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Cimildoro v. Metropolitan Property and Casualty Insurance Co.

March 8, 2010


The opinion of the court was delivered by: Schiller, J.


Rebecca Cimildoro filed a Complaint in the Philadelphia Court of Common Pleas against Metropolitan Property and Casualty Insurance Company ("Metropolitan") and Mark 1 Restoration Service, Inc. ("Mark 1") She claimed that Metropolitan failed to pay for a property loss she suffered when water damaged her home and that Mark 1 negligently performed work on her home allowing mold to infest her property, which caused significant damage. She waived her right to a jury trial. Defendants removed the case to this Court. This Court rejected Cimildoro's attempt to revive her right to a jury trial. Undaunted, Cimildoro filed an Amended Complaint, which added her fiancé, Peter Yerger, as a plaintiff, and inserted additional claims. Plaintiffs then demanded a jury. Presently before the Court are Defendants' motions to dismiss a number of Plaintiffs' claims and to strike Plaintiffs' jury demand. The Court grants the motions to dismiss in part and to strike the jury demand.


Rebecca Cimildoro filed a Complaint in the Philadelphia County Court of Common Pleas against Metropolitan and Mark 1. She alleged that Metropolitan issued an insurance policy covering her property at 323 W. Laurel Avenue in Cheltenham, Pennsylvania. (Am. Compl. ¶ 6.) While the policy was in effect, Cimildoro suffered a covered loss when water escaped from a heating or plumbing system and damaged her property and personal belongings. (Id. ¶ 7.) Cimildoro notified Metropolitan in accordance with the policy, but Metropolitan refused to cover all of her loss. (Id. ¶¶ 9-10.) Metropolitan contracted with Mark 1 to perform emergency remediation work on Cimildoro's home. (Id. ¶ 23.) Mark 1, however, started working on the home later than they were supposed to and allegedly performed the work carelessly, which led to additional damage to Cimildoro's home and belongings. (Id. ¶¶ 25-28.) Plaintiff alleged that Defendants' carelessness and negligence caused her property to become contaminated by mold. (Id. ¶ 8.) The Complaint filed in state court contained a breach of contract claim against Metropolitan, a bad faith claim against Metropolitan, and a negligence claim against Metropolitan and Mark 1 based upon Metropolitan hiring Mark 1 to perform the remediation work on Cimildoro's home and Mark 1's purportedly shoddy work on her home. Cimildoro's state court Complaint did not contain a jury demand.

On May 4, 2009, Defendants removed the case to this Court. On May 22, 2009, Metropolitan filed its Answer and Counterclaims. Mark 1 filed its Answer that same day. On June 30, 2009, Cimildoro filed her Answer to Metropolitan's Counterclaims. On November 16, 2009, Plaintiff filed a notice of jury demand and on November 25, 2009, she filed a Motion for Leave to File a Jury Demand pursuant to Rule 39(b) of the Federal Rules of Civil Procedure. After Mark 1 filed a response, the Court denied Plaintiff's request for a jury trial. On January 15, 2010, Cimildoro filed a motion for leave to amend her Complaint, which the Court granted. The Amended Complaint added a plaintiff and three counts to the Complaint. Specifically, Cimildoro named as a plaintiff Peter Yerger, who resided with Cimildoro at all relevant times. (Am. Compl. ¶ 30.) Yerger claims that the negligence of Metropolitan and Mark 1 forced him to live in deplorable, dangerous, and hazardous conditions and caused him anxiety and mental anguish. (Id. ¶ 31.) Cimildoro and Yerger also added claims for intentional and negligent infliction of emotional distress. One day after the Court granted leave to file the Amended Complaint, Cimildoro and Yerger demanded a jury trial.


In reviewing a motion to dismiss for failure to state a claim, a district court must accept as true all well-pleaded allegations and draw all reasonable inferences in favor of the non-moving party.

See Bd. of Trs. of Bricklayers and Allied Craftsman Local 6 of N.J. Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir. 2001). A court should accept the complaint's allegations as true, read those allegations in the light most favorable to the plaintiff, and determine whether a reasonable reading indicates that relief may be warranted. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A court need not credit "bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also Iqbal, 129 S.Ct. at 1949.

"Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. To survive a motion to dismiss, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Id. at 547. Although the federal rules impose no probability requirement at the pleading stage, a plaintiff must present "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Simply reciting the elements will not suffice. Id. (concluding that pleading that offers labels and conclusions without further factual enhancement will not survive motion to dismiss); see also Phillips, 515 F.3d at 231.

The Third Circuit Court of Appeals has recently directed district courts to conduct a two-part analysis when faced with a 12(b)(6) motion. First, the legal elements and factual allegations of the claim should be separated, with the well-pleaded facts accepted as true but the legal conclusions disregarded. Fowler v. UPMC Shadyside, 578 F.3d at 210-11. Second, the court must then make a common sense determination of whether the facts alleged in the complaint are sufficient to show a plausible claim for relief. Id. If the court can only infer the mere possibility of misconduct, the complaint must be dismissed because it has alleged -- but has failed to show -- that the pleader is entitled to relief. Id. at 211.


A. Motion to Dismiss

1. Gist of the Action

Metropolitan argues that the negligence and emotional distress claims against it should be dismissed based on the gist of the action doctrine. The gist of the action doctrine bars plaintiffs from bringing a tort claim that merely replicates a claim for a breach of an underlying contract. Werwinski v. Ford Motor Co., 286 F.3d 661, 680 (3d Cir. 2002) (citing Phico Ins. Co. v. Presbyterian Med. Servs. Corp., 663 A.2d 753, 757 (Pa. Super. Ct. 1995)). According to the Pennsylvania Superior Court, the difference between contract and tort actions is that "[t]ort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals." eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) (quoting Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992)). Thus, a breach of contract will also give rise to an actionable tort only if the parties' obligations are defined by the larger social policies underlying tort law. See ...

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