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Community Preschool & Nursery of East Liberty v. Tri-State Realty

September 6, 2009


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge



Before the Court is defendant Tri-State Reality, Inc.'s ("Tri-State") "Partial Motion to Dismiss" (Doc. No. 14) pursuant to Fed.R.Civ.P. 12(b)(6) and 12(f). After careful consideration of said motion and the briefs in support and in opposition thereto, the Court will grant in part and deny in part Tri-State's Partial Motion to Dismiss.

Plaintiff, Community Preschool & Nursery of East Liberty, LLC, filed a Complaint in this Court, based upon diversity of citizenship, raising Pennsylvania common law claims arising from a fire that allegedly destroyed its business and property, and rendered unusable the first floor premises it had leased from Tri-State, the property owner, to operate a child care facility for pre-school children and infants. Essentially, plaintiff asserts that after it had made substantial improvements to the first floor of the building, including new electrical wiring, and occupied the leased premises on a seven year lease, Tri-State rented the second floor of the building to tenants, even though Tri-State had not procured an occupancy permit for the second floor. Moreover, plaintiff claims that the second floor tenants experienced problems with the electrical service in the second floor, which contained electrical wiring of unknown origin that was not of commercial quality and "was not up to current building code standards and/or was in need of complete replacement," and that Tri-State leased the second floor when it knew or should have known that the electrical wiring throughout the second floor was "not commercial in nature, was sheathed cable or Romex, and/or [was] not up to current building code standards and was in need of complete replacement." Complaint, ¶¶ 24-26.

On July 17, 2008, at approximately 8:30 pm, a fire started on the second floor in the ceiling above the space leased and occupied by The Adolescence Preparing 4 Excellence ("APEX") of Pittsburgh, and a City of Pittsburgh fire investigation report attached to the Complaint indicates that the origin of the fire was "an electrical arc caused by faulty wiring in the ceiling" of the APEX office. Complaint, ¶¶ 28 and 29. Plaintiff avers that the second floor was destroyed by fire, that the first floor leased premises "was rendered unsuitable for use as a daycare center due to extensive smoke and water damage," and that plaintiff was forced to vacate the premises and discontinue the operation of its business at that location. Complaint, ¶¶ 32 and 33.

Plaintiff further claims that Tri-State knew or should have known that "occupancy of the second floor of the Building was in violation of the Building Code of the City of Pittsburgh on the basis that the Certificate of Occupancy strictly prohibited occupancy on the second floor of the Building and clearly indicated that the second floor was to remain vacant," that it knew or should have known occupancy of the second floor "created an unreasonable risk of fire as a result of the dangerous condition of the electric wiring throughout the entire second floor," and that Tri-State was "charged with a high degree of care with regard to occupancy on the second floor of the Building, knowing that the first floor of the Building was occupied by up to 60 pre-school children (ages 2 1/2 and older) and 40 infants" each day of the work week. Complaint, ¶¶ 35-37.

Plaintiff's Complaint states the following common law claims: Count I, Negligence; Count II, Negligence Per Se; Count III, Trespass, in that Tri-State's "wrongful conduct as set forth above resulted in the direct physical invasion of Plaintiff's property by fire, smoke and water and other hazardous substances entering the Leased Premises thereby contaminating Plaintiff's interest in exclusive and peaceful possession of its business property, business records, furniture and fixtures, and so constituting a trespass." Complaint, ¶ 43-72, 70. The Complaint seeks compensatory money damages, punitive damages and attorneys fees, among other things.

In light of the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S.544 (2007), a complaint may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). While Conley v. Gibson, 355 U.S. 41, 45-46 (1957), allowed dismissal of a claim only if "no set of facts" could support it, under Twombly, and most recently, Ashcroft v. Iqbal, 129 S.Ct. 1937, 2009 WL 1361536 (2009), a claim for relief under Rule 12(b)(6) now "requires more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1950.

In Iqbal, the Supreme Court held that a claim is facially plausible when its factual content allows the court to draw a reasonable inference that the defendants are liable for the misconduct alleged. Marangos v. Swett, 2009 WL 1803264, *2 (3d Cir. 2009), citing Iqbal, 129 S.Ct. 1937, 2009 WL 1361536, *12. The plausibility standard in Iqbal "asks for more than a sheer possibility that a defendant has acted unlawfully." Swett, quoting Iqbal. While well-pleaded factual content is accepted as true for purposes of whether the complaint states a plausible claim for relief, legal conclusions couched as factual allegations or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to an assumption of truth. Swett, quoting Iqbal, at *13. "Where the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Iqbal, quoting Fed. R. Civ. P. 8(a)(2).

In order to satisfy the requirement of Fed. R. Civ. P. 8(a)(2) that a plaintiff include a "short and plain statement of the claim showing that the pleader is entitled to relief," a plaintiff must aver sufficient factual allegations which "nudge" its claims "across the line from conceivable to plausible." Iqbal, at 1951.

In considering a Rule 12(b)(6) motion, a court accepts all of the plaintiff's allegations as true and construes all inferences in the light most favorable to the non-moving party. Umland v. Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008) (citing Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006)). However, a court will not accept bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir. 1997). A court is not required to consider legal conclusions; rather, it should determine whether the plaintiff should be permitted to offer evidence in support of the allegations. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir. 2000).

Therefore, a plaintiff must put forth sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. See Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315 (3d Cir. 2008) (citing Phillips, 515 F.3d at 224). However, this standard does not impose a heightened burden on the claimant above that already required by Rule 8, but instead, calls for fair notice of the factual basis of a claim while "rais[ing] a reasonable expectation that discovery will reveal evidence of the necessary element." Weaver v. UPMC, 2008 WL 2942139 at *7 (W.D. Pa. 2008) (Standish, J.) (citing Phillips, 515 F.3d at 234; and Twombly, 550 U.S. at 555).

Count II - Negligence Per Se

Tri-State's Partial Motion to Dismiss asserts that plaintiff's claims for negligence per se and for trespass at Counts II and III should be dismissed with prejudice. Plaintiff agrees that negligence per se is not a separate cause of action in ...

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