United States District Court, E.D. Pennsylvania
MEMORANDUM AND ORDER
civil action, which was previously dismissed and reinstated
twice is before the Court yet again on motion of the
Defendant, BB & T Corporation to dismiss the
Plaintiff's First Amended Complaint. For the reasons
set forth below, the motion shall be granted, albeit without
of the Case
alleged in the Plaintiff's First Amended Complaint, in
January 2015, she and her now-late husband, Richard A.
Johnson, Sr. opened a checking account at a Susquehanna
branch office in Kennett Square, Pennsylvania. Plaintiff
alleges that at some unspecified time and without her
knowledge or consent, the Defendant Bank “negligently
allowed” her step-son, Richard A. Johnson, Jr. to be
added to the signature card on the account and to change the
mailing address for the bank statements on the account to his
home address. Thereafter, the Defendant Bank purportedly
accepted and deposited some $509, 110 in forged check
deposits from Johnson, Jr., which checks were made out either
to Plaintiff individually or to Plaintiff and her husband,
Johnson, Sr., only. The Amended Complaint goes on to aver
that subsequently, Johnson, Jr. was permitted to withdraw
those monies himself, thereby converting them to his own use.
First Amended Complaint contains four counts: the first three
sound in negligence and the fourth in breach of contract.
Defendant's Motion to Dismiss seeks dismissal of the
First Amended Complaint on the grounds that the first three
counts are barred by the gist of the action and/or economic
loss doctrines and by the Uniform Commercial Code and because
the fourth count fails to sufficiently allege breach of
Governing Fed.R.Civ.P. 12(b)(6) Motions
well settled that in considering motions to dismiss under
Fed.R.Civ.P. 12(b)(6), the district courts must accept as
true the factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom, viewing
them in the light most favorable to the plaintiff. Great
Western Mining & Mineral Co. v. Fox, Rothschild,
LLP, 615 F.3d 159, 161 n.1 (3d Cir. 2010); Krantz v.
Prudential Investments Fund Management, 305 F.3d 140,
142 (3d Cir. 2002); Hamilton v. Allen, 396 F.Supp.2d
545, 548-549 (E.D. Pa. 2005). In so doing, the courts must
consider whether the complaint has alleged enough facts to
state a claim to relief that is plausible on its face.
Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1974, 167 L.Ed.2d 929, 949 (2007). “It is
therefore no longer sufficient to allege mere elements of a
cause of action; instead a complaint must allege facts
suggestive of the proscribed conduct.” Umland v.
Planco Financial Services, Inc., 542 F.3d 59, 64 (3d
Cir. 2008)(quoting Philips v. County of Allegheny,
515 F.3d 224, 233 (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. Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Motion to Dismiss Plaintiff's Negligence Claims: Gist of
the Action/Economic Loss Doctrines
first moves to dismiss the first three counts of the First
Amended Complaint which aver that Defendant was negligent in
allowing an unauthorized name to be added to the
account's signature card, for allowing an unauthorized
change of address for the mailing of monthly bank statements
and for permitting the forged endorsements of check deposits.
In so moving, Defendant relies upon the so-called “gist
of the action” and/or “economic loss”
speaking, the gist of the action doctrine bars a tort action
“when the gist or gravamen of the cause of action
stated in the complaint, although sounding in tort is, in
actuality, a claim against the party for breach of its
contractual obligations.” Weinar v. Lex, 2017
PA Super. 398, 176 A.3d 907 at *42 (Pa. Super.
2017). Stated otherwise, “[t]he gist of the
action doctrine prohibits a plaintiff from re-casting
ordinary breach of contract claims into tort claims.”
B.G. Balmer & Co. v. Frank Crystal & Co.,
2016 PA Super 202, 2016 Pa. Super. LEXIS 516 at *31 (Pa.
Super. Sept. 9, 2016)(citing Empire Trucking
Co., Inc. v. Reading Anthracite Coal Co., 2013 PA Super
148, 71 A.3d 923, 931, n.2 (Pa. Super. 2013)). More
particularly, the gist of the action doctrine acts to
foreclose tort claims:
“... 1) arising solely from the contractual
relationship between the parties; 2) when the alleged duties
breached were grounded in the contract itself; 3) where any
liability stems from the contract; or 4) when the tort claim
essentially duplicates the breach of contract claim or where
the success of the tort claim is dependent on the success of
the breach of contract claim. The critical conceptual
distinction between a breach of contract claim and a tort
claim is that the former arises out of breaches of duties
imposed by mutual consensus agreements between particular
individuals, while the latter arises out of breaches
of duties imposed by law as a matter of social
Id. (quoting Reardon v. Allegheny College,
2007 PA Super 160, 926 A.2d 477, 486-87 (Pa. Super.
2007)(emphasis in original)).
the mere labeling by the plaintiff of a claim as being in
tort is not controlling. Downs v. Andrews, 639
Fed.Appx. 816, 819 (3d Cir. Feb. 10, 2016). As the
Pennsylvania Supreme Court stated, the “critical
determinative factor in determining whether [a] claim is
truly one in tort, or for breach of contract” is
“the nature of the duty alleged to have been breached,
as established by the underlying averments supporting the
claim in a plaintiff's complaint.” Bruno v.
Erie Insurance Co., 630 Pa. 79, 106 A.3d 48, 53 (Pa.
Super. 2014). Accordingly, in determining whether an action
is barred by the gist of the action doctrine, it is incumbent
upon the court to examine the factual ...