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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CALVIN PHILLIPS, : Civil Action No. 4:14-CV-1919

:

:

Plaintiff, : (Judge Brann)

:

v. :

:

STATE FARM MUTUAL :

AUTOMOBILE INSURANCE CO., :

:

:

Defendants. :

MEMORANDUM

May 29, 2015

Pending before this Court is Defendant State Farm Mutual Automobile 

Insurance Co.’s motion to dismiss Plaintiff Calvin Phillips’ amended complaint for 

failure to state a claim upon which relief can be granted pursuant to Federal Rule 

of Civil Procedure 12(b)(6). Plaintiff’s amended complaint seeks recovery on 

several bases for the failure of Defendant to pay what he alleges is the entire 

amount of underinsured motorist benefits (hereinafter “UIM”) due under his 

insurance policy. He asserts a claim for $225,000 in additional underinsured 

motorist benefits (Count I), a claim for statutory bad faith (Count II), and a claim 

for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection 

Law (hereinafter, “UTPCPL”) (Count III). Defendant seeks to dismiss only Count 

III of Plaintiff’s amended complaint. 

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The matter has been fully briefed and is now ripe for disposition. In 

accordance with the following reasoning, Defendant’s motion to dismiss is 

granted. Count III of Plaintiff’s amended complaint is dismissed without prejudice 

with leave to amend in accordance with the following reasoning.

I. BACKGROUND

Plaintiff alleges that on October 18, 2013, he was injured in an automobile 

accident while riding his newly leased Harley Davidson motorcycle. The accident 

was caused by Georgine Miller’s failure to observe Plaintiff’s motorcycle before 

turning left into a parking lot. Unfortunately, Ms. Miller did not have sufficient 

insurance coverage to compensate Plaintiff for the losses he sustained. 

Consequently, he made a demand for UIM coverage from his own insurer, 

Defendant, under two different insurance policies.1

Despite Plaintiff’s belief that the total amount of coverage pursuant to each 

policy was $300,000, Defendant initially offered to pay only $45,000 on each 

policy. After several months of discussions with Plaintiff, Defendant agreed to 

reform one of the policies and issued a check for $300,000 on that policy; 

however, Defendant refused to reform the other policy and issued only $45,000 to 

Plaintiff under that policy. The instant lawsuit ensued.

 

1 These policies have a fairly detailed history, which is recited at length in Plaintiff’s amended complaint. Because 

the history of these policies is largely irrelevant to the issue currently before the Court, the Court will not repeat 

those facts here.

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II. LEGAL STANDARD

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

and construe all inferences in the light most favorable to plaintiff. See Hishon v. 

King & Spaulding, 467 U.S. 69, 73 (1984); see also Kost v. Kozakiewicz, 1 F.3d 

176, 183 (3d Cir. 1993). However, “the tenet that a court must accept as true all of 

the [factual] allegations contained in the complaint is inapplicable to legal 

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations

omitted). In ruling on such a motion, the court primarily considers the allegations 

of the pleading, but is not required to consider legal conclusions alleged in the 

complaint. Kost, 1 F.3d at 183. “Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. 

at 678. At the motion to dismiss stage, the court considers whether plaintiff is 

entitled to offer evidence to support the allegations in the complaint. See Maio v. 

Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, plaintiff has not pled enough facts to state a 

claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim 

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for relief will . . . be a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664. 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. 

May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only 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 on 

which it rests.'" Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 

47 (1957)). However, even under this lower notice pleading standard, a plaintiff 

must do more than recite the elements of a cause of action, and then make a 

blanket assertion of an entitlement to relief. See Hellmann, 2008 WL 1969311 at 

*3. Instead, a plaintiff must make a factual showing of his entitlement to relief by 

alleging sufficient facts that, when taken as true, suggest the required elements of a 

particular legal theory. See Twombly, 550 U.S. at 561. “[W]here the well-pleaded 

facts do not permit the court to infer more than the mere possibility of misconduct, 

the complaint has alleged - - but it has not “shown” - - “that the pleader is entitled 

to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)). 

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation 

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490 

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U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where 

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the 

non-moving party can prove no set of facts in support of its allegations, then a 

claim must be dismissed “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.” Id. at 327.

III. DISCUSSION

Under Count III for violations of the UTPCPL, Plaintiff alleges that 

Defendant improperly and inadequately investigated Plaintiff’s claim for $300,000 

under the policies, “failing to either promptly read and/or properly interpret its own 

underwriting documents, unreasonably delaying payment of the full amount of the 

policy.” Further, Plaintiff alleges that Defendant “falsely misrepresent[ed] the 

terms of Plaintiff’s insurance coverage” under the policies.

Defendant argues that Plaintiff has failed to set forth a valid claim under the 

UTPCPL because Plaintiff has failed to allege deceptive acts and justifiable 

reliance which are necessary elements of a UTPCPL claim.2 Plaintiff responds he 

has sufficiently pled enough facts relating to the elements of deceptive conduct and 

justifiable reliance.

The UTPCPL enumerates twenty “unfair methods of competition” and 

“unfair or deceptive acts or practices” that businesses are prohibited from engaging 

 

2 Defendant makes another argument that Plaintiff is alleging only nonfeasance on behalf of Defendant, which is not 

actionable under the UTPCPL. Because the Court will dismiss this count on other grounds, it will not address this 

argument in the instant memorandum.

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in. 73 P.S. § 201-2(4)(i)-(xx). There is, further, a catch-all provision that prohibits 

any “fraudulent or deceptive conduct which creates a likelihood of confusion or of 

misunderstanding.” 73 P.S. § 201-2(4)(xxi). It is under this catch-all provision that 

Plaintiff brings his UTPCPL claim against Defendant. 

“[T]he general purpose of the UTPCPL is to protect the public from fraud 

and unfair deceptive business practices.” Burke v. Yingling, 666 A.2d 288, 291 

(Pa.Super. 1995). Accordingly, the act is to be construed liberally so as to 

effectuate that purpose. See Wilson v. Parisi, 549 F.Supp.2d 637, 666 (M.D.Pa. 

2008) (Vanaskie, J.); see also Keller v. Volkswagen of America, Inc., 733 A.3d 

642, 646 (Pa.Super. 1999). A 1996 amendment to the UTPCPL expanded the 

ambit of the catch-all provision to include not only fraudulent conduct, but also 

deceptive conduct. 73 P.S. § 201-2(4)(xxi). The United States Court of Appeals 

for the Third Circuit has interpreted this expansion to suggest that a plaintiff can 

prove a violation of the catch-all provision without proving all of the elements of 

common law fraud; rather, a plaintiff need only prove deceptive conduct. See 

Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 498 (3d Cir. 2013); see also 

Fazio v. Guardian Life Ins. Co., 62 A.3d 396, 406 (Pa.Super. 2012). To that end, 

“[a] deceptive act is the act of intentionally giving a false impression or a tort 

arising from a false representation made knowingly or recklessly with the intent 

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that another person should detrimentally rely on it.” Wilson, 549 F.Supp.2d at 666 

(citing In re Patterson, 263 B.R. 82, 94 (E.D.Pa. 2001)).

In addition to deceptive conduct, a UTPCPL plaintiff must also prove 

justifiable reliance on the defendant’s deceptive conduct; that is, he must prove that 

he justifiably bought the product or service in the first instance, or that he engaged 

in some other detrimental activity because of the deceptive conduct. See Hunt v. 

U.S. Tobacco Co., 538 F.3d 217, 222 (3d Cir. 2008); see also Weinberg v. Sun Co., 

777 A.2d 442, 445 (Pa. 2001). Proving justifiable reliance requires that a plaintiff 

establish more than “simply a causal connection between the misrepresentation and 

the harm.” Id. at 222. Finally, a plaintiff must also prove that he suffered harm as a 

result of that reliance. See Johnson v. MetLife Bank, N.A., 883 F.Supp.2d 542, 548 

(E.D.Pa. 2012) (quoting Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 

438 (Pa. 2004)).

1. Allegations that Defendant improperly investigated his claim

The first basis of Plaintiff’s UTPCPL claim rests on his contention that 

Defendant improperly and inadequately investigated his claim for $300,000 by 

“failing to either promptly read and/or properly interpret its own underwriting 

documents, unreasonably delaying in payment of the full amount of the policy.” 

Plaintiff does not elaborate on this alleged conduct, merely stating in the next 

paragraph of the amended complaint that “Defendant’s conduct and action 

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constitute unfair and deceptive practices.” Such allegations do not constitute 

deceptive conduct under the UTPCPL. Even assuming that Defendant did not 

properly investigate Plaintiff’s claim, Plaintiff has alleged no facts to the effect that 

this allegedly improper conduct was intentionally done to give a false impression 

(or what that false impression would be), nor has he alleged a false representation 

made knowingly or recklessly. Moreover, his blanket assertion that such conduct 

constitutes deceptive conduct under the UTPCPL is an unsupported legal 

conclusion which is insufficient to overcome the dearth of facts in his pleading. 

Additionally, Plaintiff has failed to adequately plead an injury stemming 

from his justifiable reliance upon Defendant’s conduct. He appears to allege that 

he justifiably relied on Defendant’s improper investigation by filing the instant 

lawsuit and therefore his injury is the monetary costs of this litigation. However, 

“the mere acquisition of counsel [does] not suffice to satisfy the ‘ascertainable 

loss’ requirement.” Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 105 

A.3d 1188, 1193 (Pa. 2014). In formulating this rule of law, the Pennsylvania 

Supreme Court explicitly relied upon the fact that the UTPCPL separately provides 

in another section for awards of “costs and reasonable attorney fees,” see 73 P.S. § 

201-9.2(a); therefore, the plain language of the statute “makes it readily apparent 

that the General Assembly deemed ascertainable losses and attorneys’ fees to be 

distinct items for redress.” Id. Moreover, that court acknowledged that “if 

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attorneys’ fees were to be considered in the calculation of ‘ascertainable loss,’ the 

explicit provision for the award of attorneys’ fees would be superfluous.” Id. at 

1194. Consequently, this aspect of Plaintiff’s UTPCPL claim is dismissed without 

prejudice with leave to amend to allege particularized facts demonstrating that 

Defendant’s conduct in improperly investigating his claim was done intentionally

to give Plaintiff a false impression. Further, Plaintiff also must allege an 

ascertainable loss that is distinct from the initiation of the instant litigation and its

associated costs.

2. Allegations that Defendant misrepresented the terms of coverage under 

his policy

Plaintiff next alleges as a basis for his UTPCPL claim that Defendant 

misrepresented the terms of coverage under his policy. The Court infers from 

Plaintiff’s allegations that he is claiming Defendant made this misrepresentation 

knowingly and recklessly, with the intent that Plaintiff rely upon it. To the extent 

that this is the case, Plaintiff has adequately alleged deceptive conduct sufficient to 

survive a motion to dismiss. Similarly, at this early stage in the litigation Plaintiff 

has adequately alleged that he justifiably relied upon this misrepresentation.

However, this Court can discern no allegation of injury other than the one 

already discussed in the preceding section, that is, that he was “forced to engage in 

unnecessary negotiations through legal counsel and to engage in the instant 

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litigation.” Again, this is an insufficient allegation of harm under the UTPCPL. See 

Grimes, 105 A.3d at 1193. Consequently, this aspect of Plaintiff’s UTPCPL claim

is dismissed without prejudice also with leave to amend to allege some harm other 

than the initiation of the instant litigation and its associated costs.

IV. CONCLUSION

In accordance with the foregoing analysis, Defendant’s motion to dismiss is 

granted. Count III of Plaintiff’s amended complaint is dismissed without prejudice 

with leave to amend in accordance with the Court’s articulated reasoning.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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