A.2d 434 (1988), the court stated that "the provisions of [the UIPA] were not intended to confer a right of private action." Id. at 279, 539 A.2d at 438 (brackets added). In view of the statute's plain meaning and the case law interpreting its language, we find that the UIPA does not afford a private cause of action. We also reject plaintiff's attempt to distinguish prior cases because they involved insureds rather than another insurance company. Accordingly, we will dismiss Count III of the complaint, plaintiff's claim for relief under this provision.
D. Sufficiency of Claim for Intentional Interference with Contractual Relations
Defendants next challenge the sufficiency of plaintiff's claim for interference with contractual relations. Citing Birl v. Philadelphia Elec. Co., 402 Pa. 297, 167 A.2d 472 (1960), defendants contend that the complaint fails: 1) to set forth any specific acts which allegedly interfered with plaintiff's contractual relationships; or 2) to allege that the destructive acts were "unprivileged." Initially, we note that our interpretation of the sufficiency of the complaint is governed by federal law and not state rules of pleading. See Breslin v. Vornado, Inc., 559 F. Supp. 187 (E.D. Pa. 1983).
With respect to defendants' first contention, we conclude that the complaint sufficiently identifies those acts which are alleged to have interfered with plaintiff's contractual relations. The complaint alleges that the individual defendants and their respective employers are unlawfully attempting to induce plaintiff's policyholders to replace their current policies with those offered by defendants. In furtherance of these efforts, defendant employers are alleged to have unlawfully utilized plaintiff's customer and renewal lists. Moreover, the individual defendants have allegedly misrepresented plaintiff's financial status in order to induce its policyholders to terminate their relationship with plaintiff. Such allegations are sufficient.
With respect to the second contention, defendants' reliance on Birl is misplaced. In Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), appeal dismissed and cert. denied, 442 U.S. 907, 99 S. Ct. 2817, 61 L. Ed. 2d 272 (1979), the Pennsylvania Supreme Court analyzed a claim for intentional interference with the performance of a contract under section 766 of the Restatement (Second) of Torts. Under section 766, the focus is upon whether the conduct which allegedly caused the interference is "proper," not "privileged." Thus, plaintiff need only allege that the conduct was improper, not unprivileged. We have no difficulty concluding that defendants' alleged conduct, if true, may have been improper. Plaintiff's claim survives a motion to dismiss and plaintiff may proceed on this count of the complaint.
E. Sufficiency of Claim for Misappropriation of Trade Secrets
The corporate defendants contend that the complaint fails to state a cause of action against them for misappropriating trade secrets because the complaint only alleges that the individual defendants misappropriated the trade secrets. We believe that the complaint adequately establishes the agency of the individual defendants on behalf of the corporate defendants in this regard, see Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 499 A.2d 282 (1985), and this claim will not be dismissed.
F. Sufficiency of Claim for Intentional and Wrongful Conduct
Defendants contend that Pennsylvania would not recognize plaintiff's cause of action for intentional and wrongful conduct. In light of Smith v. Griffiths, 327 Pa. Super. 418, 476 A.2d 22 (1984), we will permit the plaintiff to proceed, at least at this stage of the proceedings, on this claim.
G. Sufficiency of Claim for Breach of Fiduciary Duty
The defendants assert that plaintiff's claim for breach of fiduciary duty in Count VII should be dismissed because no such cause of action exists in Pennsylvania and that, in any event, the corporate defendants owed no fiduciary duty to plaintiff. Contrary to defendants' assertion, Pennsylvania does recognize a cause of action for breach of fiduciary duty, see Levin v. Garfinkle, 499 F. Supp. 1344 (E.D. Pa. 1980), aff'd without opinion, 642 F.2d 442 and 445 (3d Cir. 1981) (table), which we believe plaintiff can assert in these circumstances. See Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987); Phoenix Mutual Life Insurance Co. v. McLean, 263 F. Supp. 246 (E.D. Pa. 1967). The difficulty arises because Count VII asserts that the individual defendants alone owed a fiduciary duty to plaintiff, while the prayer for relief at the end of the complaint seeks relief against all the defendants on this count. The count is therefore insufficient because it does not set forth any statement of a claim against the corporate defendants upon which liability can be based. Plaintiff's brief argues that the agents' breach of fiduciary duty can be imputed to the corporate defendants, but a brief cannot be used to cure deficiencies in a complaint. See Pepsico, supra. To the extent that the plaintiff is arguing that the corporate defendants can be found vicariously liable for the agents' breach of fiduciary duty, rather than arguing that the breach can be imputed directly to the corporations, we agree that a valid claim can be stated. See B. J. McAdams, Inc. v. Boggs, 439 F. Supp. 738 (E. D. Pa. 1977). But the count as stated must be dismissed. Plaintiff, however, is given leave to amend to make the necessary allegations.
H. Sufficiency of Claim for Defamation
Defendants challenge plaintiff's asserted claim for defamation on several grounds. Principally, defendants argue that the claim for defamation must be dismissed because the complaint neither alleges special damages nor identifies the persons to whom the alleged statements were made. The corporate defendants additionally argue for dismissal of the defamation claim on the ground that the complaint ascribes none of the alleged defamatory statements to them.
Pennsylvania law defines a publication as defamatory "if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating and dealing with him." Baker v. Lafayette College, 350 Pa. Super. 68, 504 A.2d 247, 251 (1986), aff'd, 516 Pa. 291, 532 A.2d 399 (1987). Under Pennsylvania law, if slanderous words are actionable per se, then special damages need not be alleged. Rannels v. S.E. Nichols, Inc., 591 F.2d 242 (3d Cir. 1979). Slanderous words injurious to one's business or profession are actionable per se. Fram v. Yellow Cab Co., 380 F. Supp. 1314 (W.D. Pa. 1974). In the instant case, defendants are alleged to have said that plaintiff and United Republic are "no longer in business," and that "their policies are no longer any good." (Complaint, para. 22). Such information could be said to be injurious to plaintiff's business and, therefore, actionable per se.
See Sarkees v. Warner-West Corp., 349 Pa. 365, 37 A.2d 544 (1944); Metropolis Bending Co. v. Brandwen, 8 F.R.D. 296 (M.D. Pa. 1948). Accordingly, plaintiffs need not allege special damages in this case.
The complaint sufficiently identifies the persons to whom the alleged defamatory statements were made. The complaint clearly states that the statements were allegedly made to policyholders of plaintiff. In view of the federal pleading requirements, such an identification is legally sufficient. Defendants' reliance upon Itri v. Lewis, 281 Pa. Super. 521, 422 A.2d 591 (1980) and Gross v. United Engineers and Constructors, Inc., 224 Pa. Super. 233, 302 A.2d 370 (1973) is misplaced because those cases dealt with pleading requirements under state law.
Finally, the complaint alleges that the individual defendants made the defamatory statements while in the employ of the defendant insurance agencies and in conspiracy with the insurance companies. Thus, plaintiff has properly sought recovery against all defendants. Accordingly, we decline to dismiss plaintiff's claim for defamation.
I. Attorney's Fees and Damages
With respect to plaintiff's request for attorney's fees and damages, we note preliminarily that the McCarran-Ferguson Act contains no provisions for either attorney's fees or damages. Thus, to the extent that the complaint seeks either of these items under this provision, it is dismissed. With respect to the antitrust claim, because it is being dismissed, we will dismiss the claim for attorney's fees predicated upon it, recognizing, however, that if plaintiff successfully amends the antitrust claim, the request for attorney's fees may be reinstated.
For a similar reason the treble damage claim will be dismissed since it can only be based upon a violation of the Sherman Act, there being no right of recovery for treble damages under the McCarran-Ferguson Act, and not even a cause of action under the UTPCPL as discussed above. Of course, if the antitrust claim is resurrected, treble damages could be sought.
Defendants contend that plaintiff is not entitled to punitive damages because the complaint fails to allege conduct rising to a level of outrageousness, bad motive or reckless indifference. Defendants rely on McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436 (1987), for the proposition that "punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment." Id. at 623, 533 A.2d at 447. Defendants' assertion that the complaint merely alleges ordinary negligence, however, is clearly incorrect. The complaint sets forth numerous intentional actions which were allegedly designed to destroy plaintiff's business and position as a competitor. Certainly such allegations rise above "ordinary negligence" and into the realm of outrageousness necessary for an award of punitive damages. Defendants' motion to dismiss the claim for punitive damages is denied.
An appropriate order shall be entered.
ORDER December 7, 1988, Filed
AND NOW, this 7th day of December, 1988, upon consideration of defendants' various motions to dismiss, to strike, and for judgment on the pleadings, it is ordered that:
1. Counts II and III are dismissed without leave to amend.
2. Counts I and VII are dismissed but plaintiff is hereby granted twenty (20) days from the date of this order to file an amended complaint reasserting these counts in conformity with the accompanying memorandum.