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PRICE v. BLYTH EASTMAN PAINE WEBBER

December 12, 1983

LEONARD E. PRICE, Plaintiff
v.
BLYTH EASTMAN PAINE WEBBER, INCORPORATED, Defendant



The opinion of the court was delivered by: MANSMANN

 This matter is before the Court on a Motion to Dismiss filed by Defendant Blyth Eastman Paine Webber, Incorporated ("Blyth Eastman"). Plaintiff Leonard E. Price brought this action as a result of the alleged breach of a financing agreement by Blyth Eastman. For the reasons set forth below, we hereby deny Defendant's Motion in part and grant it in part.

 * * *

 Factual Background

 In 1981, Plaintiff approached the Medical Center of Beaver County (the "Center") for the purpose of purchasing certain property from the Center for use as a nursing home. Plaintiff and the Center negotiated the material provisions of a sales agreement but Plaintiff needed the approval of the Health Systems Agency ("HSA") in order to operate the proposed nursing home. To obtain HSA's approval, Plaintiff had to procure financing for the project that was satisfactory to HSA. Therefore, Plaintiff contacted Defendant to determine if Defendant would underwrite a bond issue for Plaintiff's nursing home project, thereby enabling Plaintiff to obtain the financing necessary for HSA approval.

 By letter dated October 27, 1981, Defendant offered to underwrite a bond issue for the project. The pertinent part of the letter states:

 
This letter shall serve as a binding agreement upon both parties hereto if accepted and returned to the investment banker within 10 business days from the date of this letter. Failure to act within the 10 day period shall render this letter null and void.

 See Exh. A to Complaint.

 According to Plaintiff, he complied with the terms of the letter, returning the letter within the prescribed ten-day period after signing and dating it.

 Plaintiff thereupon engaged the services of an accountant, an architect and a builder, incurring these expenses as well as other expenses in preparation for the project. According to Plaintiff, he had also reached "substantial agreement" with the Center regarding the terms of the sales agreement for the property so that the only major obstacle remaining was the financing.

 In February 1982, Blyth Eastman informed Plaintiff that it would not underwrite the bond issue for the project.

 According to Plaintiff, he then tried to obtain alternative financing for the nursing home project in time to purchase the property from the Center but was unsuccessful. He therefore had to abandon the project.

 Plaintiff brought the present action in the Court of Common Pleas of Allegheny County, alleging breach of contract (count I) and intentional infliction of mental distress (count II). Plaintiff seeks lost profits under count I and seeks compensatory and punitive damages under count II.

 Defendant subsequently removed the case to federal court and filed the Motion now before us pursuant to Fed.R.Civ.P. 12(b)(6).

 * * *

 On a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim, the burden lies with the moving party. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Because such a motion results in a determination on the merits at an early stage of plaintiff's case, the plaintiff is afforded the safeguard of having all of its allegations taken as true and having all inferences ...


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