The opinion of the court was delivered by: Joyner, District Judge.
This is a breach of contract action brought by the plaintiff,
Quorum Health Resources, Inc. ("Quorum") against the defendant,
Carbon-Schuylkill Community Hospital, Inc. t/a Miners Memorial
Medical Center ("MMMC"). Before the court is Quorum's Motion to
Dismiss MMMC's negligence, breach of fiduciary obligation, fraud
and breach of warranty counterclaims and requests for punitive
damages for failure to state a claim upon which relief can be
granted pursuant to Federal Rule 12(b)(6) of Civil Procedure. For
the following reasons, the motion will be granted as to the
negligence, fraud and breach of warranty counterclaims and will
be denied as to the breach of fiduciary obligation counterclaim
and the requests for punitive damages.
On June 11, 1998 Quorum filed a complaint alleging that MMMC
breached the Management Agreement ("Agreement") entered into by
Quorum and MMMC on February 27, 1996. On September 11, 1998 MMMC
answered the complaint and brought counterclaims for negligence,
breach of fiduciary obligation, fraud, breach of warranty and
breach of contract. The action is governed by Pennsylvania law in
accordance with the express intention of the parties. See
(Agreement ¶ 23(e)).
I. Rule 12(b)(6) Standard
A claim may be dismissed pursuant to Rule 12(b)(6) only if "no
relief could be granted under any set of facts that could be
proved consistent" with the allegations of the claim. Hishon v.
King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81
L.Ed.2d 59 (1984). The court must accept all factual allegations
as true and draw all reasonable inferences from such allegations
in the light most favorable to the non-moving party. See Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.
1994); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.
1989). The court need not, however, credit bald assertions or
legal conclusions. See In re Burlington Coat Factory Securities
Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997) (citing
Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir.
1996)). On a motion to dismiss, the court may review only the
complaint, "matters of public record, orders, exhibits attached
to the complaint and items appearing in the record of the case."
Oshiver, 38 F.3d at 1384, n. 2; accord Pension Benefit Guar.
White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993), cert.
denied, 510 U.S. 1042, 114 S.Ct. 687, 126 L.Ed.2d 655 (1994).
II. The "Gist of the Action" Doctrine
Quorum argues that the "gist of the action" doctrine precludes
MMMC from bringing its counterclaims for negligence and breach of
fiduciary obligation because they sound in contract instead of
tort.*fn1 Several courts have determined that under Pennsylvania law
tort claims allegedly committed in the course of carrying out a
contractual agreement are dismissible if the "gist" of them sound
in contract instead of tort. See, e.g., Sunquest Information
Systems, Inc. v. Dean Witter Reynolds, Inc., No. Civ. A. 98-188J,
1999 WL 167091 at *4 (W.D.Pa. March 24, 1999); Factory Market,
Inc. v. Schuller Int'l, Inc., 987 F. Supp. 387, 394 (E.D.Pa.
1997); Wood & Locker, Inc. v. Doran & Assoc., 708 F. Supp. 684,
689 (W.D.Pa. 1989); Redevelopment Auth. of Cambria County v.
International Ins. Co., 454 Pa. Super. 374, 685 A.2d 581, 590
(1996) (en banc), alloc. denied, 548 Pa. 649, 695 A.2d 787
(1997); Phico Ins. Co. v. Presbyterian Medical Serv. Corp.,
444 Pa. Super. 221, 663 A.2d 753, 757 (1995). Such tort claims are
"maintainable only if the contract is `collateral' to conduct
that is primarily tortious." Sunquest, 1999 WL 167091 at *4.
Claims sound in contract if they arise from "the breach of duties
imposed by mutual consensus." Phico, 663 A.2d at 757. By
contrast, tort claims arise "from the breach of duties imposed as
a matter of social policy." Id.
MMMC's negligence counterclaim sounds in contract. MMMC's
attempt to characterize the claim as one alleging the breach of
a fiduciary duty independent of the Agreement does not comport
with the facts alleged in the claim. It states in pertinent part
that: "Quorum, thru its officers, agents, servants, and employees
was negligent and careless in the performance of its management
duties. . . ." (MMMC's Answer and Countercls. ¶ 30, at 12). The
claim fails to allege any additional or different facts than
those in the breach of contract counterclaim. The source of the
"management" duties is the Agreement. Therefore, the Agreement
was not collateral to the claim's allegations. MMMC's negligence
counterclaim will be dismissed.
The "gist" of the breach of fiduciary obligation counterclaim,
however, is unknown. Therefore, the court will decline to apply
the "gist of the action" doctrine to dismiss this counterclaim.
III. The Parol Evidence Rule
Quorum also moves to dismiss MMMC's counterclaims for fraud and
breach of warranty pursuant to the parol evidence rule because
they are based on pre-contractual representations and the
Agreement has an integration clause.*fn2 Under Pennsylvania law, the
parol evidence rule is stated as follows: