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November 2020

Ferra Automotive Services, Inc. v. B&T Express, Inc.

2020 WL 6545999

United States District Court, W.D. Pennsylvania.
FERRA AUTOMOTIVE SERVICES, INC., Plaintiff,
v.
B&T EXPRESS, INC., JOY GLOBAL CONVEYORS, INC., and TRAFICANTI TRUCKING, LLC. Defendants.
2:19-cv-01533-RJC
|
11/07/2020

Robert J. Colville, United States District Judge

MEMORANDUM OPINION
*1 Robert J. Colville, United States District Judge.

Before the Court is a Motion to Dismiss (ECF No. 39) filed on behalf of Plaintiff Ferra Automotive Service, Inc. (“Ferra”) in which it argues the counterclaims to the First Amended Complaint (“FAC”) filed by Defendants B&T Express, Inc. (“B&T”), A.T.T. Trucking LLC (“ATT”), Traficanti Trucking , LLC (“Traficanti”), OMCO ENTERPRISES, LLC (“OMCO”) and Joy Global Conveyors, Inc. (“Joy”) (collectively, “Defendants”) should be dismissed. For the reasons stated herein, the motion will be granted in part and denied in part.

I. Procedural History and Factual Allegations
On November 27, 2019, Defendants removed this action from the Court of Common Pleas of Allegheny County. (ECF No. 1). On December 10, 2019, Defendants filed an answer to the Complaint and Counterclaim. (ECF No. 6). On June 26, 2020, Plaintiff filed the FAC, adding ATT and OMCO as parties. (ECF No. 33). On July 10, 2020, Defendants filed their Answer, Affirmative Defenses, and Counterclaim. (ECF No. 36). On July 17, 2020, Ferra filed the now-pending motion to dismiss with brief in support. (ECF Nos. 39, 40). Defendants filed a brief in opposition (ECF No. 44) to which Ferra has filed a reply. (ECF No. 45). The matter is now ripe for consideration.

The allegations in the FAC are as follows. This action arises out of an accident on December 6, 2017, along Route 28 southbound, near Fox Chapel/O’Hara Township, Pennsylvania, when a tractor trailer collided with the rear end of a passenger vehicle, killing the the operator of the passenger vehicle.1 (FAC at ¶ 21). Ferra is engaged in the towing, recovery, removal, damage clean up, and storage industry in Allegheny County, Pennsylvania. (FAC at ¶ 8). Plaintiff alleges that B&T and/or ATT were the registered owner of the tractor. (FAC at ¶ 9). Arther T. Wells, an employee of B&T, operated the tractor and trailer on the date of the accident. (FAC at ¶ 15). B&T, Traficanti and/or OMCO were the owner of the trailer (FAC at ¶ 10). Joy Global owned the loaded metal shafts, rods and bars on the trailer. (FAC at ¶ 20). ATT, B&T, Traficanti and OMCO owned and maintained care, custody and control of the tractor and trailer pursuant to law and a master transportation service agreement and/or contract of carriage with Joy Global. (FAC at ¶12).

After the collision, officials of the Pennsylvania State Police notified Ferra about the accident and directed Ferra to go to the location to address the emergency hazardous situation. (FAC at ¶ 21). Under the oversight and direction of the Pennsylvania State Police, Ferra employees cleared the scene, removed the vehicles and debris, removed the tractor, trailer and cargo for storage at its facility, and awaited direction regarding their disposition. (FAC at ¶ 23). Ferra was advised by the Pennsylvania State Police that the tractor, trailer, and cargo had been impounded and that Ferra should retain possession thereof, pending further investigation of the event by the Pennsylvania State Police and others. (FAC at ¶ 24). Criminal charges were brought against the driver.

*2 Nearly a year and half passed. Ferra was notified on May 17, 2019 it was authorized to release the vehicle and cargo from the impoundment directive earlier ordered by the Pennsylvania State Police and the District Attorney of Allegheny County. (FAC at ¶ 27). Ferra had determined that Traficanti had an ownership interest in the trailer (and it was later asserted by OMCO that OMCO has claimed an ownership interest in the trailer) and that the cargo was owned by Joy Global. (FAC at ¶ 28). Ferra notified Defendants Traficanti and Joy Global of the balance due for the towing, recovery removal, cleanup, and storage due to Ferra as payment for the services it provided. (FAC at ¶ 28). Ferra has yet to be paid and seeks compensation, listing eighteen counts in its FAC. As of October 24, 2019, Ferra is owed the sum of $182,725 for the towing, recovery, removal, and cleanup of the accident scene and storage with interest thereon at the rate of six percent from December 6, 2017 together with additional storage charges at a rate of $250 per day from and after October 24, 2019. (FAC ¶ 31).

Defendants have filed a five-count counterclaim (ECF No. 36 at 18-24) (hereinafter, “Counterclaim). The allegations in the counterclaim are as follows. Over the several months after the accident, B&T Express made inquiries to appropriate government entities to retrieve the tractor and trailer, as well as the load. B&T Express repeatedly was told that it was not permitted to retrieve the tractor, trailer, or load because local law enforcement was conducting an investigation into the accident. (Counterclaim at ¶10). As described in the Complaint, upon notice from the authorities, Ferra contacted B&T Express about taking possession of the tractor, trailer, and load, and also presented an invoice of charges. According to the invoice, B&T Express owed $154,475.00, which consisted of $10,975 for charges related to activity at the accident scene; and $143,500.00 for storage costs. The invoice purported to charge B&T Express $250 per day for “storage inside.” B&T Express avers it never requested that the tractor or trailer be stored inside, nor did Ferra ever contact B&T Express and about how the tractor and trailer would be stored. Upon information and belief, Defendants allege Ferra did not, in fact, store the tractor and trailer inside. They allege the invoice was false, and the amount claimed to be owed was inaccurate. (Counterclaim ¶¶ 12, 15). Defendants allege they had no say in where and how the tractor and trailer were stored, nor when local law enforcement permitted the tractor and trailer to be released. Defendants did not want the tractor and trailer stored at all, let alone for a period of more than 18 months until local law enforcement released them. There was no benefit being conferred upon B&T Express or Traficanti Trucking by having the tractor and trailer stored. Rather, B&T Express and Traficanti Trucking suffered a detriment in being deprived of the tractor and trailer during this time. Joy Global similarly alleges it received no benefit from having its load stored, and it suffered a detriment in being deprived of its load during that time. (Counterclaim at ¶ 13).

Defendants B&T, ATT, Traficanti and Joy Global have filed a five-count counterclaim, as follows. (ECF No. 36 at 25-31). At Count I, they request an entry of declaratory judgment that at most they are only obligated to compensate Ferra for fair and reasonable charges related to the cleanup and towing services but not for the storage of the tractor, trailer and load. At Count II, they allege violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). At Count III, B&T alleges fraudulent misrepresentation through the invoice and other statements and actions regarding the nature, amount, and value of the services Ferra provided, upon which B&T justifiably relied to its detriment. At Count IV, B&T alleges negligent misrepresentation. At Count V, B&T, ATT, and Traficanti allege breach of good faith and fair dealing.

Plaintiff has moved to dismiss all five counts of the counterclaim for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), as well as Fed. R. Civ. P. 7, 8, 9, and 15.

II. Standard of Review
*3 A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully….Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

The United States Court of Appeals for the Third Circuit instructs that “a court reviewing the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr, Corp., 809 F.3d 780 (3d Cir. 2016). The court explained:
First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). 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.” Iqbal, 556 U.S. at 679.
809 F.3d at 876-77. “Determining whether a complaint states a plausible claim for relief will…be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted)

While a District Court is generally limited to a plaintiff’s complaint in assessing a motion to dismiss, when a document is “integral to or explicitly relied upon in the complaint [, it] may be considered without converting the motion [to dismiss] into one for summary judgment.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997) (internal quotations omitted).

III. Discussion

A. Count I: Declaratory Judgment
In Count I of the Counterclaim Defendants request the Court resolve the validity of Ferra’s claims and determine the amount owed by Counterclaim-Plaintiffs to Ferra. Ferra moves to dismiss Count I of the counterclaim on the grounds that a civil action has already been commenced against defendants and they are not faced with looming uncertainty as to their obligation to make payment, hence a declaratory judgment is improper. Plaintiff further seeks dismissal of the claim for attorneys’ fees.

The Counterclaim for declaratory judgment reads, in part, “Counterclaim-Plaintiffs request that this Court resolve the validity of Ferra’s claims and determine that Counterclaim-Plaintiffs did not owe Ferra more than $182,725.00. Rather, Counterclaim-Plaintiffs request that this Court determine that Ferra only is entitled to be paid a reasonable amount for its activities at the accident scene and towing services.” (Counterclaim at ¶22). Defendants correctly note that the cases cited by Ferra, wherein dismissal of declaratory judgment actions was warranted, generally address the issue of forum shopping, which is not the procedural posture or circumstance of this case. As stated in PHL Variable Ins. Co. v. Helene Small Ins. Trust, 2012 WL 5382905 (D. Del. Nov. 1, 2012), the Court should exercise restraint in dismissing counterclaims on this basis of duplication:
*4 Considering the difficulty in determining whether a declaratory judgment counterclaim is in fact redundant prior to trial, however, authorities suggest that a court should dismiss such counterclaims only when there is no doubt that they will be rendered moot by adjudication of the main action.
Id., citing Principal Life Ins. Co. v. Lawrence Rucker 2007 Ins. Trust, 674 F.Supp.2d 562, 566 (D. Del. 2009). Here, a fair reading of the Complaint, and the allegations in the Counterclaim, leads to the conclusion that the dismissal of Defendants’ declaratory action counterclaim is inappropriate at this point. This proposed counterclaim, raised in the same action, seeking clarification over past obligations between the parties and the ongoing issue of what amounts continue to accrue, may proceed as Defendants face looming uncertainty as to their obligation to make payments. Accordingly, Count I of the Counterclaim will not be dismissed.2

B. Count II: UTPCPL
Plaintiff argues that Count II fails to state a claim upon which relief can be granted because the UTPCPL does not apply to a transaction between two commercial entities, but rather to consumer transactions only, citing 73 P.S. 201-9.2. Plaintiff further argues that it was authorized and directed to store the vehicles and cargo while impounded for investigation, and therefore, is immune under the provisions of 73 Pa. C.S. 1975(b) & (c). Plaintiff further argues that Defendants have not suffered an ascertainable loss as required under the UTPCPL, and legal costs do not constitute an ascertainable loss under the UTPCPL.

In order to maintain a private right of action under the UTPCPL, a plaintiff must demonstrate that he or she: 1) purchased or leased goods or services primarily for a personal, family, or household purpose; 2) suffered an ascertainable loss of money or property; and 3) the loss occurred as a result of the use or employment by a person of a method, act, or practice declared unlawful by the UTPCPL. 73 P.S. § 201-9.2(a) (emphasis added). The plaintiff must offer evidence of one of the statutorily delineated “unfair methods of competition” found at 73 P.S. § 201-2(4), or evidence which fits the “catch-all provision” found at 73 P.S. § 201-2(4)(xxi). Baynes v. George E. Mason Funeral Home, Inc., No. 09-cv-153, 2011 WL 2181469, *4 (W.D. Pa. June 2, 2011).

Pennsylvania courts and the United States Court of Appeals for the Third Circuit have held that parties who made the relevant purchase or lease for business or commercial purposes may not assert a UTPCPL claim. New Legion Co., Inc. v. Thandi, No. 18-cv-778, 2018 WL 2121523, at *5 (E.D. Pa. May 8, 2018) (citing Balderston v. Medtronic Sofamor Danek, Inc., 285 F.3d 238, 242 (3d Cir. 2002) (doctor could not assert UTPCPL deceptive marketing claim for bone screws he had bought for his professional practice); Trackers Raceway, Inc. v. Comstock Agency, Inc., 583 A.2d 1193, 1197 (Pa. Super. Ct. 1990) (plaintiff failed to state UTPCPL claim where it purchased an insurance policy “for commercial purposes only”)).

*5 Defendants have not alleged any facts which could plausibly state a claim that it has purchased or leased goods or services “primarily for personal, family or household use.” Nor have they cited any case law which runs contrary to the position that the UTPCPL does not apply to a transaction between two commercial entities, but rather to consumer transactions only.

In accordance with the relevant case law interpreting similar situations, Count II of the Counterclaim is dismissed for failure to state a claim. Therefore, the court will not address any of Ferra’s remaining arguments in support of the dismissal of said claim.

C. Counts III and IV: Negligent Misrepresentation and Fraud (on behalf of B&T Express only)
Ferra argues Counts III and IV of the counterclaim brought by B&T Express should be dismissed on several grounds, including, inter alia, Federal Rule of Civil Procedure 12(b)(6) and Rule 9.

Under Pennsylvania law, a common law negligent misrepresentation claim has four elements: “(1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.” Smith v. Lincoln Ben. Life Co., 395 Fed. Appx. 821, 824 (3d Cir.2010), citing Bilt–Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270, 277 (2005).

The elements of a common law fraud claim (intentional misrepresentation claim) in Pennsylvania are (1) a misrepresentation, (2) material to a transaction, (3) made falsely, (4) intending to mislead another to rely on it, (5) so justifiable reliance resulted, and (6) reliance proximately caused injury. Kyko Glob., Inc. v. Prithvi Info. Sols. Ltd., 2020 WL 1159439, at *22 (W.D. Pa. Mar. 10, 2020) (citing Santana Prods. Inc. v. Bobrick Washroom Equip., Inc., 401 F.3d 123, 136 (3d Cir. 2005)).

Under Federal Rule of Civil Procedure 9(b), “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This pleadings standard applies to Plaintiff’s fraudulent misrepresentation and negligent misrepresentation claims. See Travelers Indem. Co. v. Cephalon, Inc., 620 Fed. Appx. 82, 85 n. 3 (3d Cir.2015) (nonprecedential) (explaining that where a plaintiff’s negligent misrepresentation claim “alleg[es] fraudulent activity,” it too “must be pled with sufficient particularity under Rule 9(b)”); Petruska v. Gannon Univ., 462 F.3d 294, 310 (3d Cir.2006) (explaining that a state law fraudulent misrepresentation claim must be pled with particularity under Rule 9(b)).

To satisfy Rule 9(b)’s pleading requirements, a plaintiff must “plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007). “The purpose of Rule 9(b) is to provide a defendant with notice of the precise misconduct with which he or she is charged and to prevent false or unsubstantiated charges.” Schmidt v. Ford Motor Co., 972 F.Supp.2d 712, 720 (E.D. Pa.2013) (quoting Cooper v. Broadspire Servs., Inc., No. 04–5289, 2005 WL 1712390, at *5 (E.D. Pa. July 20, 2005)); see also Travelers, 620 Fed. Appx. at 85–86 (explaining that Rule 9(b)’s particularity is required “to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior”).

*6 Ferra notes that these counterclaims allege B&T “made inquiries of government entities to retrieve the tractor and trailer, as well as the load. B&T was told that it was not permitted to retrieve the tractor, trailer, or load because local law enforcement was conducting an investigation into the accident.” (ECF No. 36 at 24) (emphasis added). Plaintiff argues: 1) there is no allegation B&T spoke with representatives of Ferra or complained about the charges until shortly before the complaint was filed; 2) in the absence of any payment or tender of payment there is no claim; and 3) a dispute over an unpaid bill does not constitute fraud. Defendant B&T has alleged in its counterclaims that there in a false statement on the invoice (attached to the FAC) as to where the tractor, trailer and cargo were in fact stored. The invoice states charges were incurred for “storage inside” at a rate of $250 per day, for 365 days, for a total of $91,250.00. (ECF No. 33-1). Defendants have alleged that “[t]hrough the invoice…and other statements and actions, Ferra made representations regarding the nature, amount and value of the services it provided, those representations were false and known by Ferra to be false at the time they were made, and were made by Ferra with the intent that the misrepresentations would be relied upon by B&T Express.” (Counterclaim ¶¶ 33, 36). B&T alleges “[u]pon information and belief, Ferra did not, in fact, store the tractor and trailer inside. The invoice was false, and the amount claimed to be owed was inaccurate.” (Counterclaim ¶ 13) (emphasis added).

B&T has failed to inject precision or some measure of substantiation into these fraud allegations. It simply alleges “[t]hrough the invoice…and other statements and actions, Ferra made representations regarding the nature, amount and value of the services it provided…” We find that under the heightened pleading standard for actions sounding in fraud, B&T has failed to provide notice of any precise misconduct, and accordingly, the motion to dismiss Counts III and IV will be granted.3 In addition, under the standard enunciated in Twombly/Iqbal, B&T has failed to state a claim as to these counts because it simply alleges a formulaic recitation of the elements of its causes of action. Factual allegations must be enough to raise a right to relief above the speculative level and sufficient to state a claim for relief that is plausible on its face. B&T states “upon information and belief” and based upon “other statements and actions” Ferra did not in fact store the tractor and trailer inside. B&T has failed to allege any justifiable reliance, and no damages have been suffered, as no payment of the claim has been made. These allegations fail to state a claim and border on the spurious.

Accordingly, the motion to dismiss will be granted with respect to Counts III and IV.

D. Count V: Good Faith and Fair Dealing (B&T, ATT and Traficanti)
Next, Plaintiff argues that the counterclaim for breach of good faith and fair dealing should be dismissed. Defendants alleges:
Ferra has breached its duty of good faith and fair dealing by misrepresenting the nature, amount, and value of the services it has allegedly provided to B&T Express, ATT Trucking, and Traficanti Trucking, and Ferra further has wrongfully demanded to be compensated based upon those misrepresentations and has refused to release the tractor, trailer, and load until such time as B&T Express, ATT Trucking, and Traficanti Trucking pay Ferra the full amount that Ferra improperly claims to be owed.

(Counterclaim ¶ 42).
Ferra argues that absent a counterclaim for breach of contract, Defendants cannot proceed with an additional cause of action for breach of good faith and fair dealing. “In order to plead a cause of action for breach of the covenant of good faith, whether it is an express or implied covenant, a plaintiff must properly plead the elements of a claim of breach of contract.” CRS Auto Parts, Inc. v. Nat’l Grange Mut. Ins. Co., 645 F. Supp. 2d 354, 369 (E.D. Pa. 2009). “Notably, a claim for breach of a covenant of good faith and fair dealing may not be maintained as an independent cause of action separate from the breach of contract claim.” Id. (citation omitted). A breach of the covenant of good faith and fair dealing merges with a breach-of-contract claim. Tubman v. USAA Cas. Ins. Co., 943 F. Supp. 2d 525, 529 (E.D. Pa. 2013) (collecting cases).

*7 Defendants have not pleaded a counterclaim for breach of contract, and, indeed, when the Counterclaim is read in its entirety, it is clear Defendants allege there was no contract between themselves and Ferra. However, Ferra has alleged it is a third-party beneficiary and thus a contractual relationship exists between it and B&T/Traficanti. The Counterclaim alleges that Ferra breached its duty by misrepresenting the nature, amount, and value of services it has provided to Defendants. The motion to dismiss will be denied as to Count V.

E. Lack of Capacity to Sue
Plaintiff argues that because BTE and Joy Global are not registered under the Pennsylvania Association code, they may not maintain an action or proceeding in Pennsylvania, citing 15 Pa. C.S. 411(b). The statute provides:
(a) Registration required.–Except as provided in section 401 (relating to application of chapter) or subsection (g), a foreign filing association or foreign limited liability partnership may not do business in this Commonwealth until it registers with the department under this chapter.

(b) Penalty for failure to register.–A foreign filing association or foreign limited liability partnership doing business in this Commonwealth may not maintain an action or proceeding in this Commonwealth unless it is registered to do business under this chapter. The Committee Comment to 15 Pa. C.S. § 411 provides that “Subsection (b) does not prevent a foreign association that has failed to register from ‘defending’ an action or proceeding. …A nonregistered foreign association may interpose any defense or permissive or mandatory counterclaim to defeat a claimed recovery, but may not obtain an affirmative judgment based on the counterclaim unless it has registered. Accordingly, the Motion to dismiss on these grounds is denied.

F. Motion to Strike / Motion for More Definite Statement

Ferra also has moved to strike two of the affirmative defenses pleaded by defendants in their Answer to Ferra’s Complaint. Fed. R. Civ. P. 12(f) provides that the court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The first affirmative defense Ferra challenges is failure to join an indispensable party. (Counterclaim at ¶ 14). The second is the defense that Defendants may rely upon such other affirmative defenses as may become available or apparent during the course of discovery. At this stage of the litigation, it does not appear that the motion to strike has merit. The granting of such a motion is rare, as noted in the case cited by the Defendants, Wilson v. Am. Gen. Fin., Inc., 807 F.Supp.2d 291, 305 (W.D. Pa. 2011). Moreover, contrary to Ferra’s argument, the heightened Twombly/Iqbal standard is not applicable to the pleading of affirmative defenses under Rule 8(c) which simply requires that party responding to a pleading must “affirmatively state any avoidance or affirmative defense.” FED. R. CIV. P. 8(c); Newborn Bros. Co., Inc. v. Albion Engineering Co., 299 F.R.D. 90, 97 (D. N.J. 2014). Accordingly, Ferra’s motion to strike is denied.

Ferra has also included in its Motion to Dismiss a motion for more definite statement pursuant to Federal Rule of Civil Procedure 12(e), which often serves as a corollary to pleading standards under Rule 8(a). Rule 8(a) provides that a complaint must include “a short and plain statement of the grounds for the court’s jurisdiction[;]…the claim showing that the pleader is entitled to relief; and…a demand for the relief sought, which may include…different types of relief.” Fed. R. Civ. Pro. 8(a). Where the complaint is lacking in this regard:
*8 A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.
12 Fed. R. Civ. Pro. 12(e). A motion for a more definite statement is not a substitute for the discovery process, and such motions are not favored. Dolbin v. Tony’s LLC, No. 3:19-CV-1662, 2020 WL 5505664, at *11–12 (M.D. Pa. Aug. 13, 2020), report and recommendation adopted, No. 3:19-CV-1662, 2020 WL 5506433 (M.D. Pa. Sept. 11, 2020) (citing Wheeler v. United States Postal Service, 120 F.R.D. 487, 488 (M.D. Pa. 1987). They are typically only granted where pleadings are “unintelligible or if it is virtually impossible for the opposing party to craft a responsive pleading.” Id. Here, the Counterclaim is not unintelligible or ambiguous so as to preclude Ferra from filing a response, and accordingly, the motion for a more definite statement is denied.

G. Leave to Amend
“When a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend within a set period of time, unless amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). It would be futile and inequitable to allow Defendants to amend the claims which have been dismissed, having been afforded an opportunity to Amend their Answer, Affirmative Defenses and Counterclaim on a prior occasion. Therefore, leave to amend will not be granted

IV. Conclusion
For the forgoing reasons, the Motion to Dismiss is granted as to Counts II, III, and IV, but denied as to Counts I and V. The motions to strike and for a more definite statement are denied.

An appropriate Order of Court will follow.
Date: November 7, 2020 /s/ Robert J. Colville

Robert J. Colville

United States District Judge
cc/ecf: All counsel of record

All Citations
Slip Copy, 2020 WL 6545999

Footnotes

1
The lawsuit brought by decedent’s estate against the driver and other entities is currently pending before the undersigned. See Wilkoski v. B&T Express, et al., C.A. 18-1359.

2
Counterclaim-Plaintiffs further request this Court award them attorneys’ fees, interests and costs at Count II. (Counterclaim at ¶ 23), and Ferra seeks to dismiss a claim for attorneys’ fees at Count II. Defendants have not directly addressed this issue, and we defer ruling on this issue at this time, pending a decision on the merits.

3
Accordingly, we need not address the argument that the counterclaims are precluded by the gist of the action doctrine or the economic loss doctrine.

Ferra Automotive Services, Inc v. Certain Underwriters at Lloyds

2020 WL 6546000

United States District Court, W.D. Pennsylvania.
FERRA AUTOMOTIVE SERVICES, INC., Plaintiff,
v.
CERTAIN UNDERWRITERS AT LLOYD’S LONDON – SYNDICATE #2001 AML also known as LLOYD’S LONDON and CERTAIN UNDERWRITERS AT LLOYD’S LONDON, Defendants.
2:20-cv-00712-RJC
|
11/07/2020

Robert J. Colville, United States District Judge

MEMORANDUM OPINION
*1 Robert J. Colville, United States District Judge.

Before the Court is a Motion to Dismiss (ECF No. 9) filed on behalf of Defendant Certain Underwriters at Lloyd’s, London – Syndicate #2001 AML a/k/a Lloyd’s London and Certain Underwriters at Lloyd’s, London (collectively “Underwriters”) in which it argues the Complaint filed by Plaintiff Ferra Automotive Service, Inc. (“Ferra”) should be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, the motion will be granted.

I. Procedural History and Factual Allegations
Ferra filed the Complaint on May 15, 2020. (ECF No. 1) (“Compl.”). This action arises out of an accident on December 6, 2017, along Route 28 southbound, near Fox Chapel/O’Hara Township, Pennsylvania, when a tractor trailer collided with the rear end of a passenger vehicle, killing the the operator of the passenger vehicle.1 (Compl. at ¶ 22). Ferra is engaged in the towing, recovery, removal, damage clean up, and storage industry in Allegheny County, Pennsylvania. (Compl. at ¶ 7). Ferra alleges that B&T and/or ATT were the registered owner of the tractor. (Compl. at ¶ 15). Arther T. Wells, an employee of B&T, operated the tractor and trailer on the date of the accident. (Compl. at ¶ 20). B&T, Traficanti and/or OMCO were the owner of the trailer (Compl. at ¶ 10). Joy Global owned the loaded metal shafts, rods and bars on the trailer. (Compl. at ¶ 21). ATT, B&T, Traficanti and OMCO owned and maintained care, custody and control of the tractor and trailer. (Compl. at ¶ 21).

Ferra alleges that Underwriters “issued policies (certificates) of insurance with respect to the trucking industry and to insure the interest of various entities, including and without limitation B&T Express, Inc.” (Compl. ¶ 8.) These policies provide recovery to the policyholders in the event of loss or damage to the cargo and vehicles.

After the collision, officials of the Pennsylvania State Police notified Ferra about the accident and directed Ferra to go to the location to address the emergency hazardous situation. (Compl. at ¶ 22). Under the oversight and direction of the Pennsylvania State Police, Ferra employees cleared the scene, removed the vehicles and debris, removed the tractor, trailer and cargo for storage at its facility, and awaited direction regarding their disposition. (Compl. at ¶¶ 23, 24). Ferra was advised by the Pennsylvania State Police that the tractor, trailer, and cargo had been impounded and that Ferra should retain possession thereof, pending further investigation of the event by the Pennsylvania State Police and others. (Compl. at ¶ 25). Criminal charges were brought against the driver; these charges were recently dismissed, and are now on appeal before the Pennsylvania Superior Court.

Nearly a year and half passed after the impoundment. Ferra was notified on May 17, 2019 it was authorized to release the vehicle and cargo from the impoundment directive earlier ordered by the Pennsylvania State Police and the District Attorney of Allegheny County. (Compl. at ¶ 28). Ferra notified Defendants Traficanti and Joy Global of the balance due for the towing, recovery removal, cleanup, and storage due to Ferra as payment for the services it provided. (Compl. at ¶ 28). Ferra has yet to be paid and seeks compensation, and has filed suit in Ferra Automotive Services, Inc. v. B&T Express, Inc., et al., at 2: 19-cv-1533-RJC, alleging that pursuant to 75 Pa. C.S. § 3757 “entities charged with removal of vehicles and cargo shall have the unqualified right to be compensated for their service.” (Compl. ¶ 66). As of April 23, 2020, Ferra is owed the sum of $228,475 for the towing, recovery, removal, and cleanup of the accident scene and storage with interest thereon at the rate of six percent from December 6, 2017 together with additional storage charges at a rate of $250 per day from and after October 24, 2019. (Compl. ¶ 69).

*2 Ferra alleges that it requested and received copies of certain insurance policies that Ferra asserts are related to the tractor and trailer, and from those it identified Underwriters as the insurer. (Compl. ¶¶ 31-37.) Ferra’s Complaint pleads two causes of action. At Count I, Ferra alleges it is a third-party beneficiary of the insurance policies and thus is entitled to payment of the balance owed for the towing, recovery, removal and clean up of the accident scene together with storage costs. (Compl. ¶¶ 59, 61). At Count II Ferra alleges “quasi-contract/unjust enrichment,” citing to 75 Pa. C.S. § 3757 (e.g., Compl. ¶¶ 66-67). While Ferra alleges that other entities are the owners of the tractor, trailer, or cargo, Ferra alleges that pursuant to policy certificates and as a result of the collision, “Underwriters automatically obtained a property interest/ownership interest in the tractor, trailer, and cargo.” (Compl. ¶ 65.)

Underwriters has moved to dismiss both Counts.

II. Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. “A claim has factual 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully….Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

The United States Court of Appeals for the Third Circuit instructs that “a court reviewing the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr, Corp., 809 F.3d 780 (3d Cir. 2016). The court explained:
First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. See also Burtch v. Milberg Comp.tors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). 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.” Iqbal, 556 U.S. at 679.
809 F.3d at 876-77. “Determining whether a complaint states a plausible claim for relief will…be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted)

*3 While a District Court is generally limited to a plaintiff’s complaint in assessing a motion to dismiss, when a document is “integral to or explicitly relied upon in the complaint [, it] may be considered without converting the motion [to dismiss] into one for summary judgment.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997) (internal quotations omitted).

III. Discussion
Underwriters argues that the Complaint fails to state a claim as follows. First, as to Count I, Underwriters argues that as an insurer for B&T Express, Inc., it is not an “owner” of the tractor, trailer, or the cargo, and hence, under 75 Pa. C.S. § 3757, the statute on which Ferra relies, Ferra may not seek compensation. Second, Underwriters argues Ferra cannot recover under the policy because it is not a third-party beneficiary and lacks privity with Underwriters, and thus, Count II should be dismissed.

A. Count I: Third Party Beneficiary Breach of Contract
In Count I Ferra alleges rights under the insurance contract as a third-party beneficiary. To state a claim for breach of contract, a plaintiff must establish: 1) the existence of a contract, including its essential terms; 2) a breach of a duty imposed by the contract; and 3) resultant damages. Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003). Generally, to bring a claim for breach of contract, the plaintiff must be a party to the agreement. Electron Energy Corp. v. Short, 408 Pa. Super. 563, 597 A.2d 175, 177 (1991). An exception to this general rule grants intended third-party beneficiaries standing to pursue a breach of contract claim. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744, 751 (1983).

For a third-party beneficiary to recover on a contract, “both contracting parties must have expressed an intention that the third-party be a beneficiary, and that intention must have affirmatively appeared in the contract itself.” Scarpitti v. Weborg, 530 Pa. 366, 609 A.2d 147, 149 (1992). In Scarpitti, however, the court also explained that if the intention is not expressly stated in the contract, a party may still be considered a third-party beneficiary if:
[T]he circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
Scarpitti, 609 A.2d at 150–51 (citations omitted) (emphasis added).

“In interpreting an insurance policy, a court must ascertain the intent of the parties as manifested by the language of the written agreement.” Stevens Painton Corp. v. First State Ins. Co., 746 A.2d 649, 657 (Pa. Super. Ct. 2000). “The words of the instrument must be construed in their natural, plain, and ordinary sense,” and if the “policy language is clear and unambiguous, the court must give effect to the language of the contract.” Id.

Ferra alleges Underwriters “obtained a property interest/ownership interest in the tractor, trailer, and cargo.” (Compl. ¶ 65). The Pennsylvania Motor Vehicle Code, under which Ferra seeks compensation in the related lawsuit, provides:
Notwithstanding any other law or regulation, any entity incurring the cost of removing a vehicle or cargo at an accident scene if the removal is authorized by a police officer shall have the unqualified right to compensation for the cost of removal and cargo storage and cleanup from the owner of:
*4 (1) A vehicle removed.
(2) A vehicle, the cargo of which was removed in whole or in part.

(3) The cargo removed. 75 Pa. Cons. Stat. Ann. § 3757(a). The statute defines an “Owner”:
“Owner.” A person, other than a lienholder, having the property right in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person,but excludes a lessee under a lease not intended as security.
When necessary, courts look to see who in fact possesses attributes commonly associated with ownership: use, benefit, possession, control, responsibility for, and disposition of the automobile. Automobile Ins. Co. of Hartford, Conn. v. Curran, 994 F. Supp. 324, 330 (E.D. Pa.1998). Underwriters does not fit within the statutory or case law definition of the “owner” of the property at issue.

Here, it is clear that under the facts as alleged, and viewing them in a light favorable to Plaintiff, and under the plain terms of the applicable statute, Underwriters is not the owner of the tractor, trailer or cargo. Indeed to hold otherwise would contradict Plaintiff’s simultaneous allegations that other entities are the owner(s) of the tractor, trailer and cargo. (Compl. ¶¶ 11, 14, 16). The fact that its policy contains a provision which gives Underwriters the option to pay the salvage value on vehicles (in the event the insured fails to take steps to safeguard the property — does not render it an “owner.” Ferra has not cited to any case which has held otherwise.

We have reviewed the contract of insurance and policies as provided by Ferra, which were attached to its Complaint. Absent an expressed intention that Ferra is a third-party beneficiary, which we find has not been expressed in the contract, Ferra may not recover from Underwriters. Butcher v. Gen. Motors Co., No. 2:14-CV-00353, 2015 WL 867797, at *5 (W.D. Pa. Feb. 27, 2015), (citing, inter alia, Johnson v. Beam, 541 Pa. 449, 664 A.2d 96, 101 n. 3 (Pa. 1995) (explaining that the insurer’s “duty to act in good faith in the investigation, negotiation, and settlement of the claim runs only to [the insured]”). Here, the policy provisions relied upon by Ferra, list the insured as B&T Express, and other entities as “additional named insureds.” It does not name Ferra, and expressly states that no benefits are conferred on the bailee. Nothing in the insurance policy suggests that Underwriters and B&T intended for Ferra to benefit under the cited provision(s) of the policy. There is no privity between Ferra and Underwriters, and therefore, this claim fails to state a claim upon which relief can be granted and the motion to dismiss will be granted in this regard. See Ruger v. QBE Ins. Corp., No. 3226 EDA 2011, 2013 WL 11266161 (Pa. Super. Ct. Apr. 12, 2013).

B. Count II: Quasi-Contract/Unjust Enrichment
To state a claim under Pennsylvania law for quasi-contracts, a claim for unjust enrichment requires allegations of the following elements: (1) a benefit conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Limbach Co. LLC v. City of Philadelphia, 905 A.2d 567, 575 (Pa. Cmwlth. 2006) (citation omitted). “To sustain a claim of unjust enrichment, a claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that it would be unconscionable for her to retain.” Torchia v. Torchia, 346 Pa. Super. 229, 499 A.2d 581, 582 (1985). “The polestar of the unjust enrichment inquiry is whether the defendant has been unjustly enriched; the intent of the parties is irrelevant.” Limbach v. City of Phila., 905 A.2d 567, 577 (Pa. Commw.2006). “In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied.” Samuels v. Hendricks, 300 Pa. Super. 11, 445 A.2d 1273, 1275 (1982) (emphasis in original), quoting Meehan v. Cheltenham Twp., 410 Pa. 446, 189 A.2d 593, 595 (1963). Plaintiff has not sufficiently alleged facts to support this claim; any benefit to Underwriters is attenuated at best, and there is nothing unconscionable or unjust in permitting what benefit Underwriters may have received to be retained without compensation by Underwriters. Ferra has brought suit in another action pursuant to the Pennsylvania Motor Vehicle Code against the alleged owners of the impounded properties. Underwriters is not obligated in equity to make payment for the charges incurred by Ferra, and we cannot ignore the fact that Underwriters does not own the impounded properties.

*5 Ferra has failed to state a claim for unjust enrichment, and therefore, the Motion to Dismiss Count II will be granted.

C. Leave to Amend
“When a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend within a set period of time, unless amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). It would be futile and inequitable to allow Ferra to amend the claims which have been dismissed. Therefore, leave to amend will not be granted.

IV. Conclusion
For the forgoing reasons, the Motion to Dismiss is granted, and the Complaint will be dismissed in its entirety with prejudice.

An appropriate Order of Court will follow.

Date: November 7, 2020 /s/ Robert J. Colville

Robert J. Colville

United States District Judge
cc/ecf: All counsel of record

All Citations
Slip Copy, 2020 WL 6546000

Footnotes

1
The lawsuit brought by decedent’s estate against the driver and other entities is currently pending before the undersigned. See Wilkoski v. B&T Express, et al., C.A. 18-1359.

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