United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE UNITED STATES DISTRICT COURT
the court for disposition is Defendant Phoenix Insurance
Company's (hereinafter “defendant”) motion to
dismiss Count II of Plaintiffs' Martin and Susan Foss
(hereinafter “plaintiffs”) complaint. The motion
has been fully briefed and the matter is ripe for
insured their home with defendant. (Doc. 1-1, compl. ¶
3). The homeowners' policy included basic coverage as
well as a value added policy, the latter providing additional
coverage. (Id. ¶ 7). Losses covered by the
value added policy included coverage up to $58, 000.00 for
“ordinance law” coverage. (Id. ¶
8). A damaged sewer pipe resulted in a loss at
plaintiff's property on January 13, 2017. (Id.
¶ 9, 14).
ensuing excavation the fresh water supply pipe leading to
plaintiffs' home was found to be actually running through
the sewer pipe, in violation of building and construction
codes. (Id. ¶ 14). In addition to separating
the sewer and water pipes, the homeowners' insurance
claim necessitated: removing concrete stairs in front of the
home (Id. ¶ 16); damage repair inside the home,
(Id. ¶ 21); and electrical work inside the
home, (Id. ¶ 19). This extra work is required
in order to comply with ordinances and laws.
has denied all coverage necessitated by the ordinance and law
upgrade expenses. (Id. ¶ 20). The sewer pipe
remains exposed as a result. (Id. ¶ 23). The
complaint alleges defendants payments are well below the
loss, defendants failed to honor the policy terms, along with
wrongfully denying claims under the value added policy
mentioned above, resulting in desperate need for repairs and
a home in “complete disarray.” (Id.
response, plaintiffs filed their complaint on August 29, 2017
in the Court of Common Pleas for Schuylkill County,
Pennsylvania alleging the following: Count I alleges breach
of contract; and Count II alleges Breach of Duty of Good
Faith and Fair Dealing under 42 Pa.C.S.A. § 8371.
Defendant timely filed a notice of removal to this court on
September 28, 2017, followed by the instant motion to dismiss
on October 3, 2017, relative to Count II only, thus bringing
the case to its current posture.
are citizens of Pottsville, Pennsylvania. (Doc. 1, notice of
removal). Defendant is a citizen of Connecticut.
(Id. ¶ 8). Plaintiffs seek in excess of $75,
000 in damages. (Id. ¶ 9).
because the parties are citizens of different states this
court has diversity jurisdiction pursuant to 28 U.S.C. §
1332. See 28 U.S.C. § 1332(a)(1) (“The
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States”). The
substantive law of Pennsylvania shall apply to the instant
case because the court is sitting in diversity.
Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d. Cir.
2000), citing Erie R.R. v. Tompkins, 304 U.S. 64, 78
filed its motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). The court tests the
sufficiency of the complaint's allegations when
considering a Rule 12(b)(6) motion. All well-pleaded
allegations of the complaint must be viewed as true and in
the light most favorable to the non-movant to determine
whether, “‘under any reasonable reading of the
pleadings, the plaintiff may be entitled to
relief.'” Colburn v. Upper Darby Twp., 838
F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey
by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir.
1985)). The plaintiff must describe “‘enough
facts to raise a reasonable expectation that discovery will
reveal evidence of “[each] necessary element” of
the claims alleged in the complaint. Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Moreover, the plaintiff must allege facts that “justify
moving the case beyond the pleadings to the next stage of
litigation.” Phillips, 515 F.3d at 234-35. In
evaluating the sufficiency of a complaint the court may also
consider “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record
of the case.” Oshiver v. Levin, Fishbein, Sedran
& Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994)
(citations omitted). The court does not have to accept legal
conclusions or unwarranted factual inferences. See
Curay-Cramer v. Ursuline Acad. of Wilmington, Del.,
Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse
v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
federal rules require only that plaintiff provide “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” a standard which
“does not require detailed factual allegations, ”
but a plaintiff must make “a showing, rather than a
blanket assertion, of entitlement to relief that rises above
the speculative level.” McTernan v. N.Y.C.,
564 F.3d 636, 646 (3d Cir. 2009) (citations and internal
quotations and quotation marks omitted). The “complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). Such
“facial plausibility” exists “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “[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 ...