*1 injunction matter to preliminary vails on every time he or she courthouse run to the legal support for the suspects by re- may undermined
junction have been Second, City, than rather cent caselaw. Commonwealth, ap- have been the would court entity petition
propriate attempts to police department’s
to review the discriminatory hiring practices. its
eliminate legally not the Commonwealth was Because preliminary in- allowing the accountable for place of fif-
junction to remain excess justification on years, there is no based
teen in the record for award- undisputed facts to dis-
ing attorney’s fees as an alternative court erred as a matter
missal. The district awarding attorney’s fees as an
of law 41(b). under Rule to dismissal alternative
III. Conclusion court’s award will reverse the district We intervening attorney’s fees in favor of the against plaintiff Com- defendants Pennsylvania. The district
monwealth awarding attorney’s fees court erred suit without against plaintiff a civil frivolous, finding that the suit was
unreasonable, or foundation. The without by realigning the court also erred district rights de- as a civil
plaintiff Commonwealth purpose awarding attor- for the
fendant addition, ney’s the facts of this ease fees. attorney’s fees do not warrant award an alternative to a against plaintiff 41(b) Rule dismissal. THERAPY
GEMINI PHYSICAL REHABILITATION, AND
INC., Appellant, FARM MUTUAL AUTOMOBILE
STATE
INSURANCE COMPANY.
No. 94-1395. Appeals, Court of
United States
Third Circuit.
Argued Sept. 1994.
Decided Nov. 1994. Rehearing Dec.
Sur Petition for *2 (argued), Dessen,
David S. Dessen
Moses
Sheinoff,
PA,
Philadelphia,
appellant.
&
for
(argued),
Harbison,
Earl T. Britt
Mark P.
Britt, Hankins,
Moughan,
Sehaible &
Phila-
PA,
delphia,
appellee.
for
SCIRICA, ROTH,
ROSENN,
Before:
and
Judges.
Circuit
OPINION OF THE COURT
ROSENN,
Judge.
Circuit
Physical Therapy
and Rehabilita-
(“Gemini”)
tion,
provider
Inc.
is a health care
who treated various individuals who were
injured in automobile accidents and insured
Farm
State
Mutual Automobile Insurance
(“State Farm”).
Company
Gemini and other
providers
health
longer par-
care
who are no
(“the plaintiffs”)
ties to this action
filed a
complaint in the United States District Court
Pennsylvania.1
for the
District
Eastern
plaintiffs
The
assignees
claimed to be the
the insureds’
under their automobile
policies,
alleged
insurance
and
that State
unreasonably
Farm
pay
refused to
in-
sureds’ bills
full in violation of
sureds’ contracts and the
Mo-
Law,
Responsibility
tor Vehicle Financial
(“MVFRL”).
§§
seq.
Pa.C.S.
et
The
complaint sought
full,
payment
compensa-
tory
punitive damages
for tortious inter-
relations,
puni-
ference with contractual
damages pursuant
tive
to 42 Pa.C.S.
plain-
State Farm filed a motion to dismiss
punitive damages
tiffs’ claims for
under 42
Pa.C.S.A.
8371 and for intentional interfer-
relations,
ence with contractual
which the
granted.
plaintiffs
district court
subse-
quently
complaint
filed a first amended
pursuant
which included new claims
Pennsylvania Unfair Trade Practices and
Law,
201-1,
Consumer Protection
73 P.S.
(“CPL”).
seq.
granted
et
The district court
tion,
1. The district court dismissed the claims of cer-
and dismissed the other claims without
subject
jurisdic-
prejudice
misjoinder.
tain
for lack of
matter
II.
plaintiffs’
to dismiss
Farm’s motion
standing.
for lack of
claims
CPL
challenges primarily
legal
involve
com
a second
Plaintiffs filed
amended
court,
determinations
Farm filed a motion
plaint. State
plenary
review. See
therefore
exercise
*3
seeking
of all
summary judgment
dismissal
Epstein Family Partnership
Louis W.
v.
claims under MVFRL
breach of contract
(3d Cir.1994).
762,
Corp., 13
766
KMart
F.3d
of medical bills submitted
for reimbursement
argues that it has a
claim
Gemini first
valid
15, 1990,
April
after
because
to State Farm
Pennsylvania
Prac-
under the
Unfair Trade
alleged failure to exhaust their
plaintiffs’
of
Law,
tices and Consumer Protection
73 P.S.
the MVFRL. The district
remedies under
201-1,
seq.
provides
perti-
et
The CPL
in
motion.
Farm re
denied the
State
court
part:
nent
summary
partial
judg
its motion for
newed
Any person
purchases
goods
who
or leases
Pennsylvania Supe
light
of a recent
ment
primarily
personal, family
or services
Pennsyl
v.
decision Terminato
rior Court
purposes
thereby
or household
suffers
Co.,
92,
Pa.Super.
422
618
vania Nat’l Ins.
any
money
proper-
loss of
or
ascertainable
—
(1998),
1032
rev’d and remanded
A.2d
ty,
personal,
or
as a result of the use
real
(1994).
Pa. -,
district
I.
services,
may
not those who
receive
or
matter,
Corp.
purchase.
Zerpol
See
State Farm benefit from the
preliminary
As a
(E.D.Pa.
404,
Corp.,
F.Supp.
561
415
light
Pennsylvania
v. DMP
concedes that
1983) (dismissing corporate plaintiffs claim
in Termina
Supreme Court’s recent decision
—Co.,
private
action under the
Pennsylvania
Pa.
because
cause of
to v.
Nat’l. Ins.
—,
(1994),
purchasers or
of the CPL is
to
lessors
facturing Company
party
expensive
&
with another
more
or bur
(1988)
vak,
A.2d 357
Pa.
densome. As this court stated in its careful
argument
that the insureds’
support
analysis
for its
of the two sections in Windsor Se
Hedlund,
assignable.
cur.,
Co.,
are
CPL claims
Inc. v.
Insurance
Hartford Life
(3d
Supreme
acknowledged
Cir.1993),
F.2d 655
766 ad
“[section
policy
per
Pennsylvania’s well-established
disruptions
dresses
caused
an act directed
assigned
mitting
of actions to be
plaintiff,
person:
causes
not at the
but at a third
damages
upon
that a claim for
based
promisor
held
defendant causes the
to breach its
assignable.
legal malpractice is
This case is
plaintiff.
contract with the
Section 766A ad
First,
distinguishable for two reasons.
Gem
disruptions
dresses
caused
an act directed
*4
specific
ini
under a
statute intended
plaintiff:
has sued
prevents
at the
defendant
the
or
against
to
fraud
consumers. Howev
impedes
performance.”
restrict
the
own
er,
purchaser of
Gemini is a commercial
only
targets
Id. at 660. Not
are the
of the
claims;
complaint
different,
does not al
insureds’
its-
two sections
but section 766A is
lege
purchaser
that it is a
or consumer of
apply
much more difficult to
and conducive to
Second,
goods
disputes.
or services irom State Farm.
Hedlund,
assignor expressly “assigned
Sorrell,
In
(Wyo.
Price v.
bring against an action State Farm under the sylvania Supreme adopt Court would section CPL. 766A, and we see no error the district court’s dismissal of Gemini’s section 766A
III. claim. Next, challenges court’s dismissal of its claim intentional IV.
interference with relations contractual Gemini also contends that it has a brought pursuant to section 766A of the Re punitive damages valid claim for 42 under (Second) statement of Torts.2 contrast to provides: Pa.C.S. 8371. Section 8371 Restatement,3 section which 766 has adopted Pennsylvania, party been is In an arising action under an insurance merely making policy, liable under section 766A if the court finds that the insurer 2. Section 766A One who inter- provides: intentionally improperly feres with the of a contract ... One who inter- performance intentionally improperly of a feres with the contract ... between and a third another performance person by inducT between and a third another ing causing person, by pre- or otherwise third not person venting performing the other from the contract subject to contract, is to to perform liability causing or his to be more expen- performance resulting the other for the loss to the pecuniary subject sive or is to burdensome, liability other from the failure of the third to person resulting other for the loss to him. pecuniary the contract. perform 3. Section 766 provides: insured, Y. faith toward acted bad
has following all of the may take the court grant sum- The district court’s actions: mary judgement in favor of State Farm must (1) amount of the on the Award interest light Accord- reversed of Terminato. be claim was the date the claim from ingly, this matter for a new we will remand made.... trial to Gemini’s claims for reimbursement to State Farm (2) of medical bills submitted damages against the punitive Award respects, In all other April after insurer. of the district court will be af- the orders (3) attorney fees court costs Assess of the costs to be firmed. Three-fourths against the insurer. against taxed Gemini. court dis- § 8371. The district 42 Pa.C.S. claim, reason- section missed Gemini’s FOR REHEARING SUR PETITION legislature intend- ing that the 14, Dec. MVFRL, pro- 75 Pa.C.S. ed the SLOVITER, Judge, Present: Chief remedy for bad party first the exclusive vide MANSMANN, BECKER, STAPLETON, companies with insurance faith denials COWEN, HUTCHINSON, SCIRICA automobile arising out of respect to claims NYGAARD, ALITO, ROTH, LEWIS, injuries. accident *5 *, McKEE, and Circuit SAROKIN ROSENN Auto v. Farm Mutual In Barnum Judges. 488, Co., Pa.Super. 635 A.2d mobile Ins. petition rehearing by appel- filed (1993), provisions held that the the court having lant in the above-entitled case been 8371, 1797, are to and not section of section judges participated in who submitted party benefits claims for first applied to be and to all the other the decision this Court Pennsyl Relying on the under MVFRL. regu- judges of the circuit in available circuit controlling statutory construc vania statute service, judge no who con- lar active tion, the court noted 1 Pa.C.S. having for re- in the decision asked curred recon statutory provisions cannot be the two majority judges hearing, of the circuit and a damages in the event because the ciled having regular circuit in service not rates of faith conduct wanton or bad petition rehearing, the voted for rehear- specified by each are different. interest banc, is ing by panel Moreover, Barnum, A.2d at 158. denied. under section 1797 and remedies procedures The court specificity. Id. are set forth with provisions that because the two
concluded time and cannot be at the same
were enacted
reconciled, Pa. specific provisions of 75 exception § 1797 must be deemed C.S. America, UNITED STATES faith contained in general remedy for bad Plaintiff-Appellee, (citing sup Id. at 159 42 Pa.C.S. 8371. cases). find this porting district court We WILEY-DUNAWAY, Judy A. convincing and statutory to be construction Defendant-Appellant. Pennsylvania Supreme Court predict Thus, on matter. similarly rule this No. 94-5077.
would dismissing court did not err Appeals, States Court United brought 42 Pa.C.S. claim under Fourth Circuit. § 8371. July 1994. Argued per- issues Finally, raises several Nov. Decided expert evidentiary admission of taining to the discussions, testimony, and rebut- settlement summarily reject these
tal witnesses. We
arguments lacking merit. panel rehearing only.
* Asto