govinfo:USCOURTS-pamd-4_25-cv-02080-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 
 
KURT SCHERTLE, 
 
 Plaintiff, 
 
 v. 
 
WEIS MARKETS INC. and the WEIS 
MARKETS INC. RETIREMENT 
COMMITTEE, 
 
 Defendants. 
 No. 4:25-CV-02080 
 
 (Chief Judge Brann) 
 
 
 
MEMORANDUM OPINION 
 
JUNE 17, 2026 
Presently before the Court is Defenda nts Weis Markets, Inc. and Weis 
Markets, Inc. Retirement Committee’s (together, “Weis Markets”) Motion to 
Dismiss Counts II through VII of Plaintiff Kurt Schertle’s (“Schertle”) complaint 
pursuant to Federal Rule of Civil Procedure 12(b)(6).1 
This action arises from Defendants’ de nial of retirement benefits allegedly 
owed to Plaintiff under the Weis Markets Supplemental Executive Retirement Plan 
(“SERP”), an unfunded deferred compen sation arrangement for executives and 
highly paid employees commonly known as a “top hat” plan. 2 Plaintiff alleges that 
Defendants improperly characterized his separation from employment as a 
 
1 See Doc 11; Defendants do not seek dismissal of Count I, Plaintiff’s claim for benefits pursuant 
to § 502(a)(1)(B) of the Employee Retirement Income Security Act (“ERISA”). Accordingly, 
Plaintiff’s ERISA denial of benefits claim remains pending. 
2 Doc. 1 ¶¶ 9-10, 31-33. 

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termination “for cause” and thereby forfe ited more than four million dollars in 
employer-funded retirement benefits. 3 Defendants contend that Plaintiff forfeited 
those benefits pursuant to Article 9 of the SERP following conduct constituting 
cause under the plan.4 
The issue presently before the Court is whether Counts II through VII state 
independent causes of action separate from Plaintiff’s ERISA claim for benefits. 
This Court holds that they do not, and for the reasons that follow, Defendants’ 
motion will be granted. 
I. BACKGROUND 
Accepting the allegations contained within the Plaintiff’s complaint as true 
for purposes of the present motion, Plaintiff began employment with Weis Markets 
in 2009 as Senior Vice President of Sales and Merchandising, becoming a participant 
in the SERP.
5 In 2011, as a tool to retain Plain tiff after he had been offered another 
position from a competitor, Plaintiff and We is Markets entered into an amendment 
to the SERP which stipulated that Plaintiff would receive additional annual employer 
credits provided that he remained empl oyed by Weis Markets and completed the 
 
3 Id. ¶¶ 24-29, 36-49. 
4 Doc. 11 at 2-4. 
5 Doc. 1 ¶¶ 8-10. 

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requisite hours of service (the “2011 Amendment”).6 Plaintiff was promoted to Chief 
Operating Officer in 2014.7 
On or about October 11, 2024, Plaintiff disclosed to Weis Markets’ Senior 
Vice President of Human Resources that he had engaged in a consensual romantic 
relationship with another Weis Markets employee.8 Several days later, Plaintiff met 
with Human Resources and Weis Markets’ Chief Executive Officer, where he was 
informed that leadership had lost trust in him and that the parties should separate.9 
Plaintiff alleges that he was never formally te rminated and was never 
informed that his separation was for cause. 10 Plaintiff alleges that instead, he was 
terminated due to the Chief Executive Officer’s personal animus against him. 11 
Plaintiff further alleges that Weis Mark ets initially proposed a severance package 
that included payment of his full SERP benefits but later withdrew that proposal and 
denied payment of those benefits.12 
On or about January 15, 2025, Plaintiff requested payment of benefits 
allegedly due under the SERP. 13 The Weis Markets Retirement Committee denied 
 
6 Id. ¶¶ 11-12. 
7 Id. ¶ 13. 
8 Id. ¶ 15. 
9 Id. ¶ 16. 
10 Id. ¶¶ 17-19. 
11 Id. ¶ 42. 
12 Id. ¶¶ 21-23. 
13 Id. ¶ 24. 

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that request and subsequently denied Plaintiff's administrative appeal. 14 Plaintiff 
then commenced this action. 
Count I asserts a claim for benefits pursuant to ERISA § 502(a)(1)(B). 15 
Defendants do not seek to dismiss Count I. Counts II and VII assert breach of 
contract claims.16 Count III asserts unjust enrichment.17 Count IV alleges breach of 
fiduciary duty.18 Counts V and VI assert promissory estoppel claims. 19 Defendants 
seek to dismiss Counts II through VII.20 
II. LAW 
Under Federal Rule of Ci vil Procedure 12(b)(6), courts dismiss a complaint, 
in whole or in part, if the plaintiff fails to “state a claim upon which relief can be 
granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly21 and 
Ashcroft v. Iqbal ,22 “[t]o survive a motion to dism iss, a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 
on its face.’” 23 The United States Court of A ppeals for the Third Circuit has 
instructed that “[u]nder the pleading regime established by Twombly and Iqbal, a 
 
14 Id. ¶¶ 25-28. 
15 Id. ¶¶ 30- 49. 
16 Id. ¶¶ 50-54, 73-77. 
17 Id. ¶¶ 55-59. 
18 Id. ¶¶ 60-64. 
19 Id. ¶¶ 65-72. 
20 Doc. 10 at 1-2. 
21 550 U.S. 544 (2007). 
22 556 U.S. 662 (2009). 
23 Id. at 678 (quoting Twombly, 550 U.S. at 570). 

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court reviewing the sufficiency of a complaint must take three steps”: (1) “take note 
of the elements the plaintiff must plead to state a claim”; (2) “identify allegations 
that, because they are no more than conc lusions, are not entitled to the assumption 
of truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” 
and then “determine whether they plausibly give rise to an entitlement to relief.”24 
III. ANALYSIS 
The complaint alleges that the SERP is a “top hat” plan under ERISA. 25 
Although top hat plans remain subject to ERISA’s enforcement provisions, they are 
exempt from ERISA’s participation, vesting, funding, and fiduciary-duty 
requirements.
26 Courts therefore apply ordinary principles of contract interpretation 
in construing such plans while enforcing those rights through ERISA’s remedial 
scheme.27 
A. Counts III and IV 
Defendants argue that Count III, unjust enrichment, and Count IV, breach of 
fiduciary duty, fail as a matter of law.28 Plaintiff’s opposition brief does not address 
either claim.29 
 
24 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations 
and citations omitted). 
25 Doc. 1 ¶ 31. 
26 Kemmerer v. ICI Americas, Inc., 70 F.3d 281, 286 (3d Cir. 1995). 
27 Id. at 287. 
28 Doc. 11 at 5-7. 
29 See generally Doc. 13. 

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The United States Court of Appeals for the Third Circuit and this Court have 
deemed that claims are abandoned when a plaintiff fails to respond to arguments 
seeking to dismiss those claims. 30 Because Plaintiff has not addressed Defendants’ 
arguments concerning Counts III and IV, the Court concludes that those claims have 
been abandoned. 
Even if Plaintiff had addressed Counts III and IV, dismissa l would still be 
warranted. Count III seeks recovery under an unjust enrichment theory.31 Plaintiff’s 
rights arise entirely from the SERP and the 2011 Amendment, both of which are 
written agreements governing the parties’ relationship. 32 To recover under unjust 
enrichment, there must be an absence of written agreement between parties. 33 
Because the dispute between the parties arises out of an express agreement, an unjust 
enrichment claim cannot proceed.34 
Count IV alleges breach of fiduciary duty.35 Plaintiff expressly alleges that the 
SERP is a top hat plan.36 Because top hat plans are exempt from ERISA’s fiduciary 
duty provisions, Plaintiff cannot maintain an ERISA fiduciary duty claim as a matter 
 
30 See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d 
Cir. 1994); Reynolds v. Wagner , 128 F.3d 166, 178 (3d Cir. 1997); D’Angio v. Borough of 
Nescopeck, 34 F. Supp. 2d 256, 265 (M.D. Pa. 1999). 
31 Doc 1. ¶¶ 55-59. 
32 Id. ¶¶ 9-12, 52. 
33 See Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir. 1987); Mitchell v. 
Moore, 729 A.2d 1200, 1203 (Pa. Super. Ct. 1999). 
34 See id. 
35 Doc. 1 ¶¶ 60–64. 
36 Id. ¶ 31. 

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of law.37 Moreover, Plaintiff acknowledges in his opposition brief that top hat plans 
are exempt from ERISA’s fiduciary provisions.38 Accordingly, Counts III and IV are 
dismissed. 
B. Counts II and VII 
Counts II and VII assert breach of contract claims arising from the SERP and 
the 2011 Amendment to the plan. 39 Defendants argue that these claims are 
duplicative of Count I because Plaintiff already seeks recovery of the same benefits 
through ERISA’s civil-enforcement provisions.40 The Court agrees. 
Count I alleges that Defendants impr operly denied benefits due under the 
SERP.41 Counts II and VII rely upon the same operative facts and seek the same 
relief.42 
Contract principles govern interpretation of top hat plans. 43 However, 
Plaintiff’s entitlement to benefits must still be determined through ERISA’s statutory 
enforcement framework.44 Plaintiff identifies no relief available under Counts II and 
 
37 Kemmerer, 70 F.3d at 286. 
38 Doc. 13 at 5. 
39 Doc. 1 ¶¶ 50–54, 73-77. 
40 Doc. 11 at 3-5. 
41 Doc. 1 ¶¶ 37–49. 
42 Compare id. ¶¶ 45-49 with id. ¶¶ 50–54, 73–77. 
43 Kemmerer 70 F.3d at 287. 
44 See id. at 286. 

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VII that is unavailable through Count I, nor does he identify any gap in ERISA’s 
remedial scheme requiring separate contract claims.45 
Plaintiff’s papers in opposition assert that the alleged breach arises from 
Defendants’ purported misinterpretation and inconsistent application of the SERP’s 
cause provisions. 46 Those allegations are fully encompassed within Count I. 47 
Accordingly, Counts II and VII will be dismissed as duplicative of Plaintiff’s denial 
of benefits claim. 
C. Counts V and VI 
Counts V and VI assert promissory estoppel claims concerning the SERP and 
the 2011 Amendment. 48 To state a promissory est oppel claim, a plaintiff must 
establish: (1) a material representation; (2) reasonable and detrimental reliance upon 
that representation; and (3) extraordinary circumstances. 49 The complaint fails to 
satisfy that standard. 
Plaintiff principally relies on two categories of alleged material 
representations on which he claims to ha ve relied: first, th e promises contained 
within the SERP and the 2011 Amendment to the plan; and second, allegations that 
 
45 See Pane v. RCA Corp. , 868 F.2d 631, 635-36 (3d Cir. 1989) (holding that ERISA’s civil-
enforcement provisions provide remedy for claims seeking benefits under an ERISA plan). 
46 Doc. 13 at 6-8. 
47 See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54-56 (1987) (emphasizing the exclusivity of 
ERISA’s remedial scheme for claims seeking plan benefits). 
48 Doc. 1 ¶¶ 65-72. 
49 Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 300-03 (3d Cir. 2008). 

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Weis Markets signified that Plaintiff would receive SERP benefits as part of a 
proposed severance package.50 
Neither category supports an indepe ndent estoppel claim. The alleged 
promises contained in the SERP and amendment are the same contractual 
obligations Plaintiff seeks to enforce through Count I. Likewise, allegations 
concerning severance negotiations do not establish the extraordinary circumstances 
required by Third Circuit precedent.51 
Plaintiff alleges that “extraordinary circumstances” arise in that Weis Markets 
historically paid benefits to other executives who engaged in similar conduct.52 Even 
accepting that allegation as true, it concerns the consistency with which Defendants 
applied the SERP plan rather than me eting the “extraordinary circumstances” 
standard set forth by the Third Circuit. 53 It therefore bears directly on Plaintiff’s 
denial of benefits claim rather than establishing an independent estoppel theory. 
Counts V and VI serve to repackage Plaintiff's central contention that 
Defendants wrongly denied him benefits under the SERP plan. That dispute remains 
 
50 Doc. 1 ¶¶ 11-12, 21-23, 65-72. 
51 See Pell, 539 F.3d at 303 (explaining that “[e]xtraordinary circumstances can arise where there 
are ‘affirmative acts of fraud,’ where there is a ‘network of misrepresentations . . . over an 
extended course of dealing,’ or where particular plaintiffs are especially vulnerable”). 
Plaintiff’s complaint alleges none of these circumstances. 
52 Doc. 1 ¶ 20. 
53 See Pell, 539 F.3d at 303 (assuming Plaintiff is alleging a “network of misrepresentations . . . 
over an extended course of dealing,” and that “extended course of dea lings” refers to the 
payments to other employees, this argument fails. Under Third Circuit precedent, the extended 
course of dealings would have to have been dealings between Defendants and Plaintiff himself; 
not between Defendant and other people). 

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fully before the Court thro ugh Count I. Accordingly, Counts V and VI are also 
dismissed. 
IV. CONCLUSION 
The Court concludes that Counts II th rough VII fail to state independent 
claims upon which relief may be granted. 54 Counts III and IV are additionally 
deemed abandoned because Plaintiff faile d to respond to Defendants’ arguments 
seeking dismissal of those claims.55 Defendants’ motion to dismiss pursuant to Rule 
12(b)(6) is granted. 
The Third Circuit has held that clai ms should be dismissed with prejudice 
when an amendment to those claims would be futile. 56 Counts II and VII assert 
breach of contract claims, which are dup licative to Count I. Count III asserts an 
unjust enrichment claim, which cannot sta nd as the parties entered into a written 
agreement. Count IV asserts a breach of fiduciary duty, however Plaintiff admits that 
top hat plans are not subject to ERISA’s fiduciary duty provisions. Therefore, Counts 
II, III, IV, and VII are dismissed with prejudice. 
However, Plaintiff is granted leave to amend Counts V a nd VI as he may 
plausible allege viable facts in support of those claims. “The Federal Rules of Civil 
Procedure do not address the situation in which a deficiency in a compliant could be 
 
54 See Iqbal, 556 U.S. at 678. 
55 See Laborers’ Int’l Union of N. Am., AFL-CIO, 26 F.3d at 398; Reynolds, 128 F.3d at; D’Angio, 
34 F. Supp. 2d at 265. 
56 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). 

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cured by amendment but leave to amend is not sought.” 57But the law in the Third 
Circuit is clear that leave to amend should be “freely given” regardless of whether 
leave is specifically requested.58 
As such, Plaintiff will be given fourteen days from today’s date to file an 
amended complaint. If no amended complaint is filed, the cl aims will be subject to 
dismissal with prejudice. 
An appropriate Order follows. 
 
 
BY THE COURT: 
 
 
s/ Matthew W. Brann 
 M a t t h e w W . B r a n n 
 Chief United States District Judge
 
 
57 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). 
58 Id. (quoting Fed. R. Civ. P. 15(a)). 

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