1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

METRO AUTO SALES :

:

Plaintiff, : CIVIL ACTION

:

 v. :

 :

ALFRED STEIN, INC. : NO. 05-4721

:

Defendant. :

Baylson, J. January 30, 2006

MEMORANDUM

I. Introduction

This case involves a dispute concerning an asset purchase agreement between the parties. 

Plaintiff MetroAuto Sales, Inc. (“Plaintiff” or “Metro”) entered into a contract with Alfred Stein,

Inc. (“Defendant” or “Stein”). In this suit, Metro seeks damages for both breach of contract and

fraud. An amended complaint was filed on October 13, 2005.

Presently before the Court is Defendant’s Rule 12(b)(6) Motion to Dismiss the Amended

Complaint (Doc. No. 5). For the reasons that follow, the Court will grant the Motion to Dismiss.

II. Background

A. Procedural Background

Plaintiff Metro filed its original complaint on August 31, 2005 alleging both breach of

contract and fraud. Plaintiff filed an amended complaint on October 13, 2005. On October 31,

Defendant filed its Motion to Dismiss, and Plaintiff filed a Response on November 10.

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B. Allegations in the Amended Complaint

According to the amended complaint, Metro and Stein entered into an asset purchase

agreement (the “Agreement”) on November 19, 2004. The Agreement stated that Stein would

purchase certain assets from Metro to be used in the operation of a Kia and Suzuki dealership in

Coatesville, Pennsylvania. At this point, Stein paid Metro, through its escrow agent, a total of

$167,500 as part of the execution of the Agreement. On the same date, Plaintiff alleges that

Stein entered into a Real Estate Agreement of Sale with Newbourne, LLC, in which Stein agreed

to purchase property located in Coatesville contemporaneous with the purchase of certain assets

from Metro. Plaintiff claims that at some point after November 19, 2004, Stein stopped payment

on the check it had written to Metro. On December 8, 2004, Stein communicated its desire to

terminate the Agreement through William L. Landsburg, its attorney and corporate officer.

The amended complaint sets forth two causes of action. Count I asserts that Stein

breached its contract with Metro by terminating the contract without a justifiable cause. Count II

alleges fraudulent misrepresentation. Plaintiff avers that Stein falsely represented its intention to

fulfill its contractual obligation, which induced Metro to execute the Agreement. Plaintiff seeks

relief in the form of liquidated damages, punitive damages, attorneys’ fees and costs, and other

relief deemed reasonable and just by the Court. 

III. Jurisdiction and Legal Standard

A. Jurisdiction

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because the

matter in controversy exceeds $75,000 and is between citizens of different states. Plaintiff is a

New Jersey corporation with a principal place of business in New Jersey. Defendant is a

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Pennsylvania corporation with a principal place of business in Pennsylvania. Venue is

appropriate under 28 U.S.C. § 1391(a)(2) because the claim arose in this judicial district.

B. Legal Standard

When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox,

Rothschild, O’Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as

true all well-pleaded allegations in the complaint and view them in the light most favorable to the

plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule

12(b)(6) motion will be granted only when it is certain that no relief could be granted under any

set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d

Cir. 1988).

IV. Parties’ Contentions

Defendant argues that Count II of the amended complaint is an attempt to convert a

breach of contract claim into a tort claim and is therefore barred by both the gist of the action

doctrine and by the economic loss doctrine. Def’s Br. at 3–4. First, Stein asserts that Metro is

simply restating its breach of contract claim as a tort claim, which is precluded under the gist of

the action doctrine. Id. at 4. Stein also contends that a promise of future action does not

constitute fraud under Pennsylvania law. Id. at 4–5.

Plaintiff responds by arguing that its tort claim is rooted in the misrepresentations made

by Stein that fraudulently induced execution of the Agreement. Pl’s Resp. at 3. Plaintiff argues

that because the tortious conduct occurred before the formation of a contract, the gist of the

action doctrine does not apply. Id.

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Defendant also argues that Metro is only seeking liquidated damages under the fraud

count, and such damages are barred by the economic loss doctrine. Def’s Br. at 5. Plaintiff

asserts that the economic loss doctrine does not apply in this situation because the damages do

not flow from Stein’s breach of contract. Pl’s Resp. at 4. Plaintiff also asserts that there is no

claim for liquidated damages in the fraud count. Id. at 5.

V. Discussion

The Pennsylvania Superior Court, noting the absence of any Pennsylvania Supreme Court

decision on the gist of the action doctrine in fraud cases, chose to adopt federal court

interpretations of Pennsylvania law and held that:

[T]he doctrine bars tort claims: (1) arising solely from a contract between the

parties; (2) where the duties allegedly breached were created and grounded in the

contract itself; (3) where the liability stems from a contract; or (4) where the tort

claim essentially duplicates a breach of contracts claim or the success of which is

wholly dependant on the terms of a contract.

See eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 19 (Pa. Super. Ct. 2002) (internal

citations and quotations omitted).

Metro’s tort claim falls within many, if not all, of the categories set forth in eToll. 

Although the amended complaint alleges that Stein made the misrepresentations prior to

executing the Agreement, Amended Complaint at 5, allegations concerning the timing of a

fraudulent statement are insufficient on their own to avoid the invocation of the gist of the action

doctrine. For the reasons that follow the Court holds that the fraudulent misrepresentation claim

arises from the contract and therefore is not independent of the Agreement at issue in this case.

The Superior Court in eToll concluded “the gist of the action doctrine should apply to

claims for fraud in the performance of a contract.” Id. at 20 (emphasis added). Ultimately the

Case 2:05-cv-04721-MMB Document 7 Filed 01/30/06 Page 4 of 9
1 The undersigned is a coauthor of a recent discussion of the intersection of contract and tort

law. See Michael M. Baylson, Kelly D. Eckel & Sandra A. Jeskie, Contracts, in 8 Business and

Commercial Litigation in Federal Courts §§ 68:6–8, at 330–38 (Robert L. Haig ed., 2d ed. 2005). The

piece explains the development of the gist of the action doctrine and reviews its application by the courts. 

Id. § 68:8, at 335–38. 

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issue in this case is whether to characterize Defendant’s alleged failure to pay as an unfulfilled

promise which amounts to fraudulent inducement to enter a contract or as a breach of contractual

terms and thus a breakdown in the performance of the contract. 

Though non-precedential, the Third Circuit decision in Williams v. Hilton Group, PLC,

93 Fed. Appx. 384 (3d Cir. 2004), appears to address the matters at issue in the instant case. The

Williams majority held that a claim of fraudulent inducement involving statements subsequently

covered by the terms of the contract is barred by the gist of the action doctrine. Id. at 386–87.

The Williams majority cites to the undersigned’s opinion in Penn City Investments, Inc.

v. Soltech, Inc., 2003 WL 22844210 (E.D. Pa. Nov. 25, 2003), in support of its conclusion that

the fraud count should be dismissed under the gist of the action doctrine. In Penn City, this

Court held that the “fraudulent inducement claim is tightly intertwined with its cause of action

for breach of contract,” id. at *3, concluding that “Soltech's fraud and negligence claims must be

dismissed as to Penn City because they are either directly addressed by the contract, or so closely

related to the contractual relationship, that the dispute between the parties should be resolved by

exclusive reference to contractual principles.” Id. at *4. According to the Penn City court, the

relevant inquiry in applying the gist of the action doctrine to a claim of fraudulent inducement is

to “determine if the pre-contractual statements concerned the specific duties that the parties later

outlined in the contract. . . . [i]f so, the gist of the action doctrine precludes such statements from

forming the basis of a tort cause of action.” Id. at *3.1

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It is important to note, however, that many of the cases invoking the gist of the action in

dismissing fraud claims have done so at the summary judgment stage. See Williams, 93 Fed.

Appx. at 386–87; Penn City, 2003 WL 22844210 , at *4; Galdieri v. The Monsanto Group, 245

F. Supp. 2d 636, 650 (E.D. Pa. 2002) (holding that the employment contract between the parties

explicitly addressed the issue of restrictions on company stock and that the plaintiffs could not

bootstrap a fraud claim could not be bootstrapped to a contract claim merely by adding the words

“fraudulently induced”); Werner Kammann Maschinenfabrik, GmbH v. Max Levy Autograph,

Inc., 2002 WL 126634, at **6–7 (E.D. Pa. Jan. 31, 2002) (dismissing fraudulent

misrepresentation claim because defendant’s pre-contractual promise was directly addressed by

the contract and therefore barred under the gist of the action doctrine). 

 As for dismissal at the 12(b)(6) stage, there is precedent in this Court for invocation of

the gist of the action doctrine at that stage of the litigation in a 12(b)(6) dismissal. In Owen J.

Roberts School District v. HTE, Inc., 2003 WL 735098 (E.D. Pa. Feb. 28, 2003), the court

granted a motion to dismiss after finding that the gist of the action doctrine barred plaintiff's

fraud claim because defendant's pre-contractual promise to provide plaintiff with certain software

was addressed by the contract. Id. at *5. The HTE court held that “the [gist of the action]

doctrine does not categorically bar or exempt . . . a [fraudulent inducement] claim, but it does

preclude the claim if the fraudulent statement became the basis for a contractual duty.” Id. at *3.

The HTE court also examined two cases from this Court which permitted a fraud in the

inducement claim to proceed concurrently with a breach of contract claim. In both of these

cases, Asbury Automotive Group LLC v. Chrysler Insurance Co., 2002 WL 15925 (E.D. Pa. Jan.

7, 2002) and American Guaranty & Liability Insurance Co. v. Fojanini, 90 F. Supp. 2d 615 (E.D.

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 Although it need not decide the issue, the Court doubts that Plaintiff’s fraud allegations meet

the requirements of F.R. Civ. P. 9(b).

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Pa. 2000), the allegedly fraudulent behavior involved representations about issues not addressed

by the parties’ contracts. See HTE, 2003 WL 735098, at *4.

Turning to the facts of this case, the Court concludes the cause of action in Count II lies

in contract, since the duty involved, providing the $167,500 promised, was clearly set forth in the

Agreement and not based on some larger social policy. The facts alleged in the Amended

Complaint are very simple. There was a contract for an asset sale and one party did not pay. 

Because the pre-contractual statements upon which Plaintiff bases its claim for fraudulent

inducement were later outlined in the contract, the Court holds that the gist of the action doctrine

applies and that contractual principles should control. Because the facts of this case as set forth

in the Amended Complaint are very simple and do not appear to require much in the way of

discovery to unpack, the Court has determined that elimination of the fraud claim at the 12(b)(6)

stage is appropriate. 

The fraudulent misrepresentation alleged in the Amended Complaint only amounted to

deficient performance of the terms of the Agreement.2 Defendant’s alleged failure to make the

$167,500 payment is at the heart of Count I, and the gist of the action thus bars Metro’s

fraudulent inducement claim. Therefore, Count II of the Amended Complaint sounds in contract

not in tort and will be dismissed. Because Defendant has been successful in its argument that the

claim should be dismissed under the gist of the action test, the Court will not address the merits

of its arguments concerning the economic loss doctrine.

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VI. Conclusion

The Court concludes that the gist of the action doctrine bars Plaintiff’s fraudulent

misrepresentation claim. Defendant’s Motion to Dismiss will accordingly be granted and Count

II will be dismissed with prejudice. 

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

METRO AUTO SALES :

:

Plaintiff, : CIVIL ACTION

:

 v. :

 :

ALFRED STEIN, INC. : NO. 05-4721

:

Defendant. :

ORDER

AND NOW, this 30th day of January, 2006, it is hereby ORDERED that Defendant’s Motion

to Dismiss (Doc. No. 5) is GRANTED with prejudice.

BY THE COURT:

 s/ Michael M. Baylson 

MICHAEL M. BAYLSON, U.S.D.J.

O:\CIVIL\05-4721 Metro Auto Sales v. Stein\05-4721 Metro MTD.wpd

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