Brady v. W.C. Eshenaur & Son, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARLENE BRADY : 1:20-CV-1280

:

Plaintiff, :

:

v. : Hon. John E. Jones III

:

W.C. ESHENAUR & SON, INC. :

:

Defendant. :

MEMORANDUM

September 29, 2020

Plaintiff Marlene Brady brings the above-captioned action against Defendant

W.C. Eshenaur & Son, Inc., asserting one count of negligence (Count I). Presently

pending before the Court is Defendant’s motion to dismiss (the “Motion”) (Doc.

7). The Motion has been fully briefed (Docs. 8, 12, 13, 14-1) and is therefore ripe

for our review. For the reasons that follow, the Motion shall be granted and the

case dismissed.

I. BACKGROUND

The facts in this case are straightforward, and in accordance with the

standard of review applicable to a motion to dismiss, we will view them in the light

most favorable to Plaintiff.

The Defendant is in the business of delivering heating oil services. (Doc. 1,

at ¶ 2). On or about January 6, 2018, an employee of Defendant’s allegedly

mistook Plaintiff’s home for the residence located across the street and delivered

some quantity of heating oil to Plaintiff’s home. (Id., at ¶ 6). Plaintiff, however,

did not have an oil tank. (Id., at ¶ 7). Accordingly, 150 gallons of heating oil

“flowed unabated into her garage and basement,” which Plaintiff alleges caused

damage to her property in addition to further expenses and hardship, including the

loss of the property for some period of time. (Id., at ¶¶ 7, 9).

Plaintiff filed the underlying complaint on July 27, 2020, bringing one count

of negligence against Defendant. (Doc. 1). Attached to Plaintiff’s complaint is an

affidavit from an authorized representative of Allstate Insurance Company

(“Allstate”) who avers that Allstate is the real party in interest in this action

because it subrogated to much of the losses and expenses allegedly caused by

Defendant. (Doc. 1-2). Defendant filed the instant motion to dismiss on August 3,

2020 (Doc. 7), accompanied by a brief in support (Doc. 8). Plaintiff filed a brief in

opposition to the Motion on August 17 (Doc. 12), to which Defendant replied on

August 19 (Doc. 13). Per our August 25, 2020 Order (Doc. 15), we will also

consider Plaintiff’s sur-reply (Doc. 14-1). For the reasons that follow, we shall

grant Defendant’s Motion.

II. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept

all factual allegations as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of Allegheny, 515

F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d

361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule

12(b)(6), a court generally should consider only the allegations in the complaint, as

well as “documents that are attached to or submitted with the complaint, . . . and

any matters incorporated by reference or integral to the claim, items subject to

judicial notice, matters of public record, orders, [and] items appearing in the record

of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the

pleading requirement of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a

short and plain statement of the claim showing that the pleader is entitled to relief,

“in order to give the defendant fair notice of what the claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked

by Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it

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). To

survive a motion to dismiss, a civil plaintiff must allege facts that “raise a right to

relief above the speculative level….” Victaulic Co. v. Tieman, 499 F.3d 227, 235

(3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the

plausibility standard, the complaint must indicate that defendant’s liability is more

than “a sheer possibility.” Iqbal, 556 U.S. at 678. “Where a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of entitlement to relief.’” Id. (quoting

Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later

formalized in Iqbal, a district court must first identify all factual allegations that

constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,

550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”

and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679. Next, the district court must identify “the ‘nub’ of the …

complaint – the well-pleaded, nonconclusory factual allegation[s].” Id. Taking

these allegations as true, the district judge must then determine whether the

complaint states a plausible claim for relief. See id.

However, “a complaint may not be dismissed merely because it appears

unlikely that the plaintiff can prove those facts or will ultimately prevail on the

merits.” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8

“does not impose a probability requirement at the pleading stage, but instead

simply calls for enough facts to raise a reasonable expectation that discovery will

reveal evidence of the necessary element.” Id. at 234.

III. DISCUSSION

Defendant in its Motion requests dismissal of this action on three different

grounds: 1) because this Court lacks subject-matter jurisdiction over an action

between non-diverse parties that raises no federal question; 2) because the action is

barred by the two-year statute of limitations in Pennsylvania for actions to recover

damages for injury to personal property; and 3) in the alternative, upon Plaintiff’s

failure to substitute its insurance carrier, Allstate, as the real party in interest within

a reasonable period of time under Rule 17(a)(1). (Doc. 7, at ¶ 3–5). In opposition

to the Motion, Plaintiff 1) requests leave to amend the caption and complaint in

order to pursue the action in the name of Allstate and moot Defendant’s Rule

12(b)(1) and Rule 17(a) challenges; and 2) argues that she seeks to invoke two

exceptions to the statute of limitations and that she “need not plead around an

affirmative defense in order to state a claim upon which relief can be granted.”

(Doc. 12-1, at 5). Specifically, Plaintiff avers that she intends to invoke the

equitable doctrines of fraudulent concealment and acknowledgment, which will

have the effect of tolling the applicable statute of limitations. In support of those

arguments, Plaintiff attached to her opposition brief a second affidavit from an

authorized representative of Allstate. (Doc. 12-3) (the “Second Allstate

Affidavit”). Via sur-reply, Plaintiff requests that we only consider the statute of

limitations issue at this stage. (Doc. 14-1). We have done just that. For the

reasons to follow, we will grant Defendant’s Motion pursuant to Rule 12(b)(6)

because Plaintiff’s lone negligence claim is barred by the applicable statute of

limitations.

Although Rule 12(b) “does not specifically provide for the assertion of a

statute of limitations defense in a motion to dismiss,” the Third Circuit has

instructed that a statute of limitations defense may nonetheless be raised via

motion to dismiss “if the time alleged in the statement of a claim shows that the

cause of action has not been brought within the statute of limitations.” Byrne v.

Cleveland Clinic, 684 F.Supp.2d 641, 656 (E.D. Pa. 2010) (citing Zankel v. Temple

Univ., 245 Fed.Appx. 196, 198 (3d Cir. 2007)); see also Hollander v. Brown, 457

F.3d 688, 691 n.1 (7th Cir. 2006) (stating that dismissal may be appropriate when

“the plaintiff effectively pleads herself out of court by alleging facts that are

sufficient to establish the defense.”).

Plaintiff argues that she has not pled herself out of court, and instead raises

two bases for the equitable tolling of the statute of limitations here: fraudulent

concealment and acknowledgment. Plaintiff avers in her opposition brief and in

the Second Allstate Affidavit that Defendant’s insurance carrier and liability

adjuster “advised [Allstate] that they would pay the entire claim once the first party

claim between [Plaintiff] and Allstate had been fully adjusted.” (Doc. 12-3, at ¶ 8).

According to Plaintiff, Allstate presented the fully-adjusted claim to Defendant’s

insurance company for payment, but the other insurance company “reneged on its

promise and refused to pay arguing that the statute of limitations had expired.”

(Id., at ¶ 11). According to Plaintiff, this allegedly broken promise by Defendant’s

insurance company has the effect of tolling the statute of limitations, either because

Defendant is estopped from raising the statute of limitations defense due to its

insurance company’s fraudulent concealment or because the insurance company’s

promise to pay implicates the acknowledgement doctrine. (Doc. 12-1, at 6–7).

Neither doctrine, however, saves Plaintiff’s claim.

As a threshold matter, in considering the instant Motion we will not deem as

true any factual averments regarding the alleged promise to pay featured in

Plaintiff’s Brief in Opposition nor in the Second Allstate Affidavit. On a Rule

12(b)(6) motion, we may only consider “the complaint, exhibits attached to the

complaint, matters of public record, as well as undisputedly authentic documents if

the complainant's claims are based upon these documents.” Mayer v. Belichick,

605 F.3d 223, 230 (3d Cir. 2010).

Based solely on the factual averments in Plaintiff’s complaint, the alleged

injury occurred on January 6, 2018. (Doc. 1, at ¶ 6). Plaintiff also discovered the

injury either on that day, or very soon after, as she avers that Defendant

acknowledged what had happened “[a]t the time the incident occurred.” (Id., at ¶

7). Plaintiff relies on language in Schmidt v. Skolas, 770 F.3d 241, 252 (3d Cir.

2014) to argue that the Motion cannot be granted because “it is not clear on the

face of the complaint that an exception to the statute of limitations does not apply.”

(Doc. 12-1, at 5). Plaintiff’s reliance on Schmidt, however, is misplaced for

several reasons.

First, the Third Circuit in Schmidt was focused on the applicability of the

discovery rule, “a judicially created device which tolls the running of the

applicable statute of limitations until the point where the complaining party knows

or reasonably should know that he has been injured and that his injury has been

caused by another party's conduct.” Schmidt, 770 F.3d at 251 (quoting Crouse v.

Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000)). The issue in Schmidt was that the

underlying complaint did not explicitly reveal when the plaintiff had knowledge of

the full scope of his injuries. Under those circumstances, according to the Third

Circuit, a plaintiff does not plead himself out of court because it is not evident on

the face of the complaint whether the statute of limitations defense applies. Id. at

252. Here, however, Plaintiff has pled herself out of court because the complaint

explicitly reveals when she learned of her one alleged injury: on—or immediately

after—January 6, 2018.

Second, and perhaps even more fundamentally, neither doctrine even applies

to these circumstances as-pled. For fraudulent concealment to toll a statute of

limitations, “the defendant must have committed some affirmative independent act

of concealment upon which the plaintiffs justifiably relied.” Kingston Coal Co. v.

Felton Min. Co., 690 A.2d 284, 291 (Pa. Super. Ct. 1997) (citing Krevitz v. City of

Philadelphia, 648 A.2d 353, 357 (Pa. Commw. Ct. 1994)). Nothing in Plaintiff’s

complaint mentions any “affirmative independent act of concealment” on the part

of Defendant. Moreover, no action by Defendant nor its insurance company (even

if we are to consider the averments in the Second Allstate Affidavit as true) had the

effect of concealing any extent of the alleged injury (the damage to the home) from

Plaintiff. See Krevitz, 648 A.2d at 357 (“After an exhaustive review of the

voluminous record in this case, we have found no evidence which would exonerate

Krevitz from her duty to exercise reasonable diligence in discovering the

possibility of a design defect prior to the expiration of the statute of limitations.”).

To the extent Plaintiff—or more likely, Allstate—was injured by the

misrepresentations of Defendant’s insurance company, nothing to that effect is

pled in the underlying complaint; again, the only alleged injury was the damage to

Plaintiff’s home arising from Defendant’s negligence, the full extent of which was

known to Plaintiff as soon as it happened. To the extent Defendant’s insurance

company made fraudulent or misleading representations to Allstate, then perhaps

Allstate has its own claim against that insurance company; but the fraudulent

concealment doctrine has no applicability to this negligence claim brought this

Plaintiff against this Defendant.

The “acknowledgment doctrine” is also inapposite to the facts pled in

Plaintiff’s complaint. The acknowledgment doctrine allows for the tolling of a

statute of limitations in situations involving “[a] clear, distinct and unequivocal

acknowledgement of a debt as an existing obligation, such as is consistent with a

promise to pay.” K.A.R. v. T.G.L., 107 A.3d 770, 781–82 (Pa. Super. Ct. 2014)

(internal quotation and citation omitted). For the acknowledgment doctrine to

apply, there must be “no uncertainty either in the acknowledgement or in the

identification of the debt,” and the acknowledgement of the debt “must be plainly

referable to the very debt upon which the action is based.” Id. The alleged

acknowledgment must also “be consistent with a promise to pay on demand and

not accompanied by other expressions indicating a mere willingness to pay at a

future time.” Id. A court cannot infer a promise from a “desire” or a “simple

declaration of an intention to discharge an obligation.” Id. at 782.

Here, it is evident on the face of the complaint that the acknowledgement

doctrine cannot apply because there is not a single allegation pertaining to a debt

nor any promise to pay. Even if we took the facts averred in the Second Allstate

Affidavit as true, there would still be “uncertainty…in the acknowledgement or in

the identification of the debt.” Id. at 781. According to the affidavit, Defendant’s

insurance company merely indicated a willingness to pay an unspecified amount at

a future time, when the claim was fully adjusted. This is not sufficient to establish

an acknowledgment of a debt that effectively tolls the statute of limitations.

In all, while Plaintiff is not necessarily required to plead around all potential

affirmative defenses in order to state a viable claim, she has nonetheless pled

herself out of court here. Based solely on the allegations in the complaint, Plaintiff

was aware of the full extent of her alleged injury in January 2018. Because she did

not bring her claim until July 2020, Plaintiff’s negligence claim is unquestionably

time-barred as-pled. Cf. Schmidt, 770 F.3d at 253 (“Because Schmidt's allegations

do not facially show that his claims . . . are time-barred, their dismissal by the

District Court must be reversed.”). To the extent there is any timely claim that

could derived from the set of facts contained in the Second Allstate Affidavit, it

would have to be a claim brought by Plaintiff’s insurance carrier against

Defendant’s insurance carrier based on the alleged misrepresentations. Here,

though, the lone claim against this Defendant arising from the January 2018

incident is clearly time-barred.

IV. CONCLUSION

For the foregoing reasons, we shall grant Defendant’s motion to dismiss. A

separate order shall issue in accordance with this ruling.