# Weir

> District Court, M.D. Pennsylvania · November 24, 2025

URL: https://www.frixlaw.com/law-library/cases/11209280

## Case

- **Full name:** Brandon W. Weir v. Progressive Advanced Insurance Company
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRANDON W. WEIR,
Plaintiff : 3:25.CV-1504
V. : (JUDGE MARIANI)
PROGRESSIVE ADVANCED
INSURANCE COMPANY
Defendant.
MEMORANDUM OPINION
Presently before the Court is a partial motion dismiss and motion to strike filed by
Defendant Progressive Advanced Insurance Company (“Defendant” or “Progressive’).
(Doc. 4). For the reasons that follow, the motions will be granted.
I. PROCEDURAL HISTORY
On or about July 16, 2025, Plaintiff Brandon W. Weir (“Plaintiff”) filed this action in
the Court of Common Pleas of Luzerne County. (Doc. 1-2). In the Complaint, Plaintiff
brings six claims against the Defendant: a claim for breach of contract (Count I), a statutory
bad faith claim pursuant to 42 Pa. C.S.A. § 8371 (Count Il), a claim alleging fraud and
misrepresentation (Count Ill), declaratory relief (Count |V), specific performance (Count V),
and a claim for unjust enrichment (Count VI). (/d.).
On August 15, 2025, Defendant timely removed the action to this Court pursuant to
28 U.S.C. § 1441. (Doc. 1). Defendant thereafter filed a motion to dismiss and a motion to
strike. (Doc. 4). On September 3, 2025, Plaintiff filed a motion to remand, (Doc. 6), which

the Court denied on October 2, 2025. (Doc. 15). The motions have heen fully briefed and
ripe for disposition.
ll. FACTUAL ALLEGATIONS
Plaintiffs Complaint alleges the following:
Plaintiff is the owner of an automobile insurance policy purchased from Defendant
Progressive. (Doc. 1-2, J 1-2). Specifically, Plaintiff purchased an automobile insurance
policy bearing the policy number 6587703 from the Defendant to provide coverage on the
Plaintiffs 2016 Ford Fusion SE Sedan 4D EcoBoost 1.5L. (/d., fff] 3-5). On or about
January 17, 2025, Plaintiffs automobile suffered significant damage and loss when the
vehicle struck an animal. (/d., {| 6).
Plaintiff “immediately reported the damage and loss to the Defendant through its
agents and/or employees.” (/d., J 7). Plaintiff further “gave written notice of the damage
and loss to the Defendant and made claim for his loss.” (/d., ] 8). After receipt of Plaintiffs
claim, the Defendant “undertook to investigate the Plaintiff's claim.” (/d., J 9). According to
the Plaintiff, he has performed “all conditions, covenants, and promises required by him”
and further “has fully cooperated with the investigation of the Defendant, provided access to
the automobile, and provided all relevant information requested by the Defendant's
representatives as well as claim documentation to the best of his ability.” (/d., 10-11).

1 This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) because the parties are
diverse iand the amount in controversy exceeds $75,000.

“The Defendant, despite demand for benefits under its policy of insurance, has failed and
refused to pay the Plaintiff those benefits due and owing under said policy of insurance and
has refused to pay the Plaintiff to compensate him for his insured loss.” (/d., J 12). “The
Defendant unreasonably delayed in providing good faith offers on the claims of the Plaintiff.”
(Id., J 13).
In Count | of the Complaint, Plaintiff asserts a claim for breach of contract. (/d., If]
14-23). Plaintiff alleges that the Defendant “in failing to pay the insured benefits, breachad
its contractual obligations and is in violation of statutory law as well as the terms and
conditions” of the insurance policy. (/d., ] 18). Specifically, Plaintiff alleges that Defendant
breached the insurance contract by: (1) failing to promptly and reasonably adjust the claim:
(2) failing to properly train and/or instruct its adjusters and/or agents; (3) failing to provide
uniform and/or standard guidelines and/or materials to adjusters and/or agents to properly
evaluate claims; (4) failing to timely provide sufficient funds for the loss, repair and/or
replacament of the subject property; (5) failing to provide sufficient funds for the loss, repair
and/or replacement of the contents contained in the subject property, as per policy
provisions; (6) failing to provide sufficient funds for the loss of use of the subject property, as

per policy provisions; and (7) denying coverage on the claim without a proper lagaal basis.
(/d., 99, 18(A)-(G)). As a direct and proximate result of the aforementioned conduct, Plaintiff
alleges he “has been deprived of the value of his automobile” and seeks no less than

$30,286.86 for breach of contract as well as reasonable attorney's fees, costs and

expenses. (/d., [{] 19-23).
in Count II of the Complaint, Plaintiff asserts a claim for statutory bad faith pursuant
to 42 Pa. C.S. § 8371. (Id., J¥] 24-31). “Upon information and belief, the Defendant

possesses no evidence that the damage did not occur as reported by the Plaintiff.” (/d.,
25). “Upon information and belief, the Defendant possesses no evidence that the damage
did not occur in such a way as is covered under the terms of the insurance contract and/or
all applicable endorsements.” (/d., 26). “Upon information and belief, the Defendant has

no reasonable and sufficient basis for its conclusion that the damage to the Plaintiff's
automobile is not a covered loss under the insurance contract.” (/d., J 27). “The Defendant
acted in bad faith toward the Plaintiff when it denied the Plaintiff's claim.” (/d., J 28).
“Defendant's conduct and actions in employing, using and relying upon its investigation and
adjustment of the Plaintiff's claim and determination of the amount of damages and
monetary amount of loss to the Plaintiffs automobile, constitutes bad faith on the part of
Defendant towards its insured.” (/d., ] 29).
“Defendant's conduct and actions in failing to pay the insurance benefits to which the
Plaintiff was entitled constitutes bad faith” in that the Defendant: (1) failed to promptly and
reasonably respond to Plaintiffs demand for prompt payment of Plaintiffs insurance claim
after Defendant had been provided with loss documentation that clearly established that
immediate payment of such insurance benefits was justifiable and warranted; (2)

unreasonably and vexatiously delayed payment of insurance benefits to Plaintiff when it was
clear that immediate payment of such insurance benefits was justified and warranted; (3)
failed to make a reasonable settlement offer or payment to the Plaintiff, thereby compelling
Plaintiff to institute the instant action and incur additional costs to recover those benefits
rightly due to him; (4) failed and/or refused to pay the full amount of Plaintiffs insurance
policy benefits and damages without a reasonable foundation to do so; (5) forced Plaintiff to
unnecessarily incur significant debts by failing to promptly pay insurance policy benefits that

were rightly due to him; (6) failed to adopt and implement reasonable standards for the
prompt investigation and payment of insurance policy benefits arising out of Plaintiff's
insurance contract; (7) failed to pay Plaintiff's insurance policy benefits and claims within a
reasonable time after supporting loss documentation had been provided to Defendant; (8)
failed to attempt in good faith to effectuate a prompt, fair, and equitable settlement of
Plaintiffs insurance policy benefits and claims even though there was no issue as to
Defendant's liability for the insurance policy benefits; (9) failed to exercise the utmost good
faith and discharge of its statutory and contractual duties to Plaintiff; and (10) engaged in
unfair claims settlement and insurance practices in violation of common law and
Defendant's statutory obligations. (/d., 30(a)-(j)). Plaintiff seeks interest, punitive
damages, and reasonable attorneys’ fees and costs. (/d., J 31).
In Count Ill of the Complaint, Plaintiff asserts a claim for fraud and
misrepresentation. (/d., J{] 32-37). “At all times relevant, Defendant has marketed itself as

company which its insured could rely on for prompt and fair evaluation and prompt payment
of claims.” (/d., ] 33). “Defendant represents the above image to its insured and
represented that image to Plaintiff in order to induce the Plaintiff, Brandon W. Weir, to
purchase insurance with Defendant.” (/d., 34). “The Plaintiff did, in fact, rely upon and

was induced by the aforesaid representations made by Defendant and make its decision to
purchase insurance from Defendant on the basis of that reliance and inducement.” (/d., J
35). “When Defendant made the above representations to the Plaintiff, those
representations were false.” (/d., | 36). “As a proximate and legal result of Defendant's
fraud and misrepresentations, Plaintiff has suffered financial loss, both in the form of the
premiums which the Plaintiff paid to Defendant for a product and service which Defendant
contracted to provided, but in fact did not intend to provide and did not provide to Plaintiff
when he needed it.” (/d., | 37). Plaintiff seeks compensatory damage in excess of $50,000
as well as punitive damages.
In Count IV of the Complaint, Plaintiff seeks a declaratory judgment. (/d., J¥] 38-40).
“Plaintiff seeks a declaratory judgment for the purposes of determining a question of actual
controversy between the parties concerning his rights, obligations, and coverages under the
subject policy.” (/d., 39). “Plaintiff seeks a declaration that the insurance policy provides
full insurance coverage for all damage to the insured’s property, and loss of use.” (Id., J
40).

In Count V of the Complaint, Plaintiff seeks specific performance. (/d., J{f 41-43).
“The Defendant entered into the subject contract of insurance with the Plaintiff wherein it
Clearly and expressly agreed to provide insurance coverage for physical loss and damage to
the Plaintiffs 2016 Ford Fusion SE Sedan 4D EcoBoost 1.5L automobile, as proximately
and efficiently caused in the manner suffered by the Plaintiff. Plaintiff in turn paid the
Defendant substantial premiums in consideration for the agreed upon insurance coverage.”
] 42). “The Plaintiff performed his end of the bargain and is accordingly now entitled to
specific performance of the insurance contract. The Court should therefore require the
Defendant to specifically perform such agreement.” (/d., J 43).
Lastly, in Count VI of the Complaint Plaintiff brings a claim for unjust enrichment.
| 44-46). “Despite realizing substantial premium|s] from Plaintiff, the Defendant has
withheld the insurance proceeds owed to the Plaintiff for the insured damage to his insured
property.” (/d., ] 45). “The Defendant has therefore been unjustly enriched at the Plaintiff's
expense.” (/d., J 46).
lll. | STANDARD OF REVIEW
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it
does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Att.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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.” Ashcroft

Vv. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations,
alterations, and quotations marks omitted). A court “take[s] as true all the factual allegations
in the Complaint and the reasonable inferences that can be drawn from those facts, but. . .
disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Labs., 707
F.3d 223, 231 n.14 (3d Cir. 2013) (internal citation, alteration, and quotation marks omitted).
Thus, “the presumption of truth attaches only to those allegations for which there is
sufficient ‘factual matter’ to render them ‘plausible on [their] face.” Schuchardt v. President
of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (alteration in original) (quoting /gbal, 556 U.S.
at 679). “Conclusory assertions of fact and legal conclusions are not entitled to the same
presumption.” /d.
“Although the plausibility standard ‘does not impose a probability requirement,’ it
does require a pleading to show ‘more than a sheer possibility that a defendant has acted
unlawfully.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
citation omitted) (first quoting Twombly, 550 U.S. at 556; then quoting /qbal, 556 U.S. at

678). “The plausibility determination is ‘a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” /d. at 786-87 (quoting
Iqbal, 556 U.S. 679).
“As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings.” /n re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997). However, an exception to this general rule exists where a
“document integral to or explicitly relied upon in the complaint may be considered without
converting the motion to dismiss into one for summary judgment.” /d. (internal quotation
marks and brackets omitted) (emphasis in original). The Court may also consider any
“undisputedly authentic documents that a defendant attached as an exhibit to a motion to
dismiss if the plaintiffs claims are based on the document.” PBCG v. White Consol. Indus..,
998 F.2d 1192, 1196 (3d Cir. 1993). Nonetheless, consideration of these documents “only
goes so far [and when the truth of facts in an ‘integral’ document are contested by the well-
pleaded facts of a complaint, the facts in the complaint must prevail.” Doe v. Princeton Uni.,
30 F.4th 335, 342 (3d Cir. 2022).
In addition, Rule 12(f) of the Federal Rules of Civil Procedure governs motions to
strike pleadings. It provides, in relevant part, “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.
R. Civ. P. 12(f.

IV. ANALYSIS
Defendant Progressive seeks dismissal of four of the six claims alleged in Plaintiff's
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and also seeks to strike
Plaintiffs demand for attorney's fees alleged in Count |. Progressive does not seek
dismissal of Plaintiffs breach of contract claim alleged in Count | or Plaintiff's declaratory
judgment claim alleged in Count IV. Plaintiff opposes Defendant's partial motion to dismiss
but does not oppose Defendant's motion to strike.2

2 The Court feels it necessary to highlight serious misrepresentations and outright falsehoods
contained in the opposition brief filed by Plaintiffs attorney Andrew J. Katsock III. (Doc. 16). Most egregious,
is Mr. Katsock’s false representations throughout Plaintiffs brief concerning purported declarations filed by
Progressive in support of its motion to dismiss. (/d. at 4-7). But as should have been abundantly clear to
Plaintiff's counsel, there are no declarations filed by Progressive on the docket, and certainly Progressive did
not submit declarations to support its motion to dismiss, as Mr. Katsock falsely claims throughout his
opposition brief. Although Defendant highlighted these egregious falsehoods in its reply brief, (Doc. 17), Mr.
Katsock has taken no steps to correct any of the falsehoods and misrepresentations contained throughout
his brief with this Court. Similarly, despite it being readily apparent that Progressive was not moving to
dismiss Plaintiffs declaratory judgment claim, Plaintiff yet again falsely misrepresents Defendant's motion
and again ascribes actions to Progressive that any reasonable and competent attorney reading the instant
motion to dismiss would know Defendant did not take. (Doc. 16 at 10-11). And there is no support whatsoever
for Plaintiffs counsel position taken throughout his brief that the Court must treat the motion dismiss as a
motion for summary judgment. (/d. at 4-10). Moreover, throughout Plaintiffs brief, Mr. Katsock misrepresents
nearly ali the case law he cites. Plaintiff counsel should have known better, but this appears to be a pattern
of behavior for Attorney Andrew J. Kastock III.
Indeed, this is not the first time that federal courts in this Circuit have acknowledged serious
improprieties concerning Plaintiffs attorney Andrew J. Katsock Ill. See, e.g., In re Witchey Enter., Inc., 2024
WL 2827928, at “1 (3d Cir. June 4, 2024) (“Appellant Andrew J. Katsock Ill, simultaneously represented a
small business debtor in a bankruptcy proceeding and its principal, who is also a creditor. He then falsely
represented to the Bankruptcy Court when he sought his attorneys’ fees that he had no conflict of interest.
... The Bankruptcy Court did not abuse its discretion when it denied Katsock’s Fee Application based on a
proper finding of an undisclosed conflict of interest.”) (emphasis added); /d. at *3 n.3 (“In addition, Katsock
failed to disclose that he represented Witchey, who was a party in interest for the purpose of Bankruptcy
rule 2014(a), despite multiple opportunities to do so.”) (emphasis added); Lokuta v. Angelella, 2024 WL
1557381, at *8 (M.D. Pa. Apr. 10, 2024) (Mannion, J.) (denying motion for Rule 11 sanctions against Attorney
Katsock, but noting “fiJf Mr. Katsock does not change his behavior and continues to file frivolous
complaints, future courts will have no other choice but to sanction him and consider referral to the
10

A. Statutory Bad Faith
Progressive first moves to dismiss Plaintiff's statutory bad faith claim alleged in the

Count II of the Complaint. The Pennsylvania legislature has created a statutory remedy for

an insurer's bad faith conduct, which reads as follows:
In an action arising under an insurance policy, if the court finds that the
insurer has acted in bad faith toward the insured, the court may take all
of the following actions:
(1) Award interest on the amount of the claim from the date the
claim was made by the insured in an amount equal to the prime
rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.
42 Pa. Cons. Stat. Ann. § 8371.

Bar Association for disciplinary action’) (emphasis added); Castillo v. Maguire, 2022 WL 1122836, at *5
n.4 (M.D. Pa. Apr. 14, 2022) (Mariani, J.) (“Plaintiffs counsel's inability to admit a simple fact, that is admitted
by Castillo himself and supported repeatedly in the record by a number of documents, raises serious
questions as to whether Plaintiff's counsel simply did not give adequate attention to this case or
rather lacks an ability to perform his duty of being candid with the Court.”) (emphasis added).
Similarly, the Court again must note what one would hope to be an error in a similar matter pending
before Judge Saporito involving the same parties but concerning a different vehicle and claim. Weir v.
Progressive, No. 3:23-cv-00654-JFS. As an initial matter, the Complaint filed by Plaintiff in this case is nearly
identical to that filed in a similar case before Judge Saporito. Compare id. (Doc. 1-3), with (Doc. 1-2). More
importantly, though, Plaintiffs counsel filed the same identical brief in opposition to Progressive’s motion to
dismiss in a matter before Judge Saporito, even though the cases clearly seek different damages for two
different automobile accidents. Compare (Doc. 14), No. 3:23-cv-00654-JFS with (Doc. 16). Perhaps this
was a mistake to file the exact same brief before this Court and Judge Saporito. This may have been the
inadvertent res.ult of the pendency of two cases involving the sanne Plaiintiff and the same iinsurarice company,
albeit it arising from aseparate claim from the cese before the Court. Nonetheless, it suggests a lack of
attention and slipshod approach to his client's interest.

11

“The standard for bad faith claims under § 8371 is set forth in Terletsky v. Prudential
Property & Cas. Ins. Co., 437 Pa. Super. 108, 649 A.2d 680, 688 (1994), appeal denied,
540 Pa. 641, 659 A.2d 560 (1995).” Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d
230, 233 (3d Cir. 1997). Terletsky defined the term “bad faith” as follows:
In the insurance context, the term bad faith has acquired a particular
meaning:
Insurance. “Bad faith” on part of insurer is any frivolous or unfounded
refusal to pay proceeds of a policy; it is not necessary that such refusal be
fraudulent. For purposes of an action against an insurer for failure to pay
a claim, such conduct imports a dishonest purpose and means a breach of
a known duty (i.e., good faith and fair dealing), through some motive of
self-interest or ill will; mere negligence or bad judgment is not bad faith.
Terletsky, 649 A.2d at 688 (quoting Black’s Law Dictionary 139 (6th ed. 1990)). Therefore,
“to recover under a claim of bad faith, the plaintiff must show that the defendant did not
have a reasonable basis for denying benefits under the policy and that defendant knew or
recklessly disregarded its lack of reasonable basis in denying the claim.” Id.
“Bad faith claims are fact specific and turn on the specific conduct of the insurer
toward the insured.” Toner v. GEICO Ins. Co., 262 F. Supp. 3d. 200, 208 (E.D. Pa. 2017).
Therefore, “[a] plaintiff must plead specific facts as evidence of bad faith and cannot rely on
conclusory statements.” /d. “A plaintiff cannot merely say that an insurer acted unfairly, but
instead must describe with specificity what was unfair.” Id.
Here, Plaintiffs Complaint fails to allege a plausible claim under Pennsylvania's bad
faith statute. Although the Court must take as true the factual allegations in the Complaint

12

and the reasonable inference drawn from those facts, it must disregard legal conclusions
and threadbare recitals of the elements of a cause of action supported by conclusory
statements only. Having done so, it is apparent that the Complaint contains insufficient
factual allegations to make it plausible that Defendant is liable under Pennsylvania's bad
faith statute. (Doc. 1-2, J] 24-31).
Indeed, the Complaint is full of conclusory factual allegations and legal conclusions,
and a further contains a laundry list of boilerplate and generic allegations about bad faith
that, taken together, falls far short of alleging plausible factual content raising the
reasonable inference that Progressive is liable under Pennsylvania's bad faith statute. See,
Inwin v. Progressive Ins. Co., 2025 WL 2670567, at *3 (M.D. Pa. Sept. 17, 2025)
(dismissing statutory bad faith claim where “the complaint consists of conclusory statements
unsupported by facts”); Grimley v. Progressive Advanced Ins. Co., 2025 WL 2414162, at *3
(E.D. Pa. Aug. 20, 2025) (“Courts in this Circuit have routinely dismissed bad faith claims
reciting only conclusory allegations unaccompanied by factual allegations sufficient to raise
the claims to a level of plausibility required to survive a rule 12(b)(6) motion to dismiss.”)
(collecting cases); Debree v. Am. States Ins. Co., 2021 WL 1226553, at *1 (M.D. Pa. Mar.
31, 2021) (Mariani, J.) (adopting reporting and recommendation and dismissing statutory
bad faith claim, with leave to amend); Richard v. Fin. of Am. Mortg., LLC, 2019 WL 1980693
(M.D. Pa. May 3, 2019) (Mariani, J.) (same); Liberty Ins. Corp. v. PGT Trucking, Inc., 2011
WL 2552531, at *4 (W.D. Pa. June 27, 2011) (dismissing statutory bad faith claim where the

13

complaint “contains only vague, barebone allegations as to the actual alleged bad faith
conduct”); Muth v. State Farm Fire & Cas. Co., 2010 WL 3805386, at *2 (M.D. Pa. Sept. 22,
2010) (dismissing statutory bad faith claim where, “[alll the allegations are merely
conclusory statements’ or “simply a threadbare recital of the elements of the cause of
action’).
In the absence of actual specific factual allegations regarding how Progressive
conduct amounted to bad faith, the Court cannot reasonably infer from the Complaint that
Progressive lacked a reasonable basis for denying Plaintiffs claim and knew or recklessly
disregarded its lack of reasonable basis in denying Plaintiff's claim. As such, the Court finds
that Plaintiff has failed to state a plausible statutory bad faith claim against the Defendant.
Accordingly, Count II will be dismissed without prejudice. Although Plaintiff did not request
leave to amend, the Court will grant Plaintiff leave to amend Count Il.
B. Fraud & Misrepresentation
Progressive next moves to dismiss Count III of Plaintiffs complaint alleging fraud
and misrepresentation. According to Progressive, Plaintiff has failed to plead fraud with
particularity, as required by Federal Rule of Civil Procedure 9(b), and further claim that
Plaintiff's claim is barred by Pennsylvania's gist of the action doctrine.
To state a claim for fraud in Pennsylvania, a plaintiff must plausibly plead six
elements: (1) a misrepresentation, (2) material to the transaction, (3) made falsely, (4) with
the intent of misleading another to rely on it, (5) justifiable reliance resulted, and (6) injury

14

was proximately caused by the reliance. Santana Prods., Inc. v. Bobrick Washroom Equip.,
Inc., 401 F.3d 123, 136 (3d Cir. 2005). In addition, Federal Rule of Civil Procedure 9(b)
requires that allegations of fraud must be pled with particularity. “The purpose of Rule 9(b)
is to provide notice, not to test the factual allegations of the claim.” Morganroth &
Morganroth v. Norris, McLaughlin & Marcus P.C., 331 F.3d 406, 414 n.2 (3d Cir. 2003).
“Rule 9(b) may be satisfied by describing the circumstances of the alleged fraud with
precise allegations of date, time, or place, or by using some means of injecting precision
and some measure of substantiation into the allegations of fraud.” Ohama v. Markowitz,
434 F. Supp. 3d 303, 310 (E.D. Pa. 2020) (citing Bd. of Trs. of Teamsters Local 863
Pension Fund v. Foodtown, 296 F.3d 164, 172 n.10) (3d Cir. 2002). “Stated differently, the
plaintiff must plead the who, what, when, where, and how of the fraud.” /d.
Count Ill of the Complaint must be dismissed for several reasons. As an initial
matter, Plaintiff does not even allege ail the elements of the cause of action for fraud under
Pennsylvania law. For example, the Complaint contains no allegations of the specific
misrepresentation that Progressive made, nor does he plausibly allege justifiable reliance.
Moreover, the allegations in the Complaint come nowhere close to satisfying the heightened
pleading standard Federal Rule of Civil Procedure 9(b). The paltry allegations in the
Complaint, (Doc. 1-2, J 32-37), fail to identify, at a minimum, when the fraud alleged took
place, where it allegedly took place, and how the alleged fraud took place. Far more is
needed to comply with Federal Rule of Civil Procedure 9(b). Accordingly, Count III alleging

15

fraud and misrepresentation will be dismissed without prejudice. Although Plaintiff did not
request leave to amend, the Court will grant Plaintiff leave to amend Count Ill.
C. Specific Performance
Progressive next moves to dismiss Count V of the Complaint, which seeks specific
performance, claiming that such a claim in equity cannot stand because Plaintiff has an
adequate remedy at law—the breach of contract claim alleged in Count | seeking monetary
damages. Defendant further claims that specific performance is merely a remedy for a
breach a contract, not a freestanding legal claim and therefore the claim must be dismissed.
Plaintiff makes no attempt to argue why he does have an adequate remedy at law or
otherwise offer support for his specific performance claim. The Court agrees with
Progressive and Count V must be dismissed with prejudice.
“Specific performance compels the surrender of a thing in itself, because that thing is
unique and cannot by its nature be duplicated.” Cimina v. Bronich, 517 Pa. 378, 383
(1988). “A decree of specific performance is a matter of grace and not of right.” Clark v.
Pennsylvania State Police, 496 Pa. 310, 313 (1981). “Specific performance should only be
granted where the facts clearly establish the plaintiffs right thereto, where no adequate
remedy at law exists, and where justice requires it.” /d.

3 Because the Court is dismissing the claim for failure to comply with pleading standards, the Court
does not address Progressive’s alternative argument that Count III must be dismissed because it is barred
by Pennsylvania's gist-of-the-action doctrine.
16

Initially, the Court notes that Plaintifffinsured seeks specific performance of money
alleged owed to him from Progressive/insurer due to an alleged breach of the insurance
contract. But money is fungible, and not unique, and the claim alleged in Count V is not a

proper basis for seeking specific performance of an insurance contract. Moreover, it is well-
settled that specific performance is not a standalone claim under Pennsylvania law but
instead is an equitable remedy for breach of contract. See Nationwide Life Ins. Co. v.
Franklin Mills Assoc. Limited P’ship, 2014 WL 4722623, at *5 n.1 (E.D. Pa. Sept. 23, 2014)
(“Specific performance is an equitable remedy for breach of contract, not an independent
cause of action.”).
Courts applying Pennsylvania law routinely dismiss claims in equity seeking specific
performance where, as here, the plaintiff has an adequate remedy at law in the form of
monetary damages for breach of contract. See, e.g., Vanderveen v. Erie Indem. Co., 417
Pa. 607, 608 (1965) (in action where plaintiff sought “specific performance of the contract of
insurance” lower court erred in entertaining action in equity because “i]t is fundamental that
equity lacks jurisdiction if an adequate and complete remedy at law exists.”); Lyco Betters
Homes, Inc. v. Range Res. Appalachia, LLC, 2009 WL 10692483, at *2 (M.D. Pa. May 21,
2009) (noting that plaintiff “concedes that specific performance is not appropriate, and is
relying on the breach of contract claim only”); O’Shea v. Mut. Life Ins. Co. of New York,
2002 WL 32348944, at *2 (E.D. Pa. Jan. 22, 2002) (“As an action for breach of contract
provides an adequate legal remedy to Dr. O'Shea in the instant case, she may not pursue

17

her claim for specific performance.”). Because Plaintiff has an adequate remedy at law for
the alleged breach of contract—the breach of contract claim he has alleged in Count |
seeking monetary damages—Count V seeking specific performance will be dismissed with
prejudice because leave to amend would be futile.
D. Unjust Enrichment
Progressive next moves to dismiss Plaintiffs claim alleging unjust enrichment,
claiming that the claim cannot survive because the parties have an express contract.
“To plead unjust enrichment, a plaintiff must allege that: (1) the plaintiff conferred
benefits upon the defendant; (2) the defendant appreciated and accepted such benefits; and
(3) it would be inequitable for the defendant to retain the benefit without payment of the
value.” Alpart v. Gen. Land Partners, Inc., 574 F.Supp.2d 491, 507 (E.D. Pa.
2008) (citing Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616, 622 (Pa. Super. 1999)). Put
differently, to succeed on a claim for unjust enrichment, a party must demonstrate: (1) that it
“conferred a benefit upon Defendants; (2) Defendants appreciated the benefit; and (3)
Defendants accepted and retained the benefit under circumstances making it inequitable for
Defendants to retain the benefit without paying him.” Argue v. Triton Digital, Inc., 2017 WL
1611254, at “4 (W.D. Pa. Apr. 28, 2017). Initially, the Court notes that Plaintiffs Complaint
fails to allege each of the elements of a cause of action for unjust enrichment and will thus
be dismissed. (Doc. 1-2, ff 44-46).

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More importantly, though, Count VI must be dismissed because it is well-settled that
under Pennsylvania law, a “plaintiff cannot recover for unjust enrichment when an express
contract governs the relationship between the parties.” Aplart, 574 F. Supp. 2d at 507; see
also Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 625 (E.D. Pa. 2010) (“[I]t is a well-
established rule that the doctrine of unjust enrichment is inapplicable when the relationship
between the parties is founded upon written agreements.”); Villoresi v. Femminella, 856
A.2d 78, 84 (Pa. Super. 2004) (“Where an express contract already exists to define the
parameters of the parties’ respective duties, the parties may avail themselves of contract
remedies and an equitable remedy for unjust enrichment cannot be deemed to exist.’).
Here, it is undisputed that there is an express contract that governs the relationship
between Plaintiff and Defendant—the insurance policy. (Doc. 1-2, 3-6, 11-12, 15-19).
As such, Plaintiffs claim alleging unjust enrichment will be dismissed with prejudice
because leave to amend would be futile because there is no dispute that an express
contract exists governing the relationship between Plaintiff and Defendant.
E. Motion to Strike
Finally, Defendant next move to strike Plaintiffs reference to, and demands for,
attorney's fees in Count | of the Complaint which alleges breach of contract. Plaintiffs
opposition brief fails to address Defendant’s motion to strike. Accordingly, under Local Rule
7.6 Plaintiff “shall be deemed not to oppose such motion.” M.D. Pa. L.R. 7.6.

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It is well-settled that striking a pleading is a “drastic remedy” which courts generally
disfavor. Homesite Ins. Co. of Midwest v. Geaith, Civil No. 1:22-CV-1664, 2023 WL
362387, at *1 (M.D. Pa. Jan. 30, 2023); see also Balon v. Enhanced Recovery Co., Inc.,
316 F.R.D. 96, 98 (M.D. Pa. 2016) (motions to strike “should be denied unless the
allegations have no possible relation to the controversy, may cause prejudice to one of the
parties, or confuses the issues.”); Fiorentino v. Cabot Oil & Gas Corp., 750 F. Supp. 2d 506,
509 (M.D. Pa. 2010) (“Relief under Federal Rule of Civil Procedure 12(f) is generally
disfavored, and will be denied unless the allegations have no possible relation to the
controversy and may cause prejudice to one of the parties, or if the allegations confuse the
issues in the case.”).
“The burden rests with the moving party to show that the challenged matter should
be stricken.” Roamingwood Sewer & Water Ass'n v. Nat'l Diversified Sales, Inc., 509 F.
Supp. 3d 198, 204 (M.D. Pa. 2020). Accordingly, Defendants “must demonstrate that the
matter falls within the categories listed in Rule 12(f).” /d. “Immaterial matter is that which
has no essential or important relationship to any claims for relief.” Id. “Impertinent matter
consists of statements that do not pertain, and are not necessary, to the issues in question.”
Id. “And scandalous matter is that which casts a derogatory light on someone, uses
repulsive language, or detracts from the dignity of the court.” Id.
The Court will grant Progressive's motion to strike all references to, and demand for,
attorney's fees in Count | of the Complaint as unopposed. It will also grant Progressive’s

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motion on the merits. The attorney's fees demand on the breach of contract claim alleged
in Count | is immaterial and impertinent and are not recoverable under Pennsylvania law.
See Kirschner v. State Farm Fire & Cas. Co., 2023 WL 7167568, at *2 (E.D. Pa. Oct. 31,
2023) (granting motion to strike claim for attorney’s fees where “the claims at issue are
based on an insurance contract, which does not allow for the recovery of attorney’s fees’);
Getz v.. State Farm Ins. Co., 2012 WL 5288795, at *2 (W.D. Pa. Oct. 24, 2012) (granting
motion to strike demand for attorney’s fees in action for breach of insurance contract).
Indeed, Plaintiff does not even address, let alone oppose, Progressive’s motion to strike.
Accordingly, the Court will grant Progressive’s motion to strike.
V. | CONCLUSION

For the foregoing reasons, Defendant’s partial motion to dismiss and motion to strike
will be granted. A separate Order follows. 4 | )

obert D. Mariani
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11209280. Public record. Not legal advice.