Pacific's first argument seeks dismissal of the fourth count only insofar as it alleges a violation of the Consumer Protection Act based upon a violation of the UIPA. The argument is grounded in the Superior Court of Pennsylvania's decision in Hardy v. Pennock Ins. Agency, Inc., 365 Pa. Super. 206, 529 A.2d 471 (1987). In Hardy, the court held that in light of the administrative remedies available under the UIPA, the court was without jurisdiction to hear cases in which violations of the UIPA had been alleged. Id. at 478. One year later, the court expanded on this notion, holding that the court lacked jurisdiction to hear cases in which a plaintiff indirectly alleged a violation of the UIPA. Gordon v. Pennsylvania Blue Shield, 378 Pa. Super. 256, 548 A.2d 600, 603 (1988). In Gordon, as in the instant case, the plaintiffs "indirectly claimed a violation of the [UIPA] by presenting the [UIPA] violation as the foundation for [their] direct claim, a violation of the [Consumer Protection Act]." Id. The court reasoned that since the determination as to whether the insurer had violated the Consumer Protection Act would require an inquiry into whether the insurer violated the UIPA, such a claim could not be entertained by the court. Id.
In opposing Pacific's motion, the Parascos cite the Superior Court's recent decision in Romano v. Nationwide Mut. Fire Ins. Co., 646 A.2d 1228, 1232 (Pa. Super. 1994) and argue that the enactment of Pennsylvania's Bad Faith Statute, 42 Pa. Cons. Stat. Ann. § 8371 (Supp. 1994), has had the effect of superseding the Hardy and Gordon decisions. In Romano, the Superior Court was confronted with the question of whether the standards articulated in the UIPA could be used to establish bad faith per se. The court concluded that while a trial court still "lacked the requisite jurisdiction to impose sanctions under the various provisions of the UIPA and insurance regulations," it could consider the conduct violating the UIPA to determine whether the Bad Faith Statute had been violated. Romano, 646 A.2d at 1233. The Parascos argue that the same principle should apply to causes of action based on the UIPA and brought under the Consumer Protection Act. We think it prudent not to take this step. First, the Parascos do not point to any authority to support the conclusion they urge. In addition, we note that the Romano court turned to the UIPA to resolve an ambiguity present in the Bad Faith Statute: the statute does not provide a definition of bad faith. By contrast, the Parascos do not argue that resort to the UIPA is warranted because of an ambiguity in the Consumer Protection Act. After a careful review of the Romano decision, we conclude that a nugget of the Gordon holding remains: a trial court may not inquire as to whether a defendant has acted in violation of the UIPA. See Romano, 646 A.2d at 1232 ("It is clear that the UIPA and the Department of Insurance Regulations can only be enforced by the State Insurance Commissioner and not by way of private action.").
The Parascos also point to Pekular v. Eich, 355 Pa. Super. 276, 513 A.2d 427 (1986), appeal denied, 516 Pa. 635, 533 A.2d 93 (1987), to argue that a UIPA inquiry is warranted. The Pekular court held that an insured could maintain a cause of action under the Consumer Protection Act even when the allegations in the complaint fell within the purview of the UIPA. Id. But unfortunately for the Parascos, Pekular has no direct applicability here. While the Pekular court held that the UIPA is not the only means by which an insured can obtain redress for the unfair practices of insurers, the instant case presents the situation in which the plaintiffs allege that Pacific has violated the Consumer Protection Act by violating the UIPA. Thus, the Parascos ask this Court to determine whether Pacific has violated the UIPA. On this point, Pennsylvania law is clear: courts may not inquire as to whether the latter act has been violated. Gordon, 548 A.2d at 603. As a result, to the extent that Count IV of the Parascos' complaint alleges a violation of the Consumer Protection Act by virtue of a UIPA violation, it must be dismissed.
In its second argument, Pacific seeks the dismissal of Count IV in its entirety, arguing that the Consumer Protection Act affords relief for actions that constitute "misfeasance," but not for activity that can be described as "nonfeasance." See Gordon, 548 A.2d at 604 ("Nonfeasance alone is not sufficient to raise a claim pursuant to the [Consumer Protection Act]."). Pacific contends that the alleged activity giving rise to the Consumer Protection Act claim is best characterized as "nonfeasance" and concludes that the Parascos have failed to state a claim under this act.
We find that Pacific's contention is without merit. The Gordon court explained the distinction by noting that misfeasance is "'an improper performance of a contracted obligation,'" while nonfeasance is "'the mere failure to perform.'" Id. (quoting Raab v. Keystone Ins. Co., 271 Pa. Super. 185, 412 A.2d 638, 639 (1979), appeal dismissed, 496 Pa. 414, 437 A.2d 941 (1981)). In the instant case, the Parascos' complaint contains allegations concerning Pacific's improper performance, including the allegation that the post-loss investigation was conducted in an unfair and nonobjective manner, as well as the contention that Pacific made misrepresentations concerning the nature of its contractual obligations. See Pekular, 513 A.2d at 433 (misrepresentations of insurer and agent fall within the purview of the Consumer Protection Act). Accordingly, Pacific's argument fails to convince this Court that the Parascos have failed to set forth a proper Consumer Protection Act Claim. Count IV will therefore be dismissed only to the extent that it alleges a Consumer Protection Act violation by virtue of a UIPA violation.
III. SUMMARY AND CONCLUSION
Because the Parascos have properly set forth a claim alleging a breach of the insurer's duty of utmost good faith and fair dealing, Pacific's motion to dismiss count II will be denied. Further, Count IV will be dismissed only to the extent that it asks this Court to determine whether Pacific has violated the Unfair Insurance Practices Act. An appropriate order follows.
AND NOW, this day of December, 1994, upon consideration of the Defendant's Motion to Dismiss Counts II and IV of the Complaint, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that the Defendant's Motion is GRANTED only to the extent that the Complaint alleges a Consumer Protection Act violation by virtue of a violation of the Unfair Insurance Practices Act. In all other respects, the Defendant's Motion is DENIED.
BY THE COURT:
J. Curtis Joyner, J.