Forrester Lincoln Mercury, Inc. v. Ford Motor Company

Filing 53

MEMORANDUM AND ORDER - It is hereby ORDERED that: 1. Report of magistrate judge #43 is ADOPTED in part & REJECTED in part (see Paras 1a-c for specifics).; 2. Deft's motion to dismiss #29 GRANTED in part & DENIED in part (see Paras 2a-b) for specifics). (See order for complete details.) Signed by Honorable Christopher C. Conner on 05/10/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FORRESTER LINCOLN
MERCURY, INC.,

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Plaintiff
v.
FORD MOTOR COMPANY,
Defendant

CIVIL ACTION NO. 1:11-CV-1136
(Judge Conner)

MEMORANDUM
In 2010, defendant Ford Motor Company discontinued its line of Mercurybrand vehicles. This discontinuance caused plaintiff Forrester Lincoln Mercury,
Inc., to lose its Mercury franchise, which it had held for over four decades.
Prompted by this loss, Forrester filed the complaint in the instant action on June
15, 2011. (Doc. 1.) The complaint, as amended on August 16, 2011, sets forth six
claims under the Pennsylvania Board of Vehicles Act, 63 PA . STAT . §§ 818.1 to
818.37. (Doc. 26.) Two weeks later, Ford moved to dismiss Counts I, II, IV, and VI of
the amended complaint under FED . R. CIV . P. 12(b)(6). (Doc. 29.)
Upon referral of Ford’s motion to dismiss, Magistrate Judge Methvin issued a
Report and Recommendation (R&R) (Doc. 43) recommending that the motion be
granted as to Counts I, II, and IV and denied as to Count VI. Objections to the
R&R’s conclusions regarding Counts I, II, and IV, and responses thereto, have been
filed. (Docs. 44, 48, 49, 52.) For the reasons set forth below, the court will adopt the
R&R in part and reject it in part.1
1

The court has also reviewed the portions of the R&R regarding Count VI of
the complaint for clear error and has found none. Hence, the court adopts this
portion of the R&R without further discussion.

I.

Background2
The facts as set forth herein are recounted only to the extent necessary for

resolution of the objections to the R&R.
For the past forty-five years, two generations of Forresters have operated an
auto dealership at the same location in Chambersburg, Pennsylvania. (Doc. 26, ¶¶ 1,
7.) The dealership operated under a franchise agreement with Ford,3 which is a
“manufacturer” under section 818.2 of the Board of Vehicles Act, for the sale and
service of Mercury and Lincoln Vehicles. (Id. ¶¶ 2, 5.)
On June 2, 2010, Ford notified Forrester that it would terminate the Mercury
franchise agreement following Ford’s decision to discontinue the Mercury brand
and focus on its other brands, Ford and Lincoln. (Id. ¶¶ 13, 14.) As required by the
provisions of the franchise agreement, Forrester appealed the franchise termination
to the Ford Policy Board. (Id. ¶¶ 15–16; see also Doc. 26-1, at 28 ¶ 18(b) (requiring

2

Following the standard of review for a motion to dismiss under Rule
12(b)(6), the complaint’s well-pleaded factual allegations are taken as true, except
where controverted by an opposing affidavit. See infra Parts II.B, III. Although the
Federal Rules demand no “detailed” averments of fact in a complaint, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Those portions
of the complaint that demonstrate the shortcomings disapproved of in Iqbal are
disregarded. See Santiago v. Warminster Twp., 629 F.3d 121, 130–31 (3d Cir. 2010)
(applying Iqbal in giving no presumption of truth to mere “conclusions”).
3

Ford is a Delaware corporation with a principal place of business in
Michigan. (Doc. 26, ¶ 2.)
2

appeals to the Board).)4 The Board, however, concluded that it lacked jurisdiction
to reverse the termination or to consider related state-law claims. (Doc. 26, ¶ 16.)
Following the Board’s decision, Forrester initiated the instant action under
the Board of Vehicles Act, alleging that Ford violated several provisions governing
the relationship between vehicle manufacturers and dealers. (See generally id.
¶¶ 36–70 (setting forth the six counts of the complaint).)
II.

Applicable Standards of Review
A.

For a Magistrate Judge’s Report and Recommendation

Parties’ objections to a magistrate judge’s report and recommendation impel
the court to perform a de novo review of the contested portions of the report.
Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing FED . R. CIV . P. 72(b);
28 U.S.C. § 636(b)(1)(c)). Federal and local rules require such a review of a report
and recommendation only when a party files “written objections [that] specifically
identify the portions” of the findings or recommendations “to which objection is
made and the basis for such objections.” L.R. 72.3; see FED . R. CIV . P. 72(b)(3). When
the parties have registered either no objections or only “general” objections, “the
district court need only review the record for plain error or manifest injustice.”
Cruz v. Chater, 990 F. Supp. 375, 377 (M.D. Pa. 1998) (citing Garcia v. I.N.S., 733 F.
Supp. 1544, 1555 (M.D. Pa. 1990)).

4

The franchise agreement also provided that “[a]ppeal to the Policy Board
shall be a condition precedent to the Dealer’s right to pursue any other remedy
available under this agreement or otherwise available under law.” (Doc. 26-1, at 28
¶ 18(b).)
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B.

For a motion to dismiss under FED . R. CIV . P. 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
FED . R. CIV . P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Gelman v. State
Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d
170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
Although the court is generally limited in its review to the facts contained in the
complaint, it “may also consider matters of public record, orders, exhibits attached
to the complaint and items appearing in the record of the case.” Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion,
the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629
F.3d 121, 130-31 (3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the
elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 556
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U.S. 662, 129 S. Ct. 1937, 1947 (2009)). Next, the factual and legal elements of a claim
should be separated; well-pleaded facts must be accepted as true, while mere legal
conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d
203, 210–11 (3d Cir. 2009). Once the well-pleaded factual allegations have been
isolated, the court must determine whether they are sufficient to show a “plausible
claim for relief.” Ashcroft v. Iqbal, 556U.S. 662, 129 S. Ct. at 1950 (citing Twombly,
550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts
sufficient to “raise a right to relief above the speculative level”). 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.”
Iqbal, 556 U.S. 662, 129 S. Ct. at 1949. When the complaint fails to present a prima
facie case of liability, however, courts should generally grant leave to amend before
dismissing a complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116–17 (3d Cir. 2000).
III.

Discussion5
Forrester presents three objections to Magistrate Judge Methvin’s R&R.

First, Forrester objects to the R&R’s conclusion that section 818.13 of the Act
excludes line-make terminations that would fall under section 818.14. Second,

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Subject-matter jurisdiction in this case is based on diversity of citizenship.
Accordingly, Pennsylvania law applies to the parties’ substantive claims, with the
state’s Supreme Court decisions binding on this court and the Superior Court
decisions nonbinding but persuasive. State Farm Fire & Cas. Co. v. Estate of Mehlman,
589 F.3d 105, 107 n.2 (citing Jewelcor Inc. v. Karfunkel, 517 F.3d 672, 676 n.4 (3d Cir.
2008)); Norfolk S. Ry. Co. v. Basell USA Inc., 513 F.3d 86, 91–92 (3d Cir. 2008).
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Forrester contends that section 818.14 does not bar its claim under section 818.18.
Finally, Forrester objects to the R&R’s conclusion that the factual allegations in the
complaint fail to render Forrest’s section 818.14 claim plausible.
Before addressing these objections seriatim, it is worth noting that neither
party contends that any portion of the Board of Vehicles Act relevant to the instant
dispute is ambiguous. The parties also agree that Ford’s discontinuance of its
Mercury brand constitutes a line-make termination. The parties’ disagreement lies
in the plain meaning of the statutory terms and how they apply to the facts as
alleged in the complaint.
A.

Whether 63 PA. STAT . § 818.13 excludes line-make terminations that
would fall under § 818.14
1.

Statutory language in issue

When terms of a statute are relevant to an issue before the court, the
threshold inquiry lies with the pertinent statutory language. Section 813.13 of the
Board of Vehicles Act, entitled “Termination of franchises,” provides in part:
(a) Terminations.—It shall be a violation of this act for any
manufacturer . . . to unfairly, without due regard to the equities of
said dealer and without just cause, terminate . . . the franchise of
any vehicle dealer . . . .
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(e) Burden of proof and just cause terminations on appeal.—In the
event of a dealer or distributor appeal of the termination . . . of its
franchise, the burden of proof shall be on the manufacturer or
distributor to show that such termination or failure to renew was
for just cause. Any termination or failure to renew which is subject
to section 14 shall not be subject to this subsection.

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63 Pa. Stat. § 813.13 (footnote omitted). The omitted footnote follows the text in the
last-quoted sentence reading “[a]ny termination or failure to renew with is subject
to section 14”; the footnote reads, in its entirety, “63 P.S. § 818.14.” Section 814.14,
in turn, is titled “Industry reorganization” and reads in part:
(a) Violation.—
(1) It shall be a violation of this act for a manufacturer . . . to
terminate or fail to renew a franchise of a new vehicle dealer
in connection with:
(i) any change in ownership or control of all or any part of the
manufacturer’s or distributor’s business . . . ; or
(ii) the termination, suspension or cessation of all or any part
of the manufacturer’s . . . business operations except for a
termination of a part of the manufacturer’s . . . business
operations throughout the United States that is not
otherwise part of any change in ownership or control of
the manufacturer's or distributor’s business.
....
(b) Acts affecting franchise.—For purposes of subsection (a), the
termination or discontinuation of a series, line, brand or class of
new vehicle marketed by a manufacturer or distributor as a
distinct series, line, brand or class shall be deemed to be the
termination or nonrenewal of a franchise . . . .
Id. § 818.14.
2.

The Magistrate Judge’s interpretation

Reading these provisions of the Act together, Magistrate Judge Methvin
concluded that section 813.13 “by its own terms seems to exclude line-end
terminations” that fall under section 813.14. (Doc. 43, at 8.) In explaining this
conclusion, the magistrate referred to the language of 63 PA . STAT . 813.13(e)
reading: “Any termination or failure to renew which is subject to section 14 shall
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not be subject to this subsection.” (Doc. 43, at 8 (citing 63 PA . STAT . 813.13(e).) She
rejected Forrester’s contentions that, first, the above-quoted language applied only
to the burden-of-proof provision in 63 PA. STAT . 813.13(e), and second, that if the
Pennsylvania legislature had intended the exclusion set forth in that provision of
the Act to apply to all of section 813.13, the above-quoted language would have read
“. . . shall not be subject to this section” rather than “this subsection.” She observed
“that the statute seems to contain inconsistencies in its use of the terms ‘section,’
‘subsection,’ and parargraph,” and reasoned that “a fair reading of the statute
indicates that if a deal termination is the result of an industry reorganization, then
§ 818.14 applies, and an additional showing of ‘just cause’ is not required under
§ 818.13.” (Doc. 43, at 8–9.)
The magistrate judge also agreed with Ford’s contention that “applying a
‘just cause’ requirement to a line-make termination would produce an absurd
result,” remarking that when a manufacturer discontinues an entire line-make of
vehicle, “the [manufacturer]’s conduct is irrelevant to termination of a franchise:
the franchise ends because there are no more cars being made of that type.” (Id. at
7 (quoting Doc. 38, at 2).) In summation, she determined that to the extent that the
amended complaint “articulate[s] a line-make termination of Ford’s Mercury brand,
§ 818.13 is inapplicable.” (Id. at 9.)
The court cannot agree with the magistrate judge’s interpretation of 63 PA .
STAT . § 818.13(e), the reasoning in support of which contains two fatal flaws.

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3.

The plain meanings of “section” and “subsection” preclude
them from being treated as interchangeable or equivalent

First, it is axiomatic that when statutory language is unambiguous, the
statute’s terms are taken to have their plain and ordinary meaning. Pa. Fin.
Responsibility Assigned Claims Plan v. English, 664 A.2d 84, 87 (Pa. 1995); Dep’t of
Transp. v. Taylor, 841 A.2d 108, 112 (Pa. 2004) (quoting 1 PA . CONS. STAT . ANN . §
1903)). The magistrate’s conclusion—that the language in section 818.13(e) renders
the whole of section 818.13 inapplicable when a franchise termination results from a
manufacturer’s line-make termination—is predicated on a conflation of the words
“section” and “subsection,” which are plainly different words, and have plainly
different meanings. A “section” is “a distinct part or portion of something written,”
whereas a “subsection” is “a subdivision or a subordinate division of a section.”6
(Doc. 44, at 19 (quoting MERRIAM -WEBSTER ’S COLLEGIATE DICTIONARY (10th ed.
1999).) See also P.R. v. Pa. Dep’t of Pub. Welfare, 759 A.2d 434, 437 (Pa. Commw. Ct.
2000) (citing Hoffman v. Kline, 150 A. 889, 891–92 (Pa. 1930); Contas v. City of
Bradford, 55 A. 989 (Pa. 1903); Dep’t of Labor & Indus. v. Unemp’t Comp. Bd., 199

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Other dictionaries maintain similar distinctions between the two terms.
According the Cambridge Dictionary of American English, a “section” is “a part of
something” and a “subsection” is “one of the smaller parts into which the main
parts of a document or organization are divided.” Cambridge Dictionaries Online,
http://dictionary.cambridge.org/. The Oxford Dictionary provides “any of the more
or less distinct parts into which something is or may be divided or from which it is
made up” and “a division of a section” respectively. Oxford Dictionaries Pro,
http://english.oxforddictionaries.com/.
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A.2d 474, 478 (Pa. Super. 1964)) (endorsing the use of dictionaries to determine
plain meaning of statutory terms when not otherwise defined).
The plain and plainly different meanings of “section” and “subsection”
require that they be accorded their respective meanings. In the context of the
instant dispute, 63 PA . STAT . § 818.13(e) must be read as creating an exception that
applies only to subsection (e) rather than the entirety of section 818.13, a reading
that the words of the statute compel. 63 PA . STAT . § 818.13(e) (“Any termination or
failure to renew which is subject to section 14 shall not be subject to this
subsection.”)
4.

Section 818.13(e) is limited by its title to appeals of franchise
terminations, whereas the remainder of section 818.13 applies
regardless of whether a franchise termination is appealed

Second, in Pennsylvania, “[t]he title and preamble of a statute may be
considered in the construction thereof.” 1 Pa. Cons. Stat. Ann. § 1924. Although
section headings “shall not be considered to control” the meaning of the statute,
they “may be used to aid in the construction thereof.” Id. Accord City Stores Co. v.
City of Phila., 103 A.2d 664, 667 (Pa. 1954) (citing In re Beechwood Ave., 45 A. 127,
128 (Pa. 1899); Duquesne Light Co. v. City of Pittsburgh, 97 A. 85, 87 (Pa. 1916);
People’s Natural Gas Co. v. City of Pittsburgh, 175 A. 691, 693 (Pa. 1934)) (“The title
is always a part of a statute or ordinance and, as such, must be considered in
construing the enactment.”).

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The heading of the statutory subsection relevant to the instant discussion, 63
PA . STAT . § 818.13(e), is “Burden of proof and just cause terminations on appeal.”
Those last two words—“on appeal”—have hitherto been entirely undiscussed and
unmentioned. Yet their significance renders their discussion necessary: a plain
reading of the heading of subsection 818.13(e) limits the applicability of that
subsection to appeals of franchise terminations.7
When reading the whole of section 818.13 in the context of the rest of the
statutory scheme, it is apparent that section 813.13 applies to any termination of a
franchise, regardless of the reason, and subsection 818.13(e) comes into play only
when a franchisee is appealing a franchise termination to the Pennsylvania Board
of Vehicles.
B.

Whether 63 Pa. Stat. § 818.14 bars Forrester’s § 818.18 claim

Section 818.18 provides in part: “(a) Reimbursement of rental costs.—In the
event of a termination or nonrenewal under this act, except for termination or
nonrenewal under section 14, the manufacturer or distributor shall, at the request

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It bears mentioning that Forrester did “appeal” the termination of his
franchise to the Ford Policy Board, as the franchise agreement with Ford required
him to do as a prerequisite to pursuing any other remedy, judicial or otherwise. But
case law applying the Board of Vehicles Act makes clear that this kind of appeal is
not the sort of appeal to which section 818.13(e) refers. Rather, section 818.13(e)
applies to appeals to the Pennsylvania Board of Vehicles, not internal corporate
appeals. See Rinaldi v. Bd. of Vehicle Mfrs., 843 A.2d 418 (Pa. Commw. Ct. 2004);
Subaru v. State Bd. of Vehicle Mfrs, Dealers, & Salespersons, 842 A.2d 1003 (Pa.
Commw. Ct. 2004); Univ. Lincoln Mercury, Inc. v. Pa. Bd. of Vehicle Mfrs., Dealers
& Salespersons, 576 A.2d 1146 (Pa. Commw. Ct. 1990); C. Earl Brown, Inc. v State
Bd. of Vehicle Mfrs., Dealers, & Salespersons, 555 A.2d 314 (Pa. Commw. Ct. 1989).
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and option of the new vehicle dealer, also pay to the new vehicle dealer” a sum in
an amount varying under the particular circumstances of the termination or
nonrenewal in question. As the magistrate judge concluded, the plain language of
section 818.18 excludes any termination or nonrenewal subject to section 818.14.
Accordingly, and as Forrester concedes, a dealer whose franchise was terminated
could not recover under both sections.
Yet the discussion does not end there. Forrester is correct that parties may
plead for relief under alternative theories. Pleadings under alternative theories may
be plausible, and thus sufficient to withstand a motion to dismiss, even if one or
both theories of recovery both ultimately fail, either because the ultimate fact-finder
is unconvinced that either theory has been proven or because the proof of one
theory necessarily excludes recovery under the alternative theory. Such alternative
pleadings are common, encouraged, and employed as a matter of general practice
in modern civil litigation.
It is undisputed that Forrester’s franchise was terminated. Termination of a
franchise invariably indicates that section 818.18 may apply, and that it does apply,
unless the termination is one that falls within the ambit of section 818.14. Since the
factual sufficiency of Forrester’s pleadings have only been put in issue by Ford’s
motion to dismiss on the question of whether Forrester has pleaded facts that
would show a violation of section 814.14, the court cannot agree that Forrester’s
section 818.18 claim should be dismissed when the facts establishing a claim under
that section have inarguably been sufficiently alleged but the facts establishing the
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applicability of the exception to section 818.18 have neither been admitted by Ford
nor sufficiently alleged.8
C.

Whether the allegations in the complaint fail to make Forrester’s
section 818.14 claim plausible

The statutory language of section 818.14 has already been set forth in Part
III.A supra, and all parties agree that this section is violated only when the
termination of a franchise is part of a “change in ownership or control” of the
manufacturer’s business. 63 PA . STAT . § 818.18(a)(1)(i), (ii). The magistrate judge
concluded that Forrester’s complaint failed to set forth facts sufficient to render
plausible the claim that Ford’s line-make termination of its Mercury brand was
associated with any change in ownership or control, necessitating dismissal of
Count II of the complaint.
Forrester objects that under Section 818.18(a)(1)(i), a change in ownership or
control may be evidenced by “sale or transfer of assets, corporate stock or other
other equity interest; assignment, merger, [or] consolidation,” and that in the
franchise-termination notice that Ford sent to Forrester, Ford indicated that
“[d]iscontinuing Mercury will allow Ford Motor Company to fully devote its
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The R&R points out that Forrester’s amended complaint contains an
allegation that the discontinuance of the Mercury line-make constitutes a
termination for the purposes of section 818.14. (Doc. 43, at 12 (citing Doc. 26, ¶ 43).)
However, a discontinuance of a line of vehicles may constitute a line-make
termination within the meaning of section 818.14 yet still not trigger the remedial
provisions of section 818.14. See 63 Pa. Stat. 818.14(a)(1)(i), (ii) (indicating that the
Board of Vehicles act is violated per section 818.14 only if a failure to renew a
franchise is part of a change in the manufacter’s ownership or control of its
business).
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financial, product development, marketing, sales and service resources toward
further growing” its Ford and Lincoln brands. (Doc. 44, at 27 (citing Doc. 26-2, at 1).)
According to Forrester, this language from the franchise-termination letter
constitutes evidence that the Mercury line-make termination was part of a “transfer
of assets” thorough a merger, consolidation, or combination. However, this is a
strained reading of the statute, and even viewing Forrester’s allegations in the light
most favorable to it, the cited language from the franchise-termination letter does
not make plausible a claim that the line-make termination was part of a change in
Ford’s ownership or control.
A merger is not just a reallocation of funds within an existing company; it is
the “absorption of one company . . . that ceases to exist into another that retains its
own name and identity and acquires the assets and liabilities of the former” or a
consolidation of “unrelated businesses that are neither competitors nor customers
or suppliers of each other.” Black’s Law Dictionary 1002 (7th ed. 1999). The mere
reallocation of funds within a singular business entity does not constitute a change
in ownership or control. The court therefore agrees with the magistrate judge that
Count II of the complaint should be dismissed. The court further concludes that
leave to amend Count II would be futile despite Forrester’s insistence to the
contrary, as nothing that Forrester has presented to the court through evidence or
argument has hinted at any change of ownership or control—all indications are that
Ford has merely reallocated its funds, not altered its corporate control structure,
acquired or sold subdivisions of the company, or otherwise altered the form of its
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business. Ford’s termination of the Mercury line-make of vehicles is no more a
change in Ford’s ownership or control than if Crayola decided to stop making
orange crayons.
IV.

Conclusion
The court will adopt the magistrate judge’s recommendation to grant Ford

Motor Company’s motion to dismiss Count II of the complaint and to deny the
motion to dismiss Count VI. The R&R is rejected in all other respects. An
appropriate order will issue.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

May 10, 2012

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

FORRESTER LINCOLN
MERCURY, INC.,
Plaintiff
v.
FORD MOTOR COMPANY,
Defendant

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CIVIL ACTION NO. 1:11-CV-1136
Judge Conner)

ORDER
AND NOW, this 10th day of May, 2012, upon consideration of the report of the
magistrate judge (Doc. 43), wherein the magistrate judge recommends granting
defendant’s motion to dismiss (Doc. 29) as to Counts I, II, and IV of the complaint
and denying the motion as to Count VI of the complaint, filed by defendant First
Priority Bank, and upon further consideration of the parties’ objections thereto
(Docs. 44, 48, 49, 52), and for the reasons set forth in the accompanying
memorandum, it is hereby ORDERED that:
1.

The report of the magistrate judge (Doc. 43) is ADOPTED in part and
REJECTED in part as follows:
a.
b.

ADOPTED with respect to the claim under 63 PA . STAT .
§ 818.29.

c.

2.

ADOPTED with respect to the claim under 63 PA . STAT . § 818.14.

REJECTED with respect to the claims under 63 PA . STAT .
§§ 818.13 and 818.18.

Defendant’s motion to dismiss (Doc. 29) is GRANTED in part and
DENIED in part as follows:

a.

The motion is GRANTED as to the claim under 63 PA .
STAT . § 818.14, and Count II of the amended complaint (Doc. 26)
is DISMISSED with prejudice.

b.

The motion is DENIED in all other respects.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge