United States District Court, E.D. Pennsylvania
MEMORANDUM RE: PARTIAL MOTION TO DISMISS
case, Plaintiff Ashford Bucks County, LLC alleges that
Defendant 444 Oxford Valley Road Trust, LLC breached a
contract to pay the electricity fees associated with
Defendant's property unit within a condominium
association. We consider now Defendant's Motion to
Dismiss Count I of the Complaint. Because Plaintiff has
adequately alleged a claim for breach of contract under
Pennsylvania law, we deny Defendant's motion.
Facts and Procedural History
all facts averred in Plaintiff's complaint as true, they
are as follows. Plaintiff and Defendant are both members of a
two-unit condominium association in Bucks County,
Pennsylvania. ECF No. 1, Complaint ¶¶ 5-6.
Defendant became a member in September 2015 when it purchased
an office building unit within the condominium, while
Plaintiff has owned and operated a hotel unit therein for
some unstated, but longer, amount of time. Id.
¶¶ 6, 10. The condominium's bylaws state that
unit owners are responsible for a pro rata portion of utility
payments for the common areas, and for the entire amount of
utility payments for their separate units. Id.
¶ 7. The units are not separately metered. Id.
¶ 8. Throughout Plaintiff's ownership of the hotel
unit, it paid the electric fees for the entire property and
then remitted invoices to each unit owner requesting payment
for the owners' share of the common areas' fees and
for the entirety of the individual unit's fees.
Id. ¶ 8.
Defendant's purchase of the office unit, problems arose
between the two parties regarding the payment of the electric
fees. Id. ¶¶ 11-12. Specifically,
Defendant raised concerns “questioning the rates being
charged and whether the percentage assessment for the office
unit was accurate.” Id. ¶ 11.
Nevertheless, Defendant continued to make payments to
Plaintiff until January 2016, at which point Defendant halted
all utility payments to Plaintiff. Id. ¶ 12. As
of August 2016, Plaintiff had paid $112, 926.57 in electric
fees on behalf of Defendant, and these fees are still
accruing. Id. ¶ 14.
filed suit against Defendant on October 26, 2016 (ECF No. 1),
alleging two counts: (1) breach of contract, and (2) unjust
enrichment. Defendant moved for dismissal of Count I of
Plaintiff's Complaint on November 22, 2016 (ECF No. 5).
Plaintiff responded on November 30, 2016 (ECF No. 7), and
Defendant replied on December 7, 2016 (ECF No. 9).
considering a motion to dismiss under Rule 12(b)(6),
“we accept all factual allegations as true [and]
construe the complaint in the light most favorable to the
plaintiff. Warren Gen. Hosp. v. Amgen, Inc., 643
F.3d 77, 84 (3d Cir. 2011) (internal quotation marks and
citations omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Court in Iqbal explained that, although a court must
accept as true all of the factual allegations contained in a
complaint, that requirement does not apply to legal
conclusions; therefore, pleadings must include factual
allegations to support the legal claims asserted.
Id. at 678, 684. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678
(citing Twombly, 550 U.S. at 555); see also
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d
Cir. 2008) (“We caution that without some factual
allegation in the complaint, a claimant cannot satisfy the
requirement that he or she provide not only ‘fair
notice, ' but also the ‘grounds' on which the
claim rests.”) (citing Twombly, 550 U.S. at
556 n.3). Accordingly, to survive a motion to dismiss, a
plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
Count I, Plaintiff asserts that Defendant breached a contract
it had with Plaintiff to pay for its proportional share of
electric fees for the common areas of the condominium and for
the entirety of the electric fees for Defendant's
individual unit. Defendant's only ground for dismissal is
that Plaintiff has not adequately alleged the existence of a
contract between the parties for the payment of electric
fees. Because we find that Plaintiff has sufficiently pled
the existence of such a contract, we deny the motion.
clarifies in its Response that it alleges the existence of an
implied, rather than express, contract. See
Pl.'s Response at 1. Whereas the terms of an express
contract are specifically communicated orally or in writing,
the terms of an implied contract are “inferred from the
conduct of the parties in light of the surrounding
circumstances, including the course of dealing.”
Crawford's Auto Ctr., Inc. v. Com., Pa. State
Police, 655 A.2d 1064, 1066 (Pa. Commw. Ct. 1995). There
is no difference in legal effect between an express and an
implied contract; rather, the distinction between the two
types of agreement lies “merely in the mode of
manifesting assent.” Id. (quoting Restatement
Second of Contracts § 4 cmt. a (1981)).
allegation of the existence of an implied contract primarily
rests on the “custom and pattern of dealing of the
parties;” namely, the five month period during which
Defendant owned the unit and paid Plaintiff its share of the
electric fees, as calculated by Plaintiff. Cmplt.
¶¶ 10-11; Pl.'s Response at 5. Defendant, on
the other hand, contends that the “continuous
disagreement” that existed between the parties during
that time period regarding “the provision of
electricity, the amount of electricity used, and the price to
be paid, ” belies the existence of an agreement.
Def.'s Reply at 3. The cases Defendant cites for this
point are factually inapposite. For example, in AmeriPro
Search, Inc. v. Fleming Steel Co., 787 A.2d 988 (Pa.
Super. Ct. Nov. 16, 2001), the court found there was no
implied-in-fact contract where the defendant
“repeatedly stated its refusal of [the plaintiff's]
fee” because no agreement could be inferred from the
parties' conduct regarding the fee to be paid, “a
material element of the arrangement.” Id. at
991. That stands in contrast to the instant case, where there
was no “repeated . . . refusal” by Defendant to
pay Plaintiff but rather a “questioning [of] the rates
being charged and whether the percentage assessment for the
office unit was accurate.” Complt. ¶ 11. Taking as
true all of Plaintiff's averments, Defendant established
a pattern and practice of paying the fees, as calculated by
Plaintiff, during that five month time period, and it is
immaterial whether Defendant complained as it did so.
claim is further bolstered by its assertion that the
condominium's bylaws require each unit owner to pay the
fee responsibilities laid out above. At this stage of the
litigation, we accept as true Plaintiff's allegation,
notwithstanding Plaintiff's failure to attach the bylaws
to the Complaint. Jones v. Select Portfolio Servicing,
Inc., No. 08-972, 2008 WL 1820935, at *4 (E.D. Pa. Apr.
22, 2008) (stating that under Federal Rule of Civil Procedure
8, a plaintiff may assert the existence of a written contract
“by pleading it according to its legal effect; . . .
[a] plaintiff is not required to attach the subject contract
to the complaint or plead its terms ...