accompanying order sets forth the requirements for doing so.
VI. The Exemplary Damages Claims
We turn now to defendants' claims for exemplary damages, which plaintiff has included in all counts of the complaint. As we have previously noted, Counts I, IV, and V are based on breach of contract, and it has long been the general rule in Pennsylvania that exemplary, or punitive damages are not recoverable for breach of contract because "the motive for breaching a contract is not important and . . . the recovery would be restricted to the damages caused by the breach itself." Mellon Bank, N.A. v. Aetna Business Credit Inc., 500 F. Supp. 1312, 1321 (W.D.Pa.1980), citing Pittsburgh C. & St. L. Railway Co., 123 Pa. 140, 150, 16 A. 607 (1888), wherein the court held that the measure of damages would be the same regardless of whether the breach was through inability or willful refusal to perform. See also Culbreth v. Simone, 511 F. Supp. 906, 915 (E.D.Pa.1981). In accordance with applicable law, therefore, the exemplary damages claims in Counts I, IV, and V are dismissed.
Plaintiff has also claimed exemplary damages in the malpractice (Counts II and VI) and emotional distress (Counts III and VII) claims. Defendants have moved to dismiss on the basis that the conduct of the defendants/attorneys in the present action could not support an award of punitive damages. They have pointed to Medvecz v. Choi, 569 F.2d 1221 (3d Cir.1977), a medical malpractice action, as authority that "mere negligence" is not sufficient to warrant such damages.
A reading of Medvecz, however, convinces us that these damages ought not to be dismissed from the present case at this time. Pennsylvania has adopted the Restatement (Second) of Torts § 908, which sets forth a punitive damages standard of "outrageous conduct" or "acts done with a bad motive or with a reckless indifference to the interests of others." The Medvecz court provides a thorough survey of the law and points out that the Restatement makes no exception for medical malpractice cases with regard to punitive damages. Moreover, it discusses several cases from other jurisdictions in which the "reckless indifference" standard has been applied.
More recently, in Berroyer v. Hertz, 672 F.2d 334 (3d Cir. 1982), another medical malpractice case, a dentist successfully appealed a sizable punitive damages award when the court found insufficient support for submission of an exemplary damages interrogatory to the jury. Because the determination on whether to submit consideration of such damages to the jury is for the court, see e.g., Focht v. Rabada, 217 Pa.Super. 35, 38, 268 A.2d 157, 159 (1970), we cannot now determine this matter. At the time of trial, Counts II, III, VI, and VII will be re-examined in this regard, but at the present time, defendants' motions to dismiss the exemplary damages claims therein must be denied.
VII. The Treble Damages Claims
All seven counts of plaintiff's complaint set forth treble damages claims. These claims must be dismissed in that there is no statutory authority therefor. It is true that in certain instances treble damages may be assessed under Pennsylvania law. See, e.g., 32 P.S. § 512 (conversion of logs adrift in named rivers); 68 P.S. § 250.311 (tenants' unlawful removal of personal property distrained upon by landlord for rent). However, the cases addressing such damages hold that express authorization by statute is mandatory for such recovery. See, e.g., Goldberg v. Friedrich, 279 Pa. 572, 124 A. 186 (1924); Hughes v. Stevens, 36 Pa. 320 (1860). Plaintiff has cited no statutory basis for his claims and our research has disclosed none. Therefore, these claims are dismissed.
AND NOW, this 14th day of December, 1982, IT IS HEREBY ORDERED THAT:
1. Defendant Proctor's motions for an extension of time and to join in defendant Harris' motions to dismiss and for a more definite statement are granted.