Butler, D. v. Artic Glacier ( 2018 )

J-S33031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANNY LEROY BUTLER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ARCTIC GLACIER USA : No. 3262 EDA 2017
Appeal from the Order September 26, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): October term, 2016 No. 02881
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 19, 2018
Appellant Danny Leroy Butler appeals from the order of the Court of
Common Pleas of Philadelphia County granting summary judgment in favor of
Appellee Arctic Glacier USA (“Arctic”). Butler claims the lower court erred in
finding Butler’s wrongful termination action was barred by the statute of
limitations as Butler had not properly transferred his previously-dismissed
case from federal court pursuant to 42 Pa.C.S.A. § 5103(b). We affirm.
The factual background of this case was aptly summarized by the United
States District Court for the Eastern District of Pennsylvania as follows:
[Butler] was hired by [Arctic] in April 2007 as a Production
Associate in [Arctic’s] Twin Oaks Pennsylvania facility. [Arctic] is
a manufacturer and distributor of ice products, and [Butler’s] job
responsibilities included operating various ice production
machinery, stacking bags of ice on pallets, and using a forklift to
move pallets within the warehouse. Since demand for ice is
greater in the summer, most of the Production Associates at the
Twin Oaks facility—including [Butler]—were seasonally laid off
____________________________________
* Former Justice specially assigned to the Superior Court.
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each fall and re-applied for their positions each spring. Each
spring from 2008 until 2013, [Butler] was re-hired following an
interview with the manager of the Twin Oaks facility, John
Stratman (“Stratman”). At the conclusion of the 2014 peak ice
season, [Butler] continued working at the facility throughout the
winter to complete various off-season maintenance projects, and
he thus did not experience a seasonal layoff in 2013 and was not
required to re-apply for his position in the spring of 2014.
Throughout his tenure at the facility, Plaintiff was consistently
given excellent performance reviews. …
In early July 2014, an individual identifying herself as the mother
of [Butler’s] child called [Butler’s] workplace hotline to report
“widespread” use and distribution of marijuana at the Twin Oaks
facility, including the specific accusation that [Butler] was using
and selling marijuana at work. Vice President of the Northeast
Region Andrew Gravener (“Gravener”) decided to personally
investigate the Twin Oaks facility in light of the report.
To conduct the investigation, Gravener and Division Production
Manager Bob Keen (“Keen”) went to the Twin Oaks facility and
joined Stratman for interviews with each Production Associate.
Management employees were not investigated because, according
to Gravener, there was no allegation that management was
involved in the use or distribution of marijuana. During the
meetings, the employees were asked about their knowledge of
drug use at the facility, and at least three employees told
Gravener during their interviews that [Butler] was selling
marijuana during his shift. Each employee was also asked to take
a drug test, but given the option to decline if they admitted to
management that they could not pass a test that day. [Butler]
and Stratman both claim that Gravener offered employees who
admitted they would fail the test two weeks to “get clean” before
they would be asked again to take the test. Gravener denies that
he offered employees a “grace period” (and has accused Stratman
of lying about this fact), and maintains instead that the employees
were given the option of admitting drug use only to avoid the
expense and embarrassment of an inevitable positive test result.
All parties agree that Gravener did not specifically say that
declining to take the test that day would result in termination.
In his meeting with management, [Butler] denied selling
marijuana at work. He was then asked whether he could pass a
drug test, to which he responded “No.” After several more
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questions regarding his knowledge of drug use at the facility, he
was again asked if he could pass a urine test, and he again
indicated that he could not. [Butler] testified that he was never
asked to take a drug test, and thus also never refused a drug test.
At the end of the meeting, [Butler] was told to leave the facility
and that management would be in touch about “what it was going
to do.”
A few days after the interviews, Keen informed Stratman that all
of the employees who admitted that they could not pass a drug
test would be fired, along with two employees who failed the test.
Stratman believes that this was a change from the original plan to
give a two-week grace period, but Gravener, who made the final
decision to terminate the employees, testified that he had always
planned to terminate any employees who admitted they could not
pass the test. In any case, Stratman informed [Butler] that he
was fired. [Butler] contends that Stratman told him that he was
welcome to re-apply in 2015. Stratman does not recall if he said
this.
In addition to [Butler], all of the other Production Associates who
either admitted they could not pass a drug test or tested positive
for drugs were fired as a result of the investigation. Five of them
(four African-American and one Caucasian) had admitted they
could not pass a drug test. The other two (one Hispanic and one
African-American) tested positive for THC. None of the terminated
employees were replaced during the 2014 season; shifts were
consolidated and the remaining employees worked overtime to
account for the reduced labor force. …
In April 2015, [Butler] applied to return to his seasonal Production
Associate position. He also applied for a driver position, even
though he did not have a Commercial Driver's License (“CDL”),
which is a requirement for the driver position. Stratman asked
Keen if [Butler] could be re-hired, and Keen replied that it was
“not a good idea.” In the course of the conversation, Keen and
Stratman discussed the admission of drug use the prior year and
the fact that [Butler] has been the employee originally accused of
selling marijuana at the facility. Following this discussion, Plaintiff
was not re-hired.
Butler Arctic Glacier USA, 213 F.Supp.3d 711, 713-715 (E.D. Pa. 2016)
(citations, headings, and footnotes omitted).
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On June 1, 2016, Butler filed an action against Arctic in federal district
court, asserting that Arctic’s decision to fire Butler was a result of unlawful
discrimination due to Butler’s race and age in violation of federal and
Pennsylvania law. In addition, Butler raised state law claims of invasion of
privacy and wrongful termination. Specifically, Butler’s wrongful termination
claim at this point was based on his assertion that he was “unlawfully
discharged when he refused to take a drug test.” See Arctic’s Motion for
Summary Judgment, Exhibit F (Butler’s First Amended Federal Court
Complaint, at 7).
As the litigation progressed, the federal district court dismissed Butler’s
invasion of privacy claim and Butler abandoned his age discrimination claim;
as a result, only the race discrimination and wrongful termination claim
remained unresolved. On September 28, 2016, the federal district court
granted summary judgment in favor of Arctic on the race discrimination claim
and declined to exercise supplemental jurisdiction over the wrongful
termination claim, which it dismissed without prejudice.
On October 20, 2016, in an attempt to transfer the case from federal to
state court, Butler submitted a packet of documents to the Court of Common
Pleas of Philadelphia County, which included the federal district court’s order
and memorandum opinion and a certified copy of the federal court’s docket
summary.
On March 7, 2017, Butler filed a new complaint against Arctic in the
Court of Common Pleas of Philadelphia County, alleging grounds of unlawful
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termination. Specifically, Butler claimed that he was illegally fired after
Gravener “compelled him to answer questions about his medical history” and
improperly induced him to admit that he would be unable to pass a drug test
by promising him a “grace period” to get clean. State Court Complaint,
3/7/17, at 3.
On April 6, 2017, Arctic filed an Answer with New Matter in which Arctic
claimed, inter alia, that Butler’s claims were barred by the application of the
statute of limitations. On April 26, Butler replied to the new matter with
general denials.
On August 7, 2017, Arctic filed a Motion for Summary Judgment,
reiterating its statute of limitations claim and claiming Butler had not properly
transferred its action from federal court pursuant to 42 Pa.C.S.A. § 5103(b)
as Butler had changed the operative facts of his wrongful termination claim.
On September 8, 2017, Butler filed a response to Arctic’s Motion for Summary
Judgment. On September 25, 2017, with leave of court, Arctic filed a reply
brief, arguing that Butler further had not complied with the specific procedural
requirements set forth in Section 5103 to transfer the action from federal to
state court. On September 26, 2017, Butler filed a motion to strike the reply
brief, arguing that Arctic should not have been allowed to file a reply brief.
On September 26, 2017, the trial court filed an order granting Arctic’s
Motion for Summary Judgment, finding that Butler had failed to comply with
the technical requirements of Section 5103 and had not preserved the filing
date of his previously-filed case in federal court; thus, Butler’s action was
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time-barred by the statute of limitations in Pennsylvania. Butler filed a timely
notice of appeal and complied with the lower court’s direction to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In reviewing the trial court’s decision to grant summary judgment, we
are guided by the following standards:
When a party seeks summary judgment, a court shall enter
judgment whenever there is no genuine issue of any
material fact as to a necessary element of the cause of
action or defense that could be established by additional
discovery. A motion for summary judgment is based on an
evidentiary record that entitles the moving party to a
judgment as a matter of law. In considering the merits of a
motion for summary judgment, a court views the record in
the light most favorable to the nonmoving party, and all
doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party. Finally, the
court may grant summary judgment only when the right to
such a judgment is clear and free from doubt. An appellate
court may reverse the granting of a motion for summary
judgment if there has been an error of law or an abuse of
discretion …
Swords v. Harleysville Ins. Companies, 584 Pa. 382, 883 A.2d
562, 566–67 (2005) (citations omitted). To the extent this Court
must resolve a question of law, we shall review the grant of
summary judgment in the context of the entire record. Truax v.
Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015).
Woodhouse Hunting Club, Inc. v. Hoyt, 183 A.3d 453, 457 (Pa.Super.
2018).
Butler does not dispute that by the time he filed his state court action,
the applicable two-year statute of limitations for a wrongful termination action
had already expired. However, Butler argues that the trial court abused its
discretion in finding that his attempt to transfer the case from federal court in
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in accordance with 42 Pa.C.S.A. § 5103(b) did not successfully toll the statute
of limitations in this case.
Under Section 5103, an action filed in Pennsylvania will be considered
filed as of the date of a previously-initiated federal action if the litigant
complies with the following requirements:
(a) General rule. If an appeal or other matter is taken to or
brought in a court or magisterial district of this Commonwealth
which does not have jurisdiction of the appeal or other matter, the
court or magisterial district judge shall not quash such appeal or
dismiss the matter, but shall transfer the record thereof to the
proper tribunal of this Commonwealth, where the appeal or other
matter shall be treated as if originally filed in the transferee
tribunal on the date when the appeal or other matter was first
filed in a court or magisterial district of this Commonwealth. A
matter which is within the exclusive jurisdiction of a court or
magisterial district judge of this Commonwealth but which is
commenced in any other tribunal of this Commonwealth shall be
transferred by the other tribunal to the proper court or magisterial
district of this Commonwealth where it shall be treated as if
originally filed in the transferee court or magisterial district of this
Commonwealth on the date when first filed in the other tribunal.
(b) Federal cases.—
(1) Subsection (a) shall also apply to any matter transferred or
remanded by any United States court for a district
embracing any part of this Commonwealth. In order to
preserve a claim under Chapter 55 (relating to limitation of
time), a litigant who timely commences an action or
proceeding in any United States court for a district
embracing any part of this Commonwealth is not required
to commence a protective action in a court or before a
magisterial district judge of this Commonwealth. Where a
matter is filed in any United States court for a district
embracing any part of this Commonwealth and the
matter is dismissed by the United States court for lack
of jurisdiction, any litigant in the matter filed may
transfer the matter to a court or magisterial district
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of this Commonwealth by complying with the transfer
provisions set forth in paragraph (2).
(2) Except as otherwise prescribed by general rules, or by order
of the United States court, such transfer may be effected
by filing a certified transcript of the final judgment of
the United States court and the related pleadings in a
court or magisterial district of this Commonwealth.
The pleadings shall have the same effect as under the
practice in the United States Court, but the transferee court
or magisterial district judge may require that they be
amended to conform to the practice in this Commonwealth.
Section 5535(a)(2)(i) (relating to termination of prior
matter) shall not be applicable to a matter transferred under
this subsection.
42 Pa.C.S.A. § 5103 (emphasis added).
Butler admits that he did not fully comply with the requirements of
Section 5103, but argues for the first time on appeal that Arctic waived the
right to object to his noncompliance by failing to raise a preliminary objection;
Butler now claims Arctic improperly waited to raise this claim as an affirmative
defense under new matter in its answer. Butler also argues for the first time
on appeal that Arctic failed to specifically object to his failure to submit
certified pleadings until it submitted its reply brief to Butler’s response to the
motion for summary judgment.
We agree with the trial court’s conclusion that Butler waived these
claims by not raising them in the lower court. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal”). Further, our rules of civil procedure provide that an affirmative
defense that a claim is barred by the statute of limitations is required to be
set forth in a responsive pleading entitled “New Matter.” Pa.R.C.P. 1030(a)
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(“all affirmative defenses including ... statute of limitations... shall be pleaded
in a responsive pleading under the heading “New Matter”). Thus, the trial
court did not err in addressing Arctic’s claim that Butler failed to toll the statute
of limitations by not transferring his action from federal to state court.
Moreover, we cannot agree with Butler’s suggestion that the trial court
erred in dismissing his action as he was in “substantial compliance” with the
mandate of Rule 5103 to transfer his action to state court. Butler’s Brief, at
14. This Court has clarified that
in order to protect the timeliness of an action under 42 Pa.C.S.A.
§ 5103, a litigant, upon having his case dismissed in federal court,
must promptly file a certified transcript of the final judgment of
the federal court and, at the same time, a certified transcript of
the pleadings from the federal action. The litigant shall not file
new pleadings in state court.
Falcone, Inc. v. Ins. Co. of State of Pa., 907 A.2d 631, 637 (Pa.Super.
2006) (citing Williams v. F.L. Smithe Mach. Co., 577 A.2d 907, 910
(Pa.Super. 1990)). This Court further noted that “the key to protection in this
case is conformity with the statutory requirements, which are not onerous in
light of the protection the statute affords.” Falcone, 907 A.2d at 640.
In this case, Butler attempted to transfer his case from federal to state
court by filing uncertified copies of the federal docket sheets and the opinion
and order dismissing his federal action in the Court of Common Pleas; Butler
concedes that he did not submit certified copies of the federal complaint or
any of the other pleadings as documentation of the transfer. As a result, the
lower court properly found Butler’s noncompliance with the procedural
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requirements of Rule 5103 prevented him from tolling the statute of
limitations in his attempt to transfer the previously-dismissed federal action
to state court.
Furthermore, even assuming arguendo that Butler had complied with
the procedure outlined in Section 5103 to properly transfer the federal case
to state court, the trial court also noted that Butler violated Section 5103 by
making a material change in his case theory. We observe that in his federal
complaint, Butler’s wrongful termination was based on his assertion that he
was “unlawfully discharged when he refused to take a drug test.” See Arctic’s
Motion for Summary Judgment, Exhibit F (Butler’s First Amended Federal
Court Complaint, at 7). However, Butler filed a different complaint in the
Court of Common Pleas, asserting that his wrongful termination claim was
based on his assertion that Arctic’s management “compelled him to answer
questions about his medical history” and improperly induced him to admit that
he would be unable to pass a drug test by promising him a “grace period” to
get clean. State Court Complaint, 3/7/17, at 3.
We reiterate that a litigant attempting to transfer a case pursuant to
Section 5103 “shall not file new pleadings in state court.” Falcone, 907 A.2d
at 637. As Butler changed the factual basis of his wrongful discharge claim,
he attempted to file a new cause of action which does not relate back to the
filing of his federal court complaint. Thus, we conclude that the trial court did
not err in determining that Butler did not comply with Section 5103 and that
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the filing date for the federal litigation could not be used to compute whether
Butler satisfied the applicable statute of limitations in the Commonwealth.
For the foregoing reasons, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/18
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