true, plaintiff has stated a claim for fraud under Pennsylvania law.
Defendant next argues that count III should be dismissed because it does not satisfy the requirement of Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) requires that, "In all averments of fraud . . . the circumstances constituting fraud . . . shall be stated with particularity." This rule requires that a plaintiff plead sufficient facts so as to advise defendant of the claim, see Cottman Transmission Systems, Inc. v. Dubinsky, 95 F.R.D. 351 (E.D. Pa. 1982), and to give the defendant a fair opportunity to frame an answer and prepare a defense. See Summers v. Lukash, 562 F. Supp. 737 (E.D. Pa. 1983). In this case, plaintiff has alleged sufficient facts to meet the requirement of Rule 9(b).
Defendant's final argument does not specifically request a dismissal of count III but rather, addresses the damages plaintiff seeks to recover under count III. In count III, plaintiff requests the court to award both compensatory and punitive damages.
Defendant now seeks to prevent recovery of punitive damages.
The basis for defendant's argument that plaintiff is not entitled to punitive damages is the Pennsylvania Supreme Court decision in D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981). However, that decision cannot be read as precluding recovery of punitive damages in cases where, as here, fraud is a separate cause of action. In D'Ambrosio, the court refused to imply a cause of action seeking punitive damages and damages for emotional distress based on the alleged "bad faith" conduct of an insurer in denying a claim. Id. at 509, 431 A.2d at 970. See Smith v. Harleysville Insurance Co., 494 Pa. 515, 431 A.2d 974 (1981). The court reasoned that since Pennsylvania's Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, § 1 et seq., 40 P.S. § 1171.1 et seq. (Supp. 1982), provided sufficient means by which unfair insurance practices and "bad faith" conduct could be deterred, there was no need to supplement the Act with a new judicially created cause of action arising out of those same practices and which would allow punitive damages and damages for emotional distress.
D'Ambrosio at 508, 509, 431 A.2d at 970. This court determines that neither the Pennsylvania legislature nor the court in D'Ambrosio meant to preclude a common law fraud action, such as this one, and the possible punitive damages associated with such an action,
merely because an insurance policy is involved in the case.
Accordingly, plaintiff will not be barred from seeking punitive damages on his fraud claim.
For the foregoing reasons, defendant's motion to dismiss will be denied.
An appropriate Order will be entered.
AND NOW, TO WIT, this 6th day of April, 1984, for the reasons stated in the accompanying Memorandum, IT IS ORDERED that defendant's motion to dismiss count III of the complaint is denied.