Accurso v. Infra-Red Servs., Inc.

• Decision Date: 10 August 2015
• Docket Number: Civil Action No. 13–7509.
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: Peter ACCURSO, Plaintiff & Counterclaim Defendant, v. INFRA–RED SERVICES, INC., et al., Defendants & Counterclaim Plaintiffs.

119 F.Supp.3d 316

Peter ACCURSO, Plaintiff & Counterclaim Defendant,

v.INFRA–RED SERVICES, INC., et al., Defendants & Counterclaim Plaintiffs.

Civil Action No. 13–7509.

United States District Court, E.D. Pennsylvania.

Signed Aug. 10, 2015.

Eric Gavin Marttila, McNamara Bolla & Panzer, Doylestown, PA, for Plaintiff & Counterclaim Defendant.

Julie B. Negovan, Spruce Law Group LLC, Philadelphia, PA, for Defendants & Counterclaim Plaintiffs.

MEMORANDUM

PRATTER, District Judge.

Peter Accurso claims his prior employers, Brian Land, Audrey Strein, and their three roofing companies, submitted him to unlawful lie detector tests prior to wrongfully terminating his employment. Beyond the fact that Mr. Accurso's working relationship with these Defendants ended in January 2012, virtually everything remains in dispute.

Mr. Accurso argues that the termination was a result of the two unlawful polygraph examinations and breached his employment contract. The Defendants insist that they were within their rights to fire Mr. Accurso, who had been surreptitiously diverting business to their competitors. Mr. Accurso seeks relief for violations of the Employee Polygraph Protection Act ("EPPA"), breach of contract, intentional interference with contract, violations of the Pennsylvania Wage Payment and Collection Law, and civil conspiracy. Defendants counterclaim against Mr. Accurso for breach of contract, breach of fiduciary duty, usurpation of corporate opportunity, fraud, intentional interference with prospective contractual relations, and misappropriation of trade secrets. They seek summary judgment on Mr. Accurso's claims. For the reasons explained below, the Court will grant that motion in part and deny it in part.

I. BACKGROUND

This case involves roofing companies founded by, or otherwise connected to, Brian Land. The first, Infra–Red Services, Inc., was founded in 1992 and operated until the early to mid–2000s. The second, Roofing Dynamics, Inc., was founded in 2006. Mr. Land served as the president of Roofing Dynamics, Inc. The third, Roofing Dynamics Group, LLC, was founded in 2011. Mr. Land's role in Roofing Dynamics Group during the relevant time period is disputed. Defendants claim he was "a principal member of Roofing Dynamics Group," but Mr. Accurso, despite alleging in his Second Amended Complaint that Mr. Land was a principal member of Roofing Dynamics Group, LLC, see Second Am. Compl. ¶ 10 (Doc. No. 36), now claims that Mr. Land had no official relationship with Roofing Dynamics Group, citing deposition testimony from Mr. Land and Ms. Strein. All agree that Ms. Strein was the President of Roofing Dynamics Group.

Mr. Accurso signed an agreement in September 2004 with Infra–Red Services, Inc. It is disputed whether the agreement amounted to an "independent contractor agreement," (as it was so titled), or an employment contract. The agreement provided that Mr. Accurso would market and sell Infra–Red's roofing services within a set "territory" (defined by telephone area codes), for which he would receive 50% of all commissions or income from leads he generated within his territory. The agreement had a term of four years, to be automatically renewed every two years thereafter, "until canceled by either party upon written notice to the other party." Mot. for Summ. J. Ex. C. 3. "Such notice" was to be "given not less than ninety (90) days prior to the end of any term hereunder." Id. The meaning of this termination provision is disputed by the parties.

The Agreement allowed for unilateral partial or full assignment of the Agreement by Infra–Red Services. Infra–Red assigned its rights and obligations under the agreement to Roofing Dynamics, Inc. in the mid–2000s. In August 2011, Roofing Dynamics, Inc., assigned its rights and obligations under the Agreement to Roofing Dynamics Group, LLC.

On January 4, 2012, Defendants' legal counsel, Richard Berlinger, provided Mr. Accurso with a "Notice of Immediate Termination." The Notice gave various reasons for the termination of the Agreement, including Mr. Accurso's diversion of business opportunities, interference with contractual relations, and an instance in which Mr. Accurso gave less than 24 hours' notice before taking a week vacation in December 2011. The Notice also detailed the amount Mr. Accurso would be paid for his prior services, and it directed Mr. Accurso to take or refrain from taking a number of actions, including returning all trade secrets and refraining from contacting certain customers.

While employed by Defendants, Mr. Accurso took two polygraph examinations: one at Mr. Land's behest in March 2008, because Mr. Land suspected Mr. Accurso of diverting business opportunities away from Roofing Dynamics, Inc., and a second in 2010. The parties dispute the circumstances leading up to, and the consequences of, these polygraph examinations. Defendants argue that the 2010 polygraph examination was mutually agreed to, but Mr. Accurso argues that Mr. Land insisted that he (Mr. Accurso) submit to a second polygraph. Defendants argue that Mr. Accurso suffered no adverse employment consequences as a result of the two polygraphs. Mr. Accurso disputes this and claims that he was fired because of the polygraph results. Mr. Accurso also asserts that he was fired because Mr. Land wanted to divert Mr. Accurso's business to his significant other, Ms. Strein.

Mr. Accurso brought seven claims against Defendants, two of which have been dismissed: (1) violation of the Employee Polygraph Protection Act; (2) breach of contract; (3) intentional interference with contractual relations; (4) violation of the Pennsylvania Wage Payment and Collection Law; (5) unjust enrichment (dismissed per Dec. 3, 2014 Order (Doc. No. 64)); (6) intentional infliction of emotional distress (dismissed per Dec. 3, 2014 Order); and (7) civil conspiracy. The Court also dismissed Mr. Accurso's Employee Polygraph Protection Act claim to the extent it was based on the allegation that Defendants required Mr. Accurso to submit to a 2008 polygraph examination, as this claim is time-barred. See Dec. 3, 2014 Order. Claims based on adverse employment action taken against Mr. Accurso as a result of the 2008 polygraph examination were not deemed time-barred.

II. ANALYSIS

Defendants move for summary judgment on Mr. Accurso's five remaining claims. If successful, this would leave only the counterclaims for resolution.

Summary judgment is appropriate only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it could affect the outcome of the suit, given the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party." Id. When the party seeking summary judgment does not bear the burden of persuasion at trial, the moving party may meet its burden at summary judgment by showing that the nonmoving party lacks sufficient evidence to create a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir.2005). The court must not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.1998). Nevertheless, the party opposing summary judgment must support each essential element of his or her opposition with concrete evidence in the record. Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted).

a. Employee Polygraph Protection Act Claims

The Employee Polygraph Protection Act states that "it shall be unlawful for any employer ... (1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test; (2) to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee" or to otherwise take an adverse employment action against an employee on the basis of the results of any lie detector test. 29 U.S.C. § 2002. Mr. Accurso alleges that he was an employee within the meaning of the EPPA (a point the Defendants do not challenge), and that Mr. Land and Ms. Strein, on behalf of Infra–Red and Roofing Dynamics, Inc., unlawfully insisted that Mr. Accurso submit to the 2008 and 2010 polygraph examinations. Mr. Accurso also alleges that Defendants unlawfully used the results of the polygraph to terminate Mr. Accurso's employment.

Defendants argue that Mr. Accurso's EPPA claims fail for two reasons: (1) Mr. Accurso has adduced no evidence that Defendants "insisted" that he take the 2010 polygraph; (2) Mr. Accurso has not adduced competent, admissible evidence that he suffered adverse employment consequences based upon the result of any polygraph examination.

1. Circumstances and Fact of 2010 Polygraph¹

Defendants focus upon whether there is evidence that Mr. Land "insisted" that Mr. Accurso submit to the 2010 polygraph. But their focus overlooks that a violation of the EPPA does not require that an employer "insist" upon a polygraph exam. Rather, an EPPA violation will lie where "any employer ... (1) directly or indirectly, [requires], request[s], suggest[s], or cause[s] any employee or prospective employee to take or submit to any lie detector test." 29 U.S.C. § 2002. There is sufficient evidence in the record that Mr. Land "requested, suggested, or caused" Mr. Accurso to submit to a lie detector test....