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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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