SARSFIELD vs.SNOW AND ICE MANAGEMENT COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL J. SARSFIELD,

2:21-CV-00383-CCW

Plaintiff,

v.

SNOW AND ICE MANAGEMENT

COMPANY,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Snow and Ice Management Company’s Motion to Dismiss

Plaintiff Michael J. Sarsfield’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

See ECF No. 6. For the reasons that follow, Defendant’s Motion will be GRANTED in part and

DENIED in part.

I. Background

In this employment discrimination suit, Plaintiff alleges that Defendant, his previous

employer, (i) failed to provide him with reasonable accommodations for his anxiety disorder,

depressive disorder and adjustment disorder and (ii) terminated his employment and replaced

Plaintiff with a younger and less experienced individual, in violation of the Americans with

Disabilities Act (“ADA”) 42 U.S.C. §§12111 et seq., the Family Medical Leave Act (“FMLA”)

29 U.S.C. §§ 2601-54, the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.

§§ 621-634, and the Pennsylvania Human Relations Act (“PHRA”) 43 P.S. §954. See, e.g., ECF

No. 1-2.

Plaintiff’s complaint alleges that he commenced this lawsuit by “filing praecipe for writ of

summons in a timely manner” after receiving a notice of dismissal and right to sue letter from the

Equal Employment Opportunity Commission (“EEOC”). ECF No. 1-2 at ¶¶ 4-5. Both parties

agree that Plaintiff commenced this action on November 27, 2019 in the Court of Common Pleas

of Allegheny County by filing a praecipe to issue a writ of summons. ECF No. 7 at 1; ECF No.

9 at 4.

The Allegheny County docket indicates that Plaintiff reissued the praecipe to issue a writ

of summons twelve times prior to serving the Defendant. See ECF No. 1-5. The Allegheny County

docket indicates that the Sheriff served the thirteenth writ on Defendant on December 17, 2020.

Id. The docket further indicates that Defendant filed a praecipe to file a complaint on January 5,

2021 and Plaintiff filed the Complaint on March 3, 2021. Id. The case was removed to this Court

by Defendant on March 23, 2021. ECF No. 1.

Defendant moves to dismiss on the grounds that Plaintiff’s ADA, ADEA, and FMLA

claims are timed barred because the filing of the original writ did not toll each claim’s statute of

limitations. ECF No. 6 at 3. Defendant further alleges that Plaintiff’s claims for punitive damages

under the ADA, ADEA, and PHRA should be dismissed. Id. at 3-4.

II. Standard of Review

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim. In reviewing

a motion to dismiss, the court accepts as true a complaint’s factual allegations and views them in

the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d.

Cir. 2008). Although a complaint need not contain detailed factual allegations to survive a motion

to dismiss, it cannot rest on mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). That is, “a formulaic recitation of the elements of a cause of action will not do.”

Id. Accordingly, “[f]actual allegations must be enough to raise a right to relief above the

speculative level,” id., and be “sufficient to state a claim for relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than the sheer possibility

that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

The United States Court of Appeals for the Third Circuit has established a three-step

process for district courts to follow in analyzing a Rule 12(b)(6) motion:

First, the court must “tak[e] note of the elements a plaintiff must

plead to state a claim.” Second, the court should identify allegations

that, “because they are no more than conclusions, are not entitled to

the assumption of truth.” Finally, “where there are well-pleaded

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster

Twp., 629 F.3d 121, 130 (3d Cir. 2010)). That said, under the notice pleading standard imposed

by Federal Rule of Civil Procedure 8, even after the Supreme Court’s decisions in Twombly and

Iqbal, a plaintiff need only “allege sufficient facts to raise a reasonable expectation that discovery

will uncover proof of her claims.” Connolly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir.

2016) (finding that “at least for purposes of pleading sufficiency, a complaint need not establish a

prima facie case in order to survive a motion to dismiss”).

A defendant may raise statute of limitations as an affirmative defense 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.” See Robinson v. Johnson, 313 F.3d 128,

134-35 (3d Cir. 2002). “If 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)).

In deciding a “motion to dismiss, courts generally consider only the allegations contained

in the complaint, exhibits attached to the complaint and matters of public record.” Schmidt v.

Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citing Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). However, a court may also consider a “document

integral to or explicitly relied upon in the complaint…without converting the motion to dismiss

into one for summary judgment.” Schmidt, 770 F.3d at 249. 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., 998 F.2d at 1196.

III. Discussion

A. Statute of Limitations

For ADA and ADEA claims, a plaintiff must bring a civil action within 90 days of receiving

a notice of dismissal and right to sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1) (2021); 29

U.S.C. § 626(e) (2021).1 However, such statutes do “not specify the manner of commencing the

‘civil action,’” Heater v. Kidspeace, No. 05-4545, 2005 U.S. Dist. LEXIS 22512, at *5-6 (E.D. Pa.

Oct. 5, 2005), and “[f]ederal and state courts have concurrent jurisdiction for claims brought under

the ADA and ADEA.” Vail v. Harleysville Group, Inc., Civ. A. No. 02-2933, 2003 U.S. Dist.

LEXIS 17405, at *6 (E.D. Pa. Sept. 30, 2003)

Because Plaintiff commenced this action in Court of Common Pleas of Allegheny County,

this Court will analyze whether the statute of limitations for Plaintiff’s ADA, ADEA, and FMLA

1 An FMLA claim must be brought within two years, unless a plaintiff can establish a willful violation in which case

the statute of limitation is three years. See 29 U.S.C. § 2617(c). Here, Defendant contends that “Plaintiff was

terminated on January 19, 2018,” and that the original praecipe for writ filed on November 27, 2019 “did not operate

to toll the statute of limitations.” ECF No. 7 at 7. Viewing the allegations in the Complaint in the light most favorable

to Plaintiff as the non-moving party, we assume for purposes of this motion, but do not decide, that the termination

date was the start date for FMLA statute of limitations. As further discussed below, whether the filing of the praecipe

on November 27, 2019 (which is within two years from the date of termination) tolled the statute of limitations is not

clear on the face of the complaint because the issue of good faith requires further development.

claims was tolled under Pennsylvania law. See Heater, 2005 U.S. Dist. LEXIS 22512, at *6

(noting that Pennsylvania Rule of Civil Procedure 1007 commencing an action in state court

“applies to cases removed to federal court.”); Vail, 2003 U.S. Dist. LEXIS 17405, at *8

(“Compliance with the Pennsylvania procedural rule satisfies the tolling requirement in cases

removed….”) (quoting Perry v. City of Philadelphia, Civ. A. No. 99-2989, 1999 U.S. Dist. LEXIS

12915, at *4 (E.D. Pa. Aug. 17, 1999)); Marini v. Woodland Hills Sch. Dist., No. 2:06cv53, 2007

U.S. Dist. LEXIS 107145 (W.D. Pa. Feb. 13, 2007) (applying Pennsylvania rules for the praecipe

for writ of summons in a civil rights case); see also, Fed. R. Civ. P. 81(c) (stating that the Federal

Rules “apply to a civil action after it is removed from a state court”) (emphasis added).

Under the Pennsylvania Rules of Civil Procedure, “an action may be commenced by filing

with the prothonotary (1) a praecipe for a writ of summons, or (2) a complaint.” Pa. R. Civ. P.

1007. The filing of a praecipe for a writ of summons is sufficient to commence a civil action and

toll the statute of limitations. Heater, 2005 U.S. Dist. LEXIS 22512, at *5; see Vail, 2003 U.S.

Dist. LEXIS 17405, at 7.

Although the writ must be served within thirty days after issuance or filing, it may be

“reissued at any time, and any number of times, after the original issuance during a period equal

to the applicable statute of limitations, and each reissuance gives rise to another tolling period

equal to the statutory limitations time period.” Heater, 2005 U.S. Dist. LEXIS 22512, at *6; Pa.

R. Civ. P. 401(a)-(b).

However, plaintiffs may not use these liberal rules to “deliberately delay[] service of the

writ to toll the statute of limitations indefinitely by frequently reissuing the writ.” Heater, 2005

U.S. Dist. LEXIS 22512, at *6. To prevent abuse, the Pennsylvania Supreme Court has held that

“a writ of summons shall remain effective to commence an action only if the plaintiff then refrains

from a course of conduct which serves to stall in its tracks the legal machinery he has just set in

motion.” Lamp v. Heyman, 366 A.2d. 882, 889 (Pa. 1976). Plaintiffs must make a “good-faith

effort to notify a defendant” of the action, via timely service of such writ. Id. In determining good

faith, the Court undertakes a “flexible approach” and will not find a lack of good faith in the case

of an “initial procedurally defective service where the defendant has actual notice of the

commencement of litigation and is not otherwise prejudiced.” McCreesh v. City of Phila., 888

A.2d 664, 666 (2005).

Defendant alleges that Plaintiff failed to make a good faith effort to serve Defendant

because Plaintiff reissued “twelve writs over the course of a year with no efforts at service.” ECF

No. 7 at 5. Plaintiff refutes this contention and alleges that Plaintiff has exercised diligence in

seeking service on February 3, 2020 and following up on the status of service in April 2020. ECF

No. 9 at 4.

Because a statute of limitations defense is an affirmative defense, it must be clear on the

face of the complaint to merit dismissal of the Complaint on that basis at the Rule 12(b)(6) stage.

The Court may consider the Complaint, exhibits attached to the Complaint, matters of public

record, and documents integral to or explicitly relied upon in the Complaint, as well as “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., 998 F.2d at 1196.

Plaintiff’s Complaint alleges that Plaintiff “received a Right to Sue letter from the EEOC

and commenced this suit by filing [a] praecipe for writ of summons in a timely manner.” ECF No.

1-2 ¶ 5. Plaintiff’s notice of dismissal and right to sue letter is dated September 4, 2019. ECF No.

6-1. Plaintiff is presumed to have received the letter three days after it was issued by the EEOC,

see Heater, 2005 U.S. Dist. LEXIS 22512 at *4, and thus had 90 days from September 7, 2019 to

commence an action, which would be December 6, 2019.2 The Court may consider the notice of

dismissal and right to sue letter because Plaintiff explicitly relies on it in the Complaint, see ECF

No. 1-2 at ¶¶ 4-5, and because its authenticity is not disputed and Defendant attached it as an

exhibit to its motion to dismiss.

The initial praecipe was issued on November 27, 2019, within the statute of limitations,

and operated to toll the statute of limitations. ECF No. 1-3 at 1-4. The writ was then reissued on

January 10, 2020 (which is within the period equal to the applicable statute of limitations following

the issuance of the original writ). Id. at 5-7. Plaintiff then reissued the writ each month, see id. at

7-40, until the Defendant was served on December 17, 2020. See ECF 1-5 at 2. The Court may

consider the issuance of the praecipes for writ of summons both (i) as matters of public record as

they are available online at the Allegheny Court Department of Court Records and (ii) as

undisputedly authentic documents attached to Defendant’s Motion, because the alleged timeliness

of Plaintiff’s claims in the Complaint, see ECF No. 1-2 at ¶ 5, is based on any potential tolling

effects the filing of such praecipes may have.

The repeated issuance of the writ, when viewed in the light most favorable to the Plaintiff,

is not itself indicative of bad faith or an intent “to stall in its tracks the legal machinery.” See

Lamp, 469 at 478. More specifically, some Courts have excused delays in service as a result of

the COVID-19 pandemic. Although on May 27, 2020, the Pennsylvania Supreme Court declared

that the Statewide Judicial Emergency with respect to COVID-19 would cease to be effective on

June 1, 2020, see In re Gen. Statewide Judicial Emergency, 234 A.3d 408 (Pa. 2020), Courts have

2 “When the actual date of receipt is known, that date controls. However, in the absence of other evidence, courts will

presume that a plaintiff received her right-to-sue letter three days after the EEOC mailed it.” Seitzinger v. Reading

Hospital & Medical Center, 165 F.3d 236, 239 (3d Cir. 1999); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147,

n. 1 (1984); see Fed. R. Civ. P. 6(d). Here, Plaintiff alleges that he “received a Right to Sue letter from the EEOC

and commenced this suit … in a timely manner,” so the Court will apply the presumption for the purposes of this

motion. ECF No. 1-2 ¶ 5.

found certain inactions or assumptions by Plaintiffs during 2020, and even in early 2021, to have

“some merit.” See Taggart v. New Century Fin. Servs., No. 20-4261, 2021 U.S. Dist. LEXIS

84011, at *2, 5-6 (E.D. Pa. May 3, 2021) (noting that although the delay in providing proof of

service in February 2021 due to COVID-19 “had some merit,” the same delay seven weeks later

“renders such neglect inexcusable”); see also, Pasquariello v. Manwiller, 2021 Pa. Dist. & Cnty.

Dec. LEXIS 224, at *5-6 (C.P. Northampton County, Jan. 11, 2021) (finding that it was

“reasonable to conclude that any delay in Plaintiffs’ attempts to effectuate service seemingly

occurred due to complications arising from the global pandemic” where Plaintiff had filed a writ

in January 2020, reissued the writ in April 2020, and the parties were ultimately served in June

and August 2020).

Here, Plaintiff issued the praecipe for a writ of summons on November 27, 2019, and then

reissued the writ approximately every month thereafter3 until service was accomplished by sheriff

on December 17, 2020. Whether Plaintiff made a good faith effort to serve defendant during the

time in which the praecipes were consistently reissued, particularly in the context of the global

COVID-19 pandemic, requires further factual development. Because the issue of good faith

requires further development, Defendant’s statute of limitations defense is not clear on the face of

the complaint, as required by Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002), and therefore

Defendant’s motion to dismiss Plaintiff’s ADA, ADEA, and FMLA claims on the basis of the

statute of limitations will be denied.

3 Plaintiff reissued the praecipes for a writ of summons on January 10, 2020, February 3, 2020, March 4, 2020, April

2, 2020, May 4, 2020, June 3, 2020, July 9, 2020. August 14, 2020, September 8, 2020, October 8, 2020, November

9, 2020, and December 9, 2020. See ECF No. 6-3.

B. Punitive Damages

Defendant contends that punitive damages are unavailable under the ADA, ADEA, and

PHRA and any such claims should be dismissed. ECF No. 7 at 7-8. Plaintiff does not respond on

the merits, but rather contends that Defendant should not be allowed to raise such arguments at

this time because the parties did not discuss punitive damages in their meet and confer prior to

Defendant’s filing of the motion to dismiss. ECF No. 9 at 5. Plaintiff alleges that if Defendant

had raised the issue of punitive damages during the meet and confer, Plaintiff “could have

addressed these issues in the form of an amended pleading.” Id. at 3.

It is well-established that punitive damages are unavailable under the PHRA. See

Gagliardo v. Connaught Labs., 311 F.3d 565, 570 n.3 (3d Cir. 2002); Hoy v. Angelone, 554 Pa.

134, 146 (Pa. 1998) (same); Weaver v. Cnty. of McKean, No. 11-254, 2012 U.S. Dist. LEXIS

61920, 2012 WL 1564661, at *6 (W.D. Pa. Apr. 9, 2012) (accepting uncontested claim that

punitive damages not allowed by PHRA and dismissing such claims). As such, Defendant’s

Motion will be granted as to Plaintiff’s request for punitive damages under the PHRA. Because

punitive damages are not available under the PHRA, amendment of the Complaint on this issue

would be futile, and leave to amend will not be granted.

Additionally, district courts in the Third Circuit have found that punitive damages are not

awardable under the ADEA. Kelly v. United States Steel Corp., No. 2:11-cv-00193, 2011 U.S.

Dist. LEXIS 91123 at *8-9 (W.D. Pa. Aug. 16, 2011) (collecting cases and noting that all the

Courts of Appeal having analyzed this issue “have denied claims for punitive damages in ADEA

cases”); see also, Rogers v. Exxon Research and 16 Engineering Co., 550 F.2d 834, 842 (3d Cir.

1977), overruled on other grounds by Holliday v. 17 Ketchum, MacLeod & Grove, Inc., 584 F.2d

1221 (3d Cir. 1978) (en banc); see also, Third Circuit Model Jury Instruction for Claims Under

the Age Discrimination in Employment Act (Aug. 2020) § 8.4.3. Therefore, the Court will grant

Defendant’s Motion as to Plaintiff’s request for punitive damages under the ADEA. Because

punitive damages are not available under the ADEA, amendment of the Complaint on this issue

would be futile, and leave to amend will not be granted.

Under the ADA, punitive damages are available when “the complaining party demonstrates

that the respondent engaged in a discriminatory practice . . . with malice or with reckless

indifference.”4 Gagliardo v. Connaught Labs., 311 F.3d 565, 573 (3d Cir. 2002) (citing 42 U.S.C.

§ 1981a(b)(1) (2000)); see also, Third Circuit Model Jury Instruction for Employment Claims

Under the Americans with Disabilities Act (Aug. 2020) § 9.4.2. Here, the Complaint alleges that

Defendant intentionally discriminated against Plaintiff when Plaintiff requested to work from

home until his symptoms of anxiety disorder, depressive disorder and adjustment disorder abated.

ECF No. 1-2 at ¶¶ 9-11. The Complaint further alleges that Defendant refused such a request

despite the fact that a majority of Defendant’s Sales and Operations Managers worked exclusively

from their homes at that time and terminated Plaintiff approximately one month after his request

and replaced Plaintiff with a younger and less experienced person. ECF No. 1-2 at ¶¶ 12-14.

Because these allegations could lead to discovery of evidence supporting a finding that Defendant

acted maliciously or with reckless indifference, the Court will not dismiss Plaintiff’s claims for

punitive damages under the ADA at this early stage of litigation.

4 Defendant’s citation to Sabrese v. Lowe’s Home Ctrs. Inc., 320 F.Supp.2d 311, 331 (W.D. Pa. 2004) for the idea that

punitive damages are not available under the ADA is not applicable because that case was about punitive damages for

a retaliation claim as opposed to a discrimination claim. The Third Circuit has not yet addressed whether punitive

damages are available for a retaliation claim under the ADA, but district courts within the Third Circuit “have

uniformly held that the anti-retaliation provisions of the ADA do not authorize the award of … punitive damages.”

Engle v. Physician Landing Zone, No. 2:14-cv-1192, 2017 U.S. Dist. LEXIS 183061 at *5 (W.D. Pa. Nov. 6, 2017)

(collecting cases).

IV. Conclusion

For the reasons set forth above, it is hereby ORDERED that Defendant’s Motion to

Dismiss Plaintiff’s Complaint is GRANTED in part and DENIED in part. Defendant’s Motion

to Dismiss is GRANTED with respect to Plaintiff’s request for punitive damages under the

ADEA and the PHRA. Defendant’s Motion to Dismiss is DENIED with respect to Plaintiff’s

ADA, ADEA, and FMLA claims based on the statute of limitations and Plaintiff’s request for

punitive damages under the ADA.

IT IS FURTHER ORDERED that Defendant shall file an answer to the Complaint on or

before October 21, 2021.

DATED this 7th day of October, 2021.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

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