The opinion of the court was delivered by: Robert F. Kelly, District Judge.
This action arises put of an agreement pursuant to which
Plaintiff Constar, Inc. ("Constar") rented 100,000 square feet
of space in the warehouse of Defendant National Distributions
Center, Inc. ("NDC") for storage of pallets of empty bottles
which Constar manufactured for sale to various beverage
producers. Constar's Complaint asserts claims for negligence,
warehouseman's liability, bailment, and breach of contract in
connection with this agreement. NDC filed a Motion to
Dismiss, which was denied by Order dated December 23, 1999. On
December 30, 1999, NDC filed an Answer with counterclaims of
fraud, negligent misrepresentation, negligence, promissory
estoppel and unjust enrichment. Constar then filed the present
Motion to Dismiss NDC's counterclaims for failure to state a
claim upon which relief could be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6) on January 19, 2000.*fn1 For
the reasons that follow, the Motion is granted in part and
denied in part.
In support of its counterclaims, NDC states the following
facts. Constar, which operates out of Charlotte, North Carolina,
manufactures plastic bottles which beverage manufacturers use to
bottle their products. NDC operates warehouses throughout the
United States. In February, 1999, Constar requested that NDC
provide warehouse facilities and services to Constar in
Charlotte, North Carolina. Constar indicated that it needed
approximately 100,000 square feet in which to store its
products. Constar allegedly stated that it needed this warehouse
space on an emergency basis. The parties entered into an
agreement, whereby Constar would pay $.038 per square foot per
month with a minimum monthly charge of $38,000 for 100,000
square feet, plus $3.50 handling rate per pallet, plus certain
labor rates based upon a 7 day/20 hour per week coverage.
NDC claims it built a warehouse in Charlotte, North Carolina
in order to accommodate Constar, which Constar allegedly
inspected and approved as acceptable to house its goods. Constar
allegedly insisted that NDC begin to store its pallets of
bottles on the first day of Constar's lease, despite the fact
that Constar knew it normally takes four to six weeks to prepare
a warehouse to receive goods. NDC claims it asked Constar to
wait four to six weeks, but Constar refused.
NDC claims that Constar withheld material information from NDC
regarding Constar's improper packaging of its pallets, which
made the pallets easy to damage. Specifically, NDC claims that
Constar failed to tell it that its shrink wrap machine was
defective, that its employees were improperly shrink-wrapping
the pallets, that its employees were applying improper tension
on the packing straps, and that Constar's own warehouse
contained many damaged pallets caused by Constar. NDC claims
Constar was aware of all of these alleged facts.
Moreover, NDC claims that Constar intended to ship pallets to
NDC with approximately 350 different SKU's ("stock keeping
units") of different brands of labels of plastic bottles, but
did not intend to pay for the extra 50,000 square feet of space
needed to properly handle these different SKU's. NDC also claims
that Constar knew that the number of pallets it was shipping to
NDC could not be handled on a 20 hour/7 day per week basis, as
provided in the contract.
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the sufficiency of the pleading.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957); Johnsrud v. Carter, 620 F.2d 29, 32 (3d Cir. 1980).
A court must determine whether the party making the claim would
be entitled to relief under any set of facts which could be
established in support of the claim. Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59
(1984). "When deciding a 12(b)(6) motion to dismiss, the
counterclaims must be read in a light most favorable to the
counter-claimant, and all of the factual allegations must be
taken as true." Government Guarantee Fund of the Republic of
Finland v. Hyatt Corp., 955 F. Supp. 441, 449 (Vi. 1997) (citing
Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988); Fleming
v. Lind-Waldock & Co., 922 F.2d 20, 23 (1st Cir. 1990)).
However, "legal conclusions, deductions or opinions couched as
factual allegations are not given a presumption of
Constar correctly argues that NDC's negligence claim is barred
by the economic loss doctrine. This doctrine prohibits recovery
in tort for economic losses to which the party's entitlement
"flows only from a contract." Factory Mkt., Inc. v. Schuller
Intern., Inc., 987 F. Supp. 387, 395 (E.D.Pa. 1997) (quoting
Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604,
618 (3d Cir. 1995)). "The rationale of the economic loss rule is
that tort law is not intended to compensate parties for losses
suffered as a result of a breach of duties assumed only by
agreement." Id. (quoting Palco Linings, Inc. v. Pavex, Inc.,
755 F. Supp. 1269, 1271 (M.D.Pa. 1990)). Compensation for losses
suffered because of a breach of an agreement requires an
analysis of which damages were within the contemplation of the
parties when the agreement was made. Id. at 396 (quoting
Auger v. Stouffer Corp., No. Civ.A. 93-2529, 1993 WL 364622,
at *3 (E.D.Pa. Aug. 31, 1993)). This sort of analysis is "within
the sole purview of contract law." Id. Rather, "[i]n order to
show negligence, `there must be a showing of harm above and
beyond disappointed expectations evolving solely from a prior
agreement.'" Id. (quoting Sun Co. v. Badger Design and
Constructors, Inc., 939 F. Supp. 365, 371 (E.D.Pa. 1996)).
Accordingly, the economic loss doctrine permits recovery in
negligence only for damage to property or injury to person.
State Farm Mut. Auto. Ins. Co. v. HHS Assocs., Inc., No.
Civ.A. 93-5943, 1995 WL 739703, at *3 (E.D.Pa. Dec. 1, 1995)
(citing Lower Lake Dock Co. v. Messinger Bearing Corp.,
395 Pa.Super. 456, 577 A.2d 631, 634 (1990)).
In the instant case, NDC alleges that it is asserting "losses
it incurred because of Constar's negligence in preparing the
pallets — labor, materials, and storage space NDC was forced to
expend." (Def.'s Br. at 15; Counterclaims ¶¶ 75-84). Nowhere in
its Answer or response to this Motion does NDC claim "damage" to
any person or property. Rather, NDC admits that it seeks
recovery for "losses" for unexpectedly expended services and
materials. These are losses ...