MEMORANDUM
This action arises from the termination of Peter Accurso’s employment with Infra
I. RELEVANT BACKGROUND
Mr. Accurso 'worked for Infra-Red Services, Inc. (“Infra-Red”), to market and sell roofing services and products. Pursuant to his September 2004 “Independent Contractor Agreement” (hereinafter, “Contract,” Docket No. 10-2) with InfraRed and, Mr. Accurso asserts, Mr. Land, Mr. Accurso was entitled to certain compensation to culminate in his vesting “as a 50/50 partner,” upon fulfillment of certain conditions, either by creation of “a full partnership agreement or a(re) incorporation creating 50/50 shareholder status between Company and Contractor.” Contract Schedule B, § l.B (Docket No. 10-3). Because these conditions were met (as, Mr. Accurso contends, Mr. Land acknowledged), the contractual partnership provision was triggered and Mr. Accurso “was thereafter entitled to 50% of the [Company’s] net income.” Compl. ¶ 25.
At some point before March 28, 2008, Mr. Land “unilaterally hired his significant other, Defendant Strein, with whom he was then residing ..., and agreed to pay her based upon leads generated as well as a percentage of the net profits.” Compl. ¶ 26. In 2008 and again in 2011, Mr. Land and Ms. Strein, insisting that they suspected Mr. Accurso of diverting business opportunities from the corporate Defendants, required Mr. Accurso to submit to polygraph examinations, and he complied. And in August 2011, Mr. Land and Ms. Strein “formed Defendant Roofing Dynamics Group, LLC, ... without the input and/or knowledge of Plaintiff Accurso,” as part of their fraudulent conspiracy to “force Plaintiff Accurso out of the Company, in order to wrongfully deprive him of the vested partnership interest which he held, and to improperly divert to themselves those monies which were due and owing to Plaintiff Accurso, for their mutual personal benefit.” Compl. ¶ 34.
Further, in late 2011, Mr. Land “made numerous comments” to Mr. Accurso about Mr. Aecurso’s “facial disfigurement which had been caused by [his] Bell’s palsy, complained about its potential adverse impact upon customers, and openly joked about his condition with business customers and associates.” Compl. ¶ 35. Finally, in January 2012, Richard Berlinger, then counsel for the Defendants-to-be, notified Mr. Accurso that his employment and business relationship with the Defendants was immediately terminated based on the Defendants’ claim, which Mr. Accurso contends is false, that Mr. Accurso had improperly diverted business opportunities from the Defendants (see Compl. Ex. C, Docket No. 10-3).
In his Amended Civil Action Complaint (hereinafter “Complaint,” Docket No. 10),
Arguing that they cannot be held personally liable for the actions of, or their actions as agents of, their corporations, Mr. Land and Ms. Strein now move for judgment on the pleadings with regard to Counts II (breach of contract), III (breach of partnership agreement), and VII (civil conspiracy) of Mr. Accurso’s Complaint. The gravamen of these challenged Counts is that the Defendants breached the 2004 Contract between Mr. Accurso, on the one hand, and Defendants Infra-Red and Mr. Land, on the other; and, further, that Mr. Land and Ms. Strein conspired to deprive Mr. Accurso of the monies he was due under this Contract and the partnership agreement it created, as well as, presumably, intentionally inflict emotional distress through their “fraudulent representations” and “bad faith and outrageous conduct” involved in “wrongfully terminating [Mr. Accurso’s] employment, partnership and business relationship.” Compl. ¶ 80. Mr. Accurso responds that, for several reasons, he can sue Mr. Land and Ms. Strein individually.
II. STANDARD OF REVIEW
The standard for evaluating a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) for failure to state a claim is the same as the familiar standard used for evaluating a motion to dismiss under Rule 12(b)(6). E.g., Turbe v. Gov’t of V.I.,
To survive a motion to dismiss — or a motion for judgment on the pleadings — the plaintiffs complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
In evaluating the sufficiency of a complaint (or pleading), the Court adheres to certain well-recognized parameters. For one, the Court “must consider only those facts alleged in the complaint and accept all of the allegations as true.” ALA Inc. v. CCAIR, Inc.,
The courts in the cases Defendants cite did not hold (or even suggest) otherwise. Those courts simply observed that the district courts below had dismissed the pleadings with prejudice, not that such outcomes were or are categorically required.
Mr. Land and Ms. Strein’s basic position is that they cannot be held personally liable for the actions of the corporate Defendants for any breach, by the latter, of a contract or partnership agreement with Mr. Accurso. And, further, Mr. Land and Ms. Strein argue, absent valid breach of contract or partnership claims against them, Mr. Accurso cannot maintain his civil conspiracy claim against them. Additionally, they assert that Mr. Accurso’s civil conspiracy claim must fail because agents of the same corporation cannot, as a matter of law, conspire amongst themselves. But in their Motion, Mr. Land and Ms. Strein have not challenged Mr. Accur-so’s claims, ostensibly leveled at all Defendants, for violation of the federal Employee Polygraph Protection Act (Count I), violation of the Pennsylvania Wage Payment and Collection Law (Count IV), unjust enrichment (Count V), or intentional infliction of emotional distress (Count VI).
Mr. Accurso counters that he seeks to hold Mr. Land and Ms. Strein liable for the alleged breaches of contract and partnership agreement not individually, but, rather, on any and all of the theories that (1) Mr. Land voluntarily “undertook [the Contract’s] legal obligations from the outset — as evidenced by his own words in an Agreement which he prepared,” Mem. Opp. 10 (Docket No. 17); (2) Mr. Land and Ms. Strein “participated” in the breaches; and/or (3) the corporate veil should be pierced to allow his claims of breach to reach Mr. Land and Ms. Strein.
For the following reasons, the Court will grant Defendants’ Motion in part and deny it in part. The Court will dismiss Mr. Accurso’s breach of contract and breach of partnership claims without prejudice to revive them with, viable corporate veil-piercing allegations, but will, for present purposes, permit Mr. Accurso’s civil conspiracy claim to proceed as based, potentially, on his as — yet unchallenged claim of intentional infliction of emotional distress.
A. Breach of Contract and Breach of Partnership Agreement
As explained below, the Court holds that Mr. Accurso cannot proceed with his breach of contract or breach of partnership agreement claims under any of the theories he advances. His voluntary undertaking and “participation theory” arguments for Mr. Land and Ms. Strein’s individual liability must be dismissed with prejudice, because amendment would be futile, but the Court will permit Mr. Accur-so to seek leave to amend his Complaint with respect to his veil piercing allegations.
1. Alleged Voluntary Undertaking of the Contract’s Obligations
As the Court noted above and earlier in this litigation, see Feb. 10, 2014 Order 2 n.
These observations were then, as they are reaffirmed now, based on basic contract law principles: “It is fundamental contract law” in Pennsylvania “that one cannot be liable for a breach of contract unless one is a party to that contract.” Electron Energy Corp. v. Short,
Mr. Accurso’s suggestion, in turn, is really that, by naming Mr. Land in the Contract, the parties did intend to bind him individually. But at a minimum, then, the Contract must be ambiguous as to whether it binds only Infra-Red, or whether it also reaches Mr. Land. In the case of ambiguity, the Court would be required to admit parol evidence for assessment by the factfinder. The “ambiguity of a contract and its interpretation,” however, are threshold “questions of law” for the court. If a court finds a contract “unambiguous, the intent of the parties is to be determined by the words used in the contract,” without resort to evaluation by the factfinder. In re Estate of Duran,
Mr. Accurso’s contention that his later correspondence with Mr. Land evinces Mr. Land’s understanding that Mr. Land is personally bound by the Contract, by its nature, relies on parol evidence and thus puts the cart before the horse: the Court must first ask whether the Contract is ambiguous as to who it binds, Allegheny Int’l,
if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.
Metzger v. Clifford Realty Corp.,
To determine whether the relevant language is ambiguous, “the court must assess the writing as a whole and not in discrete units.” DiFabio v. Centaur Ins. Co.,
But if, on the other hand, a court finds the pertinent “language ... unambiguous, [its] analysis ends,” Bowersox v. Progressive Cas. Ins. Co.,
Mr. Accurso’s strongest argument for ambiguity may be the Contract’s prefatory language, which references Mr. Land explicitly by name:
Independent Contractor Agreement made this 15th day of September 2004 by and between Brian Land / Infra Red Services Co. (“Company”), a Pennsylvania corporation having offices at 1605 Ramblewood Lane, Jamison, PA and Peter Accurso, an independent contractor,*505 an individual with an office in Pennsylvania.
Contract 1.
But while “Brian Land / Infra Red Services Co.” is an undeniably sloppy way to refer to the corporation, the Contract nevertheless does just that: it strains reason to argue that “Company” or “a Pennsylvania corporation” can refer to Mr. Land individually, and “[cjourts should not ... distort the meaning of the language or strain to find an ambiguity,” Regents of Mercersburg Coll. v. Republic Franklin Ins. Co.,
Here, the Contract’s operative language lays out obligations only between Mr. Accurso and the “Company.” See generally Contract. The question thus becomes whether “Company,” the entity subject to the Contract’s obligations, is “reasonably susceptible,” Hutchison,
Finally, the Contract closes:
IN WITNESS WHEREOF, the parties, by their duly constituted and authorized representatives, have se [sic] their hand and seals as of the date first above written.
THE COMPANY By: /s/ Brian Land
PETER ACCURSO /s/ Peter Accurso
Contract 6 (emphasis added).
Thus, when the Court “consider[s] the entire document,” Com. of Pa., Dep’t of Transp. v. Manor Mines, Inc.,
Mr. Accurso’s reference to subsequent correspondence in which Mr. Land referred to the Contract that Mr. Accurso signed “with me” does not alter the Court’s conclusion.
The Contract here is clear on its face that the parties — -Infra-Red Services and Peter Accurso — intended to bind each other, and not Mr. Land individually. InfraRed was the disclosed principal, and Mr. Land’s inclusion in the Contract’s prefatory language, which refers to a “Company” and a “corporation,” without some plausible indication — and there is none — that a “company” or “Pennsylvania corporation” means a corporation plus an individual, does not allow the Court to interpret the Contract as ambiguous as to whether Mr. Land is personally bound. E.g., Banks Eng’g Co., Inc. v. Polons,
2. “Participation Theory”
The foregoing discussion should suggest that an individual not bound by a contract cannot breach it; thus, no individual not
“Participation theory” applies only in tort, not contract. The excerpt from the case Mr. Accurso quotes, Wicks v. Milzoco Builders,
[The law of contract] never interferes until a promise has been broken.... If a breach of contract were regarded in the same light as a tort, it would seem that if, in the course of performance of the contract the promisor should be notified of any particular consequences which would result from its not being performed, he should be held liable for that consequence in the event of non-performance. Such a suggestion,has been made. But it has not been accepted as the law.... As the relation of contractor to contractee is voluntary, the consequences attaching to the relation must be voluntary. What the event contemplated by the promise is, or in other words what will amount to a breach of contract, is a matter of interpretation and construction.
Oliver Wendell Holmes, Jr., The Common Law 271-73 (Belknap 2009) (1881) (footnote omitted). Similarly:
A contract gives one a right only against the other party to the contract. A tort right, like a property right — which tort rights frequently serve to enforce — is a right against the whole world, enabling one to obtain damages from (for example) a trespasser on one’s property with whom one had no previous agreement limiting his right to enter the property. It would be infeasible to make a contract with every potential trespasser to protect oneself against trespass.
Richard A. Posner, Economic Analysis of Law 175 (8th ed.2011).
The implications of contending that participation theory applies to breaches of contract are alarming. Not only would such application of participation theory render the concept of voluntary contract unrecognizable by holding non-promisors liable,
3. Corporate Veil-Piercing
The corporate form may be disregarded, however, when a party shows that the corporate veil should be pierced. While
[i]t is true that a corporation ... is normally regarded as a legal entity separate and distinct from its shareholders ... [t]his legal fiction of a separate corporate entity ... will be disregarded whenever justice or public policy demand and when the rights of innocent parties are not prejudiced nor the theory of the corporate entity rendered useless .... [Wjhenever one in control of a corporation uses that control, or uses the corporate assets, to further his or her own personal interests, the fiction of*509 the separate corporate identity may properly be disregarded.
Ashley v. Ashley,
Mr. Accurso argues that in this case, “where the corporate Defendants essentially have no assets, the entities should not be used as a shield for wrongful conduct.” Mem. Opp. 11. He contends that
it would be inappropriate to enter an order granting partial summary judgment [sic] where the reasonable expectation is that discovery will reveal supporting evidence. This is particularly true where the evidence is expected to establish that the corporate Defendants maintained no physical office outside the individual Defendants’ home, owned no real estate, owned no equipment of value (other than a pair of infra-red cameras), owned no product or materials, owned no inventory, had no treasury or capital, and had essentially no other corporate assets of any kind — but rather served as pass-through entity by which payments to individual members were processed. Furthermore, it is respectfully suggested that it would also be premature at this juncture to make a determination regarding individual liability where the possibility of piercing the corporate veil under the circumstances exists.
Mem. Opp. 9-10. These factors are sufficient, he implies, to render “piercing the corporate veil ... appropriate to prevent fraud, illegality, or injustice.” Mem. Opp. 12.
But the standard a party must meet to persuade a court to pierce the corporate veil is a stringent one. See, e.g., Pearson v. Component Tech. Corp.,
Although veil-piercing is not a separate cause of action, but rather a basis for a cause of action against particular individuals, on a motion to dismiss (or motion for judgment on the pleadings), a court “must examine ... whether the facts pleaded ... state a cause of action on a theory of piercing the corporate veil.” Lumax,
Here, Mr. Accurso has not alleged sufficient facts to allow his Complaint to give rise to a plausible theory of veil piercing. The fact that office addresses may have been shared by individuals and corporations, or may have been post office boxes, see Compl. ¶¶ 7-9-a common occurrence, one might suppose, with small corporations — or that Mr. Land spoke in the first person regarding Mr. Aecurso’s alleged obligations to his corporations, e.g., Compl. ¶ 28, or even that Mr. Land wore many hats, see Compl. ¶ 10, is not enough.
the evidence is expected to establish that the corporate Defendants maintained no physical office outside the individual Defendants’ home, owned no real estate, owned no equipment of value (other than a pair of infra-red cameras), owned no product or materials, owned no inventory, had no treasury or capital, and had essentially no other corporate assets of any kind — but rather served as pass-through entity by which payments to individual members were processed.
Mem. Opp. 9-10. But to the extent that these contentions, if true, are sufficient to sustain a corporate veil-piercing theory of individual liability — and the Court expresses no opinion on that question — they must be properly pleaded.
None of Mr. Accurso’s theories — individual intent to be bound, participation, or corporate veil-piercing — can sustain Count II, for breach of contract, against Mr. Land or Ms. Strein. Count II is therefore dismissed as to Mr. Land and Ms. Strein with prejudice as to Mr. Accurso’s individual intent and participation theories, and without prejudice as to his corporate veil-piercing theory; amendment of the Complaint as to the former would be futile, but not, necessarily, as to the latter (especially given Mr. Accurso’s averments, located improperly in his briefing). See Phillips,
For these same reasons, Count III, for breach of partnership agreement, must also fail. This claim is based, as pleaded, on Mr. Accurso’s Contract with Infra-Red Services, see Compl. ¶ 62, and thus, in the absence of a basis for a binding partnership between Mr. Accurso and Mr. Land separate from the Contract, which, as the Court has explained, does not bind Mr. Land personally, the Court must dismiss .Count III (likewise, for the similar reasons, without prejudice).
B. Civil Conspiracy
Defendants, arguing that “the actions identified as the basis for [Mr. Accurso’s] civil conspiracy claim [Count VII] are the very same actions identified as the basis for [Mr. Accurso’s] breach of contract and breach of partnership agreement claims,” Mot. 13, contend that without a “viable breach of contract or breach of partnership agreement claim ..., the civil conspiracy claim must fail,” Mot. 14. The Court agrees with the second .premise, namely, that without a viable underlying substantive claim, a civil conspiracy claim may not lie. But Defendants’ conclusion does not necessarily follow from their premise, because Mr. Accurso’s civil conspiracy claim might be based on another cause of action.
Pennsylvania law mandates that “absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” Goldstein v. Phillip Morris, Inc.,
Mr. Accurso seems to ignore this point in both his Complaint and in his briefing. Mr. Accurso’s Complaint alleges that
Defendant Land conspired and acted in concert with Defendant Strein, the significant other of Land, with a common purpose to deprive Plaintiff Accur-so of monies to which he was entitled, to improperly divert those monies to Defendant Land and Defendant Strein, to withhold prompt and proper payment as*513 agreed, and to thereby cause harm to Plaintiff Accurso.
Compl. ¶ 82. Similarly, at several places in his papers, Mr. Accurso argues that Mr. Land and Ms. Strein formed “a conspiracy to benefit themselves individually and harm Plaintiff personally.” Mem. Opp. 6; see id. 7, 12-13 (“[I]t is specifically averred that Defendant Land and Defendant Strein committed overt acts in pursuit of their common purpose with an intent to injure Accurso.”). But nowhere does Mr. Accurso make clear just what tortious activity Mr. Land and Ms. Strein allegedly conspired to do, although the allegations seem to suggest that some sort of a conversion claim was what was intended.
Although the Court doubts that Mr. Ac-curso could base his civil conspiracy claim on a breach of contract or breach of partnership agreement claim, because such wrongs, even if proven, are not tortious, the Court need not reach that question because it is dismissing those claims. See Nix,
But Mr. Accurso still has an intentional infliction of emotional distress claim against the Defendants. Mr. Land and Ms. Strein’s Motion for Judgment on the Pleadings does not address this potential predicate tort, but instead argues generally that “to the extent [that Mr. Accurso’s] conspiracy allegations encompass actions that Mr. Land and Ms. 'Strein took in their roles as principals and/or officers” of the corporate Defendants, no civil conspiracy claim can lie because “ ‘agents of a single entity cannot conspire among themselves.’ ” Mot. 14 (quoting Grose v. Procter & Gamble Paper Prods.,
Mr. Accurso retorts that Mr. Land and Ms. Strein were not conspiring as agents of one of their alleged corporate forms, but rather “as individuals in a significant other relationship,” and that “[i]t is certainly a reasonable inference that Defendant Land and Defendant Strein acted for their own personal benefit and not for any alleged corporate benefit.” Mem. Opp. 12-13. Although he does not cite any authorities on this specific point, Mr. Accurso’s argument is, in essence, an assertion of an exception to the intracorporate conspiracy doctrine for situations in which an officer “act[ed] in a personal, as opposed to official, capacity. That is, an exception exists ‘when the employees have acted for their sole personal benefit.’ ” Gen. Refractories Co.,
This personal benefit exception to the intracorporate conspiracy doctrine is poorly defined, if in fact it exists. As noted in the margin, the Third Circuit Court of Appeals has addressed the exception largely by analogy, through the 42 U.S.C. § 1985 and attorney-client relationship contexts. In a holding in the core corporate context, in Johnston v. Baker,
At the same time, at least one panel of the Pennsylvania Superior Court, in a non-precedential decision, has opined that no such “exception” to the intracorporate conspiracy doctrine “is recognized by Pennsylvania state courts.” Lilly v. Boots & Saddle Riding Club, No. 57 C.D. 2009, 2009 WL Q101459, at *6 (Pa.Commw.Ct. July 17, 2009).
For several reasons, then — including the indicated indeterminacy of the case law — Mr. Accurso’s civil conspiracy claim should be permitted to proceed, at least for now. Bad facts make bad law, and while a determination that Mr. Accur-so categorically cannot establish that he has raised a viable predicate cause of action for his conspiracy claim that might fall into the private benefit exception to the intracorporate conspiracy doctrine (if one exists) might eventually be vindicated, little harm results to the Defendants from allowing the count to proceed. After all, as should be clear from the principles laid out above, “[s]ince liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing vicarious liability for the underlying tort.” Beck v. Prupis,
At the same time, the Court reemphasizes the limited basis for its holding allowing Mr. Accurso’s civil conspiracy claim to proceed: his intentional infliction of emotional distress claim plus allegations of the character that Mr. Land and Ms. Strein “formed Defendant Roofing Dynamics Group, LLC, ... without the input and/or knowledge of Plaintiff Accurso,” as part of their fraudulent conspiracy to “force Plaintiff Accurso out of the Company, in order to wrongfully deprive him of the vested partnership interest which he held, and to improperly divert to themselves those monies which were due and owing to Plaintiff Accurso, for their mutual personal benefit,” Compl. ¶ 34, because of their potential for bringing Mr. Land and Ms. Strein outside the bounds of the intracorporate conspiracy doctrine. But the Court will also note the serious question that arises as to whether such allegations and Mr. Accurso’s predicate intentional infliction of emotional distress claim align — indeed, whether intentional infliction of emotional distress (and breach of contract and partnership agreement) is even the correct cause of action based on Mr. Accurso’s conception of what occurred.
Finally, the Court need not reach the question of whether a civil conspiracy claim could be founded upon Mr. Accurso’s other remaining claims, namely, for unjust enrichment and for violation of the federal Employee Polygraph Protection Act (“EPPA”) and the Pennsylvania Wage Payment and Collection Law (“WPCL”). The parties did not brief this issue, and the Court, upon cursory review of the case law, did not find the issue directly addressed. Cf., e.g., Alpha Pro Tech, Inc. v. VWR Int’l LLC,
For the foregoing reasons, the Court will grant in part and deny in part Mr. Land and Ms. Strein’s Motion to Dismiss. The Court will dismiss Mr. Accurso’s claims against Mr. Land and Ms. Strein for breach of contract and breach of partnership agreement without prejudice to Mr. Accurso to attempt properly to plead a corporate veil-piercing theory. The Court will permit Mr. Accurso’s civil conspiracy claim to proceed based on his unchallenged intentional infliction of emotional distress claim.
An Order consistent with this Memorandum follows.
ORDER
AND NOW, this 28th day of May, 2014, upon consideration of Mr. Land and Ms. Strein’s Joint Motion for Partial Judgment on the Pleadings (Docket No. 14), Mr. Accurso’s Memorandum of Law in Opposition thereto (Docket No. 17), Mr. Land and Ms. Strein’s Motion for Leave to File a Reply Brief (Docket No. 18), and the Reply Brief attached to that Motion (Docket No. 18-1), it is HEREBY ORDERED that—
1. The Motion for Leave to File a Reply Brief is GRANTED;
2. The Joint Motion for Partial Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART, with respect to the following Counts of Mr. Accurso’s Amended Complaint (Docket No. 10):
a. Count II, for breach of contract, is dismissed with prejudice as to Mr. Accurso’s voluntary undertaking and “participation theory” grounds and dismissed without prejudice as to Mr. Accurso’s seeking leave to amend to state a claim based on corporate veil-piercing;24
b. Count III, for breach of partnership agreement, is likewise dismissed without prejudice; and
c. Count VII, for civil conspiracy, is permitted to proceed.
Notes
. Infra-Red Services, Inc., is also referred to elsewhere as Infra Red Services Co. For sake of consistency, this Memorandum will refer to the entity as designated.
. The following summary is based on Mr. Accurso’s Amended Civil Action Complaint (Docket No. 10), the allegations in which the Court assumes to be true for purposes of adjudicating Mr. Land and Ms. Strein’s Joint Motion for Partial Judgment on the Pleadings (Docket No. 14). See Ashcroft v. Iqbal,
. Mr. Accurso’s Complaint is an "Amended Complaint” because it resulted from this Court's February 10, 2014 Order (Docket No. 9) consolidating, after their removal by Ms. Strein and the other Defendants, respectively, two civil actions filed by Mr. Accurso in state court. Removal was based on federal question jurisdiction over Mr. Accurso's claim of violation of the Employee Polygraph Protection Act, 29 U.S.C. § 2001-2009.
. The parties appear to be confused about the standard of review. See, e.g., Mem. Opp. 9-10 ("it would be inappropriate to enter an order granting partial summary judgment"); Mot. 8 (purportedly citing 11 Moore's Federal Practice § 56.30, which does not exist (that section is "reserved”), and which, if it did, would fall within the summary judgment volume (11) regarding Rule 56 (hence § 56.30)). The equivalency of the Rule 12(c) and Rule 12(b)(6) standards is uncontroversial. See, e.g., Morgan v. Church’s Fried Chicken,
. A plaintiff must generally move to amend, of course, but dismissing his complaint with prejudice would preclude him from doing so. See generally, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
. Further, incidentally, LaRue v. De Wolff, Boberg & Associates, Inc.,
. See also, e.g., Druz v. Boro of Manasquan,
The resolution of a motion for judgment on the pleadings might also be with prejudice, for instance, if the plaintiff, who, having pleaded all three elements, (a), (b), and (c), of a cause of action, moves for judgment on the pleadings and contends that the defendant has admitted (a), (b), and (c) in his answer and raises no affirmative defenses. But the
The Court further observes, in the spirit of encouraging professional excellence, that this type of mistake of law can often be avoided by careful surveying of the case law rather than targeted (and tempting) quote-mining. Cf., e.g., United States v. Detroit Timber & Lumber Co.,
. Additionally, the Contract expressly provides:
No Other Contracts, Binding Nature. This Agreement constitutes the entire agreement between the parties hereto and their respective officers, directors, or agents, and superseded [sic] all prior agreements, relationships, or negotiations with regard to the subject matter hereof. This Agreement shall be binding upon the respective heirs, successors, assignees, and legal representatives of the parties.
. See Mem. Opp. 3. The parties should not read this statement, however, as a conclusion
. This authority also disposes of Mr. Accur-so’s argument that the Contract should be construed against Mr. Land because he drafted it. See also, e.g., Sun Co., Inc. (R & M) v. Pa. Tpk. Comm’n,
. The nub of Mr. Accurso’s purported breach of contract claims against Mr. Land and Ms. Strein — as evidenced from the correspondence he cites between Mr. Land and himself — seems to be that Mr. Land was the "Company.” If Mr. Accurso can substantiate this understanding, he might be able to plead a veil piercing theory against Mr. Land (and perhaps Ms. Strein). The Court discusses the sufficiency of Mr. Accurso’s Complaint with regard to corporate veil — piercing below. See infra subsection III.A.3. But Mr. Accurso cannot somehow combine the idea of corporate veil-piercing with principles of contract construction to state a claim against Mr. Land (or Ms. Strein) individually. Cf. also infra note 17.
. Consider as well, for instance, the Pennsylvania Superior Court’s reversal of a trial court’s holding a Mr. Singh liable on a "participation theory” for what was essentially the corporation’s breach of contractual obligations:
[T]he trial court only found against Singh individually because it determined there was a "conversion” and Singh can be found individually liable on a "participation” theory. That means Singh participated in some kind of misfeasance. We do not believe the evidence is sufficient to establish any kind of "conversion” or other illegal act....
This is a classic situation where an individual wishes to shield himself from personal liability and uses the classic corporate structure, and a supplier knows about both the corporate structure and the financial difficulties of the corporation and chooses to take the risk. The decision by the trial court in this case could drastically undermine our business structure by allowing creditors to end-run the normal burden of piercing the corporate veil under the little used "participation” theory....
Simply calling a contractual dispute a tort does not make it so. Because of this lack of evidence, we do not believe it has been demonstrated that Singh was malfeasant in his actions. Without malfeasance, this is merely a breach of contract by a corporation, and the individual should not be found to be personally liable.
Parker Oil Co. v. Mico Petro & Heating Oil, LLC,
. The cause of action of tortious interference with a contractual relationship is another matter. But see, e.g., Petrin, supra note 12, at 1706 ("Courts have developed the defense of 'economic justification’ to shield directors and officers from claims alleging liability for tortious interference with another’s contract.”).
. Accord, e.g., Madonna v. Francisco, No. 13-807,
. Mr. Accurso alleges that "[a]fter the execution of the [Contract], both Defendant Roofing Dynamics, Inc., and also Defendant Roofing Dynamics Group, LLC, assumed the business of defendant Infra-Red Services, as well as its obligations pursuant to the [Contract] with
Mr. Accurso’s other theory, supported by the January 4, 2012 letter attached to his Complaint (Ex. C, Docket No. 10-3), is of Roofing Dynamics, Inc.’s, and Roofing Dynamics Group, LLC’s successor liability. These corporate Defendants have not challenged the breach of contract claims and, indeed, would be hard-pressed to do so given the Counterclaim they have filed relying on the very Contract itself.
. See, e.g., Lim v. Rajan, No. 13-1385,
None of this is to say that all the relevant factors must be pleaded, either. See, e.g., ASD Specialty Healthcare Inc. v. New Life Home Care Inc., No. 11-068,
. One suspects conversion, embezzlement-type, or fraud claims, if otherwise appropriate, could be leveled against Mr. Land to the extent that he was employing a corporate form knowingly to deprive Mr. Accurso of money Mr. Accurso worked for. Suppose, for instance, that
A and B make a written contract. Later A sues B claiming that during the negotiations B deliberately misrepresented the benefits that A would derive from the contract. A does not sue for breach of contract. He can’t; the parol evidence rule would bar a claim that promises made during the negotiations but not repeated in the contract should be deemed contractually binding. So A sues B in tort, charging fraud. The parol evidence rule is not a rule of tort law....
Posner, supra, at 182. The Court offers no opinion as to whether such claims would be "otherwise appropriate,” but offers the discussion simply to illustrate the deficiencies apparent in the way Mr. Accurso’s Complaint is pleaded. (Further, Mr. Accurso’s attempt to invoke what is ostensibly the alter ego theory of corporate veil-piercing would seem to suggest he perceives that he has been harmed by the Defendants’ fraud.) But see, e.g., Stein v. Fenestra Am., L.L.C., No. 09-5038,2010 WL 816346 , at *7 (E.D.Pa. Mar. 9, 2010) ("Despite the window dressing, this Court sees right through the Stems’ „tort claims and recognizes this case for what it is: a breach of contract action.”).
. Compare also, e.g., Pelagatti,
Moreover, it would make little sense to allow a civil conspiracy claim to be based on breach of contract: civil conspiracy is a means of establishing vicarious liability, but, generally, the only entities potentially liable for breach of contract are those who are (a) parties to the contract and (b) breached some material term of that contract. In other words, the concept of vicarious liability is
. The holding in Heffeman was in the context of 42 U.S.C. § 1985, but in General Re-factories Co., the Third Circuit Court of Appeals explained that the plaintiff bringing a Pennsylvania civil conspiracy claim for an alleged conspiracy between an attorney and client had not established that the Heffeman exception applied.
. The court explained:
Plaintiffs, citing federal case law (including an unpublished opinion) argue that an exception to this doctrine should apply. Specifically, Plaintiffs contend that "[w]here the officer or director acts solely to injure the plaintiff rather 'than as an officer or director seeking to advance the interests of the corporation, a cause of action for civil conspiracy has been sufficiently pled.” However, this is not an exception that is recognized by Pennsylvania state courts. The authority found by this Court supports the trial court's analysis that board members cannot be said to conspire with each other or with the corporation. See, e.g., Grose. Accordingly, we conclude that Plaintiffs have not raised a cognizable civil conspiracy claim.
Lilly,
. Duffy v. Lawyers Title Ins. Co., No. 11-4503,
. Mr. Accurso’s breach of contract and breach of partnership agreement counts against Mr. Land and Ms. Strein would seem to accord, to the extent that he can sufficiently allege a corporate veil-piercing theory, with his conception of how they wronged him. But to the extent that Mr. Land's and Ms. Strein’s allegedly harmful conduct might still be actionable if the corporate veil cannot be pierced, one is left to wonder whether other causes of action would better align with Mr. Accurso’s allegations.
. As the Court explained for a different purpose in its February 10, 2014 Order (Docket No. 9),
"Under Pennsylvania law, when a corporation fails to pay wages and benefits that it owes its employees, the corporation's top officers can be held personally liable for the non-payments.” Belcufine v. Aloe,112 F.3d 633 , 634 (3d Cir.1997) (Alito, J.). Thus, it clearly does not matter whether an officer of Infra-Red or its successor — here, allegedly, Ms. Strein — was a party to an agreement between Mr. Accurso and Infra-Red: under the WPCL, the term "employer” "[¡Includes every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth.” 43 Pa. Stat. Ann. § 260.2a (emphasis added). For a determination that Ms. Strein was such a qualifying officer, "evidence of an active role in decision making is required” — "the legislature [did not] intend[ ] liability merely by virtue of holding corporate office.” Mohney v. McClure, [390 Pa.Super. 338 ]568 A.2d 682 , 686 (1990), aff'd, [529 Pa. 430 ]604 A.2d 1021 (1992); accord Int’l Ass’n of Theatrical Stage Emps., Local Union No. 3 v. Mid-Atl. Promotions, Inc.,856 A.2d 102 , 105 (Pa.Super.Ct.2004).
Feb. 10, 2014 Order 2-3 n. 3 (alteration removed). A civil conspiracy overlay either would seem to flout the purpose of the WPCL as described in the case law by allowing those without "an active role in decision making” to conspire to do something that they lack corporate power to do, or, alternatively, would seem nugatory by enabling a plaintiff to hold vicariously liable someone who is already directly liable.
Much the same might be said about the EPPA:
Ms. Strein’s facile suggestion that she is not an "employer” for purposes of the [EPPA], 29 U.S.C. § 2001-2009, appears to disregard the statutory definition of "employer.” "The term 'employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” Id. § 2001; see also 29 C.F.R. § 801.2(c). Courts use the "economic reality” test to determine whether a party is an employer under the EPPA. See, e.g., Watson v. Drummond Co., Inc.,436 F.3d 1310 , 1316 (11th Cir.2006) ("This Circuit has also used the economic reality test in determining whether a party is an employer for the purposes of other federal employee protection statutes with definitions of 'employer' similar to that of the EPPA.... [W]e find the economic reality test appropriate here as well.”); Fernandez v. Mora-San Miguel Elec. Coop., Inc.,462 F.3d 1244 , 1248 (10th Cir.2006) (“Other courts have adopted the ‘economic reality’ test to determine whether a polygraph examiner is an 'employer' for purposes of the EPPA.”); Calbillo v. Cavender Oldsmobile, Inc.,288 F.3d 721 , 727 (5th Cir.2002) ("We conclude that the ‘economic reality’ test is the better approach ...."); see also Sanchez v. Prudential Pizza, Inc., 10 CV 6289,2011 WL 5373976 , at *2-3 (N.D.Ill. Nov. 2, 2011). Although Mr. Accurso's allegations regarding EPPA are indeed thin, determining whether a defendant officer was an employer for EPPA purposes is a fact-intensive inquiry and thus one that is appropriate, perhaps, at the motion for summary judgment stage, but, at least here, not at the motion to dismiss stage. See, e.g., Miller v. Natural Res. Recovery, LLC, No. 10-537,2011 WL 3841641 , at *6 (M.D.La. Aug. 29, 2011) ("[W]hether or not the ... defendants may be deemed employers under the EPPA requires a factual inquiry beyond the scope of the pleadings.”). Further, Ms. Strein’s suggestion that one of Pennsylvania’s limited liability laws could "shieldf her] from personal liability” under EPPA, Strein*518 Mem. at 14-15, is, on its face, entirely mer-itless: the EPPA provides a federal cause of action that cannot be limited by state law.
Feb. 10, 2014 Order 3 n. 3.
. Any future Motion for Leave to Amend should include a Proposed Second Amended Complaint addressing the deficiencies identified in the Memorandum accompanying this Order. The Court is aware that Mr. Accurso may seek to take more discovery before considering moving for leave to amend. Cf., e.g., Stein v. Fenestra. Am., L.L.C., No. 09-5038,