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

May 26, 2016

Pending before the Court is a motion to dismiss filed by Plaintiff John 

Morrison against Defendants AccuWeather, Inc. (hereinafter “AccuWeather”),

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

McDonald”) (collectively “Defendants”).

1

The motion seeks to dismiss Count One 

of Defendant AccuWeather’s counterclaim which alleges fraudulent concealment.2

The motion has been fully briefed by the parties and is now ripe for disposition.3

For the following reasoning, Mr. Morrison’s motion to dismiss is granted.

 

1 ECF Nos. 63. 

2 ECF No. 60.

3 Mr. Morrison points out in his reply brief that Defendants’ brief in opposition was filed untimely, two days after 

the brief was due under Local Rule 7.6. This Court, however, will consider Defendants’ opposition, especially since 

it is granting Mr. Morrison’s motion. 

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I. BACKGROUND

The background facts are thoroughly stated in this Court’s past Memoranda

addressing two previous motions to dismiss.4For the purposes of this third motion 

to dismiss, the salient facts are briefly stated. This matter arises from an aborted

employment relationship between Mr. Morrison and Defendant AccuWeather, Inc. 

On or about May 27, 2013, Mr. Morrison received an unsolicited telephone call 

from an executive recruiter, Rick Linde, informing Mr. Morrison of a job 

opportunity with AccuWeather in State College, Pennsylvania. Mr. Morrison was 

then apparently employed as Chief Financial Officer (CFO) of gen-E, a marketleading information technology company located in California. 

As a result of two favorable interviews, an exhaustive interview process, and 

salary negotiations, Defendants provided Mr. Morrison with an offer of 

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

minimum term of employment of two years, an annual salary of $250,000 and 

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

with 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 offer also 

included an allowance for out-of-pocket and incidental costs of moving Mr. 

 

4

See ECF Nos. 16, 33.

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Morrison and his family from California to Pennsylvania and payment for up to 

four months of temporary housing. Finally, the offer provided for payment to Mr. 

Morrison if his employment was terminated early due to a corporate change in 

control. Mr. Morrison accepted the AccuWeather offer and received a written 

agreement commemorating the terms on August 2, 2013.

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. 

Mr. Morrison began work at AccuWeather on September 9, 2013. On 

September 22, 2013, thirteen days after starting his new position 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 

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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.5 On April 1, 2014, Defendants filed separate motions to dismiss 

Mr. Morrison’s complaint and this Court disposed of those motions by dismissing 

the negligent misrepresentation claim with prejudice on the basis of the economic 

loss doctrine and the fraudulent misrepresentation claim without prejudice for 

failure to plead in conformity with Federal Rule of Civil Procedure 9(b).6 Mr. 

Morrison filed an amended complaint on December 12, 2014, in which he 

reasserted his claim for fraudulent misrepresentation with more detailed 

allegations.7 On December 26, 2014, Defendants filed a second motion to dismiss 

seeking to dismiss Mr. Morrison’s reasserted fraudulent misrepresentation claim. 

Defendants’ motion was denied.8

Defendants thereafter filed their answer on July 27, 2015 but, subsequently,

filed a motion for leave to file an amended answer to add the counterclaim of 

 

5 ECF No. 1.

6 ECF Nos. 7, 8, 17. 

7 ECF No. 20.

8 ECF Nos. 21, 34.

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fraudulent misrepresentation, which this Court granted.9 Mr. Morrison then filed 

the instant motion seeking to dismiss Defendants’ fraudulent misrepresentation 

claim.10

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a 

motion to dismiss for “failure to state a claim upon which relief can be granted.” 

Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation 

by dispensing with needless discovery and factfinding.”11 “Rule 12(b)(6) 

authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”12

This is true of any claim, “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.”13

Beginning in 2007, the Supreme Court of the United States initiated what 

some scholars have termed the Roberts Court’s “civil procedure revival” by 

significantly tightening the standard that district courts must apply to 12(b)(6) 

motions.14 In two landmark decisions, Bell Atlantic Corporation v. Twombly and 

Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by 

“signal[ing] to lower-court judges that the stricter approach some had been taking 

 

9 ECF Nos. 35, 35, 43, 44, 57, 60, 61.

10 ECF No. 63.

11

 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.) (quoting Szabo v. 

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)). Neitzke v. Williams, 490 U.S. 

319, 326–27 (1989).

12

 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

13

 Neitzke, 490 U.S. at 327.

14

 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 313 (2012).

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was appropriate under the Federal Rules.”15 More specifically, the Court in these 

two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. 

Gibson and replaced it with a more exacting “plausibility” standard.16

Accordingly, after Twombly and Iqbal, “[t]o 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.’”17 “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”18 “Although the 

plausibility standard does not impose a probability requirement, it does require a 

pleading to show more than a sheer possibility that a defendant has acted 

unlawfully.”19 Moreover, “[a]sking for plausible grounds . . . calls for enough facts 

to raise a reasonable expectation that discovery will reveal evidence of 

[wrongdoing].”20

The plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”21 No matter 

the context, however, “[w]here a complaint pleads facts that are ‘merely consistent 

 

15

 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

16

 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that Twombly retired the 

Conley no-set-of-facts test”).

17

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

18

 Iqbal, 556 U.S. at 678.

19

 Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. Jan. 11, 2016) (Jordan, J.) (internal quotations and 

citations omitted).

20

 Twombly, 550 U.S. at 556.

21

 Iqbal, 556 U.S. at 679.

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with’ a defendant’s liability, it ‘stops short of the line between possibility and 

plausibility of entitlement to relief.’”22

When disposing of a motion to dismiss, a court must “accept as true all 

factual allegations in the complaint and draw all inferences from the facts alleged 

in the light most favorable to [the plaintiff].”23 However, “the tenet that a court 

must accept as true all of the allegations contained in the complaint is inapplicable 

to legal conclusions.”24 “After Iqbal, it is clear that conclusory or ‘bare-bones’ 

allegations will no longer survive a motion to dismiss.”25 “Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”26

As a matter of procedure, the United States Court of Appeals for the Third 

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court 

reviewing the sufficiency of a complaint must take three steps. First, it 

must tak[e] note of the elements [the] plaintiff must plead to state a 

claim. Second, it should identify allegations that, because they are no 

more than conclusions, are not entitled to the assumption of truth. 

Finally, [w]hen there are well-pleaded factual allegations, [the] court 

should assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.27

 

22

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

23

 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

24

 Iqbal, 556 U.S. at 678 (internal citations omitted).

25

 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

26

 Iqbal, 556 U.S. at 678.

27

 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

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A. Heightened Standard in Cases Alleging Fraud

In cases alleging fraud as in the case at bar, the pleading requirements of

Iqbal and Twombly are heightened. Federal Rule of Civil Procedure 9(b) requires 

that a party alleging fraud must state the circumstances “with particularity.”28 This 

heightened standard gives the party accused of fraud “notice of the claims against 

them” and “reduces the number of frivolous suits brought.”29 To satisfy this 

standard, the party alleging fraud must include, at a minimum, “essential factual 

background that would accompany ‘the first paragraph of any newspaper story’—

that is, the ‘who, what, when, where and how’ of the events at issue.’”

30

II. DISCUSSION

Mr. Morrison seeks to dismiss Count One of AccuWeather’s counterclaim 

alleging fraudulent concealment arguing that AccuWeather has failed to plead 

fraud with the specificity required. He further contends that fraud by omission is 

only actionable in the Commonwealth of Pennsylvania where there is a duty to 

disclose the information. AccuWeather replies that it has pled sufficient facts to 

survive a motion to dismiss.

The following allegations appear in AccuWeather’s counterclaim:

2. Mr. Morrison fraudulently concealed his employment with gen-E 

and intentionally led AccuWeather to believe that his last employment 

 

28 Fed. R. Civ. P. 9(b).

29 In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1418 (3d Cir. 1997).

30 In re Suprema Specialties, Inc. Securities Litigation, 438 F.3d 256 (3d Cir. 2006)(quoting In re Burlington Coat 

Factory, 114 F.3d at 1422).

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was with Kelly Blue Book. Said fraudulent concealment was of a 

material matter, as Mr. Morrison apparently had to leave his position 

with gen-E because the company was unsuccessful; it was having 

financial difficulties; it defaulted on a bank loan; and all of its 

corporate management has not been replaced in an attempt to salvage 

something out of the company.

31

AccuWeather goes on to state that had it known of the information concealed by 

Mr. Morrison, he would have never been hired. Damages claimed include 

recruiting fees, wasted time and effort, and punitive damages.

Also relevant are AccuWeather’s answers to Mr. Morrison’s amended 

complaint. Paragraph 21 indicates that “AccuWeather avers that Plaintiff did not 

have a ‘current position as CFO of gen-E’ and that Plaintiff was actually actively 

seeking work.”32 Paragraph 28 states that “upon information and belief, Plaintiff 

had no position at gen-E at this time.”

33 Paragraph 37 states that “[t]he Defendants 

were never advised that Plaintiff had any current position, at gen-E or otherwise.”34

Lastly, in paragraph 79, AccuWeather alleges that “Plaintiff did say that he left a 

job in order to work for AccuWeather, but Plaintiff then alternatively sobbed and 

apologized for the damage he had done.”

35

 

31 ECF No. 60, Amended Counterclaim ¶ 2.

32 ECF No. 60 at ¶ 21.

33 ECF No. 60 at ¶ 28 (in response to Mr. Morrison’s statement that his employers at gen-E had become aware of 

AccuWeather’s ongoing recruitment efforts. ECF No. 20 at ¶ 28.)

34 ECF No. 60 at ¶ 37 (in response to Mr. Morrison’s allegation that he repeatedly stated to Defendants Myers and 

McDonald that he would only consider leaving his current CFO position at gen-E for a secure and long term CFO 

position during the interviews on July 29, 2013. ECF No. 20 at ¶ 37.)

35 ECF No. 60 at ¶ 79 (in response to Mr. Morrison’s allegation that he reminded Defendants that he had been 

assured that the position at AccuWeather provided stability and an employment commitment of at least two years. 

ECF No. 20 at ¶ 79.)

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AccuWeather does not allege that Mr. Morrison affirmatively stated that he 

was not employed at gen-E or that he was unemployed at the time he was recruited 

by AccuWeather. Instead, AccuWeather seems to argue that Mr. Morrison failed to 

disclose—or omitted—information. As Mr. Morrison contends, AccuWeather 

alleges only “mere silence.”

To prove fraud, the following elements must be met: “misrepresentation, a 

fraudulent utterance thereof, an intention to induce action thereby, justifiable 

reliance thereon and damage as a proximate result.”36 A “misrepresentation need

not be in the form of a positive assertion” and can be “by concealment of that 

which should have been disclosed . . . ”37 As long as the other elements of fraud are 

met, concealment can be sufficient to a finding of fraud.38 “While concealment 

may constitute fraud, however, mere silence is not sufficient in the absence of a 

duty to speak.”

39 To be actionable, the concealment must have been “intentional 

and it must relate to material information.”40

In the case at bar, AccuWeather alleges that the information concealed (that 

Mr. Morrison had been employed as the CFO of gen-E at the time he was recruited 

 

36 V-Tech Servcs., Inc., v. Street, 72 A.3d 270, 275 (Pa. Super. Ct. 2013) (quoting Wilson v. Donegal Mutual Ins. 

Co., 598 A.2d 1310, 1315 (Pa. Super. Ct. 1991)).

37 Id.

38 Id.

39 Id.

40 Sevin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. Ct. 1992); see also Gnagey Gas & Oil Co., Inc., v. PA 

Underground Storage Tank Indemnification Fund, 82 A.3d 485, 502 (Pa. Commw. Ct. 2013) (quoting U.S. v. 

Colton, 231 F.3d 890, 899 (4th Cir. 2000) (“To create a cause of action, concealment must have been intentional and 

effective—the hiding of a material fact with the attained object of creating or continuing a false impression as to that 

fact. The affirmative suppression of the truth must have been with intent to deceive.”)).

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by AccuWeather) was material to its decision to hire Mr. Morrison in the first 

place. AccuWeather, however, sets forth no facts to support its contention that the 

alleged concealment was intentional. AccuWeather’s conclusory statement that 

“Mr. Morrison fraudulently concealed his employment with gen-E” is insufficient 

to pass muster under Federal Rule of Civil Procedure 12, let alone Rule 9.

AccuWeather contends multiple times that, to its knowledge, Mr. Morrison 

was not employed at gen-E, or anywhere else for that matter. Mr. Morrison alleges 

that an exhaustive interview process occurred prior to his hire at AccuWeather and 

AccuWeather admits that Mr. Morrison interviewed with Mr. Linde (the recruiter), 

Mr. McDonald, Mr. Myers, seven members of the AccuWeather executive and 

management team (in State College on July 3, 2013), Mr. Arditte, a friend of 

AccuWeather’s Executive Team, and multiple other interviewers between July 27, 

2013 and July 29, 2013. AccuWeather also admits that Mr. Morrison completed a 

psychological profile questionnaire and a two hour interview with a psychologist 

as part of his pre-employment/pre-offer psychological profiling process. 

AccuWeather never alleges that any one of these interviewers asked Mr. Morrison 

about his then current employment and that Mr. Morrison intentionally concealed 

the information.41

 

41 Mr. Morrison, in his reply, provides the Court with an email sent to him by Mr. Linde of Chemistry Executive 

Search who was hired by AccuWeather to recruit Mr. Morrison. ECF No. 67-1. Mr. Morrison requests that this 

Court alternatively resolve this matter under a Rule 56 motion for summary judgement and consider the email, 

which refers to Mr. Morrison resigning from his current position to work at AccuWeather, as proof that 

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AccuWeather does not make any allegations that Mr. Morrison omitted the 

information from his resume, had his name removed from the gen-E website, 

requested that his references conceal his occupation at the time, or any other 

indication that Mr. Morrison was acting intentionally to conceal his employment or 

lack of employment. In other words, while AccuWeather adequately pleads the 

“what” under the Rule 9 pleading requirements, it fails to specify the “who,” 

“where,” “when,” and “how.”42

Accordingly, Mr. Morrison’s motion to dismiss is granted. AccuWeather is 

granted leave to amend its counterclaim. This Court respectfully notes, however, 

that this litigation has been ongoing since February 6, 2014 and has already 

proceeded through three motions to dismiss. AccuWeather should also be advised 

that significantly more information than that put forth in the amended answer must 

be pled to survive another motion to dismiss on its fraudulent concealment count.

III. CONCLUSION

In accordance with the foregoing analysis, Mr. Morrison’s motion to 

dismiss43 is granted and AccuWeather is granted leave to amend its counterclaim. 

An appropriate Order follows.

 

AccuWeather knew that he was employed at the time he was hired by AccuWeather. This Court finds, however, that 

one email from the recruiter, who was not a direct employee of AccuWeather, while persuasive, is insufficient to 

rule on this matter under Rule 56 at this current stage in the litigation. 

42 In re Suprema Specialties, Inc. Securities Litigation, 438 F.3d at 276. 

43 ECF No. 63.

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BY THE COURT:

s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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