Filed: May 25, 2016
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2819 _ GERARD PISCOPO, Appellant v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a/k/a "PSEG"; BETH J. ACQUAIRE, Individually _ On Appeal from the United States District Court for the District of New Jersey (D. N.J. No. 2-13-cv-00552) District Judge: Honorable Esther Salas _ Submitted Pursuant to Third Circuit LAR 34.1(a) April 5, 2016 Before: FISHER, RENDELL and BARRY, Circuit Judges. (Filed: May 25, 2016) _ OPINION* _ F
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2819 _ GERARD PISCOPO, Appellant v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a/k/a "PSEG"; BETH J. ACQUAIRE, Individually _ On Appeal from the United States District Court for the District of New Jersey (D. N.J. No. 2-13-cv-00552) District Judge: Honorable Esther Salas _ Submitted Pursuant to Third Circuit LAR 34.1(a) April 5, 2016 Before: FISHER, RENDELL and BARRY, Circuit Judges. (Filed: May 25, 2016) _ OPINION* _ FI..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-2819
____________
GERARD PISCOPO,
Appellant
v.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY,
a/k/a "PSEG";
BETH J. ACQUAIRE, Individually
____________
On Appeal from the United States District Court
for the District of New Jersey
(D. N.J. No. 2-13-cv-00552)
District Judge: Honorable Esther Salas
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 5, 2016
Before: FISHER, RENDELL and BARRY, Circuit Judges.
(Filed: May 25, 2016)
____________
OPINION*
____________
FISHER, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Gerard Piscopo challenges the district court’s dismissal of his complaint under
Rule 12(b)(6) for failure to state a claim. Piscopo brought various claims under the
Employee Retirement Income Security Act (“ERISA”) and a claim for intrusion into
seclusion. We will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
Gerard Piscopo has worked as a Service Specialist at Public Service Electric and
Gas Company (“PSE&G”) since 1986. On June 16, 2009, PSE&G notified Piscopo that
he was being discharged in response to a customer complaint concerning Piscopo’s
alleged improper behavior on a service call. Piscopo’s bargaining unit representative
appealed his discharge on Piscopo’s behalf, and his appeal went to arbitration. The
arbitrator ruled in favor of Piscopo, finding that PSE&G did not have proper cause to
terminate Piscopo. The arbitrator ordered PSE&G to reinstate Piscopo and give him back
pay.
Piscopo claims that while his appeal was pending and before the arbitrator’s
favorable decision and his reinstatement, he was forced to liquidate his 401(k) plan in
order to provide for life’s basic necessities. As a result of this liquidation, he incurred
substantial fees and taxes. Piscopo alleges that he was not awarded the pension and
2
retirement contributions owed to him and that he attempted to access the pension plan
documents but was denied access.
Piscopo also claims that, from November 2008 to June 2009, PSE&G and Beth
Acquaire, a PSE&G employee, conducted surveillance on him, including intercepting his
wire, electronic, and oral communications and having an investigator follow him.
Piscopo filed suit against PSE&G and Beth Acquaire in the Superior Court of New
Jersey, and the case was removed to the District Court for the District of New Jersey.
PSE&G moved to dismiss Piscopo’s claims under Federal Rule of Civil Procedure
12(b)(6). In response Piscopo amended his complaint, and PSE&G again moved for
dismissal. After granting PSE&G’s motion to dismiss as to some of Piscopo’s claims, the
district court allowed Piscopo to amend his complaint again. In his second amended
complaint, Piscopo asserted an ERISA claim and a claim for intrusion upon seclusion.
PSE&G moved to dismiss those claims, and the district court granted that motion on June
25, 2015. Piscopo timely appealed.
II.
The district court had jurisdiction under 28 U.S.C. § 1331 and supplemental
jurisdiction under 28 U.S.C. § 1367(a). We have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over an order granting a Rule 12(b)(6) motion.1 In deciding a
motion to dismiss pursuant to Rule 12(b)(6), we “accept all factual allegations as true,
1
Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013).
3
construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”2
III.
Piscopo’s challenge to the district court’s dismissal of his complaint rests on three
grounds: the district court used an improper standard in deciding PSE&G’s motion to
dismiss; his ERISA claims withstand a motion to dismiss; and his unreasonable intrusion
into seclusion claim is not time-barred.
A.
Piscopo first argues that the district court employed the improper standard in
ruling on PSE&G’s motion to dismiss and that it improperly considered outside
documents that were not attached to Piscopo’s complaint.
In considering a motion to dismiss, the district court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be
entitled to relief.”3 In order to survive a motion to dismiss, a complaint “must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.”4 Although the district court, in deciding a motion to dismiss, ordinarily may not
consider matters extraneous to the pleadings, “an exception to the general rule is that a
2
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
marks omitted).
3
Id. at 233.
4
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
4
‘document integral to or explicitly relied upon in the complaint’ may be considered
‘without converting the motion [to dismiss] into one for summary judgment.’”5
The district court’s opinion accompanying its order to dismiss Piscopo’s claims
correctly identifies and utilizes the proper standard for deciding a motion to dismiss. The
district court considered two documents that Piscopo did not attach to the complaint: the
collective bargaining agreement and the arbitration opinion. PSE&G, however, did attach
those documents to its motion to dismiss. In considering the CBA and arbitration opinion,
the district court found that they were “‘integral’ to Plaintiff’s allegations and
‘undisputedly authentic.’”6 Piscopo does not appear to dispute that the CBA and the
arbitration opinion are authentic. And both documents are integral to the Piscopo’s claims
that PSE&G violated the collective bargaining agreement and that PSE&G and Beth
Acquaire conducted surveillance on Piscopo.
Therefore, the district court applied the correct standard in deciding PSE&G’s
motion to dismiss.7
B.
Piscopo’s next arguments center on the district court’s dismissal of his ERISA
claims.
5
In re Burlington Coat Factory, 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting
Shaw v. Digital Equip. Corp.,
82 F.3d 1194, 1220 (1st Cir. 1996) (alterations and
emphasis original to Burlington Coat Factory)).
6
Ohio App. 3 n.1.
7
Even if we agreed that the district court applied the incorrect standard, our
review is de novo, and our independent review confirms that the district court is correct.
5
He contends that the district court improperly held that ERISA contains no private
right of action. This argument is without merit. The district court did not hold that there is
no private right of action under ERISA; it simply held that there is no private right of
action under § 503 of ERISA. Piscopo also misinterprets what § 503 requires of
employee benefit plans. Under § 503, every employee benefit plan must “afford a
reasonable opportunity to any participant whose claim for benefits has been denied for a
full and fair review by the appropriate named fiduciary of the decision denying the
claim.”8 In his complaint, Piscopo alleges that he was denied an opportunity to review the
plan itself. But § 503 is not concerned with his right to review the plan; it is the right to
review a decision denying his claim that he must be afforded. Piscopo did not file a claim
and so no decision was ever rendered denying any claim. Thus, this provision does not
apply here.
Piscopo also challenges the dismissal of his ERISA claim under § 502(c)(1)(B).
Under § 502(c)(1)(B), any administrator who fails to comply with a request for certain
required information by the beneficiary within thirty days may be personally liable to that
beneficiary in the amount of $100 a day, and the court may in its discretion order such
other relief as it deems proper. Importantly, claims under this section are proper only as
against the plan administrator. The term “administrator” means “(i) the person
specifically so designated by the terms of the instrument under which the plan is
8
29 U.S.C. § 1133(2) (emphases added).
6
operated; (ii) if an administrator is not so designated, the plan sponsor; or (iii) in the case
of a plan for which an administrator is not designated and a plan sponsor cannot be
identified, such other person as the Secretary may by regulation prescribe.”9 Although
Piscopo was given several chances to amend his complaint, he failed to allege any facts
demonstrating that PSE&G is the plan administrator.10 Simply stating that PSE&G is the
administrator is conclusory and not sufficient to state a claim for relief that is plausible on
its face.
Lastly, Piscopo challenges the dismissal of his ERISA claim under § 502(a)(1)(B).
Under § 502(a)(1)(B), a participant or beneficiary may bring a civil action “to recover
benefits due to him under the terms of the plan, to enforce his rights under the terms of
the plan, or to clarify his rights to future benefits under the terms of the plan.”11 In his
second amended complaint, Piscopo simply alleges the elements of § 502(a)(1)(B), but
does not provide any details concerning his standing to sue as a beneficiary, the plan, or
any provision showing that he is entitled to retirement benefits. Again, such conclusory
statements stating only the elements of the claim are not sufficient to survive a motion to
dismiss. Therefore, the district court was correct to dismiss Piscopo’s claims.
9
29 U.S.C. § 1002(16)(A).
10
See app. 381 (stating only “PSE&G are administrators and fiduciaries of each
plan and/or de facto under ERISA.”).
11
Id. § 1132(a)(1)(B).
7
C.
Finally, Piscopo challenges the district court’s holding that his intrusion into
seclusion claim is time-barred. In his complaint, Piscopo alleged that Acquaire—with
PSE&G’s knowledge and support—conducted surveillance on Piscopo and that these acts
constitute an unauthorized intrusion in his seclusion under New Jersey law.
“One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability to the other
for invasion of his privacy, if the intrusion would be highly offensive to a reasonable
person.”12 The tort of intrusion into seclusion is governed by a two-year statute of
limitations.13
Piscopo does not dispute that he filed his complaint alleging intrusion into
seclusion more than two years after the alleged tortious conduct occurred (according to
Piscopo, between November 2008 and June 2009).14 Rather, he claims that he did not
become aware of the tortious conduct until March 2011, when the information supporting
12
Figured v. Paralegal Tech. Servs., Inc., 555 A.2d 663, 666 (N.J. Super. Ct. App.
Div. 1989) (quoting Restatement (Second) of Torts § 652B).
13
Rumbauskas v. Cantor, 649 A.2d 853, 858 (N.J. 1994) (“[A]n action for
intrusion on seclusion that is premised on conduct such as the stalkings or threats of
violence … constitutes a claim for ‘injury to the person’ of the plaintiff and is governed
by the two-year statute of limitations set forth in N.J.S.A. 2A:14-2.”).
14
In his complaint, Piscopo also alleged that the tortious conducted “started up
again.” The district court rejected this allegation as “equivalent to an ‘upon information
and belief’ allegation that courts routinely reject.” App. 14.
8
the arbitration cause of action was made available to him. Thus, he claims, the discovery
rule applies and tolls the time in which he was required to file his complaint.
A cause of action generally accrues from the date of the wrongful act or
omission.15 In certain cases, the discovery rule “postpone[s] the accrual of a cause of
action when a plaintiff does not and cannot know the facts that constitute an actionable
claim.”16 In those cases where the discovery rule applies, the limitations period begins to
run when the injured plaintiff “discovers, or by an exercise of reasonable diligence and
intelligence should have discovered that he may have a basis for an actionable claim.”17
The district court held that Piscopo should have become aware of the surveillance
in the July 2010 arbitration opinion—and at the arbitration hearings in May and June
2010—because it discussed the investigation at issue. Piscopo takes issue with the district
court’s holding that he should have become aware. But “should have known” is the
proper standard. Through reasonable diligence in reading the arbitration opinion, Piscopo
should have discovered the facts essential to the intrusion claim.18 Therefore, the district
court was correct in holding that, at the latest, the limitations period on his claim began to
15
Beauchamp v. Amedio, 751 A.2d 1047, 1050 (N.J. 2000).
16
McGrogan v. Till, 744 A.2d 255, 258 (N.J. Super. Ct. App. Div. 2000) (internal
quotation marks omitted).
17
Lopez v. Swyer, 300 A.2d 563, 565 (N.J. 1973) (emphasis added).
18
The arbitration opinion describes Acquaire’s investigation into Piscopo’s phone
records and conversations with the customer whose complaint formed the basis of his
termination. App. 133-146.
9
run in July 2010. Because Piscopo filed more than two years after that date, his claim is
time-barred.
IV.
For the reasons set forth above, we will affirm the district court’s order granting
PSEG’s motion to dismiss.
10
