SCHMIDT LODUCA et al v. WELLPET LLC et al

Filing 44

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 7/13/21. 7/14/21 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RITA SCHMIDT LODUCA,
DONNA FREEMAN, and
LYNN WESLEY, Individually
On behalf of all others
Similarly situated,
Plaintiffs
vs.
WELLPET LLC, et. al.,
Defendants

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CIVIL ACTION
NO. 21-CV-0954

MEMORANDUM AND ORDER
JOYNER, J.

July

13, 2021

Defendant WellPet LLC hereby moves for dismissal of
Plaintiffs’ Class Action Complaint 1 pursuant to Fed. R. Civ. P.
12(b)(6) for the reason that it fails to state any claims
against it upon which relief may be granted.

For the reasons

given in the following paragraphs, the Motion shall be granted
in part and denied in part.

Plaintiffs premise jurisdiction in this matter on the Class Action Fairness
Act of 2005, 28 U.S.C. § 1332(d) (“CAFA”) given that some of the proposed
class members are citizens of a state different from that in which some of
the defendants are citizens, the putative class size is larger than 100 and
the amount in controversy exceeds $5 million. Additionally, the primary
defendants are neither States, State Officials or other governmental
entities.

1

1

Factual Background
Plaintiffs Rita Schmidt Loduca, Donna Freeman and Lynn
Wesley are all Pennsylvania residents who allege that they
purchased various dog food products manufactured and sold by
Defendant WellPet, LLC - specifically its Wellness CORE,
Wellness Complete Health, and Holistic Select dry dog food
brands.

The gist of the complaint, which Plaintiffs purport to

bring "individually and on behalf of all others similarly
situated," is that Defendants misrepresented the appropriate
daily feeding amounts for dogs by omitting that the daily
feeding instructions are only appropriate for the "highest
demand activity level and breed."

These misrepresentations

purportedly resulted in Plaintiffs and members of the class
purchasing more of Defendants' dog food than was otherwise
necessary and caused their dogs to eat excessive and unhealthy
amounts of food.

(Class Action Complaint, ¶s 1-5).

As a result

of having been misled into purchasing more dog food than was
"otherwise necessary," Plaintiffs aver that they "expended
additional unnecessary financial sums and experienced a direct
financial detriment."

(Compl., ¶ 6).

Plaintiffs claim that

these misrepresentations were "fraudulent, deceptive,
misleading, unfair and/or false," and that "Defendant WellPet
LLC and its respective parent organization[s], Defendant[s]
2

Berwind Corporation" profited from them. 2

Plaintiffs therefore

seek both monetary and injunctive relief under Pennsylvania
state law for breach of the implied warranty of merchantability,
unjust enrichment, negligent misrepresentation, fraud, civil
conspiracy and for violation of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 P.S. § 201, et. seq.
Asserting that the Complaint fails to set forth any claims
against it upon which relief may be granted, Defendant WellPet
moves for dismissal of the Complaint in its entirety pursuant to
Fed. R. Civ. P. 12(b)(6).
Legal Standards Governing 12(b)(6) Motions
It is well-settled that a motion under Fed. R. Civ. P.
12(b)(6) may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court finds that the
plaintiff’s claims lack facial plausibility.

Warren General

Hospital v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011).

"A

claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."

Thompson v.

2
The complaint alleges that Defendant WellPet was "a wholly owned subsidiary
of Defendant Berwind Corporation from approximately 2008-2020," until it was
sold for an undisclosed amount to Clearlake Capital Group, L.P. (Compl., ¶s
19-21). Although Clearlake Capital Group, L.P. was also named as a defendant
to this lawsuit, on June 21, 2021 the parties stipulated to the dismissal of
Clearlake as a party from this matter without prejudice.

3

Real Estate Mortgage Network, 748 F.3d 142, 147 (3d Cir. 2014).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions and a
formulaic recitation of the elements of a cause of action will
not do.”

Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.

Ct. 1955, 1964, 167 L. Ed.2d 929, 940 (2007).

Through it all,

the plaintiff has the burden of pleading “sufficient factual
matter to show that the claim is facially plausible” thereby
enabling “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Warren General

Hospital, supra,(quoting Fowler v. UPMC Shadyside, 587 F.3d 203,
210 (3d Cir. 2009)).
Analysis of Rule 12(b)(6) motions is said to be two-fold.
First, a court considering a motion to dismiss can begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173
L. Ed.2d 868 (2009). Second, when there are well-pleaded factual
allegations, the court should then assume their veracity and
proceed to determine whether they plausibly give rise to an
entitlement to relief.

Id.

4

Discussion
As noted, WellPet challenges all six counts of Plaintiffs'
complaint on the grounds that they fail to aver the facts
necessary to make out viable causes of action.

We address each

Count/Claim in turn.
1.

Unfair Trade Practices and Consumer Protection Law

Count I of the Class Action Complaint purports to state a
claim that, by their actions in formulating the feeding
instructions for their dry dog food products, Defendants
violated Pennsylvania's Unfair Trade Practices and Consumer
Protection Law, 73 P.S. § 201, et. seq. ("UTPCPL").
The Pennsylvania Supreme Court has stated that the
underlying foundation and purpose behind Pennsylvania's Consumer
Protection Law was the prevention of fraud and protection of the
public from unfair or deceptive business practices and to even
the bargaining power between consumers and sellers in commercial
transactions.

Commonwealth by Creamer v. Monumental Properties,

Inc., 459 Pa. 450, 459, 329 A.2d 812, 817 (1974); Burke v.
Yingling, 446 Pa. Super. 16, 22, 666 A.2d 288, 291 (1994).

In

furtherance of that objective, the statute is to be liberally
construed.

Earl v. NVR, Inc., 990 F.3d 310, 311 (3d Cir. 2021);

Commonwealth v. Golden Gate National Senior Care LLC, 648 Pa.
604, 625, 194 A.3d 1010, 1022 (Pa. 2018).

5

By its statutory language, the UTPCPL declares that
"[u]nfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce" are unlawful.
73 P.S. § 201-3.

It goes on to provide a definition of some

twenty-one "unfair methods of competition" and "unfair or
deceptive acts or practices" in § 201-2(4), three of which are
invoked in Count I of Plaintiffs' Complaint - those set forth at
§§ 201-2(4)(ii), (v), and (xxi).

Thus it appears that

Plaintiffs are accusing Defendant of: "[c]ausing likelihood of
confusion or of misunderstanding as to the source, sponsorship,
approval or certification of goods or services; "[r]epresenting
that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits or quantities that
they do not have;" and/or "[e]ngaging in any other fraudulent or
deceptive conduct which creates a likelihood of confusion or of
misunderstanding."

73 P.S. §§ 201-2(4)(ii), (v), (xxi).

“The statute creates a private right of action in persons 3
upon whom unfair methods of competition and unfair or deceptive
acts or practices are employed and who, as a result, sustain an
ascertainable loss.”

Hunt v. United States Tobacco Co., 538

"Persons" within the meaning of the statute are defined to mean "natural
persons, corporations, trusts, partnerships, incorporated or unincorporated
associations, and any other legal entities." 73 P.S. §201-2(2). "Trade" and
"commerce" are defined to "mean the advertising, offering for sale, sale or
distribution of any services and any property, tangible or intangible, real,
personal or mixed, and any other article, commodity, or thing of value
wherever situate, and includes any trade or commerce directly or indirectly
affecting the people of this Commonwealth."
3

6

F.3d 217, 221 (3d Cir. 2008);

73 P.S. § 201-9.2.

Private

actions are also limited to "[a]ny person who purchases or
leases goods or services primarily for personal, family or
household purposes…"

73 P.S. § 201-9.2(a). It should be noted

that “[a]n act or a practice is deceptive or unfair if it has
the capacity or tendency to deceive, and neither the intention
to deceive nor actual deception must be proved; rather, it need
only be shown that the acts and practices are capable of being
interpreted in a misleading way.”

Golden Gate, 194 A.3d at

1023(quoting Commonwealth ex rel. Corbett v. Peoples Benefit
Servs., Inc., 923 A.2d 1230, 1236 (Pa. Commw. 2007)).
To state a cognizable UTPCPL claim, a plaintiff must
establish that the defendant engaged in an activity proscribed
under the law, that the plaintiff “justifiably relied on the
defendant’s wrongful conduct or representation and … suffered
harm as a result of that reliance.”

Hunt, supra, and Hoffman v.

Wells Fargo Bank, N.A., 242 F. Supp. 3d 372, 394 (E.D. Pa.
2017)(both quoting Yocca v. Pittsburgh Steelers Sports, Inc.,
578 Pa. 479, 854 A.2d 425, 438 (Pa. 2004)). See also, Kaymark v.
Bank of America, N.A., 783 F.3d 168, 180 (3d Cir. 2015)(noting
that "[t]o maintain a private right of action under the UTPCPL,
a plaintiff must demonstrate (1) an ascertainable loss of money
or property, real or personal (2) as a result of the defendant's
prohibited conduct under the statute"); and Santana Products,
7

Inc. v. Bobrick Washroom Equipment, Inc., 401 F.3d 123, 136 (3d
Cir. 2005) (recognizing that “[t]he Supreme Court of
Pennsylvania has held that a plaintiff bringing an action under
the UTPCPL must prove the common law fraud elements of reliance
and causation with respect to all subsections of the UTPCPL” and
citing Weinberg v. Sun Co., Inc., 565 Pa. 612, 777 A.2d 442, 446
(Pa. 2001) in support).

And, inasmuch as it must be

affirmatively proven, a plaintiff is not entitled to a
presumption of justifiable reliance. Hunt, 538 F.3d at 227.
In application of these holdings to the case at hand, we
find that the Plaintiffs' Complaint generally avers that the
feeding information on the labels of the bags of at least three
of Defendants' dry dog food brands misrepresents the correct
feeding recommendations for the vast majority of canine pets and
instead uses high activity dogs and/or breeds as the baseline
for its recommended quantities.

The Complaint goes on to allege

that the Plaintiffs relied upon the recommendations set forth on
the pet food bags in feeding their dogs and that this reliance
resulted in the overfeeding of their pets and in Plaintiffs (and
proposed class members) having purchased more food than
necessary to their financial detriment.

Given that “[t]he plain

language of the current statute imposes liability on commercial
vendors who engage in conduct that has the potential to deceive
and which creates a likelihood of confusion or misunderstanding”
8

and “[t]hat is all that is required,” we find that Count I
satisfies the Twombly-Iqbal pleading standards. 4
Ameriprise Financial Services, Inc.,
Pa. LEXIS 608,

See, Gregg v.

245 A. 3d 637, 649, 2021

2021 WL 607486 (Pa. 2021).

Indeed, even

notwithstanding that the labels do include language reflecting
that the feeding guidelines are "optimized for high activity
dogs who receive 1 hour or more of activity per day" and that
pet owners should “adjust as needed,”

Plaintiffs need only show

"that the acts and practices are capable of being interpreted in
a misleading way.”

What constitutes "activity" or “high

activity” may well vary from the opinion of one pet owner to
another.

As this is a matter which is best sorted out through

discovery, Defendants' motion to dismiss the UTPCPL claim is
denied.
2.

Negligent and Intentional Misrepresentation (Fraud)

In Counts IV and V of their Class Action Complaint,
Plaintiffs assert claims for intentional misrepresentation/fraud
and negligent misrepresentation on the grounds that Defendants
knew and/or should have known that the daily feeding directions
on their dog food products were false in that most dogs do not

4
We make this finding with one exception: the facts alleged do not support
a claim under § 201-2(4)(ii), insofar as we cannot find that Defendant’s
alleged activities cause a “likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval or certification of goods or services.”
This claim is therefore dismissed with prejudice.

9

have the activity levels necessary to warrant receiving the
amount of food recommended.
It is of course axiomatic that under Fed. R. Civ. P. 9(b),
"a party must state with particularity the circumstances
constituting fraud or mistake."

To satisfy this requirement, "a

plaintiff must plead or allege the date, time, and place of the
alleged fraud or otherwise inject precision or some measure of
substantiation into a fraud allegation."

Frederico v. Home

Depot, 507 F.3d 185, 200 (3d Cir. 2007).

Stated otherwise,

"Rule 9(b)'s particularity requirement requires a plaintiff to
allege 'all of the essential factual background that would
accompany the first paragraph of any newspaper story - that is,
the who, what, when, where and how of the events at issue.’"
United States ex rel. Bookwalter v. UPMC, 946 F.3d 162, 176 (3d
Cir. 2019)(quoting U.S. ex rel. Moore & Company, P.A. v.
Majestic Blue Fisheries, LLC, 812 F.3d 294, 307 (3d Cir. 2016)
and In re Rockefeller Center Properties, Inc. Securities
Litigation, 311 F.3d 198, 217 (3d Cir. 2002)).

"Rule 9(b) is

not satisfied where a plaintiff merely lumps the who, what, when
and where together."

Riachi v. Prometheus Group, No. 19-2768,

822 Fed. Appx. 138, 142, 2020 U.S. App. LEXIS 21284 (3d Cir.
July 9, 2020).
Furthermore, under Pennsylvania law, "[f]raud consists of
anything calculated to deceive, whether by single act or
10

combination or by suppression of truth."

Audi of America, Inc.

v. Bronsberg & Hughes Pontiac, Inc., 321 F. Supp. 3d 503, 524
(M.D. Pa. 2018)(quoting Martin v. Hale Products, Inc., 699 A.2d
1283, 1287-88 (Pa. Super. Ct. 1997));

Sarpolis v. Tereshko, 26

F. Supp. 3d 407, 419 (E.D. Pa. 2014), aff'd, 625 Fed. Appx. 594
(3d Cir. 2016).

"To plead fraud under Pennsylvania law, a

plaintiff must allege (1) a 'representation' which is (2)
'material to the transaction at hand,' (3) 'made falsely, with
knowledge of its falsity or recklessness as to whether it is
true or false,' and (4) made 'with the intent of misleading
another into relying on it,' (5) 'justifiable reliance on the
misrepresentation,' and (6) that 'the resulting injury was
proximately caused by the reliance.'"

Shuker v. Smith & Nephew,

PLC, 885 F.3d 760, 778 (3d Cir. 2018)(quoting Gibbs v. Ernst,
538 Pa. 193, 647 A.2d 882, 889 (Pa. 1994)).
The elements of negligent misrepresentation under the law
of Pennsylvania are similar.

They are: "(1) a misrepresentation

of a material fact; (2) the representor must either know of the
misrepresentation, must make the misrepresentation without
knowledge as to its truth or falsity or must make the
representation under circumstances in which he ought to have
known of its falsity; (3) the representor must intend the
representation to induce another to act on it; and (4) injury
must result to the party acting in justifiable reliance on the
11

misrepresentation.

Gibbs, 538 Pa. at 210, 647 A.2d at 890; Tulp

v. Educational Commission for Foreign Medical Graduates, 376 F.
Supp. 3d 531, 544 (E.D. Pa. 2019).

"Thus negligent

misrepresentation differs from intentional misrepresentation in
that to commit the former, the speaker need not know his or her
words are untrue, but must have failed to make reasonable
investigation of the truth of those words."

Gibbs, supra.

In reviewing the Plaintiffs' Complaint in light of the
preceding principles, we find that while Plaintiffs' Complaint
has sufficiently pled the elements of both intentional and
negligent misrepresentation against Defendant under Pennsylvania
law, it fails to satisfy the particularity requirements of Rule
9(b) for pleading fraud.

To be sure, Plaintiffs aver that "the

feeding information for the Wellness Complete Health brands and
flavors misrepresents the correct feeding recommendations for
canine pets in the categorized weight classes" and that "feeding
canine pets within the parameters of the feeding information on
the labels results in overfeeding for the vast majority of
canine pets" which "causes consumers to expend unnecessary and
inappropriate sums on Defendants' products" and "caused
unsuspecting consumers to purchase more dog food, per year, than
would have been otherwise necessary."

(Compl., ¶s 58-60).

It

is further alleged that "Defendants knew or should have known
that most of the canine pet populations utilizing Defendants'
12

products are not highly active and therefore do not fall within
the activity levels to necessitate the amount of food
recommended" and that these representations and/or omissions are
material as well as "fraudulent, deceptive, misleading, unfair
and/or false and create a likelihood of confusion or
misunderstanding…"

(Compl., ¶s 72, 75).

Thus, while the

necessary "who," "what" and "how" elements have been met,
missing are the "when" and "where" particulars necessary to
comport with the requirements of the federal rule and to
overcome this 12(b)(6) motion.

We see no reason, however, why

Plaintiffs should not be given the opportunity to fill in these
blanks and inasmuch as we cannot find that granting leave to
amend would be futile or unfair to defendants, leave to do so
shall be given.

See, e.g., Grayson v. Mayview Hospital, 293

F.3d 103, 106 (3d Cir. 2002)); Alvin v. Suzuki, 227 F.3d 107,
121 (3d Cir. 2000);

Shane v. Fauver, 213 F.3d 113, 116-117 (3d

Cir. 2000).
WellPet additionally argues that Count IV (negligent
misrepresentation) must be dismissed as it is barred by
application of Pennsylvania’s economic loss doctrine.

We

disagree.
“The economic loss doctrine holds that ‘no cause of action
exists for negligence that results solely in economic damages
13

unaccompanied by physical injury or property damage.’” McGuckin
v. Allstate Fire & Cas. Ins. Co., 118 F. Supp.3d 716, 719 (E.D.
Pa. 2015)(quoting Excavation Techs., Inc. v. Columbia Gas Co. of
Pa., 604 Pa. 50, 985 A.2d 840, 841 (Pa. 2009)).

It essentially

“prohibits plaintiffs from recovering in tort economic losses to
which their entitlement flows only from a contract” and
“effectively screens out negligence causes of action that seek
economic damages without alleging any physical injury or
property damage.”

Ke v. Liberty Mutual Insurance Co., Civ. A.

No. 20-1591, 2020 U.S. Dist. LEXIS 234904 at *23, 2020 WL
7353892 (E.D. Pa. Dec. 15, 2020) (quoting Werwinski v. Ford
Motor Co., 286 F.3d 661, 671 (3d Cir. 2002) and McGuckin,
supra.).

“The doctrine is premised on the notion that parties

to a contract may protect themselves from negligence or
defective products by negotiating the liability terms of the
contract.”

Bouriez v. Carnegie Mellon University, Civ. A. No.

02-cv-2104, 2010 U.S. Dist. LEXIS 33687 at *7, 2010 WL 1416845
(W.D. Pa. April 4, 2010)(citing East River S.S. Corp. v.
Transamerica Delaval, Inc., 476 U.S. 858, 872-873, 106 S. Ct.
2295, 90 L. Ed.2d 865 (1986)).
Notwithstanding this general definition of the economic
loss doctrine, in 2002, the Pennsylvania Supreme Court adopted
Restatement (Second) of Torts Section 552, which provides:
14

§552. Information Negligently Supplied for the
Guidance of Others
(1) One who, in the course of his business, profession or
employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the
guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he
fails to exercise reasonable care or competence in
obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability
stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons
for whose benefit and guidance he intends to supply
the information or knows that the recipient intends to
supply it; and
(b) through reliance upon it in a transaction that he
intends the information to influence or knows that the
recipient so intends or in a substantially similar
transaction.
(3) The liability of one who is under a public duty to give
the information extends to loss suffered by any of the
class of persons for whose benefit the duty is created, in
any of the transactions in which it is intended to protect
them.
Hence in Pennsylvania, “the economic loss rule does not apply to
claims of negligent misrepresentation sounding under Section
552.”

Bilt-Rite Contractors, Inc. v. Architectural Studio, 581

Pa. 454, 484, 866 A.2d 270, 288 (Pa. 2005).
Contrary to Defendant's assertion that Pennsylvania courts
apply the economic loss doctrine to negligent misrepresentation
claims except where the party is “hired to advise,” the
Pennsylvania Supreme Court has held that Section 552 is not the
15

only exception to the general application of the doctrine.

To

be sure, in 2018 the Supreme Court clarified that Pennsylvania
follows “a ‘reasoned approach’ to applying the economic loss
doctrine that “turns on the determination of the source of the
duty plaintiff claims the defendant owed.’”

Dittman v. UPMC,

649 Pa. 496, 525, 196 A.3d 1036, 1054 (Pa. 2018)(quoting BiltRite, 866 A.2d at 288 and Tommy L. Griffin Plumbing & Heating
Co. v. Jordan, Jones & Goulding, Inc., 320 S.C. 49, 463 S.E. 2d
85, 88 (S.C. 1995)).

“Specifically, if the duty arises under a

contract between the parties, a tort action will not lie from a
breach of that duty.” Id.

“However, if the duty arises

independently of any contractual duties between the parties,
then a breach of that duty may support a tort action.”

Id.

Rejecting the notion that Section 552 of the Restatement carves
out a narrow exception to the general bar posed by the economic
loss doctrine to negligent misrepresentation claims, the Supreme
Court held that, to the contrary, “a negligent misrepresentation
claim made under Section 552 of the Restatement is one among
many tort claims in Pennsylvania for which the economic loss
doctrine does not act as a bar for recovery of purely economic
losses.”

Dittman, 649 Pa. at 526, 196 A.3d at 1055.

Instantly, the gravamen of Plaintiffs’ complaints against
Moving Defendant is that the feeding instructions listed on the
16

bags of several of its dry dog food products are misleading in
that they misrepresent the proper amounts to feed canines who
have average activity levels (as opposed to higher, i.e. those
who receive 1 hour or more of activity or exercise per day).
Plaintiffs' further aver that the daily feeding directions
contained on the labels of their dog food products are false and
that Defendants knew or should have known they were false, that
they relied upon the directions in purchasing the food and
feeding their dogs and that they incurred damages in the form of
having purchased more pet food than was "otherwise necessary."
(Pl's Compl., ¶s 138-144).

These allegations adequately plead a

cause of action for negligent misrepresentation under
Pennsylvania law.
Moreover, there is nothing to suggest from a reading of the
complaint that the parties had anything other than a routine
retail-seller to retail-consumer/buyer relationship or that
Plaintiffs in any way negotiated liability terms with Defendant.
Inasmuch as Plaintiffs thereby aver that Defendant has in the
course of its business supplied false/misleading information for
the guidance of consumers such as they, that they relied upon
that information to their detriment and purportedly suffered
losses as a result, we find that a claim under Restatement
Section 552 has been stated, and the economic loss doctrine does
17

not bar Count IV.

Accordingly, the motion as to Count IV is

denied and the motion as to Count V is granted with leave to replead.
3.

Breach of Implied Warranty of Merchantability

In Count II of their Complaint, Plaintiffs also present a
state law claim for breach of the implied warranty of
merchantability. Defendants likewise seek the dismissal of this
count for failure to state a claim pursuant to Rule 12(b)(6).
In Pennsylvania, claims for breach of the implied warranty
of merchantability are governed by the Uniform Commercial Code,
13 Pa. C.S.A. § 2314, which reads:
§2314.

Implied warranty; merchantability; usage of trade

(a) Sale by merchant. - Unless excluded or modified
(section 2316), a warranty that the goods shall be
merchantable is implied in a contract for their sale if
the seller is a merchant with respect to goods of that
kind. Under this section the serving for value of food or
drink to be consumed either on the premises or elsewhere is
a sale.
(b) Merchantability standards for goods. merchantable must be at least such as:

Goods to be

(1) pass without objection in the trade under the
contract description;
(2) in the case of fungible goods, are of fair average
quality within the description;
(3) are fit for the ordinary purposes for which such
goods are used;
(4) run, within the variations permitted by the
agreement, of even kind, quality and quantity within
each unit and among all units involved;
18

(5) are adequately contained, packaged, and labeled as
the agreement may require; and
(6) conform to the promises or affirmations of fact
made on the container or label if any.
(c) Course of dealing or usage of trade. - Unless excluded
or modified (section 2316) other implied warranties may
arise from course of dealing or usage of trade.
To establish a breach of an implied warranty of
merchantability, Plaintiffs must allege that "(1) the product
malfunctioned; (2) that plaintiffs used the product as intended
or reasonably expected by the manufacturer; and (3) the absence
of other reasonable secondary causes."

Holtec International &

Holtec Manufacturing Division, Inc. v. ARC Machines, Inc., 492
F. Supp.3d 430, 445 (W.D. Pa. 2020).

"Both the implied warranty

of merchantability and the warranty of fitness for a particular
purpose arise by operation of law and serve to protect buyers
from loss where the goods purchased are below commercial
standards or are unfit for the buyer's purpose."

Altrionics of

Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir.
1992).

"In order to be merchantable, goods must 'be fit for the

ordinary purposes for which such goods are used.'"
13 Pa. C.S.A. § 2314(b)(3).

Id.(quoting

However, "the concept of

merchantability does not require that the goods be the best
quality, or the best obtainable, but it does require that they
have an inherent soundness which makes them suitable for the
19

purpose for which they are designed, that they be free from
significant defects, that they perform in the way that goods of
that kind should perform, and that they be of reasonable quality
within expected variations and for the ordinary purpose for
which they are used."

American Atelier, Inc. v. Materials,

Inc., No. 16-2107, 675 Fed. Appx. 149, 152, 2017 U.S. App. LEXIS
851, 2017 WL 203371 (3d Cir. Jan. 18, 2017)(quoting Gall by Gall
v. Allegheny County Health Department, 521 Pa. 68, 555 A.2d 786,
789-90 (Pa. 1989)).

"Thus, to establish a breach of this

warranty, a plaintiff must show, among other things, that the
product at issue was defective," and this burden may be met "by
proving that the product 'functioned improperly in the absence
of abnormal use and reasonable secondary causes.'" Id.(citing
Altrionics, supra).
Historically, Pennsylvania has recognized causes of action
for breach of the implied warranty of merchantability for animal
feeds that fail "to be fit for the ordinary purposes for which
such goods are used" and which are not "adequately contained,
packaged and labeled as the agreement may require," and in so
doing has "eliminated the privity requirement in assumpsit suits 5
by purchasers against remote manufacturers for beach of implied
warranty."

See, e.g., Kassab v. Central Soya, 432 Pa. 217, 226,

An assumpsit suit is "a common law form of action which lies for the
recovery of damages for the non-performance of a parol or simple contract."
BLACK'S LAW DICTIONARY 122 (6th ed. 1990).
5

20

246 A.2d 848, 852 (1968),(overruled on other grounds, 526 Pa.
110, 584 A.2d 915 (1990)).

Thus, the lack of privity between a

plaintiff and a defendant cannot insulate the latter from
liability for breach of warranty.

Id., 432 Pa. at 235, 246 A.2d

at 856.
Here, we must concur with Defendant that Plaintiffs have
failed to make out a cause of action against them for the
implied warranty of merchantability.

Indeed, our review of the

Complaint fails to yield a finding of any facts which suggest
that Defendant's pet food was in any way defective or of
inferior quality or was in any way unfit for its stated purpose.
Again, the basis for Plaintiffs' claims is that they were misled
into purchasing too much pet food - not that there was anything
wrong with the food products which they bought.

In view of this

and given that Count II contains nothing more than conclusory
and formulaic allegations that Defendant's misrepresentations
and omissions constituted a breach of the implied warranty of
merchantability, it fails to state a claim upon which relief may
be granted.

Count II shall therefore be dismissed with

prejudice.
4.

Unjust Enrichment

Defendants likewise move for the dismissal of Count III of
the complaint, which purports to plead a cause of action against
Defendants for unjust enrichment.
21

"Unjust enrichment is an equitable remedy, defined as 'the
retention of a benefit conferred by another, without offering
compensation, in circumstances where compensation is reasonably
expected, and for which the beneficiary must make restitution."
Golden Gate, 648 Pa. at 644, 194 A.3d at 1034 (quoting Roethlein
v. Portnoff Law Assocs., Ltd., 623 Pa. 1, 81 A.3d 816, 825, n.8
(Pa. 2013)).

"An action based on unjust enrichment is an action

which sounds in quasi-contract or contract implied in law,"
which are "obligations created by law for reasons of justice."
Sevast v. Kakouras, 591 Pa. 44, 50, 915 A.2d 1147, 1151. n.4
(Pa. 2007).

"'The elements of unjust enrichment are benefits

conferred on one party by the other party, appreciation of such
benefits, and acceptance and retention of such benefits under
such circumstances that it would be inequitable for that party
to retain the benefit without payment of value.'"

McConaghy v.

Bank of New York, 192 A.3d 1171, 1175 (Pa. Super. 2018)(quoting
Gutteridge v. J3 Energy Group, Inc., 2017 PA Super 150, 165 A.3d
908, 917 (Pa. Super. 2017)).

"Whether the doctrine applies

depends on the unique factual circumstances of each case" and
"in determining if the doctrine applies, we focus not on the
intention of the parties, but rather on whether the one party
has been unjustly enriched."

Id.

Where unjust enrichment is

found, the law implies a contract, which requires the defendant
to pay to the plaintiff the value of the benefit conferred.
22

Milby v. Pote, 2018 PA Super 155, 189 A.3d 1065, 1087 (Pa.
Super. 2018);

Schenck v. K.E. David, Ltd., 446 Pa. Super. 94,

97, 666 A.2d 327, 328-329 Pa. Super. 1995).
In application of the foregoing, Plaintiffs plead in Count
III that the Defendants "have been unjustly enriched in
retaining the revenues derived from [their] misrepresentations
and/or omissions" regarding the proper daily feeding directions
on the labels of the three dry dog foods at issue, "which caused
Plaintiffs and the Class Members to purchase more dog food
products than otherwise necessary."

(Pls' Compl., ¶ 131).

They

further contend: "Defendants' retention of the revenues derived
from Defendants' misrepresentations and/or omissions as to the
daily feeding directions on the labels of their dog food
products is unjust and inequitable, because Plaintiffs would not
have purchased additional dog food products and Defendants would
not have received additional monies, but for the false
representations and/or omissions."

(Compl., ¶ 132).

We find

that Plaintiffs have thereby pled sufficient facts which if
proven, could conceivably warrant a finding in their favor that
Defendants were unjustly enriched by their retention of the
revenues produced through the plaintiffs’ allegedly unnecessary
purchases.

The motion to dismiss is therefore denied as to

Count III.

23

5.

Civil Conspiracy

Count VI of the Complaint raises a claim for civil
conspiracy in that the "Defendants conspired with each other to
commit unlawful acts or lawful acts in an unlawful manner."
(Pls' Compl., ¶ 162). Defendant argues that the civil conspiracy
count fails "at the threshold" because Plaintiffs have failed to
state an underlying tort claim and because the Complaint "fails
to allege the manner in which a conspiratorial scheme was
devised and carried out."

(WellPet, LLC's Brief in Support of

Motion to Dismiss Plaintiffs' Complaint, p. 12).
It has long been the law of Pennsylvania that "in order to
state a cause of action for civil conspiracy, a plaintiff must
show that two or more persons combined or agreed with intent to
do an unlawful act or to do an otherwise lawful act by unlawful
means.

Proof of malice, i.e. an intent to injure, is essential

in proof of a conspiracy."

Skipworth by Williams v. Lead

Industries Association, Inc., 547 Pa. 224, 235, 690 A.2d 169,
174 (Pa. 1997)(quoting Thompson Coal Co. v. Pike Coal Co., 488
Pa. 198, 211, 412 A.2d 466, 472 (1979)).

Accordingly, the

following elements must be alleged: "(1) a combination of two or
more persons acting with a common purpose to do an unlawful act
or to do a lawful act by unlawful means or for an unlawful
purpose; (2) an overt act done in pursuance of the common
purpose; and (3) actual legal damage."
24

Kline v. Security

Guards, Inc., 386 F.3d 246, 262 (3d Cir. 2004); Meyer v.
Delaware Valley Lift Truck, Inc., 392 F. Supp. 3d 483, 496 (E.D.
Pa. 2019).

Additionally, “[s]ince liability for civil

conspiracy depends on performance of some underlying tortious
act, the conspiracy is not independently actionable” but is
rather “a means for establishing vicarious liability for the
underlying tort.”

Boyanowski v. Capital Area Intermediate Unit,

215 F.3d 396, 407 (3d Cir. 2000).

“Therefore, if a court

concludes that no tort was committed, there can be no civil
conspiracy to commit that tort.”

Kilbride Investments Ltd. v.

Cushman & Wakefield of Pa., Inc., 294 F. Supp.3d 369, 381 (E.D.
Pa. 2018)(citing Turevsky v. FixtureOne Corp., 904 F. Supp.2d
454, 462 (E.D. Pa. 2012)).
Here, Plaintiffs allege in their complaint that “Defendants
conspired with each other to commit unlawful acts or lawful acts
in an unlawful manner,” in that “Defendants knowingly and
voluntarily agreed to engage in unfair and deceptive practices
to promote the use of their dog food products by making and
disseminating false, unsubstantiated, and misleading statements
and misrepresentations with regard to feeding directions, as
well as material omissions, in furtherance of their common
strategy to increase sales…” (Compl., ¶s 162, 165).

They

further aver that “Defendants acted with malice, purposely,
intentionally, unlawfully, and without a reasonable or lawful
25

excuse.”

(Compl., ¶ 170).

While these allegations are largely

conclusory, we nevertheless find that they are sufficiently
specific to survive the Twombly/Iqbal test.

As noted above,

Plaintiffs have adequately alleged several underlying torts upon
which conspiracy may be predicated.

We shall therefore deny the

motion with respect to Count VI. 6
6.

Injunctive Relief

Finally, Defendant contends that Plaintiffs have not
properly stated a claim for injunctive relief because “there is
no count in the complaint seeking an injunction, nor does the
complaint identify any injunctive relief Plaintiffs seek.”
Rather, there is only a conclusory reference to “injunctive
relief as necessary” in the Prayer for Relief portion of the
complaint.

(WellPet’s Brief in Support of Motion to Dismiss

Plaintiffs’ Complaint, p. 15).
On this we must agree with Defendant – the complaint as it
presently stands has not sufficiently stated a claim or shown an
entitlement to injunctive relief.

This Court can only speculate

6 In so holding, we note that Defendant has not invoked Pennsylvania’s
intercorporate conspiracy doctrine pursuant to which the two or more persons
acting with a common purpose cannot be a corporation and the corporation’s
agent or officer given that a corporation cannot conspire with itself. See,
e.g., Reese v. Pook & Pook, LLC, 158 F. Supp.3d 271, 293 (E.D. Pa. 2016);
Haydinger v. Freedman, Civ. A. No. 98-3045, 2000 U.S. Dist. LEXIS 7924, *35,
2000 WL 748055 (E.D. Pa. June 9, 2000); Jagielski v. Package Mach. Co., 489
F. Supp. 232, 233 (E.D. Pa. 1980). We shall assume that Defendants have
elected to forego this argument at least until after such time as discovery
may be undertaken into the corporate relationship between Berwind and WellPet
has been completed.

26

as to the nature of the relief sought and Twombly and Iqbal make
clear that pleadings require a showing of entitlement to relief
and sufficient detail as to the basis therefor to enable a
defendant to formulate a defense.

Thus, to the extent that the

complaint is endeavoring to state a cause of action for
injunctive relief, that cause of action is dismissed, albeit
with a grant of leave to Plaintiffs to amend to properly plead
such a claim should they truly desire it.
For all of the reasons set forth above, WellPet’s Motion to
Dismiss Plaintiffs’ Complaint shall be granted in part and
denied in part pursuant to the attached Order.

27