COMMUNITY PRESCHOOL & NURSERY OF EAST LIBERTY, LLC v. TRI-STATE REALTY, INC.

Filing 36

MEMORANDUM AND ORDER denying 31 Second Partial Motion to Dismiss. Signed by Judge Arthur J. Schwab on 11/09/09. (mjl) Modified on 11/10/2009. (jsp)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA COMMUNITY PRESCHOOL & NURSERY OF EAST LIBERTY, Plaintiff, v. TRI-STATE REALTY, INC., Defendant. MEMORANDUM AND ORDER DENYING DEFENDANT'S SECOND PARTIAL MOTION TO DISMISS (DOC. NO. 31) Before the Court is defendant Tri-State Reality, Inc.'s ("Tri-State") "Partial Motion to Dismiss" (Doc. No. 31) plaintiff's Amended Complaint (Doc. No. 24) pursuant to Fed.R.Civ.P. 12(b)(6) and 12(f). After careful consideration of said motion and the briefs in support and in opposition thereto, the Court will deny Tri-State's Partial Motion to Dismiss. Plaintiff, Community Preschool & Nursery of East Liberty, LLC, filed its Amended Complaint following this Court's Memorandum and Order of October 6, 2009 (Doc. No. 20), granting defendant's Partial Motion to Dismiss in part, and dismissing Counts II and III of plaintiff's initial complaint. The Amended Complaint adds a Breach of Contract claim, the main target of the Partial Motion to Dismiss, which also seeks to dismiss plaintiff's claim for prejudgment interest arising from the alleged breach of contract. Applying the standards set forth in the Memorandum and Order of October 6, 2009 (Doc. No. 20), the Court finds that plaintiff has adequately pleaded the breach of contract claim and its entitlement to prejudgment interest under Pennsylvania law to survive the motion to dismiss at this preliminary stage of the proceedings. 09cv0979 ELECTRONICALLY FILED

For the foregoing reasons, IT IS HEREBY ORDERED that Tri-State Reality, Inc.'s Partial Motion to Dismiss (Doc. No. 31) is DENIED, without prejudice to raise the issues set forth therein at the appropriate time following discovery.

SO ORDERED this 9th day of November, 2009. s/Arthur J. Schwab Arthur J. Schwab United States District Judge cc: All counsel of record