1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN W. MORRISON, : Civil Action No. 4:14-cv-0209

:

Plaintiff, :

: (Judge Brann)

v. :

:

ACCUWEATHER, INC; :

BARRY MYERS; :

and :

VINCENT MCDONALD :

:

Defendants. :

MEMORANDUM

December 23, 2015

Pending before the Court are two motions for leave to file amended answers, 

one filed by Defendant AccuWeather, Inc. (hereinafter “AccuWeather”) and one 

filed by Barry Myers (hereinafter “Mr. Myers”) and Vincent McDonald 

(hereinafter “Mr. McDonald”).

1 Both motions have been fully briefed by the 

parties and are ripe for disposition. For the following reasoning, both motions are 

granted.

I. BACKGROUND

This case arises from the employment relationship between Plaintiff John W. 

Morrison (hereinafter “Mr. Morrison”) and AccuWeather. On or about May 27, 

2013, Mr. Morrison received an unsolicited telephone call from an executive 

 

1 ECF Nos. 43, 44. 

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recruiter, Rick Linde, informing Mr. Morrison of a job opportunity with 

AccuWeather in State College, Pennsylvania. Mr. Morrison was then employed as 

Chief Financial Officer (CFO) of gen-E, a market-leading information technology 

company located in California. 

As a result of two favorable interviews, Mr. Morrison took part in an 

exhaustive interview process with Mr. McDonald, the Chief Human Resources 

Officer and Mr. Myers, the Chief Executive Officer, for the position of CFO of 

AccuWeather. During the interview process, Defendants assured Mr. Morrison

that their search was for a long-term CFO to replace the current incumbent CFO;

Mr. Morrison, in turn, expressed that he needed security in a promise of long-term 

employment in order to uproot his family in a move to Pennsylvania and to forego 

his then-existing employment relationship in California. 

On July 30, 2013, Defendants provided Mr. Morrison with an oral offer of 

employment for the CFO position at AccuWeather. The oral offer provided for a 

minimum term of employment of two years, an annual salary of $235,000 and 

guaranteed bonuses of $115,000 for year one and $125,000 for year two. In 

addition, the oral employment offer provided for 100,000 Class B stock options 

during the first year, to be provided on the first day of employment and 150,000 

Class B stock options during the second year, to be provided on the first 

anniversary of the employment start date. The oral offer also included an 

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allowance for out-of-pocket and incidental costs of moving Mr. Morrison and his 

family to Pennsylvania and payment for up to four months of temporary housing. 

Finally, the oral offer provided for payment to Mr. Morrison if his employment 

was terminated early due to a corporate change in control. 

On July 31, 2013, Mr. Morrison accepted the offer of employment with the 

caveat that his base salary would be changed to $250,000. On August 2, 2013, he

received a written agreement which Defendants represented reflected the terms of 

the oral employment offer, together with modification to the base salary.

In preparation for his move to Pennsylvania and in reliance on Defendants 

representations regarding their long-term plans for the company, Mr. Morrison

disposed of substantial and valuable electronic equipment as well as furniture and 

other property, and he undertook substantial repairs and improvements to his 

California residence to prepare it for sale or rental. 

When Mr. Morrison began work on September 9, 2013, he discovered that 

contrary to the repeated representations of Defendants Myers and McDonald, the 

incumbent CFO was still in a position at AccuWeather in which he was described 

to Mr. Morrison as responsible for “special projects.” Defendants stated that the 

former CFO would remain on-site and continue to be located in his executive suite 

offices, which were still identified as the offices of the CFO, while Mr. Morrison

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was assigned to “temporary” office space located in the human resources 

department. 

On September 22, 2013, thirteen days after starting the new CFO job at 

AccuWeather, Mr. Myers called Mr. Morrison to notify him that he was 

immediately terminated from his employment as CFO, despite Mr. Myers’ 

agreement that Mr. Morrison had the skills, knowledge, and expertise to do the job 

as it was offered to him. Mr. Myers stated that he would not reconsider immediate 

termination because he was concerned that an “executive,” who Mr. Myers would 

not identify, had expressed concern that Defendants “brought in” Mr. Morrison

because AccuWeather was “being sold.” On September 23, 2013, Mr. Morrison

received a written memorandum from Mr. Myers documenting Mr. Morrison’s 

termination of employment which stated that while Mr. Morrison’s “employment 

will end effective immediately,” he would be paid his “regular salary” through 

October 4, 2013. 

Mr. Morrison subsequently initiated the above-captioned civil action by 

filing a complaint with this Court alleging breach of contract, violations of the 

Pennsylvania Wage Payment and Collection Act, and fraudulent 

misrepresentation.2

 

2 ECF No. 20.

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II. DISCUSSION

Defendants argue that new information has come to light through the 

discovery process which provides a basis for a new affirmative defense, fraud in 

the inducement, “based upon the fraudulent concealment of Plaintiff’s employment 

status and the financial problems of his employer at the time of the recruitment 

process.”3 AccuWeather also seeks to file a new compulsory counterclaim against 

Mr. Morrison based upon fraudulent concealment.4 Accordingly, Defendants filed 

motions for leave to amend their answers

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under Rule 15 of the Federal Rules of 

Civil Procedure.6

Rule 15 provides that a pleading may be amended by leave of court and that 

“the court should freely give leave when justice so requires.”7The United States 

Supreme Court explained:

“[i]n the absence of any apparent or declared reason—such as undue delay, 

bad faith or dilatory motive on the part of the movant, repeated failure to 

cure deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, futility of 

amendment, etc.—the leave sought should, as the rules require, be ‘freely 

given.’”8

The liberal right to amend extends to an answer to the complaint.9

 

3 ECF No. 50 at 2; see also ECF No. 49 at 2.

4 ECF No. 49 at 2.

5 ECF Nos. 35, 36.

6 ECF Nos. 43, 44.

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Fed. R. Civ. P. 15(a)(2).

8 Foman v. Davis, 371 U.S. 178, 182 (1962).

9

Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004)(citing Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing of Virgin 

Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981).

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Mr. Morrison, in his briefs in opposition to both motions, submits that the 

standard under Rule 15 should not be applied to the instant matter.10 Instead, he 

argues, this Court should apply the standard under Rule 16(b). Rule 16(b)(b) 

provides that a pretrial conference schedule “may be modified only for good 

cause” after it has been issued by a court.11

Mr. Morrison contends that this higher standard should apply as this Court 

has already issued a pretrial conference schedule.12 He further argues that 

Defendants have failed to show good cause because the “material facts underlying 

[D]efendants’ proposed amendments in this case were known to the [D]efendants 

as soon as they received the original complaint,” which is to say that his 

employment at gen-E was known to Defendants at the time of his hire or, at the 

very least, at the time Mr. Morrison filed both the original complaint and the 

amended complaint.

13

 

In support of his argument that the proper standard of review is under Rule 

16, Mr. Morrison cites Dimensional Communications, Inc. v. Oz Optics Ltd.,

14 and 

Eastern Minerals & Chemicals Co. v. Mahan.

15 These cases, however, are readily

distinguished from the case at hand. First, defendants in both Dimensional 

Communications and Eastern Minerals sought leave to amend their answers 

 

10 ECF Nos. 50, 51.

11 Fed. R. Civ. P. 16(b)(4).

12 See ECF No. 42.

13 ECF No. 52 at 5; see also ECF Nos. 1, 20.

14 148 Fed. Appx. 82, 85 (3rd Cir. 2005).

15 225 F.3d 330, 340 (3rd Cir. 2000).

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months after the court had set case management deadlines and after the deadline to 

file amendments had lapsed.16 Second, and more importantly, the defendants in 

both cases were in possession of the facts underlying the proposed amendments

well before the amendment deadlines.17

In the instant matter, a pretrial conference schedule has been set but it does 

not include a deadline for filing amendments.18 Furthermore, while Defendants 

may well have been aware from the complaint and the amended complaint that Mr. 

Morrison had been employed by gen-E at the time he accepted employment with 

AccuWeather, Mr. Morrison plead no facts to indicate gen-E’s financial status at 

the time he left the company. Therefore, this recently discovered information may 

well be considered “new” to Defendants.19

III. CONCLUSION

In accordance with the foregoing analysis, Defendants’ motions for leave to 

amend their answers20are granted.

An appropriate Order follows.

 

16 See Eastern Minerals, 225 F.3d at 340; see also Dimensional Communications, 148 Fed. Appx. 82 at 85.

17 See generally Eastern Minerals, 225 F.3d at 340 (defendants did not explain why they had not sought leave to 

amend earlier and made no argument that new information had come to light); Dimensional Communications, 148 

Fed. Appx. 82 at 85.

18 ECF No. 42.

19 It is important to note, however, that because Defendants contend that they only became aware of gen-E’s 

financial circumstances through the discovery process and were accordingly unaware of the information at the time 

Mr. Morrison’s employment was terminated, this information, if true, will likely have more weight in the Court’s 

determination of damages, if any, than in finding that the information had any bearing on Defendants’ decision to 

terminate Mr. Morrison. 

20 ECF Nos. 43, 44.

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BY THE COURT:

s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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