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October 8, 1999


The opinion of the court was delivered by: Joyner, District Judge.


By way of the motion which is now before us, the Defendant Motorcycle Safety Foundation moves to partially dismiss the Plaintiff's Amended Complaint. For the reasons which follow, the motion shall be granted.


This case arises out of a written contract between the Pennsylvania, Department of Transportation ("PennDot") and the Motorcycle Safety Foundation ("MSF"), a private corporation, pursuant to which MSF would conduct and oversee a Motorcycle Safety Program for PennDot. Mr. Halstead contends that his name, personal qualifications and resume were used by MSF as part of the bid which MSF submitted to obtain the PennDot contract. Specifically, MSF's bid represented that Mr. Halstead's qualifications would be the minimum qualification for the position of State Coordinator and that the position of State Coordinator would be offered to Mr. Halstead first and only offered to another candidate if plaintiff refused to accept the job offer.

According to the Amended Complaint, despite these representations, MSF did not offer him the position of State Coordinator for the Motorcycle Safety Program. Plaintiff alleges that he was not offered the coordinator position because of an interview which he gave to a publication known as the Citizen's Voice on August 13, 1998 and because he informed Defendants that MSF's Proposal Project Director, Roberta Carlson, the former State Coordinator for the Pennsylvania Motorcycle Safety Program when it was being overseen by Millersville University, was inappropriately using insider information gathered while she was a Millersville employee for the benefit of MSF.

Based upon these factual allegations, Plaintiff instituted this suit seeking damages for breach of contract, invasion of privacy, defamation, tortious interference with third party and prospective contractual relations, punitive damages and for violations of his civil rights under 42 U.S.C. § 1983 and the Pennsylvania Whistleblower Law, 43 P.S. 1421, et. seq. Through this motion, MSF seeks to dismiss Counts I (breach of contract), IV (Section 1983), XI (Whistleblower Law) and XII (punitive damages) of the Amended Complaint with prejudice.

Standards Governing Motions to Dismiss

The rules governing the pleading of cases in the district courts are clear. Under Fed.R.Civ.P.8(a),

  "A pleading which sets forth a claim for relief,
  whether an original claim, counterclaim, cross-claim,
  or third-party claim, shall contain (1) a short and
  plain statement of the grounds upon which the court's
  jurisdiction depends, unless the court already has
  jurisdiction and the claim needs no new grounds of
  jurisdiction to support it, (2) a short and plain
  statement of the claim showing that the pleader is
  entitled to relief, and (3) a demand for judgment for
  the relief the pleader seeks. Relief in the
  alternative or of several different types may be

It is equally clear that the issue of the sufficiency of a pleading may be raised by the filing of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) or through a motion for a more definite statement under Rule 12(e). In resolving a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In so doing, the court must accept as true the facts alleged in the complaint, together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F. Supp. 1141 (E.D.Pa. 1991). The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3rd Cir. 1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985).


A. Plaintiff's Claim for Breach of Contract.

The Motorcycle Safety Foundation first argues that Plaintiff has failed to state a claim against it for breach of contract since it did not have an express contract with Plaintiff, an implied contract cannot be established as a matter of law and the plaintiff is not a third-party beneficiary of the agreement between MSF and PennDot.

It is hornbook law that to make out a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of a contract to which the plaintiff and defendant were parties; (2) the essential terms of the contract; (3) a breach of the duty imposed by the contract and (4) that damages resulted from the breach. Electron Energy Corp. v. Short, 408 Pa. Super. 563, 597 A.2d 175 (1991), aff'd, 533 Pa. 66, 618 A.2d 395 (1993); General State Authority v. Coleman Cable & Wire Co., 27 Pa.Cmwlth. 385, 365 A.2d 1347 (1976). To be sure, an express contract is formed when the terms of an agreement are declared by the parties. Department of Environmental Resources v. Winn, 142 ...

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