IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL B. McGUIRK and : CIVIL ACTION 

JEANNIE E. McGUIRK, :

Individually and on behalf :

of their minor children, :

MICHAEL J. McGUIRK, a minor, :

and THOMAS C. McGUIRK, a :

minor, : No. 02-CV-4341

Plaintiffs, : 

:

vs. :

:

STATE FARM FIRE & CASUALTY : JUDGE FRANKLIN S. VAN ANTWERPEN

COMPANY, :

Defendant. :

DEFENDANT STATE FARM FIRE & CASUALTY COMPANY’S

MOTION OF DISMISS PLAINTIFFS’ COMPLAINT

Defendant State Farm Fire & Casualty Company (“State Farm”),

by and through its attorneys, Forry, Ullman, Ullman & Forry, P.C.,

hereby files the following Motion to Dismiss Plaintiffs’ Complaint:

1. The Complaint in the above-captioned civil action was

filed on or about June 28, 2002. A true and correct copy of the

Complaint is attached as Exhibit A.

2. The gist of this Complaint appears to be whether State

Farm handled Plaintiffs’ property damage claim pursuant to a

homeowners’ insurance policy in a good faith manner. 

3. Currently pending before this court under a separate

civil lawsuit is Plaintiffs’ action against State Farm for breach

of contract for the same property damage loss which is the subject

of this lawsuit. See Michael B. McGuirk and Jeannie E. McGuirk v.

State Farm Fire and Casualty Company, No. 01-CV-4472. That action

was filed on August 31, 2001.

4. On June 26, 2001, two months before filing the first

federal court lawsuit, Plaintiffs, Michael and Jeannie McGuirk,

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filed a lawsuit against Defendant State Farm and J. Wilbur

Sollenberger, Agent, Lantz & Martin Associates, LLC, t/d/b/a

Purofirst of Conestoga Valley and Karl & Associates, Inc. This

lawsuit was filed in the Court of Common Pleas of Lancaster County, 

Pennsylvania. (A true and correct copy of the Writ of Summons is

attached as Exhibit B). 

5. The Lancaster County action was purportedly an action for 

bad faith against State Farm involving the same facts and property

damage loss as the two federal court actions.

6. On January 15, 2002, Plaintiffs requested the court to

dismiss, without prejudice, the Lancaster County action. (A true

and correct copy of the Praecipe to Withdraw Action is attached as

Exhibit C).

7. Now, one year after filing the Lancaster County action

and ten months after filing the first federal court action,

Plaintiffs filed the instant lawsuit.

8. Again, this lawsuit arises out of the same facts and

involves the identical loss and policy of insurance as the prior

two actions, however, the present lawsuit includes additional

counts against State Farm.

9. Specifically, the subject Complaint contains seven

counts: negligence (Count I); bad faith (Count II); personal injury 

and property damage (Count III); breach of fiduciary duty (Count

IV); breach of covenant of good faith and fair dealing (Count V);

unfair trade practices and consumer protection law (Count VI); and

punitive damages (Count VII).

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10. Count I for negligence should be dismissed for failing to 

state a valid cause of action under Pennsylvania law.

11. Count III of the Complaint is titled “Personal Injury and 

Property Damage” and appears to be a combination of Plaintiff’s

breach of contract, negligence and bad faith counts. 

12. Count III should be dismissed for failing to state a

valid cause of action under Pennsylvania law.

13. Count IV of Plaintiffs’ Complaint is for “Breach of

Fiduciary Duty.”

14. Pennsylvania does not recognize a separate cause of

action for breach of fiduciary duty.

15. Accordingly, Count IV of the Complaint should be

dismissed for failing to state a valid cause of action under

Pennsylvania law.

16. Count V of the Complaint is for “Breach of Covenant of

Good Faith and Fair Dealing.”

17. Again, Pennsylvania law does not recognize a separate

cause of action for breach of covenant of good faith and fair

dealing.

18. Accordingly, Count V of the Complaint should be

dismissed for failing to state a valid cause of action under

Pennsylvania law.

19. Count VI is titled “Unfair Trade Practices and Consumer

Protection Law.”

20. Plaintiffs’ allegations are insufficient to state a valid 

claim under the UTP&CPL and, therefore, Count VI should be

dismissed as a matter of law.

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21. Lastly, Count VII purports to be a cause of action for

“Punitive Damages.”

22. Since Pennsylvania law does not recognize a request for

punitive damages as a cause of action but rather a request for

damages, it must be dismissed for failure to state a valid cause of 

action.

WHEREFORE, Defendant State Fire & Casualty Company

respectfully requests that this Motion to Dismiss be granted and

that Counts I, III, IV, V, VI and VII of Plaintiffs’ Complaint be

dismissed with prejudice.

Respectfully submitted,

FORRY, ULLMAN, ULLMAN & FORRY, P.C.

Dated: 10/10/02 By:

LEE E. ULLMAN, ESQUIRE

540 Court Street

P.O. Box 542 

Reading, PA 19603

610 777-5700

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