of ERISA, yet not have discretionary authority over all aspects of a plan. That is the case here, they argue.
We find that Plaintiffs have adequately pleaded that Equitable is a fiduciary in at least some areas, so as to bring a claim for breach of fiduciary duty against it under 29 U.S.C. § 1132(a)(3). This ruling is not inconsistent with our earlier ruling that Plaintiffs have adequately pleaded that Equitable is not a fiduciary in certain other areas, (supra § A) given the rulings in Luby and Hardtke.
Second, Equitable argues that Count Seven is only an incorporation by reference paragraph, and as such, it does not provide fair notice of the claim asserted therein, or what fiduciary duties Equitable allegedly breached. Plaintiffs do not directly address this argument in their responsive brief. Nonetheless, we find that Count Seven, by incorporating by reference the other paragraphs in the Amended Complaint, gives Equitable sufficient notice of the claims against it. 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1215-18 (1990). For these reasons, we deny this portion of Equitable's Motion to Dismiss.
D. COUNTS FIVE AND EIGHT
Count Five is an equitable estoppel claim by the Arbers against Equitable. This count was in the original complaint, and we ruled that it stated a claim upon which relief could be granted in our April 4, 1994 Opinion. Count Eight is a claim for breach of contract by Omni against Equitable. This count has appeared in all versions of the complaint, and this is the third time Equitable has asked us to dismiss this Count.
We ruled in our April 4, 1994 Opinion that the breach of contract claim would not be dismissed. In our December 12, 1994 Opinion, we ruled that Equitable's arguments must be in the nature of a motion to reconsider, since we had already ruled on the claim. We found no reason to reconsider that decision. In this motion, Equitable makes the same arguments to dismiss both counts it has made before.
We refer the parties to our December 12, 1994 Opinion, pages four and five, for a discussion of the standard in making a motion to reconsider. Based on that standard, Equitable has made no showing that we should reconsider our earlier decisions, and therefore, we do not. For all these reasons, we deny this portion of Defendant's motion.
E. COUNT NINE
Count Nine is a claim for unjust enrichment by Omni against Equitable. Equitable makes two arguments why this claim must be dismissed. First, it argues that in Pennsylvania, there can be no claim for unjust enrichment when the relationship between the parties is founded upon a written or otherwise express agreement. Benefit Trust Life Ins. Co. v. Union Nat'l Bank, 776 F.2d 1174, 1177 (3d Cir. 1985); McClellan Realty v. Institutional Invs. Trust, 714 F. Supp. 733, 739 (M.D. Pa. 1988) (citing Schott v. Westinghouse Elec. Corp., 436 Pa. 279, 259 A.2d 443 (1969)), aff'd, 879 F.2d 858 (3d Cir. 1989). Second, it argues that Omni cannot show that Equitable has been unjustly enriched because Equitable returned all the premium money that Omni paid to it.
Omni does not directly rebut Equitable's first argument, except to assert that this claim is brought as an alternative in the event this Court rules that there is no contract, or that Equitable was not a party to the contract. Although this appears to be an unlikely result, we cannot rule it out at this point of the litigation and will not dismiss the count based on Equitable's first argument.
As to Equitable's second argument, Omni points out that it is not asserting that Equitable was unjustly enriched by retention of Omni's premiums, but by not having to pay for the Arbers' medical expenses. This argument has some support in Kendal, and therefore, there is arguably a state of facts that Omni could prove that would entitle it to relief. 771 F. Supp. at 685. For these reasons, we deny this final portion of Defendant's Motion to Dismiss.
An appropriate Order follows.
AND NOW, this 19th day of June, 1995, upon consideration of Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint and responses thereto, the Motion is hereby DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.