because Mr. Opp was absent on vacation, and breached his fiduciary obligations by failing repeatedly to execute plaintiff's sell-orders promptly. Moreover, it is clear that negotiations were being conducted with the Disney Company. The only specific announcement about these negotiations which plaintiff points to as false and fraudulent (a prediction that a contract would soon be signed) did not occur until March 1994, and was promptly followed by disclosure that the negotiations had fallen through.
I need not pursue these anomalies in plaintiff's contentions to any firm conclusion, because (1) the securities laws do not give rise to any action for damages predicated upon retention of securities, only their purchase or sale, see: Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 737 - 738, 44 L. Ed. 2d 539, 95 S. Ct. 1917 (1975) (2) all claims predicated upon plaintiff's purchases of Quality Products shares are time-barred; (3) Plaintiff has not identified any misrepresentation of fact upon which he relied in purchasing or selling securities.
These observations are equally applicable to plaintiff's claims under the federal statute (count I) and under the Pennsylvania Securities Act (counts II & III). Plaintiff's claims for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201 et.seq. (count IV of the complaint) must be dismissed because that statute is inapplicable to purchases of securities. The RICO count (count VI) must be dismissed because no separate enterprise is alleged or established. Plaintiff's claims for fraud and deceit (count V) and for punitive damages (count VII) fall with the securities act claims. And finally, plaintiff's claims for negligence (count VIII) must fail because only economic loss is alleged. Getty Refining and Marketing Company v. MT FADI B 766 F.2d 829, 833 (3d Cir. 1985); Aikens v. B & O Railroad Company, 348 Pa. Super. 17, 501 A.2d 277, 279 (Pa.Sup.1985).
The motion of Quality Products Inc. for summary judgment will be granted. I recognize that plaintiff has filed a motion to compel further discovery, and for sanctions for defendant's alleged failure to comply adequately with discovery requirements. I have carefully reviewed these materials, and conclude (1) that the defendant has adequately responded to all reasonable discovery requests, and that its objections are valid; and (2) more important, that the additional documentation sought by plaintiff is, at best, peripheral to this litigation, and would not give rise to any material factual dispute affecting the basis upon which, in my view, defendant is plainly entitled to summary judgment.
AND NOW, this 3rd day of October, 1996, it is ORDERED:
1) As to the defendant Robin Opp, this action is DISMISSED, WITHOUT PREJUDICE to plaintiff's right to pursue his claims in arbitration.
2) The motion of defendant Quality Products Inc. for summary judgment is GRANTED, and judgment is entered in favor of the defendant Quality Products and against the plaintiff Howard S. Klein.
3) All other pending motions are DISMISSED AS MOOT.
John P. Fullam, Sr.J.
© 1992-2004 VersusLaw Inc.