GRABOWSKI v. DIETZ & WATSON, INC.
MEMORANDUM SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/27/17. 9/27/17 ENTERED AND COPIES E-MAILED. (va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DIETZ & WATSON, INC.
September 27, 2017
Plaintiff Joseph Grabowski brings the above-captioned action against his previous
employer, Defendant Dietz & Watson, Inc., alleging the corporation’s failure to pay Plaintiff
overtime wages at an increased rate of pay, in violation of the Fair Labor Standards Act, 29
U.S.C. § 209, et seq. (“FLSA”) (Count I), the Pennsylvania Minimum Wage Act, 43 P.S. §
333.101, et seq. (“PWMA”) (Count III), and the Pennsylvania Wage Payment Collection Law,
43 P.S. § 260.1, et seq. (“WPCL”) (Count IV). 1 Currently before the court is Defendant’s
Motion to Dismiss Count IV of Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 12(b)(6). For
the reasons set forth below, Defendant’s Motion shall be granted.
From September 2009 through May 2016, Plaintiff was employed as a sales
merchandizer by Defendant, a seller of deli meats and artisan cheeses. (Compl. ¶¶ 7, 10–11.)
Plaintiff’s primary work duties were to go to merchants of Defendant’s products—grocery
Plaintiff’s Complaint does not contain “Count II” but instead, skips from Count I to Count III.
stores—and ensure that the stores’ employees had adequate knowledge of the products and that
the stores were correctly showcasing and marketing those products. (Compl. ¶ 12.) Plaintiff
contends his job did not include making sales and that he had little to no discretion regarding
how to perform his duties. (Compl. ¶¶ 12, 14.) Rather, decisions regarding the showcasing and
marketing of Defendant’s products were laid out in a policy created by Defendant’s Marketing
Department and upper management. (Compl. ¶ 14.)
For approximately the last five years of Plaintiff’s employment with Defendant,
Plaintiff’s work also included setting up trade shows. (Compl. ¶ 15.) The associated duties
performed by Plaintiff with respect to those trade shows were transporting and loading
equipment and products onto Defendant’s vehicles; setting up booths at the trade shows; and,
discussing storage and electrical arrangements with “individuals” at the trade shows. (Compl. ¶¶
16.) As with his other duties, Plaintiff contends he had little to no discretion in how to perform
his trade show-related duties and that decisions about the trade shows were made by Defendant’s
Vice President, Marketing Department, and other upper management. (Compl. ¶ 17.)
During Plaintiff’s employment, Plaintiff received a “salary of $52,000 per year,
regardless of how many hours he worked,” and alleges that he often worked more than 50 hours
per week, particularly during the last five years of his employment. (Compl. ¶¶ 19–20.) Plaintiff
claims he was a “non-exempt” employee and was therefore entitled to receive “time-and-a-half”
payment for all overtime. (Compl. ¶¶ 21–22.)
Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
and citation omitted). After the Supreme Court’s decision in Bell Atl. Corp. v. Twombly,
[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. 544, 555 (2007)). A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. (citing Twombly, 550 U.S. at 556). This standard asks for more than a
sheer possibility that a defendant has acted unlawfully. Id. Accord Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009) (“[A]ll civil complaints must contain more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”) (internal quotation marks omitted).
Contractual Obligation Requirement of WPCL Claims
Simply stated, “The Wage Payment and Collection Law provides employees a statutory
remedy to recover wages and other benefits that are contractually due to them.” Oberneder v.
Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997).
More specifically, the WPCL states in pertinent part:
Every employer shall pay all wages, other than fringe benefits and wage
supplements, due to his employes on regular paydays designated in
advance by the employer. Overtime wages may be considered as wages
earned and payable in the next succeeding pay period. All wages, other
than fringe benefits and wage supplements, earned in any pay period shall
be due and payable within the number of days after the expiration of said
pay period as provided in a written contract of employment or, if not so
specified, within the standard time lapse customary in the trade or within
15 days from the end of such pay period.
43 Pa.C.S.A. § 260.3(a).
The Third Circuit has long held that 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); see also De Asencio
v. Tyson Food, Inc., 342 F.3d 301, 309 (3d Cir. 2003) (same); Calli v. ARC Maint., Inc., No.
5:14-cv-5292, 2016 U.S. Dist. LEXIS 6923, at *22 (E.D. Pa. Jan. 21, 2016) (same).
When no written contract obligates a defendant to pay the wages sought by a plaintiff, he
or she “will have to establish the formation of an implied oral contract between [the defendant]
and its employees.” De Asencio, 342 F.3d at 309; see also Braun v. Wal-Mart Stores, Inc., 24
A.3d 875, 954 (Pa. Super. Ct. 2010) (“We agree with the . . . Third Circuit’s observation that
[absent an express contract], an employee raising a WPCL claim would have to establish, at a
minimum, an implied oral contract between the employee and employer.”). “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 v. Cliveden Nursing & Rehab. Ctr. Pa, L.P.,
123 F. Supp. 3d 645, 649 (E.D. Pa. 2015) (citing Martin v. Little, Brown & Co., 450 A.2d 984,
987 (Pa. Super. Ct. 1981)) (discussing what would be required to infer an implied contract in a
Thus, a claim under the WPCL “does not provide for relief due under state or federal
law,” as opposed to wages due to an employee under a contract with an employer. Lehman v.
Legg Mason, Inc., 532 F. Supp. 2d 726, 734 (M.D. Pa. 2007) (dismissing a WPCL claim which
relied on the FLSA and the PMWA as a source for the obligation of the defendant to pay wages,
instead of a contract); see also Scott v. Bimbo Bakeries, Inc., 2:10-cv-03154, 2012 U.S. Dist.
LEXIS 26106, at *16–18 (E.D. Pa. Feb. 29, 2012) (dismissing a WPCL claim for overtime
wages in which the only basis for the obligation to pay those wages were FLSA and PMWA
claims) (citing Lehman, 532 F. Supp. 2d at 734).
A plaintiff’s failure to plead to the existence of any contract, express or implied, will
render a WPCL claim unsuccessful. See, e.g., Lehman, 532 F. Supp. 2d at 733–34; Rosario v.
First Student Mgmt., LLC, 5:15-cv-06478, 2016 U.S. Dist. LEXIS 108172, at *26 (E.D. Pa. Aug.
16, 2016) (“[T]he mere existence of an employer-employee relationship is not sufficient to
establish a contractual right to recovery under the WPCL. The Third Circuit has clearly required
plaintiffs lacking a formal written agreement to allege at the very least an implied oral
contract.”); Mackereth v. Kooma, Inc., 2:14-cv-04824, 2015 U.S. Dist. LEXIS 63143, at *30
(E.D. Pa. May 14, 2015) (dismissing WPCL claim because “Plaintiffs do not allege the existence
of a contractual right, either express or implied, to recover the wages they seek [including the
overtime wages sought] pursuant to the WPCL.”); Drummond v. Herr Foods Inc., 2:13-cv05991, 2014 U.S. Dist. LEXIS 2409, at *10–11 (E.D. Pa. Jan. 9, 2014) (granting a motion to
dismiss because the plaintiff did not plead “any such contractual obligation [to pay overtime
pay], either express or implied.”).
However, when a plaintiff does plead the existence of a contract, the defendant’s
obligation to pay the specific wages sought by the plaintiff must flow from the governing
contract. See Arrington v. Willow Terrace & RC Operator, LLC, 2:16-cv-02599, 2016 U.S. Dist.
LEXIS 139669, at *8–9 (E.D. Pa. Oct. 7, 2016) (“Plaintiff fail[ed] to plead any facts
demonstrating that Plaintiff was contractually entitled to this compensation. Absent a specific
allegation of a[n] [express or implied] contract between Plaintiff and Defendant whereby
Defendant was obligated to make these payments, Plaintiff’s claim is insufficient.”) (emphasis
When assessing WPCL allegations based upon an express contract, an interpretation of
the terms of an express contract must reveal the contractual obligation, or the plaintiff will not be
entitled to relief. See, e.g., Calli, 2016 U.S. Dist. LEXIS 6923, at *23 (dismissing a salaried
employee’s WPCL claim for overtime wages because the agreements did not specify those
wages be paid); Scott, 2012 U.S. Dist. LEXIS 26106, at *15–17 (dismissing a WPCL upon
determining that the contract did not obligate the defendants to make payment of the wages
Likewise, the requirement that an implied contract carry with it a “reasonable
expectation” for compensation commands that the oral agreement actually concern the wages
sought in the action. See, e.g., Weldon, 896 F.2d at 801 (“Nor do we believe that a reasonable
trier of fact could infer from [the] statement[s] [offered as proof of an implied contract,] the
existence of an implied contractual obligation.”); Oxner 132 F. Supp. 3d at 649–50 (finding
normal payments were implied by the services performed however, overtime wages were neither
promised nor implied); Miller v. Cerebain Biotech Corp., 2:16-cv-03943, 2016 U.S. Dist. LEXIS
154597, at * 15–16 (finding an implied contractual obligation for the sought wages based on an
e-mail discussing the terms of a plaintiff’s future employment, its compensation, the
announcement of the plaintiff having been hired for the position, and the plaintiff’s performance
of the requested services).
Count IV of Plaintiff’s Complaint Fails to Sufficiently Plead a WPCL Claim
Count IV of Plaintiff’s Complaint alleges in pertinent part that: “Plaintiff had an
agreement with Defendant whereby Defendant agreed to compensate Plaintiff for all services he
performed during his employment”; “Plaintiff performed the agreed-upon services for
Defendant”; and, “Defendant failed to properly compensate Plaintiff for the services rendered as
specified by the Parties’ employment agreement (included [sic] but not limited to paying
Plaintiff for all hours worked after hours and on weekends).” (Compl. ¶¶ 41, 43.) Construing said
Complaint in a light most favorable to Plaintiff, this Court finds his WPCL allegations to be
Plaintiff Failed to Adequately Plead the Existence of an Express
Plaintiff’s Complaint fails to indicate whether the employment “agreement” to which he
refers was express or implied. “Federal Rule of Civil Procedure 8(a) permits a plaintiff to assert
the existence of an express, written contract either by setting it forth verbatim in the complaint,
or the plaintiff may attach a copy as an exhibit, or plead it according to its legal effect.” Rivera
v. Dealer Funding, LLC, 178 F. Supp. 3d 272, 275-276 (E.D. Pa. 2016) (internal quotation marks
and citations omitted). Plaintiff has not satisfied any of these alternatives. Instead, he simply
states that the agreement existed and that Defendant failed to “properly compensate Plaintiff for
the services rendered as specified by” that agreement. (Compl. ¶¶ 40–44.) Plaintiff fails to
allege any obligation created by this “agreement.” Although he concedes Defendant paid him a
salary for the entirety of his employment, Plaintiff claims Defendant should have also paid him
additional wages for the extra hours he worked. (Compl. ¶ 19.) This—without more—is
insufficient. See Calli, 2016 U.S. Dist. LEXIS 6923, at *23 (salaried employee’s WPCL claim
was dismissed because the agreement “ma[de] no mention of overtime wages and therefore [did]
not evidence a contractual agreement to pay overtime wages.”).
Plaintiff Failed to Adequately Plead the Existence of an Implied
Assuming in the alternative that the “agreement” referred to in the Complaint was
intended to be interpreted as an implied contract, Plaintiff’s WPCL claim remains deficient
because it is devoid of any facts from which this Court can construe the existence of any promise
by Defendant to pay overtime wages at an increased rate of pay. In Oxner, an employee who
was required to work additional hours at home, sought payment for those hours at an increased
rate. 132 F. Supp. 3d at 647–48. The court, while allowing her to be paid at her regular rate,
dismissed her claim for overtime wages, holding as follows:
Oxner alleges defendants [required her] to work this extra time, but
nowhere in the amended complaint does Oxner contend that Defendants
promised to or implied that they would compensate her at a higher rate of
pay for this extra work. Rather, Oxner merely claims that she was entitled
to overtime pay for her hours worked over forty. This claim is a legal
conclusion couched as a fact and the Court need not give it credence.
Id. at 650 (internal quotations marks omitted) (citations omitted).
In the matter before this Court, nothing Defendant is alleged to have done, said, agreed
to, or promised would have “justified [Plaintiff] in entertaining a reasonable expectation of being
compensated” in the form of increased overtime wages. Accordingly, Plaintiff has failed to
sufficiently plead a WPCL claim on the basis of an implied contractual obligation.
Amendments to a Complaint may be made as a matter of course, but only if the
amendment occurs within: “21 days after serving it, or . . . if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” FED. R. CIV. P. 15(a)(1).
Inasmuch as the conditions for amendment as a matter of course are absent here,
amendment is only be permitted by leave of court or with the written consent of the opposing
party. FED. R. CIV. P. 15(a)(2). Leave must be freely granted “when justice so requires.” Id.
However, leave may be denied where undue delay, bad faith, dilatory motive, prejudice, or
futility are present. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). In examining futility,
the legal standards of Rule 12(b)(6) must be applied. Id.
While Plaintiff’s current Complaint does not sufficiently plead the existence of a
contractual obligation on the part of Defendant to pay Plaintiff overtime wages at an increased
rate of pay, this Court cannot conclude that any attempt to amend said Complaint would be futile
and shall therefore grant Plaintiff leave to amend. 2
In the event Plaintiff elects to take advantage of this Court’s granting of leave to amend, said
amendment must point to a contractual obligation to pay overtime wages. In his current
Complaint, Plaintiff’s first mention of entitlement to overtime pay at an increased rate states that
the issue will be “discussed supra.” (Compl. ¶ 21.) However, the only other reference to
overtime pay is contained in his allegations of “non-exempt” employee entitlement under the
FLSA and PMWA. (Compl. ¶¶ 26–27, 35–36.) As previously discussed, entitlement to wages
under federal and state law is insufficient to maintain a claim under the WPCL. While this Court
does not comment on the validity of Plaintiff’s FLSA and PMWA claims, Plaintiff’s potential
future success in recovering under those laws will not entitle him to relief under the WPCL.
Plaintiff must instead show either an express or implied contract which obliges Defendant to pay
him the overtime wages sought.
For the reasons set forth above, Defendant’s Motion to Dismiss shall be granted and
Plaintiff shall be granted leave to amend Count IV of his Complaint. 3
An appropriate Order follows.
BY THE COURT:
_/s/ C. Darnell Jones, II
In the event Plaintiff elects to amend Count IV, he shall also correct the numbering of all
Counts contained within the Amended Complaint.
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