United States District Court, E.D. Pennsylvania
F. KENNEY, JUDGE
before the Court is Plaintiffs Motion to Dismiss two of
Defendant's counterclaims against Plaintiff. Plaintiff
argues the gist of the action doctrine and economic loss
doctrine bar Count II (negligence) and Count III (negligent
supervision) contained in Defendant's Counterclaim from
proceeding. For the reasons set forth below, Defendant's
counterclaims alleging negligence and negligent
supervision/hiring will be dismissed.
General Healthcare Resources, LLC ("GHR"), alleges
three causes of action against Defendant, OccuVAX, LLC
("OccuVAX"): 1) breach of contract, 2) Quantum
Meruit/unjust enrichment, and 3) account stated. These counts
stem from the two parties' business and contractual
relationship under their "Master Service Agreement"
contract. ECF No. 3 at 7-9. OccuVAX, in its Answer, denies
all three counts, while bringing forth counterclaims alleging
breach of contract, negligence, and negligent
hiring/supervision (Counterclaims I, II, and III,
respectively) against GHR. ECF No. 16 at 11-17.
a healthcare staffing agency that provides clients with
professional staffing services. ECF No. 3 at ¶ 3.
OccuVAX sets up on-site vaccination clinics for its customers
and provides the licensed healthcare professionals required
to administer vaccines. Id. at ¶ 4. GHR and
OccuVAX entered into a contract (the "Master Service
Agreement") for GHR to "identify and provide AGENCY
PROFESSIONALS who are qualified" to administer vaccines
at flu vaccination clinics set up by OccuVAX. ECF No. 16, Ex.
A. "GHR employed, hired, contracted with, supervised,
controlled and/or managed the individuals designed to
administer flu vaccines pursuant to the Master Service
Agreement." ECF No. 16 at 11, ¶ 10. OccuVAX claims
it provided GHR with advance notice of all clinics that
needed to be staffed in accordance with the terms of the
Master Service Agreement. Id. at 11, ¶ 14.
Counterclaim, OccuVAX first alleges that GHR failed to staff
scheduled clinics with healthcare professionals in violation
of the Master Service Agreement, despite having advanced
notice of the scheduled clinics. Id. at 11, ¶
16. OccuVAX alleges that this breach of contract resulted in
the rescheduling and cancellation of clinics and caused
OccuVAX to lose customers. Id. at 12, ¶¶ 21-24.
OccuVAX alleges that GHR was negligent when it failed to
exercise reasonable care in the performance of the Master
Service Agreement. Id. at 15, ¶ 34.
Specifically, OccuVAX alleges that GHR failed to maintain an
accurate staffing schedule for OccuVAX's clinics, ignored
communication from OccuVAX regarding staffing of clinics, and
failed to adequately communicate about its alleged inability
to staff clinics. Id. at 15, ¶¶ 36-38.
OccuVAX asserts that, as a result of GHR's alleged
negligence, it sustained damages totaling $2, 902, 448.00 for
lost business, $178, 841.00 for additional costs it incurred
in attempts to staff clinics that GHR allegedly failed to
staff, and the cost of vaccines and supplies that were not
used due to the cancellation of clinics caused by GHR's
alleged negligence. Id. at 16, ¶ 43.
OccuVAX alleges negligent hiring/supervision against GHR
because its customers reported that nurses provided by GHR
failed to exercise reasonable care in the administration of
vaccines during clinics. Id. at 17, ¶¶ 44,
46. Specifically, OccuVAX alleges that the GHR-provided
nurses and medical professionals failed to wear gloves, acted
unprofessionally, failed to comply with training programs,
administered flu vaccines without swabbing the arm with
alcohol, administered expired flu shots, and were generally
unprepared. Id. at 17, ¶ 47. OccuVAX states it
reported this allegedly negligent and unprofessional behavior
to GHR but GHR continued to staff OccuVAX's clinics with
the same nurses. Id. at 18, ¶ 51. OccuVAX
claims the allegedly negligent hiring/supervision by GHR
caused it to lose business and incur additional costs
associated with cancelled/rescheduled clinics in the same
amount as stated for Counterclaim II. Id. at 19,
STANDARD OF REVIEW
reviewing a motion to dismiss, the Court "accept[s] as
true all allegations in plaintiffs complaint as well as all
reasonable inferences that can be drawn from them, and [the
court] construes them in a light most favorable to the
non-movant." Tatis v. Allied Interstate, LLC,
882 F.3d 422, 426 (3d Cir. 2018) (quoting Sheridan v. NGK
Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)).
"To survive a motion to dismiss, a 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 Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "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."
Id. (quoting Twombly, 550 U.S. at 557, 127
S.Ct. 1955)). "The plausibility determination is 'a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'"
Connelly v. Lane Const. Corp., 809 F.3d 780, 786-87
(3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679).
courts reviewing the sufficiency of a complaint must engage
in a three-step process. First, the court "must
'take note of the elements [the] plaintiff must plead to
state a claim.'" Id. at 787 (alterations in
original) (quoting Iqbal, 556 U.S. at 675).
"Second, [the court] should identify allegations that,
'because they are no more than conclusions, are not
entitled to the assumption of truth.'" Id.
(quoting Iqbal, 556 U.S. at 679). Third,
'"[w]hen there are well-pleaded factual allegations,
[the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief" Id. (alterations in original) (quoting
Iqbal, 556 U.S. at 679).
Pennsylvania law, the gist of the action and economic loss
doctrines are 'designed to maintain the conceptual
distinction between breach of contract claims and torts
claims.'" Battle Born Munitions, Inc. v.
Dick's Sporting Goods, Inc., No. 18-1418, 2019 WL
1978429, at *5 (W.D. Pa. May 3, 2019) (quoting KBZ
Communication Inc. v. CBE Technologies LLC, 634
Fed.Appx. 908, 910-11 (3d Cir. 2015) (further citations
omitted)). The gist of the action doctrine generally
precludes plaintiffs from re-casting ordinary breach of
contract claims as tort claims. KBZ Communications Inc.
v. CBE Technologies LLC,634 Fed.Appx. 908, 909 (3d Cir.
2015) (citing eToll, Inc. v. Elias/Savion Adver.,
Inc.,811 A.2d 10, 14 (Pa. Super. Ct. 2002)). The
distinction between tort and contract claims exists due to
the different sources of tort and contract duties.
Id. at 910. Tort duties arise as a matter of social
policy, while contract ...