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Johnson v. BB&T Corp.

United States District Court, E.D. Pennsylvania

March 29, 2018

BARBARA JOHNSON Plaintiff
v.
BB & T CORPORATION, formerly known as SUSQUEHANNA BANK/ BB & T, INC. Defendant

          MEMORANDUM AND ORDER

          JOYNER, J.

         This 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[1]. For the reasons set forth below, the motion shall be granted, albeit without prejudice.

         History of the Case

         As 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 Bank[2] 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[3]. 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.

         The 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 contract.

         Standards Governing Fed.R.Civ.P. 12(b)(6) Motions

         It is 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).

         Discussion

         A. Motion to Dismiss Plaintiff's Negligence Claims: Gist of the Action/Economic Loss Doctrines

         Defendant 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” doctrines.

         Generally 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).[4] 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 policy.”

Id. (quoting Reardon v. Allegheny College, 2007 PA Super 160, 926 A.2d 477, 486-87 (Pa. Super. 2007)(emphasis in original)).

         Thus, 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 ...


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