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.
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
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.
Defendants move for summary judgment on Mr. Accurso's five remaining
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).
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.
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
Resp. in Opp. to Mot. for Summ. J. Ex. G 16-17 (Doc. No. 69-9). Another letter from Mr. Land to Mr. Accurso reads, "If, however, you lie here and now in you [sic] responses ... and those lies are confirmed by polygraph we will part company. If you refuse to respond positively to all this, I'm afraid that I can only interpret that kind of response as a confirmation of my suspicions." Id. at 36.
Defendants next argue that Mr. Accurso suffered no adverse consequences as a result of the polygraph exams. Defendants note that Mr. Accurso testified at his deposition that, following the polygraph examinations, he continued working for Mr. Land as before. Defendants argue that this testimony reveals the absence of a causal link between the polygraph examinations and Mr. Accurso's termination. However, according to Mr. Accurso, his testimony referred only to the fact that he was not fired in the immediate aftermath of the 2008 and 2010 polygraphs — his ultimate termination in 2012 was, according to Mr. Accurso, based primarily on the results of the polygraph examinations.
Mr. Accurso points to sufficient evidence in the record to support this claim. Mr.
The debate about Mr. Accurso's breach of contract claim centers around the paragraph nine of the "Independent Contractor Agreement" which reads in full:
Mot. for Summ. J. Ex. C. 3.
The dispute between the parties is whether Defendants breached the contract by firing Mr. Accurso immediately, rather than at the end of the term. Defendants assert that the contract allowed for immediate cancelation upon written notice, provided that the written notice was not given less than 90 days prior to the end of the term. Therefore, Defendants argue, Mr. Accurso's immediate termination prior to the end of the two-year term was not a breach of the contract, as the notice of his termination was not made within the 90 days prior to the end of the two-year term. Mr. Accurso argues that the cancelation provision of the contract provides that the contract could be canceled only at the end of a two-year term, and that, to do so, written notice had to be given more than 90 days before the end of that two-year term.
When interpreting a contract, the Court first considers the intent of the parties as expressed by the words used in the contract. Atkinson v. LaFayette Coll., 460 F.3d 447, 452 (3d Cir.2006). If those words used in the contract are unambiguous, then, as a matter of law, those words control. Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 92-93 (3d Cir.2001). The court considers individual terms in the context of their entire contractual provision when determining the intent of the parties. NorFab Corp. v. Travelers Indem. Co., 555 F.Supp.2d 505, 509 (E.D.Pa.2008)
Here, the Court rejects Defendants' interpretation of the written contract — i.e.,
If the contract could be immediately canceled upon written notice, but would otherwise renew every two years, why specify the length of the contract? If Defendants' interpretation of the agreement were correct, a rational drafter would have simply characterized the contract as ongoing until canceled upon written notice of either party.
The better interpretation of the contract is the one offered by Mr. Accurso. Mr. Accurso's interpretation more closely reconciles the contract's provisions with rationality: the contract provides for two-year terms which automatically renew, and should either party wish that the terms not renew, the canceling party must provide written notice more than 90 days before the end of the term; the automatic renewal of the contract would then be canceled and the contract would expire at the end of the two-year term. This interpretation is correct because the termination provision, when read in the context of a sentence setting out automatically renewing terms, refers to the cancelation of the automatic renewal of the contract. Moreover, Mr. Accurso's interpretation gives effect to all provisions in the contract, including those specifying the length of the terms. Because Mr. Accurso has adduced evidence that his employment was terminated before the end of the two-year term, his breach of contract claim will survive summary judgment.
Mr. Accurso brings a somewhat amorphous intentional interference with contractual relations claim. "To establish an intentional interference with contractual relations under Pennsylvania law, a plaintiff must demonstrate four elements: (1) a contractual or prospective contractual relationship between the plaintiff and a third party; (2) purposeful action by the defendant, intended to harm the relationship or to prevent a prospective relationship; (3) the absence of privilege or justification for the defendant's actions; and (4) actual legal damage as a result of the defendant's conduct." Kovach v. Serv. Pers. & Employees of the Dairy Indus.,
Pennsylvania law requires the alleged tortfeasor to have acted improperly in interfering with the contract. See Crivelli v. Gen. Motors Corp., 215 F.3d 386, 394 (3d Cir.2000). The Restatement (Second) of Torts § 767, which has been adopted by Pennsylvania, "sets forth the following factors to consider when determining whether the interference is improper: (a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations between the parties." Id. at 394-95 (citing Restatement (Second) of Torts § 767).
The Court characterizes Mr. Accurso's claim as "amorphous" because it is unclear who interfered with which contract and how. The first element of tortious interference with contractual relations is the existence of a contractual or prospective contractual relationship between the plaintiff and a third party. There is evidence that Mr. Accurso had contractual relations with both Roofing Dynamics Group, LLC, and Roofing Dynamics, Inc., as the contract between Mr. Accurso and Infra-Red was assigned to Roofing Dynamics, Inc., and then assigned again, at least partially, to Roofing Dynamics Group. See Resp. in Opp. to Mot. for Summ. J. Ex. D 64:19-67:24 (Doc. No. 69-6) (hereinafter "Dep. of Audrey Strein") (discussing how both entities operated simultaneously, with Roofing Dynamics, Inc., handling legacy accounts, and Roofing Dynamics Group, LLC, handling new business). That leaves the question of whether these contracts are between Mr. Accurso and a third party — i.e., whether Mr. Accurso has adduced sufficient evidence that a party outside the contractual relationship induced a contracting party to breach those contractual relations. Mr. Accurso appears to only assert claims for tortious interference with contract against Mr. Land and Ms. Strein. See Mem. in Opp. to Mot. for Summ. J. 35 (Doc. No. 69-1). Essential to such a claim is establishing that either (a) Mr. Land interfered with a contract to which neither he, nor an entity for which he was acting as an agent, was a party; or (b) Ms. Strein interfered with a contract to which neither she, nor an entity for which she was acting as an agent, was a party. See Malik v. Quest Diagnostics, Inc., No. 05-0085, 2006 WL 39147, at *6 (W.D.Pa. Jan. 6, 2006) ("Because a corporation can act only through its agents, where the defendant is acting as an agent of the corporation within the scope of his employment, there is no third party against whom an action for intentional interference with a contractual relationship can lie."). Moreover, "in order to make out a claim of tortious interference with contractual relations, a plaintiff must show the absence of privilege or justification on the part of the defendant. The actions of a principal's agent are afforded a qualified privilege from liability for tortious interference with the principal's contract." CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375, 385 (3d Cir.2004) (quotation marks and citations omitted).
Mr. Accurso articulates his theory as follows:
Mem. in Opp. to Mot. for Summ. J. 35-36. The most favorable interpretations of Mr. Accurso's claims as he has articulated them are that (a) Ms. Strein tortiously interfered with Mr. Accurso's contract with Roofing Dynamics, Inc., with which she was not associated; and (b) Mr. Land tortiously interfered with Mr. Accurso's contract with Roofing Dynamics Group, LLC, with which Mr. Land was not associated.
There is not sufficient evidence on which either theory advanced by Mr. Accurso can proceed to trial. The Court first notes that, at this stage, "contending" that something happened will not suffice — there must be evidence, presented to the Court, that what the plaintiff alleged happened actually happened. No evidence was presented to the Court that Ms. Strein purposefully interfered with Mr. Accurso's contract with Roofing Dynamics, Inc. First, there is no evidence that, as Mr. Accurso contends, the formation of Roofing Dynamics Group, LLC, breached Mr. Accurso's contractual rights. See Mem. in Opp. to Mot. for Summ. J. 35 (arguing that Ms. Strein "conspired with Defendant Land to form Roofing Dynamics Group, LLC, for the purpose of interfering with Plaintiff Accurso's contractual relations with Roofing Dynamics, Inc."). The only breach of contract that Mr. Accurso has provided evidence of is the termination of his contract with both entities in 2012 — how this breach is related to the formation of Roofing Dynamics Group, LLC, is not articulated, let alone supported by any evidence.
Second, Mr. Accurso has not articulated or provided evidence of how Ms. Strein purposefully caused Roofing Dynamics, Inc., to terminate Mr. Accurso's contract in 2012. Mr. Accurso's allegations and evidence focus almost exclusively on Mr. Land's actions in terminating the contract. Absent evidence that Ms. Strein took purposeful action that caused harm to Mr. Accurso's contract with Roofing Dynamics, Inc., the Court must grant summary judgment for Ms. Strein on this claim.
Third, Mr. Accurso has not presented evidence to support his theory that Ms. Strein was either (a) not an agent for Roofing Dynamics, Inc., or (b) was otherwise acting outside the scope of her authority as an agent for Roofing Dynamics, Inc. Cf. Buskirk v. Apollo Metals, 307 F.3d 160, 172 (3d Cir.2002) ("Pennsylvania places the burden on the plaintiff, as part of his or her case in chief, to prove the absence of any privilege or justification on the part of the defendant."). Mr. Accurso points to deposition testimony from Mr. Land, in which he describes Ms. Strein's role with Roofing Dynamics, Inc. See Mem. in Opp. to Mot. for Summ. J. 16. But Mr. Accurso offers this deposition testimony as proving only that "Defendant Land has acknowledged that Defendant Strein was paid by him out of his share of
As for the theory that Mr. Land interfered with Mr. Accurso's contractual relationship with Roofing Dynamics Group, LLC, which was solely owned by Ms. Strein, the Court again finds that Mr. Accurso lacks sufficient evidence to survive summary judgment. This theory fails because Mr. Accurso's evidence reveals that Mr. Land, as an agent for Roofing Dynamics Group, LLC, was afforded a qualified privilege from liability for tortious interference with the principal's contract. See CGB Occupational Therapy, 357 F.3d at 385 ("The actions of a principal's agent are afforded a qualified privilege from liability for tortious interference with the principal's contract.") Mr. Accurso argues that because Mr. Land testified that he had neither a financial interest nor an official position in Roofing Dynamics Group, LLC, Mr. Land is therefore a third party for purposes of this analysis. Mr. Accurso misunderstands the issue: the point is not whether Mr. Land owned or held an executive position in Roofing Dynamics Group, LLC, but whether he was acting as its agent when he took the action that allegedly intentionally interfered with Mr. Accurso's contractual rights with Roofing Dynamics Group, LLC.
Here, the undisputed evidence is that, at the least, Mr. Land performed work on behalf of Roofing Dynamics Group, LLC, acting as its agent. In his deposition, Mr. Land answered affirmatively to the question about whether he continued to "market roofing services [through Roofing Dynamics Group, LLC] as [he had] done through Infrared Services and Roofing Dynamics, Inc." Aug. 5, 2014 Dep. of Brian Land 91:10-22. He also testified that he "operate[d] through Group." Id. at 90:14-15. Indeed, even Mr. Accurso's Second Amended Complaint alleges that Mr. Land was "a principal member of Defendant Roofing Dynamics Group, LLC." Second Am. Compl. ¶ 10. Therefore, Mr. Land was, at times at least, an agent for Roofing Dynamics Group, LLC.
The question, then, is whether Mr. Land, when he intentionally interfered with Mr. Accurso's contractual relations, did so within the scope of his authority as an agent for Roofing Dynamics Group, LLC, or outside that scope. The Court cannot answer that question, as Mr. Accurso has not articulated what actions by Mr. Land caused the harm to Mr. Accurso's
As the Third Circuit Court of Appeals has explained: "An agent is entitled to act under implicit, as well as express, authority. Implied authority, under Pennsylvania law, is authority to bind the principal to those acts of the agent that are necessary, proper and usual in the exercise of the agent's express authority." CGB Occupational Therapy, 357 F.3d at 386 (quotation marks and citations omitted). Mr. Accurso has not presented evidence (or even argument) as to the scope of Mr. Land's authority on behalf of Roofing Dynamics Group, LLC, nor has he presented evidence (or even argument) as to how any specific action by Mr. Land exceeded that scope. To the contrary, the deposition testimony, as well as the several memoranda from Mr. Land to Mr. Accurso, suggest that Mr. Land had, at least, broad implied authority with respect to all of the roofing entities, particularly with respect to Mr. Accurso's employment. See, e.g., Dep. of Audrey Strein 66:10-12 (testifying that she and Mr. Land made a "mutual" decision to have Roofing Dynamics Group, LLC, handle new accounts, and Roofing Dynamics, Inc., handle legacy accounts"); Resp. in Opp. to Mot. for Summ. J. Ex. G at 3 ("to-do" list for Mr. Accurso post-dating the formation of Roofing Dynamics Group, LLC). The "Notice of Immediate Termination" itself purports to come from "Brian Land and Audrey Strein and their several business entities," and instructs Mr. Accurso that "[s]hould any customer or potential customer contact you, you are to refer the customer to Mr. Land with no further comment." Mot. for Summ. J. Ex. E. at 3 (Doc. No. 68-7). Such an instruction implies that Mr. Land had a high level of authority at Roofing Dynamics Group, LLC — authority which included, at least, discussing employment matters with customers and potential customers. Because Mr. Land had broad authority as an agent for Roofing Dynamics Group, LLC, the Court can infer that Mr. Land's implied authority would also have included, at least, recommending that Ms. Strein terminate Mr. Accurso's employment. Mr. Accurso has not presented evidence, or even argument (beyond the level of bald assertion) to the contrary. Cf. CGB Occupational Therapy, 357 F.3d at 386 ("CGB could only rebut Sunrise's explicit and implicit authority to terminate by presenting some evidence that Sunrise was acting for an interest adverse to its principal's. CGB did not do so. We must conclude that Sunrise was privileged when it recommended to RHA/Pennsylvania that CGB be terminated.").
Accordingly, the Court will grant Defendants' Motion for Summary Judgment on the tortious interference with contract claim.
Defendants next argue that Mr. Accurso's claim for wages under the Pennsylvania Wage Payment and Collection Law
Second, Defendants argue that Mr. Accurso was not an employee, but rather an independent contractor, and that he therefore is not entitled to the protections of the WPCL. See Spyridakis v. Riesling Grp., Inc., 398 Fed.Appx. 793, 798 (3d Cir.2010) ("The WPCL applies only to employees, not to independent contractors." (citing Morin v. Brassington, 871 A.2d 844, 850 (Pa.Super.Ct.2005))). "Pennsylvania courts have used a multifactor test to determine whether an individual is an employee or an independent contractor under the WPCL." Myers v. Jani-King of Philadelphia, Inc., No. 09-1738, 2015 WL 1055700, at *11 (E.D.Pa. Mar. 11, 2015) (citing Morin, 871 A.2d at 849-50). As the Morin court explained:
871 A.2d at 850. "The terms of the agreement between the parties is just one of the criteria ... [used in] ascertaining whether an employer/employee relationship exists." Nevin Trucking v. W.C.A.B. (Murdock), 667 A.2d 262, 267 (Pa.Commw.Ct.1995). "Moreover, an agreement of the parties to a designation of their relationship that is contrary to the employer/employee relationship established otherwise is unavailing to effect a change." Id. (quotation marks and citation omitted).
Here, the factors are split. On the one hand, the parties used the term "independent contractor" to describe Mr. Accurso's role, Mr. Accurso was paid on commission, and, as the Court has already concluded, the contract suggests that Mr. Accurso could not be fired without cause at any time but only upon the expiration of his contract. On the other hand, the evidence in the record also shows that Mr. Land exercised significant, detailed control over the manner in which Mr. Accurso completed his work, including rather mundane activities. Memoranda (often titled "to-do lists") from Mr. Land directed Mr. Accurso to, for example, "create format on computer for working accounts," "make photo pages to mount," "anticipate going with me Weds. 16th to Stahl Office Complex," "scheduled Quest meeting — end of following week," "call me with your next day's schedule each day,", and "call both Glen and South County and confirm [appointments]." Resp. in Opp. to Mot. for Summ. J. Ex. A-1 at 11-32. Once, in an effort to "fine tune" Mr. Accurso's "marketing efforts," Mr. Land instructed Mr. Accurso to assemble copies of his call records, EZ
Further supporting Mr. Accurso's position that he was an employee is the undisputed fact that Mr. Accurso received a substantial amount of his training for his job from Mr. Land. see id. ¶ 4 (testifying that he "received all education, training, and instruction from Defendant Brian Land as to the services" he performed); Aug. 5, 2014 Dep. of Brian Land 133:17-19 (testifying that he, Brian Land, got Mr. Accurso "initially started, absolutely" with respect to educating Mr. Accurso in the business). Mr. Accurso also was "required to devote full-time efforts to the business of Defendants" and was not permitted to work elsewhere. See Affidavit of Peter Accurso ¶ 10. Mr. Land also "furnished the tools, materials and equipment which were needed [for Mr. Accurso] to perform assessments of the need for construction and/or repair of industrial and commercial flat roofs," although there is also evidence that Mr. Accurso shared in the expenses of the business. Id. ¶ 16. Mr. Accurso's tasks were also well within the normal business of the roofing companies for which he worked. See, e.g., Aug. 5, 2014 Dep. of Brian Land 119:2-120:2 (testifying that Mr. Accurso's tasks as a marketer were essentially the same as Mr. Land's and that "[w]e both knew he eventually would find his way up on the roof with me. It's part of the job." (emphasis added)); 133:2-6 (responding affirmatively to the question of whether Mr. Accurso "performed work that was part of the regular business that Infrared and Roofing Dynamics, Inc., performed"). In addition to his duties as a marketer for the roofing companies, Mr. Accurso performed clerical tasks on behalf of the companies, such as typing documents for Brian Land. See Resp. in Opp. to Mot. for Summ. J. Ex. A-1 at 21 (memo from Brain Land to Peter Accurso which reads, "I have appreciated the fact that you spend long hours with the typing. My rear end and my eyes couldn't take it. And it saves us around $10,000.00 per year secretarial costs.... And, your work's pretty good on the Admin end of things!"). These clerical tasks, which are an inherent part of most any modern business, are more associated with the tasks an employee would perform than those an independent contractor would perform. See Morin, 871 A.2d at 850 ("[Relevant factors include] the nature of the work or occupation; the skill required for performance; whether one employed is engaged in a distinct occupation or business...."); Aug. 5, 2014 Dep. of Brian Land 133:11 (describing Mr. Accurso's specialized skills as the ability to "operate a computer").
Upon consideration of all these factors, the Court concludes, as a matter of law, that Mr. Accurso was an employee of Defendants' roofing companies. The factors in favor of concluding that Mr. Accurso
The Court concludes that here the realities of the working relationship between the parties outweigh the formalities set forth in the initial contract. Cf. Safarian v. Am. DG Energy Inc., 622 Fed.Appx. 149, 151, No. 14-2734, 2015 WL 4430837, at *2 (3d Cir. July 21, 2015) (federal law) ("However, it is the economic realities of the relationship ... not the structure of the relationship, that is determinative. Indeed, the issue arises because the parties structured the relationship as an independent contractor, but the caselaw counsels that ... we must look beyond the structure to the economic realities."); Bishop v. W.C.A.B. (Walters), No. 974 C.D.2013, 2013 WL 5764569, at *5 (Pa.Commw.Ct. Oct. 23, 2013) ("It is clear from the WCJ's opinion that Decedent's tax returns denoting self-employment did not outweigh the other evidence presented. In light of the numerous findings indicative of an employer-employee relationship, we cannot conclude the WCJ erred." (citation omitted)). Mr. Land had broad powers to control the manner in which Mr. Accurso accomplished his work, as evidenced by the numerous "to-do" lists that show Mr. Land had the authority to manage the minutiae of Mr. Accurso's employment. See Myers, 2015 WL 1055700, at *12 ("The key factor is whether the alleged employer possessed the right to control the manner in which the alleged employee's work is performed." (citing Morin, 871 A.2d at 850)). Accordingly, the Court finds that Mr. Accurso was an employee of Defendants' roofing companies, and his Pennsylvania Wage Payment and Collection Law claim will survive summary judgment.
Finally, Defendants seek summary judgment on Mr. Accurso's civil conspiracy
For the above reasons, the Court will grant the Motion for Summary Judgment as to the tortious interference with contract claims and civil conspiracy claim, and will deny it in all other respects. Any appropriate order follows.
