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Benyamini v. St. Clair Real Estate Development Co.

March 19, 2010


The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)


Before the court for disposition is the defendants' motion to dismiss or in the alternative for summary judgment. The matter has been fully briefed an is ripe for disposition.


Plaintiff Hertzl Benyamini*fn1 is a licensed real estate broker in the business of identifying commercial sites for retail corporations such as Wal-Mart Stores, Inc. (hereinafter "Wal-Mart") to locate stores in New York, New Jersey and Pennsylvania. (Doc. 7, Amended Complaint at ¶ 4). In August 1994, Wal-Mart contacted plaintiff to identify potential sites for a Wal-Mart Super Center within Schuylkill County, Pennsylvania. (Id. at ¶ 17). Working with Defendant Brian Rich, plaintiff helped broker a deal with Defendant Reading Anthracite Company for twenty-five (25) acres of former coal fields for the project. (Id. at ¶¶ 18 - 22). Plaintiff was involved in the negotiations between Defendant Reading Anthracite Company and Wal-Mart regarding development of the property. (Id. at ¶ 26). The letter of intent and the purchase and sale agreement indicated that Defendant Reading Anthracite would pay a brokerage commission to plaintiff. (Id at ¶¶ 23 - 25, 27).

Plaintiff assisted the defendants and Wal-Mart from 1995 through 1997 with zoning issues, engineering studies and preparation of the lease and/or purchase agreements. (Id. at ¶ 29). Brian Rich was also the president of Defendant Saint Clair Real Estate Development Company, LLC (hereinafter "Saint Clair"). (Id. at ¶ 30). Defendant Reading Anthracite conveyed its entire real estate tract to Saint Clair in late 1998 or early 1999. (Id. at ¶ 31). In February 1999, Defendant Rich as President of Saint Clair entered into a lease agreement with Wal-Mart. (Id. at ¶ 30).

Plaintiff and Defendant Rich executed a handwritten brokerage agreement in November 1998 regarding the work plaintiff did with regard to the Wal-Mart lease. (Id. at ¶¶ 33-34). The agreement called for a brokerage commission of $306,376.00. (Id. at ¶ 35). The parties also agreed on a schedule for payment of the fee. (Id. at ¶ 36). Over the next several months and years, the agreement on the payment schedule was verbally amended and the payment schedule was extended or deferred into the future several times. (Id. at ¶¶ 40 - 45). Eventually, the parties stopped agreeing to extend the payment of the commission, and the defendants have not made any payments on the brokerage commission. (Id. at ¶ 46). Thus, plaintiff instituted the instant case.

The complaint is comprised of the following four counts: Count I, breach of contract; Count II, breach of contract implied in law-unjust enrichment; Count III, intentional misrepresentation-fraud; and Count IV, negligent misrepresentation. The defendants have moved for summary judgment or in the alternative to dismiss the complaint, brining the case to its present posture.*fn2


This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The plaintiff is citizen of New York state and the defendants are citizens of Pennsylvania. (Doc. 7, Amended Complaint ¶¶ 3 -12). Because we are sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

Standard of Review

When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations is tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," or put another way, "nudged [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets Twombly to require the plaintiff to describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of" each necessary element of the claims alleged in the complaints. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35.

In relation to Federal Rule of Civil Procedure 8(a)(2), the complaint need only provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,'" Twombly, 550 U.S. at 555 (citation omitted). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232 (citation omitted). "Rule 8(a)(2) requires a 'showing' rather than a blanket assertion of an entitlement to relief." Id.

The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). However, "we are not bound to accept as true a legal ...

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