Protection Act, and is not relevant to the case at bar.
Because Leo's complaint does not cite any specific section or sections of the Consumer Protection Act as forming the basis of its claim under that statute, it is difficult for the court to determine precisely which (if any) ambiguities Leo seeks to resolve by reference to the UIPA. The relevant provision of the Act, 73 Pa. Cons. Stat. Ann. § 201-2(4)(i) - (xvii), lists some seventeen types of conduct that are actionable as "unfair methods of competition" or as "unfair and deceptive trade practices." A brief review of the Act reveals two sections on which Leo may intend to rely. One is the Act's provision on misrepresentation, which states in relevant part that "representing that goods or services have . . . characteristics . . . that they do not have" is a violation of the Act. 73 Pa. Cons. Stat. Ann. § 201-2(4)(v). Leo's claims would appear to be within this section, if they are read as assertions that State Farm's insistence on sworn statements and medical examinations amounted to a representation to her that her claim was of little value. Alternately, it is possible that Leo could intend to invoke the Act's residual clause, which refers to "engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding." Leo will, at a later stage of this case, be required to identify the ambiguities in the Consumer Protection Act that would justify reference to the UIPA. For the present, however, the citation to the UIPA in Leo's complaint will be allowed to stand to the extent that it invokes the UIPA as an aid to the interpretation of the Consumer Protection Act.
III. Leo's Common-Law Bad Faith Claims
Home Insurance's motion to dismiss also challenges those aspects of Leo's complaint that seek to assert a distinct common-law claim based on bad-faith conduct. The Pennsylvania Supreme Court found, in D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966, 970 (1981), that there was no distinct common-law cause of action predicated upon bad faith conduct by an insurer. See also Kramer v. State Farm Fire & Casualty Insurance Co., 412 Pa. Super. 227, 603 A.2d 192, 194 (Pa. Super. 1992) (following this holding, but noting that common-law actions for fraud and deceit would still be available). In a footnote, however, the D'Ambrosio Court noted that damages for emotional distress may be recoverable in contract in cases in which, for example, 'the breach is of such a kind that serious emotional disturbance was a particularly likely result.'" D'Ambrosio, 431 A.2d at 970 n.5 (quoting Restatement (Second) of Contracts § 367 (Tent. Draft No. 14, March 1, 1979), now Restatement (Second) of Contracts § 353). Leo asserts that this footnote permits her to make a common-law bad-faith claim.
This court is not aware of any instance in which the courts of Pennsylvania have upheld a claim made under this theory. Indeed, one court, in declining to do so, found that the Pennsylvania Supreme Court's narrow reading of section 353 of the Restatement (Second) of Contracts would suggest that "circumstances must indeed be compelling" in order to permit any such claim. See Rodgers v. Nationwide Mutual Insurance Co., 344 Pa. Super. 311, 496 A.2d 811, 816 (Pa.Super. 1985) (citing Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974, 980 (1982)).
It remains possible that bad-faith failure to pay an insurance claim might meet the standard of section 353 in some circumstances. For instance, if an insured's ability to secure the basic necessities of life were foreseeably very likely to hinge upon receiving a payment under an insurance contract, "serious emotional disturbance" might well be a "particularly likely result" of failure to pay a claim. Cf. Brooks v. Hickman, 570 F. Supp. 619, 620 (W.D.Pa. 1983) (implying that section 353 of the Restatement (Second) of Contracts might permit recovery of damages for mental distress when "personal bankruptcy or impoverishment" was at risk). In the present case, however, before the plaintiff's difficulties in collecting on her insurance policy began, she received a payment of $ 50,000 from the defendant under the insurance policy of the other motorist. This amount was considerably in excess of the amount of uncompensated wage losses and medical bills she alleges, $ 14,381.74. Because it appears that no immediate financial crisis was foreseeable as a result of State Farm's alleged conduct, Leo cannot sustain a claim under D'Ambrosio's footnote 5.
Accordingly, I find that to the extent that Counts IV and V of the complaint seek to assert common-law claims of bad faith by State Farm, those claims should be dismissed. Counts IV and V may stand to the extent that they seek to assert other claims, such as common-law claims of fraud or deceit.
An appropriate order accompanies this opinion.
For the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. Defendant's motion to dismiss Count II of the complaint is DENIED.
2. Defendant's motion to dismiss Counts IV and V of the complaint to the extent that they state common-law claims based upon bad-faith conduct by an insurer is GRANTED.
Louis H. Pollak, J.
October 12, 1995