property interest in the settlement proceeds, the "gist of action" test and
the "economic loss" doctrine does not bar Berger from proceeding on both a
breach of contract and conversion claim.
Moreover, even if the "gist of action" test and "economic loss
doctrine" were to bar Berger from proceeding simultaneously on breach of
contract and conversion claims, Berger can still plead both claims as
alternative theories of liability against Scott. Indeed, Federal Rule of
Civil Procedure 8(d)(2) states,
"A party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one count or defense or in
separate counts or defenses. When two or more statements are made in the
alternative and one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of one or more
of the alternative statements. A party may also state as many separate
claims or defenses as the party has regardless of consistency and whether
based on legal, equitable, or maritime grounds." Fed.R.Civ.P. 8(d)(2).
Therefore, as Federal Rule of Civil Procedure 8(d)(2) allows Berger to
plead two or more alternative claims against Scott for either breach of
contract or conversion, regardless of their consistency, and whether
based on legal, equitable or other grounds, Defendant's motion to dismiss
the claim for conversion must, at this juncture, be denied. Fed.R.Civ.P.
In Count III of its Complaint, Berger requests an accounting of Scott's
legal fees and costs associated with the clients' case, as well as a
complete accounting of the Fund. Plaintiff agrees that it can not
maintain an equitable accounting of Scott's legal fees and costs because
it has adequate remedies at law for breach of contract and conversion.
However, under Haft v. United States Steel Corp., 346 Pa. Super. 404,
499 A.2d 676 (Pa. 1985), Berger can maintain a claim for a legal
accounting. As discussed in Haft, to meet the requirements for a legal
accounting, Berger must show that,
"(1) there was a valid contract, express or implied between the parties
whereby the defendant received monies as agent, trustee or in any other
capacity whereby the relationship created by the contract imposed a legal
obligation upon the defendant to account to the plaintiff for the monies
received by the defendant, or
(b) if the relationship created by the contract between the plaintiff and
defendant created a legal duty upon the defendant to account and the
defendant failed to account and the plaintiff is unable, by reason of the
defendant's failure to account, to state the exact amount due him, and
(2) that the defendant breached or was in dereliction of his duty under
the contract." Haft, at v. United States Steel Crop., 346 Pa. Super. 404,
499 A.2d 676 (Pa. 1985); Daikuzono v. Surgical Laser Technologies,
No. CIV.A. 96-0833, 1997 WL 52023 at *4 (E.D.Pa. February 3, 1997).
In this case, the Complaint avers that (1) Scott was responsible under
the parties' agreement for the collection and distribution of monies
received from the clients; and (2) Scott's subsequent failure to provide
Berger with a full accounting of its costs and fees, constituted a breach
of its duty under the Agreement. We find that the allegations
sufficiently plead a claim for a legal accounting under Haft. For this
reason, we shall also deny the Defendant's motion to dismiss the
Plaintiff's claim for an accounting.
For all of the foregoing reasons, we will deny Scott's partial motion
Counts II and III of the Complaint. An appropriate Order follows.
AND NOW, this day of July, 2001, upon consideration of Defendant's
Motion to Dismiss the Complaint for Failure to State a Claim Upon
Which Relief May Be Granted, and Plaintiff's response thereto, it
is hereby ORDERED that the Motion is DENIED.
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