Wartella v. The Guardian Life Insurance Company of America
Filing
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MEMORANDUM OPINION - Accordingly, the Court will enter an Order dismissing Plaintiffs complaint without prejudice with the right to file an amended complaint within fourteen (14) days of the date of the Order accompanying this Opinion.Signed by Honorable Robert D. Mariani on 4/7/17. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN M. WARTELLA,
Plaintiff
v.
3:1S-CV-0614
(JUDGE MARIANI)
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA
Defendant
MEMORANDUM OPINION
Before the Court is the Report and Recommendation ('H&R") of Magistrate Judge
Martin Carlson (Doc. 16) in which Judge Carlson recommends that the Defendant's motion
to dismiss Counts I, " and III of the Plaintiffs complaint be granted as time-barred.
Plaintiff, John M. Wartella, filed objections to the R&R on June 9,2016. (Doc. 17).
The R&R describes the dispute before the Court as one "concerning the timeliness of
Wartella's complaint," noting that it uplays out against a factual background where it is
undisputed that Mr. Wartella's employment with Guardian came to an end in May 2007, yet the
plaintiff did not bring this lawsuit until some seven years later, in May 2014." (Doc. 16, at 1).
The Magistrate Judge, in determining that Counts I, " and III of Plaintiffs Complaint
should be dismissed as barred by the applicable 4-year statute of limitations, correctly
enunciated the rule in this Circuit with respect to the dismissal of a complaint as barred by
the statute of limitations when that defense is raised in a motion to dismiss:
[,,]In this circuit, ..., we permit a limitations defense to be raised by a motion
under Rule 12(b)(6) 'only if "the time alleged in the statement of a claim
shows that the cause of action has not been brought within the statute of
limitations.'" Id. (quoting Hanna v. U.S. Veterans' Adrnin. Hosp., 514 F.2d
1092, 1094 (3d Cir. 1975)). However, "'[i]f the bar is not apparent on the face
of the complaint, then it may not afford the basis for a dismissal of the
complaint under Rule 12(b)(6).'" Id. (quoting Bethel v. Jendoco Constr. Corp.,
570 F.2d 1168, 1174 (3d Cir. 1978))." Schmidt v. Skolas, 770 F.3d 241, 249
(3d Cir. 2014).
(Id. at 8-9).
After careful review of the Plaintiffs Cornplaint, the R&R and the briefs submitted in
support of and in opposition to Plaintiffs objections, this Court cannot say with the requisite
certainty needed for the issuance of an order dismissing Counts I, II and III of Plaintiffs
Complaint with prejudice that the bar of the statute of limitations clearly appears on the face
of Plaintiffs complaint. At the same time, the Plaintiffs complaint lacks the necessary
allegations to allow it to proceed into the discovery phase of this litigation. Accordingly,
Counts I, II and III of Plaintiffs complaint will be dismissed but such dismissal shall be
without prejudice and with the right afforded to Plaintiff to amend his complaint in an attempt
to state a cause of action not subject to dismissal as having been filed beyond the statute of
limitations.
The Allegations of Plaintiff's Complaint
Mr. Wartella alleges he was hired by Guardian as a field representative on or about
January 1, 1986. (Doc. 1-3, at 1f 6). He alleges he entered into an employment agreement
with Guardian (id. at 1f 8), but in a footnote states that he is "no longer in posseSSion of the
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employment agreement" and that "Guardian has been unable to provide any such
agreement executed by Mr. Wartella". (Id. at n.1).
Wartella then alleges that pursuant to the employment agreement he was "to be paid
a monthly, 'fixed salary by Guardian," and against this fixed salary, Wartella alleges he was
"entitled to a commission on each new policy sold and each policy renewed." (Id. at mr 9, 10).
Wartella then asserts that, again pursuant to the employment agreement which is
referred to but produced by neither party to this action, "Wartella was entitled to continue to
receive his commission for all policy renewals throughout his employment and ten (10) years
afterward, regardless of the reason his employment with Guardian ended." (Id. at ~ 11).
Wartella further alleges that he was provided another benefit by Guardian,
specifically the option to purchase a group disability insurance plan, which "could be
purchased with either pre-tax or post-tax dollars." (Id. at ~~ 12, 13).
Plaintiff then alleges that he "elected to purchase agroup long-term disability
insurance plan (the 'Disability Insurance') with post-tax dollars." (Doc. 1-3, at ~ 14).
Mr. Wartella recites in his complaint the medical issues which led to his placement
on short-term disability with Guardian for a period of five months, his return to work
thereafter and his inability to perform his duties for Guardian, which resulted in him again
being placed on short term disability. (Id. at mr 17-22).
Mr. Wartella alleges he remained on short term disability "until in or about 2007,
when his six (6) months of short-term disability was exhausted." (Id. at ~ 23).
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The complaint then alleges in paragraph 24 of his complaint: "Upon exhaustion of
his short-term disability, in or about May, 2007, Guardian terminated Mr. Wartella." Mr.
Wartella then alleges that at the time of his termination, he was receiving commissions on
"life and disability renewals which produced earnings to him in excess of $160,000.00
annually." (Id. at mr 25-26).
After being terminated, Wartella began to collect the disability insurance which he
had purchased. (Id. at ~ 28).
Wartella alleges that upon receiving group disability benefits, 55% of those benefits
were reported as being paid with pre-tax dollars and were, therefore, taxable. (Id. at ~ 29).
He also alleges that he applied for Social Security as required by Guardian since the
Social Security benefits "would serve as an offset of his Disability Insurance benefits, and,
therefore, these payments were solely for Guardian's benefit." (Id. at ~~ 30-31).
Mr. Wartella alleges that he received a payment of $41,102.00 from Social Security at
the time of his approval for benefits and that he continued to receive additional monthly
payments from Social Security but that, as aconsequence of Guardian not collecting these
payments until the subsequent taxable year, he was "taxed on the $41,102.00." (Id. at ~~ 35
38). He further alleges that Guardian instructed him "that all future benefits would be offset by
the Social Security bene'fits, resulting in a reduction of future benefits" and that such "future
offsets" were to be "on a pro-rated basis with respect to the pre-tax and post-tax benefits,
resulting in substantial excess taxation for Mr. Wartella." (Doc. 1-3, at mr 40-41).
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In Count I of Plaintiffs complaint, he alleges, inter alia:
Since cessation of his employment, Guardian has continually failed to pay Mr.
Wartella the renewal commissions he was entitled to pursuant to the
Employment Agreement.
(ld. at ~ 46).
Wartella characterizes Guardian's "cessation of payments" as a "continuing breach
of the Employment Agreement" (ld., at ~ 47), and alleges that he suffered "damages and
amounts in excess of $160,000.00 annually - the value of his life and disability renewal
accounts at the time of his termination." (ld. at ~ 49).
In Count II, the Plaintiff generally alleges that with respect to the disability insurance
which he purchased with post-tax dollars, (id. at ~ 54), he "subsequently discovered that
Guardian had subsidized a portion of the Disability Insurance with pre-tax dollars," and that
as a result of Guardian's actions, his disability benefits were "partially taxed," as were his
Social Security benefits (id. at ~ 58-60).
Wartella characterizes Guardian's "subsidizing" of his disability insurance with pre-tax
dollars as "a continuing breach of the Disability Insurance agreement." (Doc. 1-3, at ~ 62).
Wartella then alleges harm by virtue of Guardian's actions "in an amount in excess of
$100,000.00 in income taxes that Mr. Wartella should not have been obligated to pay." (ld.
at ~ 63). He further alleges that this harm "recurred annually with the filing of Mr. Wartella's
taxes until age sixty-five (65) as Guardian continued to fail to comply with the Disability
Insurance policy." (ld. at ~ 64).
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With respect to Count III, Wartella alleges that at the time he purchased the disability
insurance from Guardian "it was represented to him by Guardian that the entirety of the
policy was being paid for by Mr. Wartella with post-tax dollars." (Id. at ~ 66).
Wartella then alleges that he relied upon this representation in purchasing the
disability insurance from Guardian; that Guardian was aware that a portion of Wartella's
disability insurance policy was being paid with pre-tax dollars and that its representation to
him that the policy was being paid for with post-tax dollars was "false". (Id. at mr 66-68).
Wartella further alleges that at no time before he received benefits from his disability
insurance did Guardian inform him that his policy was being paid for in part with pre-tax
dollars and that had he been aware the policy was paid for with pre-tax dollars, "he would
have purchased a different policy paid with post-tax dollars rather than the Disability
Insurance Policy." (Id. at ~~ 69-70).
Wartella thus has alleged that he was harmed "by needing to pay income taxes on
his disability benefits." (Id. at ~ 72).
The Report and Recommendation
In finding that Count I of Wartella's complaint is barred by the 4-year statute of
limitations applicable to it, the Magistrate Judge wrote:
At the outset, turning to Wartella's breach of contract claim based upon the
alleged failure to pay contractually obligated commissions to the Plaintiff
following his termination, Wartella insists that under his contract with
Guardian he was entitled to monthly commissions for ten years from the date
of his termination, or until May 2017. Wartella alleges a wholesale failure by
Guardian to make these payments following his termination. Thus, this breach
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would have first manifested itself in June of 2007. Yet, Mr. Wartella did not
commence this action until May 19, 2014, some seven years after the events
which first inspired this lawsuit when Mr. Wartella lodged a writ of summons
against Guardian in the Luzerne County Court of Common Pleas.
(Doc. 16, at 11-12).
The Magistrate Judge states that Plaintiff contends that "the failure to pay each
monthly commission constituted a new breach of the agreement," and that, therefore, "his
breach of contract claims, are only barred in part." (Id. at 13) (citing Doc. 6, at 7).1 The
Plaintiff did advance this argument, citing Total Control, Inc. v. Danaher Corp., 359
F.Supp.2d 387, 981 (E.D. Pa. 2005), quoting Total Control for the proposition that "under
Pennsylvania law, when a contract calls for periodic or installment payments, a separate
and distinct cause of action accrues for each failure to make payment."
The Report and Recommendation rejects this argument, stating:
Total Control does not apply when there has been a complete repudiation of
the contract by the party who was alleged to have breached the agreement.
This complete repudiation caveat to Pennsylvania's rule governing the
application of the statute of limitation to installment contracts is recognized by
both state, Andrews v. Cross At!. Capital Partners, Inc., No. 1694 EDA 2014,
2015 WL 6551204, at * 25 (Pa. Super. Ct. September 9, 2015), and federal
courts. Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 213 (3d Cir.
2001 ).
1 The Court is mindful of the statement made by Plaintiff in his Brief in Opposition to the Motion to
Dismiss that "any payments due to Mr. Wartella within four (4) years of that date, i.e. May 19, 2010, would
have accrued within the statute of limitations and are not time-barred" (Doc. 6, at 7). For the reasons
explained herein, the Court will not find that Plaintiff has stated a timely cause of action based on this
general statement, devoid as it is of any necessary dates identifying when and in what amounts Mr.
Wartella was contractually due commission payments. Instead, it is for Plaintiff to properly plead a cause of
action for breach of contract for comrnissions owed which must include far more information than can be
gleaned from the statement quoted in Plaintiff's brief.
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(Doc. 16, at 14).
The Magistrate Judge then concluded that: "given the well-pleaded facts alleged by
Wartella in his complaint we conclude that the plaintiff has alleged a total repudiation of a
material term of this alleged contract, atotal repudiation which should have triggered a more
timely filing of aclaim by the plaintiff." (Id. at 15).
In this Court's view, the conclusion in the R&R that Wartella has alleged a "total
repudiation" of a material term of his employment agreement is a conclusion insufficiently
tethered to the allegations of Plaintiffs complaint to be adopted by this Court. In so deciding,
we focus on the allegations of the Plaintiffs complaint which appear to be pivotal to the
recommendation that the complaint alleges that a complete repudiation of the operative terms
of the employment agreement and thus warrants a dismissal of the Plaintiffs complaint with
prejudice.
Paragraph 24 of Plaintiffs complaint does allege that Guardian terminated Mr.
Wartella on the exhaustion of his short-term disability and did so "in or about May, 2007."
(Doc. 1-3, at ~ 24). However, Plaintiff also alleged in paragraph 11 that "pursuant to the
employment agreement," he "was entitled to continue to receive his commission for all
policy renewals throughout his employment and ten (10) years afterwards, regardless of the
reason his employment with Guardian ended." (Id. at ~ 11). Wartella repeats this critical
allegation in paragraph 45 of his complaint where, he alleges again, U[p]ursuant to the
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Employment Agreement, [he] was entitled to these renewal commissions even if his
employment with Guardian ceased." (Id. at 1f 45).
Plaintiff, however, has not pleaded as stated in the R&R: "[t]hat under his contract
with Guardian, he was entitled to monthlycomrnission payments for 10 years 'from the date
of his termination, or until May, 2017." (Doc. 16, at 11-12) (emphasis added). Instead,
Wartella alleges that he "was entitled to receipt of a commission rate of roughly 14% on the
renewal of all insurance policies he originated for a period of employment plus ten (10)
years." (Doc. 1-3, at 1f 44). While the complaint alleges that Wartella was to be paid a "fixed
monthly salary by Guardian," under his employment agreement, no allegation appears in
the complaint that he was entitled to be paid renewal commissions on a monthly basis. 2
The R&R thus assumes payments of commission to the Plaintiff were contractually
required to be paid monthly based on a statement in the Plaintiffs brief quoted in footnote 2.
This Court, however, is reluctant to treat a statement in a brief as ajudicial admission that
the employment agreement between the Plaintiff and Guardian required monthly payments
to the Plaintiff of commissions on renewals of prior policies or as a statement fairly inferred
from the allegations of the complaint. To do so WOUld, in this Court's view, run afoul of the
2 To be sure, Plaintiff in his brief submitted in opposition to Guardian's motion to dismiss (Doc. 6)
argues that he "was entitled to monthly commission payments on renewed insurance policies for a period of
ten (10) years after his employment, or until May, 2017." {ld. at 7}. But the face of the complaint does not
state this, alleging instead that Plaintiff "was to be paid a monthly, fixed salary by Guardian," against which
Wartella "was entitled to a commission on each new policy sold and each policy renewed" and that "[s]ince
cessation of hils] employment, Guardian has continually failed to pay Mr. Wartella the renewal
commissions he was entitled to pursuant to the Employment Agreement." (Doc. 1-3 at 1m 9, 10, 46).
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rule that in determining whether a Plaintiffs claims are barred by the applicable statute of
limitations, the bar must appear on the face of the Plaintiffs complaint.
Here, Plaintiffs complaint does not allege when any commissions on the renewal of
previously issued policies were payable to the Plaintiff. Without such allegations, the Court
is unable to identify with certainty when the statute governing actions for breach of contract
began to run in this case. It may very well be that a properly pleaded amended complaint
will reveal that after Plaintiffs termination from employment by Guardian in May of 2007
(Doc. 1-3, 1f 24) that Plaintiff, at some point in 2007 or thereafter, discovered, or through the
exercise of reasonable diligence should have discovered, the actions by Guardian
constituting the alleged violation of his employment agreement. See Vadino v. A. Valey
Eng'rs, 903 F.2d 253, 260, 261 (3d Cir. 1990) (the limitation period "commences when the
claimant discovers, or in the exercise of reasonable diligence should have discovered, the
acts constituting the alleged violation." (internal quotation marks omitted). "The relevant
statute of limitations question, therefore, is ... when Vadino knew, or should have known,
that the employer breached the contract ....").
Paragraph 46 of Plaintiffs complaint, which appears to be the fulcrum for the
recommendation for dismissal, while alleging that Guardian "continually failed to pay Mr.
Wartella the renewal commissions to which he was entitled ... ," does not give any
indication as to when those commissions became due and were payable to the Plaintiff
"pursuant to the Employment Agreement."
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Thus, the Court cannot ascertain from the face of the complaint when any
commissions allegedly due to the Plaintiff were payable and when the Defendant allegedly
failed to pay them or otherwise made clear to the Plaintiff that no such commissions on
renewals of policies previously issued were to be paid to him, allegations whose absence
preclude a determination that, on the face of the complaint, there was a "complete
repudiation" of the agreement between Wartella and Guardian or that all or some of
Wartella's claims are barred by the statute of limitations. The fact that the Plaintiff alleges he
was terminated in May of 2007 does not allow inferential answers to these questions. Nor is
there any allegation in the complaint that the Plaintiff received any communication from
Guardian that must be regarded as an unquestionable notice of repudiation of the Plaintiffs
alleged right to commissions for 10 years after his termination from employment.
Accordingly, this lack of clarity in the pleadings, together with the absence of any
allegation of the issuance by Guardian of a statement that may be viewed as a final and
unequivocal statement of a refusal on the part of Guardian to pay the Plaintiff any
commissions to which he claims entitlement, does not allow for the dismissal of Plaintiffs
complaint with prejudice. This is particularly the case where, as here, no allegation in the
complaint serves to identify a triggering event or communication that this Court can say
shows that the bar of the statute of limitations appears plainly on the face of the complaint.
This, in fact, is what distinguishes this case from those cited by the Defendant and to which
reference is made in reliance in the R&R. Thus, in Caruso v. Life Insurance Company of
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North America, 2000 WL 876581 (E.D. Pa. 2000), the plaintiff sued Life Insurance Company
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of North America for ceasing to pay monthly disability benefits to him. The District Court
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granted the motion to dismiss of the defendant "[b]ecause the face of the complaint reveals
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that the statute of limitations ran before the plaintiff filed his complaint." Id. at *1. In that
case, the plaintiff brought suit in March of 2000, but the Court noted that "[o]n December 12,
1994, the defendant notified the plaintiff that it no longer considered him totally disabled and
that he wOLIId receive no more monthly disability benefits under the policy." Thereafter, the
defendant made no further payments. Id. Thus, the Court found that "[a]ccording to the
complaint, the plaintiff knew by January 1995 that his monthly disability benefits had been
terminated.... Thus, the plaintiff must have filed his complaint by January 1999 in order to
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avoid running afoul of the statute of limitations." Id. at *2 (internal citation omitted). The
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Court concluded that the "face of the plaintiffs complaint reveals that his suit is barred by
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the statute of limitations." Id. Here, there is no allegation in the Plaintiffs complaint that
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Guardian notified him that he would receive no more commissions on reissued policies,
thus, differentiating this case from that of Caruso. 3
Likewise, in Ryncavage v. American Family Life Insurance Company of Columbus,
Inc., 293 F.App'x 122, 2008 WL 4276954 (3d Cir. 2008), the plaintiff, an independent
It is worth noting that the Court in Caruso dismissed the plaintiffs complaint without prejudice
"because the briefings suggest that circumstances not alleged in the complaint may have either prevented
the statute of limitations from beginning to run or tolled the statute of limitations after it began to run."
Further, the Court encouraged "the plaintiff to file an amended complaint that gives some explanation of
how the four year statute of limitations did not run during the more than five years that elapsed between the
plaintiff leaming of his loss of benefits and the complaint being filed." 2008 WL 876581, at *2 n.2.
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contractor who sold insurance for the defendant insurance company, brought suit seeking
commissions to which he claimed entitlement. The plaintiffs amended complaint indicated
that he "was noti'fied via a letter on July 30, 2002 ... confirrning that his new business
commissions and renewals would cease effective August 29,2002." Id. at '* 1. The record
also showed that the defendant had "specifically notified Ryncavage that 'effective August
29, 2002, you will not [sic] longer receive commissions on new business.'" Id.
Ryncavage sued for breach of contract but filed his complaint on August 31,2006.
The Court of Appeals affirmed the Magistrate Judge's determination that the plaintiffs claim
was barred by the statute of limitations on the face of his complaint.
The Magistrate Judge in Ryncavage, citing Packer Society Hill Travel Agency, Inc. v.
Presbyterian University of Pennsylvania Medical Center, 635 A.2d 649 (Pa. Super Ct.
1993), found that the aforesaid letter dated July 30, 2002 made clear that the date
payments were to cease was August 29, 2002. Thus, the Court wrote:
The letter dated July 30, 2002 could not be more undisputed: the date
payments were to cease was August 29, 2002. (Doc. 1, Ex. C). Second,
although the plaintiff argues that the pay period was some time in September,
the purpose of the August 29 termination date was effectively to inform the
plaintiff that there would be no payments in September.... Therefore, the
breach in this case occurred on the date the defendants ceased making
payments, which was August 29,2002.
Ryncavage v. Am. Family Life Ins. Co. of Columbus, Inc., Civil No. 06-cv-01711, at 10 (M.D.
Pa. Sept. 13, 2007).
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Again, in this case, Wartella's complaint, on its face, does not allege written
notification of the kind sent by the defendant to Ryncavage, i.e., notifying the plaintiff that he
would no longer be paid commissions on policies issued or policies renewed. See id.
In Packer Society, the case relied upon by the Court in Ryncavage, Packer Society
Hill Travel Agency brought suit alleging a breach of awritten travel agreement pursuant to
which Packer was to provide travel services for employees of defendant Presbyterian for a
period of two years and to install in Presbyterian's medical center certain computer
equipment that was necessary to provide the travel services encompassed by the parties'
agreement. 635 A.2d at 648. The Superior Court, in reversing the trial court's denial of
Presbyterian's motion for judgment on the pleadings, noted first, that U[a]fter January 13,
1986, ... Presbyterian stopped making payments." Id. at 650. Additionally, the Court noted
that "[a] demand for payment failed to produce results." Id.
Packer then more than five years later filed suit. The Superior Court held that a
cause of action for alleged breach of awritten contract is subject to a 4-year statute of
limitations in Pennsylvania; that the limitations period "begins to run on a claim from the time
the cause of action accrues"; that in general "an action based on contract accrues at the
time of breach," and in this case it was not disputed that "Presbyterian ceased making
payments under the travel agreement on January 13, 1986." Id. at 652. In that case, the
plaintiffs demand for payment left no question as to plaintiffs knowledge of the alleged
breach, thus again distinguishing this case from the case before this Court.
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Finally, the case of Leporace v. New York Life and Annuity, 619 F.App'x 172 (3d Cir.
2015), is instructive. There, the plaintiff, an insured of the defendant, brought an action for
breach of contract in connection with the termination of benefits to him under an individual
disability insurance policy.
Once again, unlike the situation with respect to Plaintiff Wartella, the statute of
limitations was triggered by what the Court described as a "clear and unmistakable
termination of benefits," set forth in a letter from New York Life which explained the reasons
for the termination:
This case involves a clear and unmistakable termination of benefits effective
May 31, 2005. The letter from New York Life explained the reason for the
termination and apprised Leporace that he could appeal that decision. Yet
Leporace waited almost five years before notifying New York Life that he
disagreed with the decision and all110st six years before he filed a complaint
in federal court.
Id. at 174.
Here, the "clear and unequivocal termination of benefits triggering the statutory
limitations period" id. at 176, is absent from the allegations of Plaintiff Wartella's complaint.
At most, the complaint states only that: "Since cessation of his employment, Guardian has
continually failed to pay Mr. Wartella the renewal commissions he was entitled to pursuant
to the Employment Agreement." (Doc. 1-3, at ~ 46).
While there is some basis in the allegations of the complaint to hypothesize that
some or all Wartella's claims may well be barred by the statute of limitations, this Court
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cannot say that the bar is so clear on the face of the complaint that Wartella's complaint
must be dismissed with prejudice.
For the reasons set forth at length in the disclJssion of Count I, the Court also finds
that it does not clearly appear on the face of the cornplaint as to when Wartella knew, or
with the exercise of reasonable diligence, should have known that the disability insurance
policy in question was being paid for with pre-tax dollars by Guardian, contrary to Wartella's
allegation in paragraph 66 of his complaint that "it was represented to him by Guardian that
the entirety of the policy was being paid for by Mr. Wartella with post-tax dollars."
To dismiss Counts I, II, and III with prejudice on the basis set forth in the R&R, i.e.,
that "in both cases the economic consequences of this breach would have been readily
apparent to the plaintiff no later than 2008, when he learned of the partial taxation of his
disability benefits" (Doc. 16, at 17), takes the decision in this case beyond what may
properly be undertaken on a motion to dismiss.
Accordingly, the Court will enter an Order dismissing Plaintiffs complaint without
prejudice with the right to file an amended complaint within fourteen (14) days of the date of
the Order accompanying this Opinion.
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