were defective, NDC was forced to remove Constar's
shrink-wrapping, and rewrap the pallets by hand. NDC claims it
repaired other damaged pallets as well. Although Constar
allegedly gave NDC instructions for repairing these damaged
pallets, Constar refused to pay for any of these efforts. NDC
also claims that Constar failed to correct its drivers who were
not following their established schedules in picking up pallets
from the warehouse. Accordingly, NDC claims that Constar
wrongfully attempts to blame NDC for damage to pallets for which
Constar is responsible.
II. STANDARD OF REVIEW.
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 properly recovered in contract, and
which therefore fit
squarely within the bar imposed by the economic loss
C. Promissory Estoppel and Unjust Enrichment.
A cause of action under promissory estoppel arises when a
party relies to his detriment on the intentional or negligent
representations of another party, so that in order to prevent
the relying party from being harmed, the inducing party is
estopped from showing that the facts are not as the relying
party understood them to be. Thomas v. E.B. Jermyn Lodge No.
2, 693 A.2d 974, 977 (Pa.Super. 1997) (citing Rinehimer v.
Luzerne County Community College, 372 Pa.Super. 480,
539 A.2d 1298, 1306 (1988), app. denied, 521 Pa. 606, 555 A.2d 116
(1988)). Promissory estoppel is applied to enforce a promise
which is not supported by consideration, in other words, where
there is no binding contract. Carlson v. Arnot-Ogden Mem'l.
Hosp., 918 F.2d 411, 416 (3d Cir. 1990) (holding promissory
estoppel is unwarranted in light of court's finding that parties
formed an enforceable contract)*fn3; Rho v. Vanguard OB/GYN
Assocs., P.C., No. Civ.A.98-167, 1999 WL 228993, at *6 (E.D.Pa.
Apr. 15, 1999) (when parties have formed an enforceable
contract, relief under promissory estoppel claim is
unwarranted); Edelen & Boyer Co. v. Kawasaki Loaders, Inc.,
No. Civ.A. 92-1990, 1993 WL 147289, at *2 (E.D.Pa. May 5, 1993)
(promissory estoppel has no application where parties have
entered into agreement); Bethlehem Steel Corp. v. Litton
Indus., Inc., 507 Pa. 88, 488 A.2d 581, 593 (1985) (promissory
estoppel applies only where there is no binding contract). NDC
admits that the parties entered into an express contract, and
does not claim that it is unenforceable. Indeed, NDC seeks to
enforce the contract.*fn4 As such, this claim fails.
Moreover, NDC has failed to assert that Constar made the
requisite promise under the theory of promissory estoppel. NDC
can point to no express promise, but rather relies upon the
alleged fact that Constar, by providing employees to direct NDC
on the repair of damaged pallets, "promised to accept
responsibility for the labor and materials NDC expended on that
repair and in following Constar's directions." (Def.'s Br. at
25). At best,
this is, presumably, an attempt to assert an implied promise.
This argument fails. An implied promise is insufficient to
support a claim for promissory estoppel. Armstrong World
Industries v. Robert Levin Carpet Co., No. Civ.A. 98-CV-5884,
1999 WL 387329, at *6 (E.D.Pa. May 20, 1999) ("Because
`promissory estoppel would [otherwise] be rendered meaningless,'
one, to maintain a claim for promissory estoppel, must establish
an express promise, and not merely an implied one") (quoting C
& K Petroleum Prods., Inc., v. Equibank, 839 F.2d 188, 192 (3d
Cir. 1988)); Nabisco Inc., v. Ellison, No. Civ.A. 94-1722,
1994 WL 622136, at *7 (E.D.Pa. Nov. 8, 1994) (plaintiff could
not maintain claims upon implied promise it inferred from
defendant's silence and conduct). See also Schleig v.
Communications Satellite Corp., 698 F. Supp. 1241, 1249 (M.D.Pa.
1988) (reliance based solely upon subjective expectations and
not upon any clear promise by defendants was unjustified). This
claim is therefore dismissed.
NDC's claim for unjust enrichment is also defeated by the
existence of the contract between the parties. "Under
Pennsylvania law, `the quasi-contractual doctrine of unjust
enrichment is inapplicable when the relationship is founded on a
written agreement or express contract.'" Armstrong, 1999 WL
387329, at *6 (quoting Hershey Foods Corp. v. Ralph Chapek,
Inc., 828 F.2d 989, 999 (3d Cir. 1987)). "[W]here an express
contract governs the relationship of the parties, a party's
recovery is limited to the measure provided in the express
contract; and where the contract `fixes the value of the
services involved,' there can be no recovery under a quantum
meruit theory." Id. (citations omitted); see also Emtec Inc.,
v. Condor Tech. Solutions, Inc., No. Civ.A. 97-6652, 1998 WL
834097, at *2-3 (E.D.Pa. Nov. 30, 1998) (plaintiff denied leave
to amend complaint to include unjust enrichment claim because
parties' relationship was based on express written contract);
Boyer Co., 1993 WL 147289, at *2 ("Unjust enrichment is
inapplicable when the relationship is controlled by a written
agreement or express contract.")*fn5 Accordingly, this claim
is also dismissed.
C. Remaining Claims.
Viewing all of NDC's allegations as true, we find that NDC has
adequately pled its claims for breach of contract, fraud,
intentional and negligent misrepresentation. Therefore,
Constar's Motion is denied as to these claims.
An appropriate Order follows.
AND NOW, this 23rd day of June, 2000, upon consideration of
Plaintiffs Motion to Dismiss Defendant's Counterclaims, and
Defendant's Response thereto, it is hereby ORDERED that the
Motion is GRANTED in part and DENIED in part as follows:
(1) Defendant's counterclaim for promissory estoppel is
(2) Defendant's counterclaim for unjust enrichment is
(3) Defendant's other counterclaims remain.