SONDESKY v. CHERRY SCAFFOLDING INC. et al
MEMORANDUM AND/OR OPINION (MEMORANDUM AND/OR OPINION ORDER ECF #47). SIGNED BY HONORABLE ANITA B. BRODY ON 9/5/2017. 9/5/2017 ENTERED AND COPIES VIA ECF.(mo, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHERRY SCAFFOLDING, INC.,
September 5, 2017
Anita B. Brody, J.
Plaintiff Linda Sondesky brings suit against Defendants Cherry Scaffolding, Inc.
(“Cherry Scaffolding”) and Stephen Ellis. Sondesky asserts claims under the Fair Labor
Standards Act (“FLSA”) and the Pennsylvania Wage Payment and Collection Law (“WPCL”)
against all Defendants. First Am. Compl. 4-5, ECF No. 12. In addition, Sondesky asserts
Dragonetti Act and common law abuse of process claims against Cherry Scaffolding only. Id. at
5. Cherry Scaffolding asserts counterclaims against Sondesky for conversion and breach of
fiduciary duty.1 Defs.’ Answer and Countercl. 12-16, ECF No. 31.
Defendants have moved to dismiss Plaintiff’s First Amended Complaint for failure to
state a claim and have also moved for judgment on the pleadings as to all counts of Plaintiff’s
First Amended Complaint. Defs.’ Mot. Dismiss, ECF No. 15; Defs.’ Mot. J. Pleadings, ECF No.
38. Plaintiff has moved for judgment on the pleadings as to Cherry Scaffolding’s counterclaims.
Pl.’s Mot. J. Pleadings, ECF No. 34. I will grant Defendants’ motion to dismiss Sondesky’s
I exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1331, because Count I of Sondesky’s Amended
Complaint asserts a claim arising under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. I exercise
supplemental jurisdiction over Sondesky’s Pennsylvania state law claims and Cherry Scaffolding’s counterclaims
pursuant to 28 U.S.C. § 1367.
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WPCL claim and her abuse of process claim. I will deny Defendants’ motion to dismiss
Sondesky’s FLSA and Dragonetti Act claims. I will deny both parties’ motions for judgment on
Sondesky was employed by Cherry Scaffolding as a bookkeeper from October 22, 2015
until March 7, 2016. Sondesky’s rate of pay on her last day of work was $28.85 per hour.
Sondesky asserts that she was a non-management employee and that her position was not exempt
from any state or federal laws governing overtime pay. At some point during her employment,
Sondesky had a telephone conversation with Ellis, who serves as President and Treasurer of
Cherry Scaffolding. Sondesky informed Ellis that the office was in disarray and that she would
need to be paid in full for all hours that she worked as the bookkeeper. Ellis confirmed that he
understood Sondesky’s position. Sondesky subsequently submitted all of her hours, including
overtime, to payroll, and Cherry Scaffolding’s management approved her compensation.
In early March of 2016, Cherry Scaffolding terminated Sondesky without a specific
reason. Following her termination, Cherry Scaffolding filed a lawsuit against Sondesky in
Pennsylvania Magisterial District Court (the “State Court Action”) seeking to recover overtime
compensation from Sondesky. On June 23, 2016, judgment in that suit was entered in
In its Answer and Counterclaim, Cherry Scaffolding asserts that Sondesky had access to
Cherry Scaffolding’s bank accounts and withdrew $2,566.09 without justification. Sondesky
refused Cherry Scaffolding’s demands to return the money.
The facts are taken from Plaintiff’s First Amended Complaint, Defendants’ Answer and Counterclaim, and public
records. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (stating that a
court may “consider matters of public record, orders, exhibits attached to the complaint and items appearing in the
record of the case” in deciding a motion to dismiss).
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STANDARD OF REVIEW
In deciding a motion to dismiss under Rule 12(b)(6), a court 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. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but
early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). “Judgment will only be granted where the moving party clearly establishes there are no
material issues of fact, and that he or she is entitled to judgment as a matter of law.” DiCarlo v.
St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008). There is “no material difference in the
applicable legal standards” for a motion for judgment on the pleadings under Rule 12(c) and a
motion to dismiss under Rule 12(b)(6). Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004).
To survive dismissal, a complaint must allege facts sufficient to “raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Threadbare 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). Rather, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Id. (internal quotation marks omitted). “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.
“As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings. However, an exception to the general rule is that a
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document integral to or explicitly relied upon in the complaint may be considered . . . .” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis omitted)
(citations omitted) (internal quotation marks omitted). Thus, a court may “consider matters of
public record, orders, exhibits attached to the complaint and items appearing in the record of the
case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).
Further, “a court may consider an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.” Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Defendants move to dismiss and move for judgment on the pleadings on all claims
brought against them. I will deny both of Defendants’ motions as to the FLSA claim (Count I)
and the Dragonetti Act claim (Count III) because the facts alleged in the Amended Complaint
raise a plausible right to relief.3 I will dismiss the WPCL claim (Count II) and the abuse of
process claim (Count IV) because Sondesky has failed to state a claim under both.
Plaintiff moves for judgment on the pleadings on Cherry Scaffolding’s counterclaims,
arguing the counter claims are barred by res judicata. I will deny Plaintiff’s motion because,
based on the limited record before me, it is insufficiently clear that Cherry Scaffolding’s
counterclaims were previously adjudicated on the merits.
A. Defendants’ Motion to Dismiss & Motion for Judgment on the Pleadings
i. Count I—FLSA
Defendants move to dismiss Sondesky’s claim alleging retaliation in violation of the
FLSA (Count I). To establish a prima facie case of retaliation, a plaintiff must demonstrate: “(1)
Defendants’ motion to dismiss and Defendants’ motion for judgment on the pleadings are duplicative and assert
virtually identical arguments. As already explained, the applicable standards for a motion to dismiss and a motion
for judgment on the pleadings are the same. I will therefore resolve Defendants’ two motions together.
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protected employee activity; (2) adverse action by the employer either after or contemporaneous
with the employee’s protected activity; and (3) a causal connection between the employee’s
protected activity and the employer’s adverse action.” Marra v. Phila. Hous. Auth., 497 F.3d
286, 300 (3d Cir. 2007) (applying McDonnell Douglas framework to analogous provision of
Pennsylvania law); Cononie v. Allegheny Gen. Hosp., 29 F. App’x 94, 95 (3d Cir. 2002) (holding
FLSA retaliation claims are analyzed under McDonnell Douglass framework).
Defendants argue that Sondesky’s claim fails because she has not alleged that she
engaged in a protected activity. Sondesky contends that her telephone conversation with Ellis—
during which she demanded that she be compensated for all hours actually worked, including
overtime—constitutes an oral complaint that is protected under the FLSA. “To fall within the
scope of the [FLSA] antiretaliation provision, a complaint must be sufficiently clear and detailed
for a reasonable employer to understand it, in light of both content and context, as an assertion of
rights protected by the statute and a call for their protection. This standard can be met, however,
by oral complaints, as well as by written ones.” Kasten v. Saint-Gobain Performance Plastics
Corp., 563 U.S. 1, 14 (2011).
Based on the facts alleged in the Amended Complaint, Sondesky’s telephone
conversation with Ellis plausibly satisfies the standard set by the Supreme Court in Kasten.
Sondesky asserts that she told Ellis that she would need to be paid for all hours actually worked,
including overtime. Sondesky’s right to overtime compensation is a right protected under the
FLSA, and her demand to be paid any overtime compensation actually due is a clear assertion of
that right.4 See 29 U.S.C. § 207(a)(1). I will therefore deny Defendants’ motion to dismiss and
motion for judgment on the pleadings as to Count I.
Because Sondesky’s Amended Complaint asserts that she was a non-exempt employee, I assume, for purposes of a
motion to dismiss, that she is entitled to the overtime protections of section 207.
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ii. Count II—WPCL
Defendants move to dismiss Sondesky’s claim alleging violation of the Pennsylvania
WPCL (Count II). They argue that the WPCL does not include an anti-retaliation provision
comparable to that found in the FLSA and that Sondesky has failed to allege any other facts that
could give rise to a claim under the WPCL. This is correct. The WPCL includes a private right
of action for an employee to recover unpaid wages and liquidated damages. 43 P.S. § 260.9a.
The statute is silent about an employee’s right to bring a claim for retaliation. Federal courts that
have considered the issue have concluded that the WPCL does not include a cause of action for
retaliatory termination. See Donaldson v. Informatica Corp., 792 F. Supp.2d 850 (W.D. Pa.
2011) (predicting the Pennsylvania Supreme Court would not allow a cause of action for
wrongful discharge based on the WPCL); Pease v. Faro Techs., No. 15-CV-3586, 2016 WL
705240 (E.D. Pa. Feb. 22, 2016) (concluding the WPCL does not provide an exception to the
strong presumption of at-will employment). I will therefore grant Defendants’ motion to dismiss
Count II of Sondesky's First Amended Complaint.5
iii. Count III—Dragonetti Act
Cherry Scaffolding moves to dismiss Sondesky’s claim alleging wrongful use of civil
proceedings in violation of Pennsylvania’s Dragonetti Act (Count III). To prove a claim for
wrongful use of civil proceedings, plaintiffs must show that “(1) the underlying proceedings
were terminated in [plaintiffs’] favor; (2) defendants caused those proceedings to be instituted
against plaintiffs without probable cause; and (3) the proceedings were instituted for an improper
cause.” Sabella v. Estate of Milides, 992 A.2d 180, 188 (Pa. Super. Ct. 2010).
Sondesky has unquestionably pled the first element; the parties do not dispute that Cherry
I will deny as moot Defendants’ motion for judgment on the pleadings as to Count II, given the entirely duplicative
nature of this motion.
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Scaffolding filed the State Court Action against Sondesky and that judgment was entered in
Sondesky’s favor. Cherry Scaffolding argues, however, that Sondesky has not sufficiently pled
the second and third elements of her claim. Cherry Scaffolding asserts that the allegations in
Sondesky’s complaint “merely establish that Cherry Scaffolding brought the [State Court
Action] to recover overtime that it believed should not have been paid to Plaintiff.” Defs.’ Mot.
Dismiss 6, ECF No. 15. This argument ignores other portions of Sondesky’s First Amended
Complaint. Sondesky explicitly alleges that the suit was brought as “an act of further retaliation
for trying to be paid fair wages.” First Am. Compl. 4, ECF No. 12. The complaint also alleges
that, in bringing the state court suit, Cherry Scaffolding “acted in a grossly negligent manner or
without probable cause” and brought the suit for an improper purpose. Id. at 5. An action
brought solely for the purpose of retaliation could serve as the basis for a valid Dragonetti Act
claim. Thus Sondesky has sufficiently pled her claim for wrongful use of civil proceedings, and
I will therefore deny Cherry Scaffolding’s motion to dismiss and motion for judgment on the
pleadings as to Count III.
iv. Count IV—Abuse of Process
Cherry Scaffolding moves to dismiss Sondesky’s claim for common law abuse of process
when it initiated the State Court Action (Count IV). The elements of an abuse of process claim
are: “(1) use [of] legal process against the plaintiff, (2) primarily to accomplish a purpose for
which the process was not designed, and (3) harm has been caused to the plaintiff.” Lerner v.
Lerner, 954 A.2d 1229, 1238 (Pa. Super. Ct. 2008). “The gist of an action for abuse of process is
the improper use of process after it has been issued . . . . ” Publix Drug Co. v. Breyer Ice Cream
Co., 32 A.2d 413, 415 (Pa. 1943) (internal citations omitted). Both the courts of Pennsylvania
and the Court of Appeals for the Third Circuit have continued to recognize this requirement.
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See, e.g., Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 304-07 (3d Cir. 2003)
(noting that “the test that courts should use in deciding what circumstances amount to an abuse
of process has been clearly enunciated by the Supreme Court of Pennsylvania”); McGee v.
Feege, 535 A.2d 1020, 1023 (Pa. 1987) (reaffirming Publix).
In her First Amended Complaint, Sondesky fails to include any facts involving conduct
by the Defendants after the initiation of the state court suit. Sondesky urges this Court to
“surmise . . . that the entire process was used in a way to intimidate” her. Pl.’s Rsp. Opp’n
Defs.’ Mot. Dismiss 7, ECF No. 19. The motion to dismiss standard does not allow for such
generous supposition. Sondesky cannot maintain a claim for abuse of process when she has
failed to allege any act by the Defendants after the process was initiated. I will therefore grant
Defendants’ motion to dismiss Count IV.6
B. Plaintiff’s Motion for Judgment on the Pleadings
Defendants assert counterclaims against Sondesky for conversion and breach of fiduciary
duty. They allege that, during her employment, Sondesky misappropriated $2,566.09 from a
bank account belonging to Cherry Scaffolding. Defs.’ Answer & Affirmative Defenses 12-16,
ECF No. 31. Sondesky has moved for judgment on the pleadings as to these counterclaims. She
asserts that Defendants’ counterclaims are, in fact, the same claims that Defendants brought
against her in the State Court Action. Judgment in the State Court Action was entered in
Sondesky’s favor, and Sondesky argues that Defendants’ counterclaims are therefore barred by
“In order to raise successfully the defense of res judicata, the party asserting the defense
must demonstrate that (1) there has been a final judgment on the merits in a prior suit; (2) the
prior suit involves the same parties or their privies and (3) the subsequent suit is based on the
I will deny as moot Defendants’ duplicative motion for judgment on the pleadings as to Count IV.
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same causes of action.” Purter v. Heckler, 771 F.2d 682, 690 (3d Cir. 1985) (citing United
States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984)). Thus, a prior final judgment on
the merits is an essential element of res judicata.
In the State Court Action, judgment was entered in Sondesky’s favor on June 23, 2016.
Pl.’s Mot. J. Pleadings Ex. 1 at 2, ECF No. 34. Based on the limited evidence available at this
stage, however, it is unclear that this judgment was rendered on the merits. The limited record
attached to Plaintiff’s motion simply indicates that judgment was entered in favor of Sondesky—
no reason or explanation is included. Id. In their response, Defendants characterize the state
court judgment as resulting from a technical violation of Pa. R.C.P.D.J. No. 207. Defs.’ Rsp.
Opp. Pl.’s Mot. J. Pleadings 10, ECF No. 36. In Sondesky’s reply brief she indicated that the
prior judgment in her favor resulted from Cherry Scaffolding’s failure to appear in Magisterial
District Court. Pl.’s Reply Br. Supp. Mot. J. Pleadings 1, ECF No. 37. It is possible that the
Magisterial District Court’s judgment may have preclusive effect in this case, even if the
judgment was entered solely on the basis of Cherry Scaffolding’s failure to appear. Cf., e.g.,
Kuhnle v. Prudential Sec., Inc., et al., 439 F.3d 187, 189-91 (3d Cir. 2006) (finding claims barred
by res judicata where start court had previously entered judgment of non pros). On such a
limited record, however, I cannot reasonably conclude that there are clearly no material issues of
fact in dispute. I will therefore deny Sondesky’s motion for judgment on the pleadings as to
Defendants’ counterclaims, without prejudice to Sondesky to reassert her res judicata defense at
a later stage of the litigation.
I will grant Defendants’ motion to dismiss Counts II and IV of Sondesky’s First
Amended Complaint and will deny Defendants’ motion to dismiss Counts I and III of
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Sondesky’s First Amended Complaint. I will deny as moot Defendants’ duplicative motion for
judgment on the pleadings. I will deny Sondesky’s motion for judgment on the pleadings,
without prejudice to Sondesky to reassert the defense of res judicata following the close of
s/Anita B. Brody
ANITA B. BRODY, J.
Copies VIA ECF on _________ to:
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