly announced plaintiff as a Vice President over the Business Wire, stating that
Cerebain “has engaged biotech industry Miriam Weber Miller to serve on the executive team, as
corporate vice president.” Id. ¶ 10 & Ex. B. In addition, the announcement indicated that
plaintiff would “report[] to CEO Eric Clemons,” suggesting that Cerebain maintained some
degree of control over the work that she performed. Id. Finally, in e-mail exchanges between
plaintiff and CEO Eric Clemons, plaintiff referred to Cerebain as “our” company, stated that she
was “hired” as an “executive” and emphasized that she was the “corporate spokesperson,” all of
which underscore the inference that she was an employee of the company. Id., Ex. C.
In their motion to dismiss, defendants offer a different interpretation of the exhibits
attached to the complaint and argue that they definitively demonstrate that plaintiff served only
as a consultant providing “marketing communication and investor relations services” through her

1

“[A] court must consider only the complaint, exhibits attached to the complaint, 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).
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company Compass Group Consulting, LLC. Defs.’ Mot. to Dismiss, ECF. No. 7, at 8, citing
Compl., ECF No. 1, Ex. C. They further contend that this relationship is evidenced by (a)
plaintiff’s monthly invoicing of Cerbain for sums to be paid to her consulting group, (b)
plaintiff’s contemplation of a write off for the alleged unpaid invoices—suggesting a relationship
between business entities—and (c) text messages from CEO Clemons showing that defendants
never officially authorized plaintiff to take on the role of corporate spokesperson at Cerebain.
Defendants’ argument, however, attempts to impose a higher burden of proof on plaintiff
than is required at the motion to dismiss stage. Under the Twombly/Iqbal standards, plaintiff
must set forth factual allegations that raise a right to relief above the speculative level. Although
the factors identified by defendants could support an inference that plaintiff acted only as an
independent contractor for Cerebain, it is equally plausible, based on the facts raised by plaintiff,
that she was actually an employee entitled to relief under the WPCL. For example, her
submission of invoices to Cerebain could either reflect her independent contractor relationship
with the company or suggest that plaintiff accepted an alternative form of payment while Cerbain
faced a capital shortfall. Such factual disputes are inappropriate for resolution at this stage of the
litigation. Rather, I must take all factual allegations of the complaint as true and draw all
inferences from those allegations in the light most favorable to plaintiff “unless defendants can
definitively show that it is a false statement or an unwarranted factual inference.” Synesiou v.
DesigntoMarket, Inc., No. 01-5358, 2002 WL 501494, at *2 (E.D. Pa. Apr. 3, 2002). Doing so, I
find that plaintiff has stated a plausible claim that she is an employee for purposes of the WPCL.
B.

Whether Plaintiff Had a Contract

Alternatively, defendants argue that even if plaintiff could be deemed an employee, the
WPCL claim fails because plaintiff has not adequately pled the existence of a valid employment

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contract. The Pennsylvania Supreme Court has stated that the WPCL provides a means of
recovering wages that are due pursuant to a contract. See Oberneder v. Link Computer Corp.,
696 A.2d 148, 150 (Pa. 1997) (“The Wage Payment and Collection Law provides employees a
statutory remedy to recover wages and other benefits that are contractually due to them.”), citing
Killian, 850 F. Supp. at 1255. The “WPCL does not create a right to compensation. Rather, it
provides a statutory remedy when the employer breaches a contractual obligation to pay earned
wages. The contract between the parties governs in determining whether specific wages are
earned.” Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990) (internal citations omitted). In
other words, “[t]o present a wage-payment claim, the employee must aver a contractual
entitlement to compensation from wages and a failure to pay that compensation.” Braun v. Wal–
Mart Stores, Inc., 24 A.3d 875, 954 (Pa. Super. Ct. 2011) (internal quotations and citations
omitted), aff’d, 106 A.3d 656 (Pa. 2014), cert. denied, 136 S. Ct. 1512 (2016).
Nevertheless, when “employees do not work under an employment contract or a
collective bargaining agreement,” a plaintiff may access the WPCL by establishing “the
formation of an implied oral contract between [the employer] and its employees.” De Asencio v.
Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003); see also Braun, 24 A.3d at 954 (“[A]bsent a
formal employment contract or collective bargaining agreement, an employee raising a WPCL
claim would have to establish, at a minimum, an implied oral contract between the employee and
employer.”). “Under Pennsylvania law, an implied contract arises when parties agree on the
obligation to be incurred, but their intention, instead of being expressed in words, is inferred
from the relationship between the parties and their conduct in light of the surrounding
circumstances.” Oxner v. Cliveden Nursing & Rehabilitiation Ctr. PA, L.P., 132 F. Supp. 3d
645, 649 (E.D. Pa. 2015). “An offer and acceptance need not be identifiable and the moment of

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formation need not be precisely pinpointed.” Id., citing Ingrassia Constr. Co., Inc. v. Walsh, 486
A.2d 478, 483 (Pa. Super. Ct. 1984). As explained by the Pennsylvania Superior Court, “a
promise to pay the reasonable value of the service is implied where one performs for another,
with the other’s knowledge, a useful service of a character that is usually charged for, and the
latter expresses no dissent or avails himself of the service.” Martin v. Little, Brown & Co., 450
A.2d 984, 987 (Pa. Super. Ct. 1981). “A promise to pay for services can only be implied,
however, in circumstances under which the party rendering the services would be justified in
entertaining a reasonable expectation of being compensated by the party receiving the benefit of
those services.” Oxner, 132 F. Supp. 3d at 649. Courts have repeatedly allowed WPCL claims
to proceed where the plaintiff properly pled the existence of an implied contract. See, e.g., id. at
649–50 (finding that, despite absence of written employment agreement, the plaintiff sufficiently
stated a WPCL claim for the additional hours she worked from home at her normal hourly rate);
Gordon v. Maxim Healthcare Servs., Inc., No. 13-7175, 2014 WL 3438007, at *4 (E.D. Pa. July
15, 2014) (“Although Gordon did not work for Maxim according to the terms of any written
agreement, she has averred that she provided services as a home healthcare aide in exchange for
wages to be paid according to a week-long pay period. . . . There are sufficient facts set forth in
the amended complaint to make plausible the existence of an implied oral contract between
Gordon and Maxim.”); Euceda v. Millwood, Inc., No. 12-0895, 2013 WL 4520468, at *5 (M.D.
Pa. Aug. 26, 2013) (“[T]here is sufficient evidence of a contract to pay wages to support a
WPCL claim at this stage. The plaintiff has alleged, and the defendant does not deny, that he
was employed as a pallet repairer by the defendant. The plaintiff also asserts that he was paid . .
. $.39 per pallet repaired [and] that the defendant availed itself of the plaintiff’s work during two
separate periods of employment.”).

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Accepting all factual allegations of the complaint as true, I find that plaintiff has, at
minimum, sufficiently pled the existence of an implied employment agreement between her and
Cerebain. Plaintiff’s complaint alleges that she was hired by Cerebain as a senior member of its
management team at an agreed upon $140,000 per year, plus $400 per month in on-going
expenses. Compl., ECF. No. 1, ¶¶ 6, 8. She further asserts that “the details of [her] employment
with Defendant Cerebain were memorialized in [an] email dated May 22, 2014 between Plaintiff
Miller and Defendant Cerebain’s CEO, Defendant Clemons,” a copy of which is attached to her
complaint. Id. ¶ 9. According to a corporate announcement, Cerebain subsequently named
plaintiff as corporate vice president on the executive team. Id. ¶ 10, Ex. B. Plaintiff then began
submitting invoices to Cerebain for “[p]rofessional fees and expenses for marketing
communication and investor relations,” as well as “approved expenses” for various costs, under
the name of Compass Group Consulting, LLC beginning in July 2014. Id. ¶ 14, Ex. C. These
allegations and the exhibits attached to the complaint provide sufficient evidence of a contract to
pay wages in exchange for plaintiff’s service and justify plaintiff’s maintenance of a reasonable
expectation of being compensated at a specific rate for her work.
In an attempt to inject doubt into the existence of the contract, defendants argue that the
email is simply a summary of a conversation, not a summary of an agreement. They assert that it
uses phrases such as “PLMK” (please let me know), “TBD” (to be determined) and “your
feedback is greatly appreciated,” which suggests that the terms of any agreement are uncertain.
Further, defendants contend that the email does not contain any definite term of employment,
meaning that it is an at-will arrangement that provides no rights under the WPCL.
These arguments fail to establish grounds for dismissal. The complaint clearly pleads the
existence of an employment agreement, albeit an implied oral agreement. The e-mail attached to

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the complaint substantiates the inference that the parties intended to be bound by some
contractual arrangement wherein plaintiff would work for a base salary of $140,000, plus $400
per month expenses. While the e-mail reflects the existence of various uncertainties in the
agreement, such as plaintiff’s official title and the amount of her compensation for her work as a
consultant prior to her official start date, those uncertainties do not negate the existence of an
employment agreement for purposes of the WPCL. See ProtoComm Corp. v. Fluent, Inc., No.
93-0518, 1995 WL 3671, at *14 (E.D. Pa. Jan. 4, 1995) (“Under Pennsylvania law, it is possible
for a meeting of the minds to occur and a contract formed in the absence of each and every
obligation of the parties having been particularized. . . . In fact, a contract can be formed even if
many of the particulars or specifics have not been discussed or agreed upon.”) (internal
quotations and quotation marks omitted). Further, the mere fact that the agreement fails to state
a specific duration is of no moment. While a contract of employment is presumed to be
terminable at will by either party absent a specification of definite duration, Bruffet v. Warner
Commc’ns, Inc., 692 F.2d 910, 913 (3d Cir. 1982), the existence of an at-will contract does not
negate a finding of an employment agreement for purposes of the WPCL. Bertolino v. Controls
Link, Inc., No. 14-720, 2014 WL 5148159, at *4 (W.D. Pa. Oct. 14, 2014) (“[W]hile an
employer may permissibly discharge an at-will employee at any time, the at-will doctrine does
not relieve the employer of its contractual obligation to provide the compensation promised in
return for the employee’s services” for purposes of the WPCL), citing Braun v. Wal-Mart Stores,
Inc., 24 A.3d 875 (Pa. Super. Ct. 2011). In short, construing the complaint in the light most
favorable to plaintiff, I find that she has adequately pled the existence of an employment
agreement upon which a WPCL claim may be based.

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II.

Breach of Contract
Plaintiff’s breach of contract claim, set forth in count I of the complaint, alleges as

follows:
19.
Pursuant to the Employment Agreement between Miller
and Cerebain, Miller was entitled to payment of $140,000 a year in
salary, plus $400 a month in expenses.
20.
Despite this clear contractual language, Cerebain failed and
refused to make full and complete payment to Plaintiff Miller.
21.
During the (18) months in which Plaintiff Miller worked
for Defendant Cerebain and submitted invoices to the Defendant,
Plaintiff Miller incurred over $217,000 in earned wages, while
only receiving approximately $42,000.00 in payments from
Defendant Cerebain.
22.
Accordingly, Defendant Cerebain is liable under its
Employment Agreement for over $175,200.00 in unpaid wages,
and the Defendant’s failure to make such payments constitutes a
breach of contract between Cerebain and Miller.
Compl., ECF No. 1, ¶¶ 19–22.
Defendants now argue that these allegations do not state a plausible claim for breach of
contract because plaintiff fails to establish either (1) a manifest intent to be bound or (2) terms
sufficiently definite to be specifically enforced. See Channel Home Ctrs. v. Grossman, 795 F.2d
291, 298–99 (3d Cir. 1986) (holding that, under Pennsylvania law, “the test for enforceability of
an agreement is whether both parties have manifested an intention to be bound by its terms and
whether the terms are sufficiently definite to be specifically enforced.”), citing Lombardo v.
Gasparini Excavating Co., 123 A.2d 663, 666 (Pa. 1956). I find that neither argument has merit.
A.

Intent to Be Bound

When determining manifestation of intent to be bound, the object of inquiry is not the
inner, subjective intent of the parties, but rather the intent a reasonable person would apprehend
in considering the parties’ behavior. Am. Eagle Outfitters v. Lyle & Scott, Ltd., 584 F.3d 575,
582 (3d Cir. 2009), citing Ingrassia Constr. Co., Inc. v. Walsh, 486 A.2d 478, 483 (Pa. Super. Ct.
13

1984). “[A] true and actual meeting of the minds is not necessary to form a contract.” Am.
Eagle, 584 F.3d at 582 (citing Ingrassia, 486 A.2d at 483). “‘It is hornbook law that evidence of
preliminary negotiations or an agreement to enter into a binding contract in the future does not
alone constitute a contract.’” Am. Eagle Outfitters, 584 F.3d at 582, quoting Channel Home
Ctrs. v. Grossman, 795 F.2d 291, 298 (3d Cir. 1986); ATACS Corp. v. Trans World Commc’ns,
Inc., 155 F.3d 659, 666–67 (3d Cir. 1998) (“[I]t is well established that evidence of preliminary
negotiations or a general agreement to enter a binding contract in the future fail as enforceable
contracts because the parties themselves have not come to an agreement on the essential terms of
the bargain and therefore there is nothing for the court to enforce.”). “On the other hand,
however, ‘parties may bind themselves contractually although they intend, at some later date, to
draft a more formal document.’” Am. Eagle Outfitters, 584 F.3d at 582, quoting Goldman v.
McShain, 247 A.2d 455, 459 (Pa. 1968). Thus, “‘[m]utual manifestations of assent that are in
themselves sufficient to make a contract will not be prevented from so operating by the mere fact
that the parties also manifest an intention to prepare and adopt a written memorial thereof. . . .’”
Am. Eagle Outfitters, 584 F.3d at 582, quoting Restatement (First) of Contracts § 26 (1932); see
also Shell’s Disposal and Recycling, Inc. v. City of Lancaster, 504 F. App’x 194, 201 (3d Cir.
2012) (“The key inquiry is not the extent to which the parties have put their agreement in
writing, but rather whether the parties agreed to the essential terms of a contract.”).
Defendants argue, in somewhat cursory fashion, that the May 22, 2014 e-mail delineating
the parties’ purported employment agreement is, at best, evidence of preliminary negotiations
between the parties or an offer from plaintiff. They further contend that the email fails to
manifest anything approaching an acceptance by defendants or the “meeting of the minds”
necessary for contract formation.

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I disagree. Plaintiff specifically alleges that she was hired under an employment
agreement to serve as a senior member of Cerebain’s management team at a specific salary, as
memorialized in the May 22, 2014 e-mail. Compl., ECF No. 1, ¶¶ 6–8, 19 & Ex. A. Contrary to
defendants’ argument, that e-mail reflects more than mere preliminary negotiations or future
intent to enter into a contract. Indeed, the e-mail is described as a “summary of our
conversation” and suggests a memorialization of the parties’ “Long-Term Agreement” that had
already been reached on the essential elements of their arrangement. Moreover, the allegations
regarding the parties’ subsequent course of conduct—defendants’ announcement of plaintiff over
the Business Wire as Executive Vice President, plaintiff’s provision of all requested services to
defendants and Cerebain’s initial payments to plaintiff according to the terms set forth in the email—constitute objective manifestations of the parties’ assent to the precise terms contained
within the e-mail. Id. ¶¶ 10, 11, 21.) Taking these facts, and all inference therefrom, in the light
most favorable to plaintiff, I find that these allegations and exhibits sufficiently establish a
meeting of the minds for the breach of contract claim to survive a Rule 12(b)(6) motion.
B.

Sufficiently Definite Terms

It is not enough, of course, that the parties intended to contract. “‘[I]n order for there to
be an enforceable contract, the nature and extent of its obligation must be certain; the parties
themselves must agree upon the material and necessary details of the bargain.’” Am. Eagle
Outfitters, 584 F.3d at 585, quoting Lombardo v. Gasparini Excavating Co., 123 A.2d 663, 666
(Pa. 1956). In other words, a court must look to see whether “the terms are sufficiently definite
to be specifically enforced.” Channel Home Ctrs., 795 F.2d at 298–99. This is a question of
law. Am. Eagle Outfitters, 584 F.3d at 585. The definiteness requirement does not mean that the
presence of any interpretive ambiguity renders an agreement unenforceable. Shell’s Disposal,

15

504 F. App’x at 202. Rather, “a contract fails for indefiniteness when it is ‘impossible to
understand’ what the parties agreed to because the essential terms are ambiguous or poorly
defined.” Id. (quotations omitted).
Similar to their argument with respect to plaintiff’s WPCL claim, defendants argue that
the e-mail agreement is not sufficiently definite to be enforced. They again contend that the email’s use of the phrases “PLMK” (please let me know), “TBD” (to be determined) and “your
feedback is greatly appreciated” indicate a clear lack of finality regarding the potential terms of
the e-mail.
As explained above, however, “[a] meeting of the minds can occur in the absence of each
and every obligation of the parties having been particularized.” United Incentives, Inc. v. Sea
Gull Lighting Prods., Inc., No. 91-0226, 1992 WL 41322, at *4 (E.D. Pa. Mar. 2, 1992). “Once
it is determined that the parties intended to form a binding agreement, certainty of terms is
important only as a basis for determining the existence of a breach and for giving an appropriate
remedy.” Browne v. Maxfield, 663 F. Supp. 1193, 1198 (E.D. Pa. 1987), quoting Restatement
(Second) of Contracts § 33. Under the facts alleged by plaintiff, the essential terms of the
agreement are certain: plaintiff was to perform certain executive tasks for Cerebain in exchange
for $140,000 a year in salary plus $400 a month in expenses. The use of phrases such as
“PLMK” and “TBD” concerned non-material matters such as her official title and how she was
to be compensated for her work in the month of June prior to her official start date. The failure
to particularize these details does not detract from the obvious meeting of the minds that can be
inferred from plaintiff’s complaint and attached exhibits. Accordingly, I will deny defendants’
motion to dismiss on this ground.

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III.

Unjust Enrichment
Plaintiff’s final cause of action sets forth a claim of unjust enrichment. 2 When there has

been no meeting of the minds between the parties, equitable relief . . . may be available.” Param
Techs., Inc. v. Intelligent Home Solutions, Inc., No. 04-1348, 2005 WL 2050446, at *4 (E.D. Pa.
Aug. 25, 2005). “Quantum meruit [or quasi-contract] is an implied contract remedy based on
payment for services rendered and on prevention of unjust enrichment.” Id. “In service
contracts, for example, recovery under quasi-contract may be available where the parties have
not fixed the value of the service to be provided, but it would be unjust to allow the beneficiary
to retain a benefit for which there was an implied promise to pay.” Id. “In Pennsylvania, a party
seeking to plead unjust enrichment must allege the following elements: ‘(1) a benefit conferred
on the defendant by the plaintiff; (2) appreciation of the benefit by the defendant; and (3) the
defendant’s acceptance and retention of the benefit under such circumstances that it would be
inequitable for defendant to retain the benefit without payment of value.’” Kliesh v. Select

2

I note that claims of breach of contract and unjust enrichment are generally not compatible.
“Pennsylvania has long ascribed to the rule that when the ‘parties’ relationship is based on an
express written contract no unjust enrichment recovery is permitted.’” Montanez v. HSBC
Mortg. Corp. (USA), 876 F. Supp. 2d 504, 515 (E.D. Pa. 2012), quoting Novacare, Inc. v. S.
Health Mgmt. Inc., No. 97–5903, 1998 WL 470142, at *1 (E.D. Pa. Aug. 11, 1998).
Nonetheless, “[a] plaintiff is permitted to plead alternative theories of recovery based on breach
of contract and unjust enrichment in cases where there is a ‘question as to the validity of the
contract in question.’” Premier Payments Online, Inc. v. Payment Sys. Worldwide, 848 F. Supp.
2d 513, 527 (E.D. Pa. 2012), quoting AmerisourceBergen Drug Corp. v. Allscripts Healthcare,
LLC, No. 10-6087, 2011 WL 3241356, at *3 (E.D. Pa. July 29, 2011); see also Surety Admins.,
Inc. v. Pacho’s Bail Bonds, No. 05-5851, 2007 WL 1002136, at *4 (E.D. Pa. Mar. 30, 2007)
(allowing a plaintiff to plead breach-of-contract and unjust-enrichment claims alternatively
where defendant “dispute[d] the existence of a contract”).
In the present case, the parties dispute the existence of a contract between them. At the
motion to dismiss stage, I cannot resolve whether a valid contract exists. As such, I will permit
plaintiff to plead in the alternative.
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Portfolio Serv., Inc., No. 12-548, 2012 WL 2500973, at *8 (E.D. Pa. June 29, 2012), quoting
Giordano v. Claudio, 714 F. Supp. 2d 508, 530 (E.D. Pa. 2010) (further quotations omitted).
Defendants argue that plaintiffs’ allegations in Count III of her complaint are “labels and
conclusions” that cannot be considered under the Twombly/Iqbal standards. They further
contend that that, aside from attaching invoices to the complaint, plaintiff has not pled any facts,
with any level of specificity, to suggest that defendants unjustly accepted and retained a benefit
of any value from plaintiff.
Defendants’ argument, however, is premised on a review of solely the allegations within
count III of the complaint 3 without consideration of the remainder of the complaint, which sets
forth factual allegations supporting all three elements of an unjust enrichment claim. First,
plaintiff asserts that she conferred a benefit on defendants by “creating the content for, and
managing the development and launch of the corporate website, preparing a strategic outreach
plan, a community outreach plan, an Alzheimer’s Month Observation plan, and a social media
strategy.” Compl., ECF No. 1, ¶ 11.) In addition, she prepared and maintained a comprehensive
social media list, prepared and presented a plan for Cerebain’s visibility at the Chase/JP Morgan
Annual Health Conference, prepared an investor road show, prepared a corporate fact sheet and
was available to the CEO on an ‘as needed’ basis.” Id. ¶ 12. Second, plaintiff alleges facts to
show that Cerebain appreciated these benefits when it announced plaintiff as the “corporate
spokesperson” and received the benefit of plaintiff’s rebranding of the company, including the

3

Count III of the complaint sets forth a threadbare recital of the elements of an unjust
enrichment cause of action by alleging that Cerebain received the benefit of plaintiff’s hard work
and business services without paying for those services and has, therefore, been unjustly
enriched. Compl., ECF No. 1, ¶¶ 31, 32. Notably, however, count III also incorporates by
reference all of the previous factual allegations within the complaint, making it necessary to
consider those allegations on a Rule 12(b)(6) review. Id. ¶ 30.
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creation of a new corporate logo, color scheme, business card, market material and slogan, the
last of which is still in use today. Id. ¶ 13. Finally, plaintiff pleads that defendants were unjustly
enriched because “despite CEO Clemons’ repeated promises to pay [plaintiff] for her wages and
expenses incurred upon Cerebain receiving an additional capital infusion, and despite Defendant
Cerebain and Defendant and Defendant Clemons always treating [plaintiff] as an employee of
Defendant Cerebain which entitled her to full negotiated salary,” plaintiff was not paid in full for
her services. Id. ¶ 15.
In short, the unjust enrichment claim is well pled and adequately supported by factual
allegations that give rise to a plausible cause of action. Therefore, I will decline to dismiss this
claim.
CONCLUSION
At this early stage of litigation, plaintiff need only set forth a short and plain statement of
her causes of action sufficient to raise the right to relief above the speculative level.
Undoubtedly, she has done so in the complaint at bar and has adequately pled causes of action
for a violation of the WPCL, breach of contract and unjust enrichment. Accordingly, I will deny
defendants’ motion to dismiss and will order them to file an answer to the complaint on or before
November 28, 2016.
An appropriate Order follows.

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