ST. GERMAIN v. WISNIEWSKI et al

Filing 22

ORDER. For the reasons stated in the Memorandum Order filed herewith, the Partial Motion to Dismiss (Doc. 9 ) is GRANTED IN PART and DENIED IN PART. The motion (Doc. 9 ) is DENIED insofar as it seeks dismissal of Count IV for unjust enrichment aga inst Defendant Nutrimost Doctors. As stated in the Memorandum Order, the Court construes Plaintiff's Count VIII for equitable relief as a request for an equitable remedy for the remaining claims, but not as a separate cause of action. Insofar as Defendants seek to dismiss Count VIII, the motion is DENIED. In all other respects, the motion (Doc. 9 ) is GRANTED. Consistent with the foregoing, the following claims are hereby DISMISSED WITHOUT PREJUDICE to Plaintiff filing an amended compla int in light of the discussions set forth in the Memorandum Order: Count III; Count V; Count VI; and Count VII. Plaintiff may file an amended pleading as a matter of course on or before August 15, 2016, consistent with the principles discussed in the Memorandum Order and the mandates of Rule 11. Failure to file an amended complaint by this date will result in these claims being dismissed with prejudice. IT IS SO ORDERED. Signed by Judge Cathy Bissoon on 8/5/16. (rld)

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

DR. PATRICK ST. GERMAIN,
Plaintiff,
v.
DR. RAYMOND WISNIEWSKI, et al.,
Defendants.

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Case No. 15-1279
Judge Cathy Bissoon

MEMORANDUM ORDER
Dr. Patrick St. Germain (“Plaintiff”) brings this action against Dr. Raymond Wisniewski,
Nutrimost LLC, and Nutrimost Doctors, LLC (“Defendants”) for breach of contract (Counts I
and II), unjust enrichment (Counts III and IV), tortious interference with an advantageous
business relationship (Count V), fraudulent transfer (Count VI), civil conspiracy (Count VII),
and equitable relief (Count VIII). (Complaint (“Compl.”) (Doc. 1)). Defendants move to
dismiss Counts III-VIII – all claims save for breach of contract – pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Defs.’ Partial Motion to Dismiss (“Defs.’ Mot.”) (Doc. 9)). For the
reasons stated below, Defendants’ Partial Motion to Dismiss will be granted in part and denied in
part.

I. MEMORANDUM
BACKGROUND
Plaintiff alleges that he entered into a business contract (the “Agreement”) with
Defendant Nutrimost, LLC, (“Nutrimost”) on October 23, 2013. (Compl. at ¶ 17). Nutrimost
was engaged in the distribution of the Nutrimost System, a weight-loss system oriented around
using specialized scanning hardware and software (subject to frequent update and improvement)
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in order to develop individualized biometric-based diet plans for its customers; said weight-loss
plans included the recommended use of various “supplemental” consumables. (Id. at ¶ 9-15).
Nutrimost registered the trademarks for the Nutrimost System. (Id. at ¶ 16). Plaintiff claims that
the Nutrimost System was developed by Defendant Dr. Wisniewski, and that Dr. Wisniewski
also executed the Agreement with Dr. St. Germain on behalf of Nutrimost. (Id. at ¶ 18).
Plaintiff does not further allege the specifics of Dr. Wisniewski’s position within Nutrimost.
The Agreement afforded Plaintiff the “exclusive, perpetual” right to use both the
Nutrimost trademark and the “Nutrimost Resonant Frequency Technology” (the aforementioned
hardware and software combination) within the Florida counties of Orange, Seminole, Lake and
Osceola. (Id. at ¶ 17). A copy of the Agreement is attached to the Complaint. (Doc. 1 at Ex. B).
The Agreement also stipulates that, in the event that Nutrimost transfers control of its licensed
technologies to a third party, it must stipulate that St. Germain has “the sole and exclusive option
to retain the License (for use of the Nutrimost trademark and technology) or terminate it.” (Id. at
¶ 21; Ex. B).
Nutrimost Doctors, (“Nutrimost Doctors”) is a separate corporate entity, also formed by
Dr. Wisniewski. (Id. at ¶ 23). Plaintiff alleges that Dr. Wisniewski formed Nutrimost Doctors
for the purpose of converting his licensor/licensee business structure to a franchisor/franchisee
model. (Id.). According to Plaintiff, Nutrimost Doctors issued franchisee rights to the use of the
Nutrimost product based on zip code, whereas Nutrimost, previously offered licensor/licensee
agreements on a county-wide basis. (Id. at ¶ 27). Nutrimost, allegedly transferred the rights to
the Nutrimost System to Nutrimost Doctors. (Id. at ¶ 25). The Complaint alleges that Defendant
Wisniewski is the “Sole Member, CEO, and Director” of Nutrimost Doctors. (Id. at ¶ 25). The
Complaint also alleges that Nutrimost transferred its rights to Nutrimost Doctors, without ever

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giving Dr. St. Germain the option of retaining his license granted by Nutrimost, in violation of
section 14.1(b) of the Agreement. (Id. at ¶ 26). In fact, Dr. St. Germain alleges that Dr.
Wisniewski specifically asked him to voluntarily convert his license as granted by Nutrimost,
into franchisee rights with Nutrimost Doctors, for an additional fee; Dr. St. Germain declined.
(Id. at ¶¶ 26-29).
After the formation of Nutrimost Doctors and Dr. St. Germain’s refusal to convert his
licensee rights into franchisee rights, Nutrimost and Nutrimost Doctors, allegedly acting under
the direction of Dr. Wisniewski, ceased giving Dr. St. Germain the product support, in the form
of technological updates and processing orders for supplies, that was provided for in the
Agreement. (Id. at ¶¶ 30-33, 51-53). Additionally, Plaintiff alleges that Nutrimost Doctors
granted another individual, Dr. Daniel Yachter (“Dr. Yachter”), franchisee rights to the use of the
Nutrimost trademark and technology within a zip code that includes a portion of Volusia County,
a county abutting the Seminole County territory whose exclusivity rights had been leased to
Plaintiff. (Id. at ¶¶ 34-35, 43-44).
While Dr. Yachter had rights to Volusia County, he allegedly advertised his office’s use
of the Nutrimost System in St. Germain’s territories, including running radio advertisements in
the city of Orlando, and registering a website titled “Nutrimost Orlando” – Orlando being
situated within Orange County, to which Plaintiff had exclusive rights per the Agreement. (Id. at
¶ 39). These ads all directed customers to contact Dr. Yachter about Nutrimost at his Lake Mary
office in Seminole County – another county to which Plaintiff had exclusive rights – despite the
fact that the actual Nutrimost equipment used by Dr. Yachter was in Volusia County. (Id. at ¶¶
41-43). Plaintiff further alleges that Dr. Yachter was aware of the conflict, as he asked Plaintiff
for permission to advertise within the Seminole County area, which Plaintiff refused. (Id. at ¶¶

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36-38). Section 3.0(b) of the Agreement between Plaintiff and Nutrimost, grants exclusive rights
to “use, sell, distribute, deliver, offer to sell and practice” the Nutrimost System within the
designated four-county territories. (Id. at Ex. B).
As stated supra, Defendants move to dismiss Counts III-VIII of the Complaint, which
allege unjust enrichment, tortious interference with an advantageous business relationship,
fraudulent transfer, civil conspiracy, and equitable relief, pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 9).
ANALYSIS
“To 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.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
When faced with a motion to dismiss, a court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009).
i.

Piercing the Corporate Veil
Defendants move to dismiss Plaintiff’s claims insofar as they are asserted against Dr.

Wisniewksi in his individual capacity, as he operated in the context of Nutrimost and Nutrimost
Doctors. (Doc. 9 at 4-7). Defendants contend that Plaintiff has failed to allege sufficient facts to
support piercing the corporate veil. (Id.). Plaintiff disagrees. (Pl.’s Br. in Opp’n (Doc. 17) at 35).

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Pennsylvania courts typically recognize “a strong presumption . . . against piercing the
corporate veil,” and “the general rule is that a corporation1 shall be regarded as an independent
entity even if its stock is owned entirely by one person.” Lumax Indus., Inc. v. Aultman, 669
A.2d 893, 895 (Pa. 1985). Nonetheless, there are certain situations where piercing the veil is
countenanced in Pennsylvania – namely, when it is determined that “the corporation is an artifice
and a sham to execute illegitimate purposes and an abuse of the corporate fiction and immunity
that it carries.” Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1521 (3d Cir. 1994)
(quoting Wheeling-Pittsburgh Steel Corp. v. Intersteel, Inc., 758 F.Supp. 1054, 1058 (W.D.Pa.
1990) (“In deciding whether to pierce the corporate veil, courts are basically concerned with
determining if equity requires that the shareholders’ traditional insulation from personal liability
be disregarded and with ascertaining if the corporate form is a sham, constituting the facade for
the operations of the dominant shareholder.”)).
Although there are factors that the Court will consider, there remains no clear test for
determining when piercing the corporate veil is appropriate. Advanced Tel. Sys., Inc. v. ComNet Prof’l Mobile Radio, LLC., 846 A.2d 1264, 1278 (Pa. Super. Ct. 2004) (holding that factors
to consider include “undercapitalization, failure to adhere to corporate formalities, substantial
intermingling of corporate and personal affairs and use of the corporate form to perpetuate a
fraud”). “[A] court inquires, inter alia, whether corporate formalities were observed and
corporate records kept, whether officers and directors other than the dominant shareholder
actually function, and whether the dominant shareholder has used the assets of the corporation as
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The entities at issue in this case are limited liability corporations, but “Pennsylvania courts have
found that the veil of an LLC may be pierced to the same degree as that of a corporation.”
Partners Coffee Co., LLC v. Oceana Servs. & Products Co., 700 F. Supp. 2d 720, 736 (W.D.Pa.
2010) (citing Advanced Tel. Sys. v. Com–Net Prof’l Mobile Radio, LLC, 846 A.2d 1264, 1281,
n. 11 (Pa. Super. Ct. 2004); Schwab v. McDonald (In re LMcD, LLC), 405 B.R. 555, 560
(Bankr. M.D.Pa. 2009).
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if they were his or her own.” 12 Summ. Pa. Jur. 2d Business Relationships § 1:27 (2d ed.)
(citing Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87 (Pa. Super. Ct. 2007), appeal denied,
956 A.2d 435 (2008) and cert. denied, 129 S. Ct. 1581 (2009)). “The corporate form will be
disregarded only when the entity is used to defeat public convenience, justify wrong, protect
fraud, or defend crime.” Mosaica Educ., Inc. v. Pennsylvania Prevailing Wage Appeals Bd., 925
A.2d 176, 184 (Pa. Commw. Ct. 2007) (citing First Realvest, Inc. v. Avery Builders, Inc., 600
A.2d 601, 604 (Pa. Super. Ct. 1991)).
Plaintiff argues that a specific showing of fraud is not required in order to pierce the
corporate veil, and that the veil may be pierced “whenever it is necessary to avoid injustice or
when public policy requires it.” (Doc. 17 at 4 (quoting Lycoming County Nursing Home Ass’n,
Inc. v. Comm. Of Pa. Dept. of Labor and Industry, Prevailing Wage Appeal Bd., 627 A.2d 238,
290 (Pa. Commw. Ct. 1988)). He maintains that, “the totality of allegations in the Complaint . . .
indicate that Defendant Wisniewski engaged in inequitable conduct, and thus piercing the
corporate veil is appropriate to remedy wrong and protect against fraud.” (Id.). While the Court
can imagine allegations in this case that would provide a basis for piercing the corporate veil,
Plaintiff has not pleaded those facts in the Complaint as it is currently styled. (See Compl.).
While Plaintiff has made general, conclusory statements regarding the need to pierce the
corporate veil to avoid injustice, the Complaint does not contain factual allegations that speak to
any of the factors that Pennsylvania courts consider when deciding whether to pierce the
corporate veil. See Advanced Tel. Sys., Inc., 846 A.2d at 1278; Fletcher-Harlee Corp., 936 A.2d
87. Therefore, even viewing all facts in a light most favorable to Plaintiff, the Complaint fails to
state a basis for piercing the corporate veil.

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ii.

Count VI – Fraudulent Transfer
Defendants move to dismiss Count VI, which alleges that all defendants engaged in

fraudulent transfer. Plaintiff’s Complaint does not identify a statutory basis for the fraudulent
transfer claim; Defendant cites to 12 Pa. Stat. and Cons. Stat. Ann. § 5105 in its Brief in Support
of Partial Motion to Dismiss, and Plaintiffs do not dispute this statutory grounding in their
Response Brief. (See Compl. at ¶¶ 79-84; Doc. 9 at 13-15; Doc. 17 at 7). As such, the Court
understands Plaintiff’s Count VI to be an alleged violation of 12 Pa. Stat. and Cons. Stat. Ann.
§ 5105. As the Court has already determined that Plaintiff failed to plead sufficient facts to
support piercing the corporate veil, and Plaintiff articulates no other basis for Dr. Wisniewski’s
individual liability for an alleged fraudulent transfer, Count VI will be dismissed insofar as it is
stated against Dr. Wisniewski individually.
Under the Pennsylvania Uniform Fraudulent Transfer Act (“PUFTA”), a transfer is
fraudulent as to a creditor who brings a claim against a debtor when “the debtor made the
transfer or incurred the obligation without receiving a reasonably equivalent value in exchange
for the transfer or obligation and the debtor was insolvent at that time or became insolvent as a
result of the transfer or obligation.” 12 Pa. Stat. and Cons. Stat. Ann. § 5105. The creditor’s
claim against the debtor must have arisen “before the transfer was made or the obligation was
incurred.” Id. Unlike the actual intent standard, claims of constructive fraud are not subject to
the heightened pleading standard of Rule 9(b) because “fraud does not have to be proven.” In re
Rosenblum, 545 B.R. 846, 866 (Bankr. E.D. Pa. 2016)2 (citing United States v. Rocky Mountain

2

Fid. Bond & Mortgage Co. v. Brand, 371 B.R. 708, 719 (E.D. Pa. 2007) (“The constructive
fraud provisions of the PUFTA and the Bankruptcy Code should be construed and interpreted
uniformly because consistency between the two statutes was a goal of those who drafted the
PUFTA and who have since interpreted it”).

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Holdings, Inc., 2009 WL 564437, at *9 (E.D.Pa. Mar. 4, 2009); see also In re Transcon.
Refrigerated Lines, Inc., 438 B.R. 520, 522 (Bankr. M.D.Pa. 2010) (observing that “most Courts
in the Circuit recognize that constructive fraudulent transfer claims are not analyzed under the
heightened Rule 9(b) pleading standard” and accordingly declining to apply the standard)).
In determining what constitutes an exchange of “reasonably equivalent value” under
§ 5105, the Court applies a two-step process:
First, the court must determine whether the debtor received “any value at all”
from the challenged transaction. Value is defined by the Bankruptcy Code as
property, or satisfaction or securing of a present or antecedent debt of the debtor.
Second, if the court finds that a debtor received at least some value, it must then
decide whether the value received was roughly the value it gave.
Image Masters, Inc. v. Chase Homes Finance, 489 B.R. 375, 387 (E.D.Pa. 2013) (citing In re
R.M.L., 92 F.3d 139, 149 (3d Cir. 1996)). Additionally, the Court is expected “to look to the
totality of the circumstances, including (1) the fair market value of the benefit received as a
result of the transfer, (2) the existence of an arms-length relationship between the debtor and the
transferee, and (3) the transferee’s good faith.” Id. (citing In re R.M.L, Inc., 92 F.3d at 148-49).
Finally, the Court may take into consideration “both direct and indirect benefits conferred by the
transfer.” Id. (citing Mellon Bank, N.A. v. Metro Commc’ns, Inc., 945 F.2d 635, 646 (3d Cir.
1991)). The Court finds that Plaintiff failed to allege a single fact to support this element of a
fraudulent transfer claim. Plaintiff omits any mention of what, if anything, was given to
Nutrimost in exchange for transferring rights to Nutrimost Doctors.
Plaintiff’s failure to provide a single supporting fact or basis for his allegation with
respect to the “reasonably equivalent value” element of constructive fraudulent transfer renders
his Complaint insufficient under the governing pleading standard with respect to Count VI as
stated against Nutrimost and Nutrimost Doctors. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). After Twombly, “it is no
longer sufficient to allege mere elements of a cause of action.” Phillips v. Cty. of Allegheny,
515 F.3d 224 (3d Cir. 2008). The Court of Appeals for the Third Circuit has interpreted the
Twombly pleading standard to require “‘a complaint with enough factual matter (taken as true)
to suggest’ the required element.” Id. (citing Twombly, 127 S.Ct. at 1965). This “‘simply calls
for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Id. (citing Twombly, 127 S.Ct. at 1965). As Plaintiff has alleged no facts at
all to support the element of “reasonably equivalent value,” Count VI of the Complaint will be
dismissed in full.
iii.

Counts III and IV – Unjust Enrichment against Defendants Dr. Wisniewski and
Nutrimost Doctors
Plaintiff alleges an unjust enrichment claim against Dr. Wisniewski individually (Count

III) and against Nutrimost Doctors (Count IV). Defendants move to dismiss both Counts III and
IV.
Unjust enrichment results when a party inequitably retains benefits conferred by an
opposing party. Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa. Super. Ct. 1995). The
elements necessary to show unjust enrichment under Pennsylvania law are: “(1) benefits
conferred on defendant by Plaintiff; (2) appreciation of such benefits by defendant; and
(3) acceptance and retention of such benefits under such circumstances that it would be
inequitable for defendant to retain the benefit without payment of value.” Sovereign Bank v.
BJ’s Wholesale Club, Inc., 533 F.3d 162, 180 (3d Cir. 2008) (quoting Limbach Co. LLC. v. City
of Philadelphia, 905 A.2d 567, 575 (Pa. Commw. Ct. 2006)). The “unjust” element of the claim
in question has been described as “the ‘most significant’ one under Pennsylvania law.” Gabriel

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v. Giant Eagle, Inc., 124 F.Supp.3d 550, 569 (W.D.Pa. 2015) (appeal dismissed) (quoting
Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664, 668-69 (Pa.
Super. Ct. 2007)).
As established supra, Plaintiff has not established a basis for piercing the corporate veil
with respect to Dr. Wisniewski. See, e.g., Bouriez v. Carnegie Mellon University, 2005 WL
3006831 (W.D.Pa. Nov. 9, 2005). However, under the participation theory of liability:
[a] corporate officer is individually liable for the torts he personally commits and
cannot shield himself behind a corporation when he is an actual participant in the
tort. The fact that an officer is acting for a corporation also may make the
corporation vicariously or secondarily liable under the doctrine of respondeat
superior; it does not however relieve the individual of his responsibility.
Synthes, Inc. v. Marotta, 281 F.R.D. 217, 232 (E.D.Pa. 2012) (internal citations omitted)
(quoting Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir.1978); Coach, Inc. v. Sunfastic
Tanning Resort, 2011 WL 5447972, at *6 (E.D.Pa. Nov. 10, 2011)). The participation theory of
liability can be employed even when facts are insufficient to pierce the corporate veil. Under
this theory of liability, the “only crucial predicate” to Dr. Wisniewski’s liability “is his
participation in the wrongful acts.” Donsco, 587 F.3d at 606.
The participation theory of liability, although historically applied in the context of torts,
has been utilized by certain courts applying Pennsylvania law in connection with claims for
unjust enrichment. See, e.g., USTAAD Sys., Inc. v. iCap Int’l Corp., 2010 WL 3984882, at *1 n.
3 (M.D.Pa. Oct. 12, 2010) (“Although the participation theory is sometimes articulated with
reference to ‘commission of a tort,’ the court finds it significant that the theory has also been
articulated in broader terms, e.g., ‘misfeasance.’”) (citing Wicks v. Milzoco Builders, Inc., 470
A.2d 86, 90 (Pa. 1983); Parker Oil Co. v. Mico Petro & Heating Oil, LLC, 979 A.2d 854, 856
(Pa. Super. Ct. 2009)); E. Roofing Sys., Inc. v. Cestone, 2012 WL 6051097, at *13 (Pa. Com. Pl.
Apr. 13, 2012) (“The preliminary objections of Defendant . . . to his personal liability for . . .
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unjust enrichment (Count III) . . . are OVERRULED based upon the participation theory.”). As
Plaintiff sets forth allegations of Dr. Wisniewski’s individual acts taken to engage in the
wrongdoing underlying the claim of unjust enrichment, the requirements for participation
liability have been met. Donsco, 587 F.3d at 606. The Court assumes arguendo that the
participation theory of liability can establish individual liability in the context of a claim for
unjust enrichment – without rendering a holding on that question – and will thus address the
merits of Plaintiff’s Count III.
Plaintiff has failed to state a claim for unjust enrichment against Dr. Wisniewski. He
contends that:
Defendant Wisniewski effectuated the transfer of Defendant [Nutrimost]’s assets
to Defendant [Nutrimost Doctors], and prohibited Plaintiff from the use of his
license without providing him with just compensation. Plaintiff therefore
conferred a benefit on Wisniewski (albeit involuntarily), by which Defendant
Wisniewski could pursue franchisees in Plaintiff’s protected territory, without
paying him for the same. Accordingly, . . . an unjust enrichment claim is proper.
(Doc. 17 at 5-6). The “benefit” conferred upon Dr. Wisniewski, as identified by Plaintiff, is the
ability to “pursue franchisees” within territory to which Plaintiff had exclusive rights pursuant to
the Agreement, without providing Plaintiff with compensation. The Court is not persuaded that
the facts as stated in the Complaint satisfy the first of the unjust enrichment elements.
The first element of an unjust enrichment claim is a “benefit conferred on defendant by
Plaintiff.” Sovereign Bank, 533 F.3d at 180 (emphasis added). “Thus, courts have emphasized
that Plaintiff’s actions are core to the cause of action. ‘[T]he doctrine does not apply simply
because the defendant may have benefitted as a result of the actions of the Plaintiff.’” Gabriel v.
Giant Eagle, Inc., 124 F. Supp. 3d at 568-69 (quoting Northeast Fence, 933 A.2d at 668–669).
Plaintiff has framed the benefit in the instant case as one that was conferred on defendant
“involuntarily.” The alleged benefit – Dr. Wisniewski’s ability to pursue franchisees within
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Plaintiff’s protected territory – simply wasn’t conferred by Plaintiff. In fact, Dr. Wisniewski
sought Plaintiff’s permission to alter the terms of the Agreement in order to utilize a
franchisor/franchisee model, and Plaintiff refused. (Compl. at ¶ 27). According to Plaintiff’s
allegations, Dr. Wisniewki’s distribution of franchisee rights within Plaintiff’s protected counties
was in violation of the Agreement and contrary to his wishes as expressed to Dr. Wisniewski.
There is no potential reading of the Complaint to support a conclusion that Plaintiff conferred
this benefit on Defendants. Plaintiff cannot get around this problematic fact by simply framing
the benefit as one that he conferred “forcibly” or “involuntarily.” (Compl. at ¶ 68; Doc. 17 at 5).
Without an alleged benefit conferred on Dr. Wisniewski by Plaintiff, Plaintiff has failed to state a
claim for unjust enrichment against Dr. Wisniewski individually. Thus, Count III will be
dismissed.
Turning to Count IV, as stated against Nutrimost Doctors, the Court notes that “the
doctrine of unjust enrichment is inapplicable where the relationship between the parties is
founded upon a written agreement or express contract.” Wilson Area Sch. Dist. v. Skepton, 895
A.2d 1250, 1254 (Pa. 2006); see also, Gabriel, 124 F.Supp.3d at 569 (citing Mitchell v. Moore,
729 A.2d 1200, 1203 (Pa. Super. Ct. 1999)) (“A claim for unjust enrichment, wherein the law
implies a quasi-contract which requires the defendant to pay to Plaintiff the value of the benefit
conferred, does not exist where there is a written contract between the parties.”). Plaintiff alleges
the existence of a written contract between he and Nutrimost Doctors in Count II of the
Complaint. (Compl.). The practice of alternate pleading means that “[t]he mere existence of a
written contract between parties does not bar an unjust enrichment claim.” PPG Industries, Inc.
v. Generon IGS, Inc., 760 F.Supp.2d 520, 526 (W.D.Pa. 2011) (citing In re Prudential Insurance
Company of America Sales Practice Litigation, 975 F.Supp. 584, 631 (D.N.J. 1996)). “If the

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contract is unenforceable, Defendant may well have an unjust enrichment claim. However, if the
contract is enforceable, Defendant’s recovery of these alleged damages will be as a measure of
the breach of the contract and not as a separate tort claim…” Id. See also Premier Payments
Online, Inc. v. Payment Systems Worldwide, 848 F.Supp.2d 513, 527 (E.D.Pa. 2012) (“A
Plaintiff is permitted to plead alternative theories of recovery based on breach of contract and
unjust enrichment in cases where there is a question as to the validity of the contract in
question.”) (quoting AmerisourceBergen Drug Corp. v. Allscripts Healthcare, LLC., 2011 WL
3241356 at *3 (E.D.Pa. 2011)) (internal quotations omitted). The Court thus construes
Plaintiff’s unjust enrichment claim against Nutrimost Doctors as an alternative pleading, which
is permissible under Federal Rule of Civil Procedure Rule 8. Generon, 760 F.Supp.2d at 526;
see also 18 KT. TV, LLC. v. Entest Biomedical, Inc., 2011 WL 5374515 (M.D.Pa. 2011)
(“Federal Rule of Civil Procedure 8(d) allows for the pleading of alternative theories in the same
complaint, even if those theories are inconsistent.”).
Plaintiff alleges that “Defendant [Nutrimost Doctors] has received a forcibly conferred
benefit from Plaintiff Dr. St. Germain to Defendant [Nutrimost Doctors], under circumstances
that make the conferring of this benefit unequitable under the circumstances.” (Compl. at ¶ 72).
Plaintiff alleges that, up to August of 2015, he continued to “abide by the terms of the
Agreement, including making all payments required by the Agreement, and continuing to order
products, including Supplemental Materials, from the Defendants.” (Id. at ¶ 51). Plaintiff then
goes on to allege that Nutrimost Doctors “refuse[d] to fill any and all orders for Nutrimost
System products placed by Plaintiff Dr. St. Germain,” and “completely frustrated the purpose of
the Agreement, to the point that Plaintiff Dr. St. Germain has been robbed of both the benefit of
his bargain, as well as his ability to continue to operate his business.” (Id. at ¶¶ 52-53). The

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allegation that Plaintiff made payments to Nutrimost Doctors and did not receive the Nutrimost
products in exchange, are sufficient to survive a 12(b)(6) motion to dismiss the unjust
enrichment claim. With respect to Count IV, Defendants’ Motion to Dismiss will be denied.
iv.

Count V – Tortious Interference by Nutrimost Doctors and Dr. Wisniewski
Plaintiff alleges a claim for tortious interference against Nutrimost Doctors and Dr.

Wisniewski individually (Count V), which Defendants move to dismiss. (Compl. at ¶¶ 74-78;
Doc. 9). Plaintiff frames Count V as one of tortious interference with an “advantageous business
relationship.” (Compl. at ¶¶ 74-78). It appears that this is a cause of action in the state of
Florida, from which Plaintiff’s counsel hails. There is no such precisely-named cause of action
in the Commonwealth of Pennsylvania. Defendants have construed Count V to be a claim for
tortious interference with contract and Plaintiff does not claim otherwise. (Doc. 10 at 10-13;
Doc. 17 at 6-7).
The Court first considers Count V as alleged against Dr. Wisniewski. The Court of
Appeals for the Third Circuit has described the necessary elements for a claim of tortious
interference under Pennsylvania law as follows:
(1) the existence of a contractual or prospective contractual or economic
relationship between plaintiff and a third party; (2) purposeful action by the
defendant, specifically intended to harm an existing relationship or intended to
prevent a prospective relationship from occurring; (3) the absence of privilege or
justification on the part of the defendant; (4) [and] legal damage to the plaintiff as
a result of the defendant’s conduct. . .
Acumed LLC. v. Advanced Surgical Services, Inc., 561 F.3d 199, 212 (3d Cir. 2009) (citing
Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 530 (3d Cir. 1998)). A
corporation’s agents are awarded no privilege when operating outside of the scope of their
authority; conversely, when operating within the scope of their authority, they are entitled to
privilege. CGB Occupational Therapy, Inc. v. RHA Health Serv., Inc., 357 F.3d 375, 387 (3d
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Cir. 2004) (citing Maier v. Maretti, 671 A.2d 701, 707 (Pa. Super. Ct. 1995); Daniel Adams
Assoc., Inc. v. Rimbach Pub., Inc., 519 A.2d 997, 1000 (Pa. Super. Ct. 1987); Labalokie v.
Capital Area Intermediate Unit, 926 F.Supp. 503, 509 (M.D.Pa. 1996)). “The reason for this
privilege is that holding an agent liable would be like holding the principal itself liable for the
tort of interfering with its own contract, instead of holding the principal liable for breach of
contract.” Id.
Plaintiff has failed to allege that Dr. Wisniewski acted outside of his authority as an agent
of Nutrimost when he affected the transfer to Nutrimost Doctors. Thus, he has failed to allege
the third element of tortious interference claim, i.e. an absence of privilege. See Acumed, 561
F.3d at 212; CGB Occupational Therapy, 357 F.3d at 387. Accordingly, Count V as alleged
against Dr. Wisniewski will be dismissed.
The Court now considers Count V as alleged against Nutrimost Doctors. The parties
appear to agree on the existence of a contract between Plaintiff and Nutrimost, and thus the first
element is not contested. (See Compl. at ¶¶ 17, 58; Doc. 17 at 8-9). The second element of
tortious interference requires that the action allegedly interfering with the plaintiff’s contract was
undertaken by the defendant “for the specific purpose of causing harm to the plaintiff.” Phillips
v. Selig, 959 A.2d 420, 429 (Pa. Super. Ct. 2008) (quoting Glenn v. Point Park College, 272
A.2d 895, 899 (Pa. 1971) (holding that the tort of interference with contract “is an intentional
one: the actor is acting as he does [f]or the purpose of causing harm to the plaintiff”)).
The only alleged action by Nutrimost Doctors, and therefore the only potential
“purposeful action” with respect to a tortious interference claim, is its acceptance of the transfer
of Defendant Nutrimost’s rights. (Compl. at ¶ 77). Plaintiff separately alleges that Nutrimost
Doctors was created “for the purpose of granting rights in the NutriMost System through a

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franchise model.” (Id. at ¶ 23). Plaintiff does not plead sufficient facts to establish the second
element of tortious interference, that Nutrimost Doctors specifically intended to harm Plaintiff’s
relationship with Nutrimost. Tortious interference with contract is an intentional tort.
Archinaco/Bracken LLC v. Dawson, 2013 WL 5410060 (W.D.Pa. Sept. 25, 2013) (citing
Remick v. Manfredy, 238 F.3d 248, 258 (2001)); Glenn v. Point Park College, 272 A.2d 895,
899 (Pa. 1971) (the tort of interference with contract “is an intentional one: the actor is acting as
he does [f]or the purpose of causing harm to the plaintiff”). While Plaintiff has alleged facts that
Nutrimost Doctors accepted a transfer of rights from Nutrimost, which contravened the terms of
Plaintiff’s Agreement with Nutrimost, he has simply not alleged that this was done with the
intent to harm Plaintiff. As such, Count V will be dismissed in its entirety.
v.

Count VII – Civil Conspiracy
A claim for civil conspiracy under Pennsylvania law requires a showing that “two or

more defendants acted in concert to commit an unlawful act or [to commit] a lawful act by
unlawful means, and that they acted with malice.” Ickes v. Grassmeyer, 30 F.Supp.3d 375, 402
(W.D.Pa. 2014) (quoting Skipworth v. Lead Industries Association, Inc., 690 A.2d 169, 174 (Pa.
1997). “[C]ivil conspiracy cannot be pled without also alleging an underlying tort.” McGreevy
v. Stroup, 413 F.3d 359, 371 (3d Cir. 2005) (quoting Boyanowski v. Capital Area Intermediate
Unit, 215 F.3d 396, 405 (3d Cir. 2000); see also Mill Run Associates v. Locke Property Co.,
Inc., 282 F.Supp.2d 278, 294 (E.D. Pa. 2003) (“[C]ivil conspiracy requires…a criminal act or
intentional tort”) (citing Boyanowski, 215 F.3d 396).
Plaintiff’s only remaining claims are for breach of contract and unjust enrichment.
Neither constitutes a tort. Alpart v. General Land Partners, Inc., 574 F.Supp.2d 491, 509 n.18
(E.D. Pa 2008) (“A breach of contract, without more, is not a tort. Because a claim for civil

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conspiracy can only exist with a finding that the underlying tort occurred, a claim for civil
conspiracy cannot be based on a breach of contract.”) (quoting Windsor Securities, Inc. v.
Hartford Life Ins. Co., 986 F.2d 655 (3d Cir. 1993); Boyanowski, 215 F.3d at 405) (internal
quotations omitted)); Boring v. Google Inc., 362 F.App’x 273, 282 (3d Cir. 2010)
(“Pennsylvania does not recognize unjust enrichment as a stand-alone tort.”). Breach of contract
claims are, clearly, contract claims, and unjust enrichment is a claim sounding in “‘quasicontract’ which requires the defendant to compensate the plaintiff for the value of [a] benefit
conferred.” Id. at 281. Without an underlying tort claim as the basis for the alleged civil
conspiracy, that claim cannot go forward. Count VII will be dismissed.
vi.

Count VII – Equitable Relief
Plaintiff’s Count VIII for “equitable relief” asks the Court to grant the equitable remedy

of an injunction against Defendants. (Compl. at ¶¶ 89-94). “An injunction is a remedy, not a
separate claim or cause of action.” Jensen v. Quality Loan Service Corp., 702 F.Supp.2d 1183,
1201 (E.D. Pa. 2010). Count VIII therefore does not stand alone as grounds for relief. However,
while not valid as an independent count, it may nonetheless be construed as a request on the
Court for the granting of equitable relief in connection with the remaining counts. See
McHolme/Waynesburg, LLC. v. Wal-Mart Real Estate Business Trust, 2009 WL 1292808 (W.D.
Pa. 2009) (holding that a count for specific performance, while not itself an independent cause of
action, could remain as a request for equitable relief on other claims) (citing Invensys Inc. v. Am.
Mfg. Corp., 2005 WL 600297, at *9 (E.D.Pa. March 15, 2005). Therefore, the Court construes
Count VIII as a request for an equitable remedy for breach of contract and/or unjust enrichment,
and Defendant’s motion to dismiss that count will be denied as moot.

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II. ORDER
For the reasons stated above, the Partial Motion to Dismiss (Doc. 9) is GRANTED IN
PART and DENIED IN PART. The motion (Doc. 9) is DENIED insofar as it seeks dismissal
of Count IV for unjust enrichment against Defendant Nutrimost Doctors. As stated supra the
Court construes Plaintiff’s Count VIII for equitable relief as a request for an equitable remedy
for the remaining claims, but not as a separate cause of action. Insofar as Defendants seek to
dismiss Count VIII, the motion is DENIED. In all other respects, the motion (Doc. 9) is
GRANTED.
Consistent with the foregoing, the following claims are hereby DISMISSED
WITHOUT PREJUDICE to Plaintiff filing an amended complaint in light of the discussions
set forth supra: Count III; Count V; Count VI; and Count VII. Plaintiff may file an amended
pleading as a matter of course on or before August 15, 2016, consistent with the principles
discussed herein and the mandates of Rule 11. Failure to file an amended complaint by this
date will result in these claims being dismissed with prejudice.
IT IS SO ORDERED.

August 5, 2016

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

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