United States District Court, W.D. Pennsylvania
October 12, 2005.
PHILIP SELDON d/b/a BEST DEAL MAGAZINES and BIRDDOG ASSOCIATES, Plaintiff,
DIRECT RESPONSE TECHNOLOGIES, INC. et al., Defendants.
The opinion of the court was delivered by: THOMAS HARDIMAN, District Judge
Plaintiff Philip Seldon (Seldon) filed this action against
Direct Response Technologies, Inc. (DRT) and its CEO, Jason Wolfe
(Wolfe), alleging false claims, defamation, tortious interference
with business, assault and battery. Defendants DRT and Wolfe
filed a motion to dismiss. For the reasons that follow, the Court
will grant the motion to dismiss as to Count I (false claims) and
Counts VI through XI (malicious interference with business
advantage). However, the Court will deny the motion as to Counts
II through V (defamation) and Count XII (assault and battery).
The Court notes initially that Seldon is representing himself
in this case. Because plaintiff is "unskilled in the law, we must
view his pleading and the applicable procedure liberally." Moore
v. Coats Co., 270 F.2d 410, 411 (3d Cir. 1959) (citing Picking
v. Pennsylvania R. Co., 151 F.2d 240, 244 (3d Cir. 1945)). "On
the other hand, a judge may not become a surrogate attorney for the party, even one who is
proceeding pro se." Taylor v. Diznoff, 633 F.Supp. 640, 641
(W.D. Pa. 1986) (quoting Mazur v. Pa. Dept. of Transp.,
507 F. Supp. 3, 4 (E.D. Pa. 1980), aff'd 649 F.2d 860 (3d Cir. 1981)).
Rule 12(b)(6) motions challenge the legal sufficiency of the
complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.
1993). Plaintiff is required to "set forth sufficient information
to outline the elements of his claim or to permit inferences to
be drawn that these elements exist." Id. "A motion to dismiss
pursuant to Rule 12(b)(6) may be granted only if, accepting all
well pleaded allegations in the complaint as true, and viewing
them in the light most favorable to plaintiff, plaintiff is not
entitled to relief.'" In re Rockefeller Center Properties Inc.,
311 F.3d 198 (3d Cir. 2002). While a court will accept
well-pleaded allegations as true for the purposes of the motion,
it will not accept legal or unsupported conclusions, unwarranted
inferences, or sweeping legal conclusions cast in the form of
factual allegations. See In re Burlington Coat Factory Sec.
Lit., 114 F.3d 1410, 1429 (3d Cir. 1997); Miree v. DeKalb
County, Ga., 433 U.S. 25, 27 n. 2 (1977).
Accepting as true all well-pleaded facts, Seldon has
sufficiently alleged a claim for defamation. He claims that
Defendants published factual material about the him that is
untrue, third parties read the material and understood it to be
defamatory, and he suffered specific damages to his business
because of those statements. Similarly, Seldon has alleged facts
which, if true, constitute a claim for assault and battery.
Specifically, Seldon alleges an unwelcome and intentional
touching by Wolfe that resulted in an injury.
On the other hand, Seldon has failed to state a claim upon
which relief can be granted in Count I and Counts VI through XI.
In Count I, Seldon alleges that Defendants "are engaged in the deceptive acts and practices of making false claims about
their operations including false advertising and false
representations in violation of Pennsylvania law." Second Amended
Complaint at 4. The Court is aware of no law in Pennsylvania
under which such an allegation of "false claims" would fall and
thus Count I fails to state a cognizable claim.
In Counts VI through XI, Seldon claims that Defendants
tortuously and maliciously interfered with his business. "To set
forth a viable cause of action for tortious interference with
contract under Pennsylvania law, plaintiffs must plead the
following elements: (1) the existence of a contractual, or
prospective contractual relation between the complainant and a
third party; (2) purposeful action on the part of the defendant,
specifically intended to harm the existing relation, or to
prevent a prospective relation from occurring; (3) the absence of
privilege or justification on the part of the defendant; and (4)
the occasioning of actual legal damage as a result of the
defendant's conduct." Remick v. Manfredy 238 F.3d 248, 263 (3d
Cir. 2001). Seldon has failed to allege any specific third party
with whom he had an existing or prospective contractual relation.
In addition, he has failed to allege facts that would demonstrate
an intent on the part of the Defendants to harm or prevent any
such relation. Thus, Counts VI through XI fail to state a claim
for which relief can be granted.
Accordingly, it is hereby ORDERED that Defendants' Motion to
Dismiss (Document No. 18) is GRANTED as to Count I and Counts VI
through XI and DENIED as to Counts II through V and Count XII.
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