IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KIMBERLY CERRETA, and : Case No. 4:16-cv-0706

JOSEPH CERRETA, :

: Judge Brann

Plaintiffs, :

:

v. :

 :

RED ROOF INNS, INC., :

 :

Defendant. :

 :

MEMORANDUM

September 6, 2016

I. BACKGROUND

 Plaintiff spouses, Kimberly and Joseph Cerreta, hereinafter “Mr. Cerreta,”

“Mrs. Cerreta,” or collectively “the Cerretas,” filed a complaint against Defendant

Red Roof Inns, Inc., hereinafter “Red Roof,” in the Court of Common Pleas of

Lackawanna County. On April 27, 2016, Red Roof removed the action to this

Court on the basis of diversity of citizenship.1

 Red Roof promptly filed a motion

1 ECF No. 1. 

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to dismiss the Cerreta’s demand for punitive damages.2

 The motion will be denied

for the reasons that follow. 

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a motion

to dismiss for “failure to state a claim upon which relief can be granted.” Such a

motion “tests the legal sufficiency of a pleading” and “streamlines litigation by

dispensing with needless discovery and factfinding.”3

 “Rule 12(b)(6) authorizes a

court to dismiss a claim on the basis of a dispositive issue of law.”4

 This is true of

any claim, “without regard to whether it is based on an outlandish legal theory or

on a close but ultimately unavailing one.”5

Beginning in 2007, the Supreme Court of the United States initiated what some

scholars have termed the Roberts Court’s “civil procedure revival” by significantly

tightening the standard that district courts must apply to 12(b)(6) motions.6

 In two

landmark decisions, Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal,

the Roberts Court “changed . . . the pleading landscape” by “signal[ing] to lowercourt judges that the stricter approach some had been taking was appropriate under

2 ECF No. 4. 3

 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.)

(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook,

J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989). 4

 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)). 5

 Neitzke, 490 U.S. at 327. 6

 Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.

Litig. 313 (2012).

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the Federal Rules.”7

 More specifically, the Court in these two decisions “retired”

the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced it with a

more exacting “plausibility” standard.8

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”9

 “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.”10 “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.”11 Moreover, “[a]sking for plausible grounds . . . calls for enough facts

to raise a reasonable expectation that discovery will reveal evidence of

[wrongdoing].”12

The plausibility determination is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”13 No matter

7

 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20. 8

 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that

Twombly retired the Conley no-set-of-facts test”). 9

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 10 Iqbal, 556 U.S. at 678. 11

 Connelly v. Lane Const. Corp., No. 14-3792, 2016 WL 106159, at *3 (3d Cir. Jan. 11, 2016)

(Jordan, J.) (internal quotations and citations omitted). 12 Twombly, 550 U.S. at 556. 13 Iqbal, 556 U.S. at 679.

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the context, however, “[w]here 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.’”14

When disposing of a motion to dismiss, a court must “accept as true all factual

allegations in the complaint and draw all inferences from the facts alleged in the

light most favorable to [the plaintiff].”15 However, “the tenet that a court must

accept as true all of the allegations contained in the complaint is inapplicable to

legal conclusions.”16 “After Iqbal, it is clear that conclusory or ‘bare-bones’

allegations will no longer survive a motion to dismiss.”17 “Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not

suffice.”18

As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a

court reviewing the sufficiency of a complaint must take three

steps. First, it must tak[e] note of the elements [the] plaintiff must

plead to state a claim. Second, it should identify allegations that,

because they are no more than conclusions, are not entitled to the

assumption of truth. Finally, [w]hen there are well-pleaded factual

14 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)). 15 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.). 16 Iqbal, 556 U.S. at 678 (internal citations omitted). 17 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.). 18 Iqbal, 556 U.S. at 678.

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allegations, [the] court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief.19

III. DISCUSSION

Taking the facts alleged in the amended complaint as true, as I am compelled

to do in considering a motion to dismiss, the story that unfolds is as follows: 

Mrs. Cerreta was scheduled to have “cancer surgery on her tongue” at

Geisinger Medical Center in Danville, Pennsylvania on the morning on July 8,

2015. On July 1, 2015, the Cerretas entered into a contract with Red Roof for it to

provide a room at its Danville location on the night of July 7, 2015. The Cerratas

checked into their room and went to bed. In the early morning hours of July 8, 

Mrs. Cerreta woke because she was itching. She turned on the lights and

discovered that she had been bitten more than 50 times by bed bugs. Mr. Cerreta

then woke and discovered that he had also been bitten by bed bugs. Mrs. Cerreta’s

sister, who had been sleeping in a separate room, notified the front desk. The

employee there “advised that it was familiar with the appearance of bed bugs as

bed bugs had been present at the Danville Red Roof Inn prior to July 8, 2015.” 

The Cerretas allege that Red Roof took “no action to get rid of same and

provide its guests, including the Plaintiffs herein, with a habitable room which was

19

 Connelly, 2016 WL 106159, at *4 (internal quotations and citations omitted).

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free of blood sucking insects.” They further allege that the actions were taking

“negligently, knowingly, willfully, and maliciously.” 

The Cerretas bring a six count complaint for breach of contract, breach of

implied warranty of habitability, negligence, negligent infliction of emotional

distress, and two counts of loss of consortium. Red Roof moves to dismiss the

punitive damages demand, both generally asserting the Cerretas failed to

adequately plead punitive damages, and asserting that punitive damages are not

available on the contract and breach of implied warranty of habitability claims. 

Under Pennsylvania law, punitive damages are only available to compensate

“for conduct that is outrageous, because of the defendant’s evil motive or his

reckless indifference to the rights of others.”20 Fundamentally, punitive damages

are penal in nature; the objective is to punish a tortfeasor for his outrageous

conduct and to deter him from similar conduct in the future.21 Pennsylvania has

adopted Section 908(2) of the Restatement (Second) of Torts, which permits

punitive damages only for conduct that is “outrageous because of the defendant’s

evil motive or his reckless indifference to the rights of others.”22 Accordingly, a

punitive damages claim must be supported by sufficient evidence to establish: (1)

that the defendant had a subjective appreciation of the risk of harm to which the

20 Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (citing Feld v. Merriam, 485 A.2d 742, 747

(Pa. 1984)). 21 See id.; see also SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 704 (Pa. 1991). 22 Feld, 485 A.2d at 747 (1984) (quoting Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355

(1963); RESTATEMENT (SECOND) OF TORTS, § 908(2)).

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plaintiff was exposed; and (2) that he acted or failed to act in conscious disregard

of that risk.23

“Although ordinary negligence will not support an award of punitive

damages, ‘punitive damages are appropriate for torts sounding in negligence when

the conduct goes beyond mere negligence and into the realm of behavior which is

willful, malicious, or so careless as to indicate wanton disregard for the rights of

the parties injured.’”24 To establish a punitive damages claim, “the state of mind of

the actor is vital. The act, or the failure to act, must be intentional, reckless or

malicious.”25 A plaintiff must allege facts sufficient to support a plausible claim

demonstrating this intentional, wanton, reckless or malicious conduct.26 A showing

of mere negligence, or even gross negligence, will not suffice to establish that

punitive damages should be imposed.27

This Court has consistently held that it is premature to dismiss demands

punitive damages prior to discovery.28 The Cerretas alleged that Red Roof had

knowledge of bedbugs at its hotel, and yet knowingly, willfully and maliciously

exposed them to these insects. The allegations plead here are sufficient to survive

a motion to dismiss, as discovery is necessary as to explore these issues. 

23 See Feld, 485 A.2d at 1097-98. 24 Young v. Westfall, No. 4:06-CV-2325, 2007 WL 675182, at *2 (M.D.Pa. Mar. 1, 2007)

(McClure, J.) (citing Hutchison, 870 A.2d at 770). 25 Hutchison, 870 A.2d at 770 (quoting Feld, 485 A.2d at 748). 26 See Twombly, 550 U.S. at 556. 27 Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005). 28 See, e.g., Cobb v. Nye, 2014 WL 7067578 (M.D. Pa. December 12, 2014) (Brann, J.). 

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Moreover, although “[a]s a general rule, punitive damages are not

recoverable in an action for breach of contract,”29 and “traditional contract

remedies are the only remedies available to enforce the implied warranty of

habitability,”30 “that rule is no bar to an award of such damages where, as here, the

breach of contract also amounts to a recognized tort.”31 “Only where the person

who breaks a contract also breaches some duty imposed by society will

compensatory or punitive damages be imposed against the wrongdoer in order to

punish the wrongful act and in order to serve as a deterrent.”32 “The fact that a

plaintiff pleads causes of action in both tort and contract is no basis for denial of

punitive damages; Pennsylvania Rule of Civil Procedure 1020 permits such

alternative pleading, and requires no election of remedies.”33 In fact, the contrary

is true, “in order to recover punitive damages, a plaintiff must plead some sort of

29 Rittenhouse Regency Affiliates v. Passen, 333 Pa. Super. 613, 615, 482 A.2d 1042, 1043 (1984)

(citing Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 107,

454 A.2d 39, 44 (1982); Daniel Adams Associates, Inc. v. Rimbach Publishing Inc., 287

Pa.Super. 74, 77, 429 A.2d 726, 728 (1981); DeLuca v. Fidelity Bank, 282 Pa.Super. 365, 368,

422 A.2d 1159, 1161 (1980)).

30 McIntyre ex rel. Howard v. Philadelphia Hous. Auth., 816 A.2d 1204, 1209 (Pa. Commw. Ct.

2003).

31 Margaret Lomberk v. Raymond Lenox, No. NO. 05404., 1989 WL 817148 (Pa. Com. Pl. Sept.

19, 1989) (citing See Standard Pipeline Coating Co. v. Soloman v. Teslovich, Inc., 344 Pa.

Super. 367, 375, 496 A.2d 840, 844 (1985); Daniel Adams Associates, Inc. v. Rimbach

Publishing, Inc., 287 Pa. Super. 74, 77, 429 A.2d 726, 727 (1981). 32 Daniel Adams Associates, Inc. v. Rimbach Pub. Inc., 287 Pa. Super. 74, 77–78, 429 A.2d 726,

728 (1981), See also White v. George, 66 Pa. D. & C.4th 129, 155 (Com. Pl. 2004). 33 Id., See, e.g., W.W. Coal Co. v. Pennsylvania National Mutual Insurance Co., 75 D.&C. 2d

621, 624-25 (Somerset, 1975).

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recovery in tort which arises out of the same transaction.”34 Plaintiffs have plead

that a bed bug free hotel room is a duty imposed by society. I agree. 

IV. CONCLUSION

For the foregoing reasons, the Motion to Dismiss under Rule 12(b)(6) will

be denied. An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

34 Judge v. Shikellamy Sch. Dist., 135 F. Supp. 3d 284, 299 (M.D. Pa. 2015) (Brann, J.).

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