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

Decision Date29 September 2020
Docket Number1:20-CV-1280
Citation490 F.Supp.3d 827
Parties Marlene BRADY, Plaintiff, v. W.C. ESHENAUR & SON, INC., Defendant.
CourtU.S. District Court — Middle District of Pennsylvania

Daniel J. de Luca, Joseph L. McGlynn, De Luca Levine, LLC, Blue Bell, PA, for Plaintiff.

Scott D. McCarroll, Thomas, Thomas & Hafer, LLP, Harrisburg, PA, for Defendant.


John E. Jones III, District Judge 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.


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.


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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955 ). 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, 129 S.Ct. 1937. "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, 127 S.Ct. 1955 ).

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, 127 S.Ct. 1955. 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, 129 S.Ct. 1937. 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, 127 S.Ct. 1955 ). 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.


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 ...

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