Janet Guzman, et al. v. Telfair, Inc., et al.

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

JANET GUZMAN, et al,               :                                      
             Plaintiffs,         :                                      
                                 :                                      
             v.                  :    Civil No.:  5:25-cv-02290-JMG     
                                 :                                      
TELFAIR, INC., et al.,             :                                      
             Defendants.         :                                      
__________________________________________                                

                    MEMORANDUM OPINION                                  
Gallagher, J.                                              March 10, 2026 
I.   OVERVIEW                                                           
   Currently before this Court is a Motion to Dismiss the Complaint. There are six Plaintiffs 
in this matter: Janet Guzman, Gallienne Nabila, Ursula Mayes, Stephanie Rao, Yodit Yemane, and 
Ashely Ilene bring nine causes of action arising from Defendants’ alleged misappropriation, 
alteration, and unauthorized use of their images. Plaintiffs allege that they are professional models. 
According to the Complaint, Defendants used photographs of Plaintiffs in advertising materials to 
promote their nightclub, MainGate Nightclub (“MainGate”), without their permission. Plaintiffs 
allege that this unauthorized use caused them significant financial harm and damaged their 
professional reputations. For the reasons that follow, Defendants’ Motion to Dismiss is granted in 
part and denied in part. An appropriate Order follows.                    
II.  BACKGROUND                                                         
   Taking the allegations in the Complaint as true, the relevant facts are as follows. Plaintiffs 
are all well-known professional models who earn their livelihoods modeling and licensing their 
images to companies, magazines, and individuals. Complaint ¶ 19. During the relevant period, 
Defendants  owned  MainGate,  a  nightclub  in  Allentown,  Pennsylvania.  Dominic  Germano 
(“Germano”) is the owner and CEO of Telfair, Inc. (“Telfair”), and he maintained operational 
control over MainGate and all of their advertising efforts. Complaint ¶ 18.  
   On multiple occasions, Defendants shared Plaintiffs’ images on their social media accounts 

without Plaintiffs’ knowledge, consent, or authorization. The images were taken from Plaintiffs’ 
own social media pages, which each Plaintiff uses to promote their services, attract potential 
clients, expand their fan base, and develop their personal brand. Complaint ¶ 25. Plaintiffs allege 
that Defendants used their images in a manner that falsely suggested they worked at, endorsed, or 
were otherwise associated or affiliated with Defendants. Complaint ¶ 21. They further assert that 
this unauthorized use created negative associations and conveyed a misleading impression of 
affiliation with MainGate, causing substantial harm to their professional reputations and career 
opportunities. Complaint ¶ 59.                                            
III.  LEGAL STANDARD                                                    
   “To survive a motion to dismiss under Rule 12(b)(6), “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 Atl. Corp. v. Twombly, 

550 U.S. 544, 570

 (2007)). 
“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.” 

Id.

 (citing 
Twombly, 

550 U.S. at 556

). “Determining whether a complaint states a plausible claim for relief 
will ... be a context-specific task that requires the reviewing court to draw on its judicial experience 
and common sense.” 

Id. at 679

. “When there are well-pleaded factual allegations, a court should 
assume their veracity and then determine whether they plausibly give rise to an entitlement to 
relief.” 

Id.

 Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 
conclusory statements, do not suffice.” 

Id.

 (citing Twombly, 

550 U.S. at 555

). A court is “not 
compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion 
couched as a factual allegation.” Wheeler v. Wheeler, 

639 F. App’x 147, 149

 (3d Cir. 2016) 
(quoting Morrow v. Balaski, 

719 F.3d 160, 165

 (3d Cir. 2013)).            

IV.  DISCUSSION                                                         
   A.  Claims Against Defendant Dominic Germano in His Personal Capacity 
   Defendants contend that the Complaint is an improper attempt to pierce the corporate veil 
of MainGate. As Plaintiffs correctly point out, that argument misses the point. An individual may 
be held liable under the Lanham Act when he “actually and substantially participates” in the 
corporation’s infringement. See Elec. Lab. Supply Co., Inc. v. Cullen, 

977 F.2d 798, 807

 (3d Cir. 
1992); Donsco, Inc. v. Casper, Corp., 

587 F.2d 602, 606

 (3d Cir. 1978 (recognizing that a 
corporate officer is individually liable for the torts he commits under the Lanham Act). In other 
words, the corporate form does not shield a person from liability for their own tortious conduct.  
   Plaintiffs allege that Germano, in his capacity as owner and CEO of Telfair, Inc., was 

directly involved in the advertising and promotion at issue, and that he exercised operational 
control  over  the  company,  including  its  advertising  practices.  For  example,  Plaintiffs  pled, 
“According to publicly available records, Dominic Germano, in their capacity as principal, owner 
and/or CEO of Telfair, Inc., maintained operational control over MainGate Nightclub including 
all advertising relating thereto.” Complaint ¶ 18. Accepting those allegations as true at this stage, 
Plaintiffs have adequately pled Germano’s personal involvement in the challenged conduct. 
Defendants’ Motion therefore fails as to this issue, and the claims against Germano may proceed. 
   B.  Lanham Act Claims: False Advertising and False Association       
   Defendants argue that a six-year statute of limitations is applicable to claims brought under 
the Lanham Act. They further contend that Plaintiffs’ Lanham Act claims are barred by the 
doctrine of laches because the alleged misappropriation occurred several years ago. They argue 
that Plaintiffs’ delay in asserting their rights will prejudice them, noting in particular that MainGate 
ceased operations in November 2024, several months before the Complaint was filed in May 2025, 

which they claim resulted in the loss of evidence necessary to mount a defense. Defendants further 
assert that Plaintiffs’ own exhibits show they were able to access the advertisements at issue 
publicly. According to Defendants, the absence of such allegations demonstrates an inexcusable 
delay that warrants application of the laches doctrine, requiring dismissal of the Lanham Act 
claims or, at a minimum, limiting Plaintiffs’ recovery to the alleged infringements occurring within 
the past six years.                                                       
   Laches is an equitable doctrine with two essential elements. First, the plaintiff must have 
known or, through reasonable diligence, should have known of the claim but failed to act. Sprague 
v. Casey, 

550 A.2d 184, 187

 (Pa. 1988) (holding that laches applies when a party “is guilty of want 
of due diligence in failing to promptly institute the action to the prejudice of another.”). Second, 

to  prevail  on  an  assertion  of  laches,  the  plaintiff’s  unreasonable  delay  must  prejudice  the 
defendant’s ability to defend the case, such as through lost evidence, faded memories, or changed 
circumstances. 

Id.

 The doctrine exists to prevent a party from sitting on their rights and later 
asserting them when it becomes strategically advantageous but unfair to opposing party. In 
essence, laches is a fairness-based limit on stale claims, applied when permitting lawsuits to 
proceed would be inequitable.                                             
   By contrast, the statute of limitations “is an affirmative defense, and as such may only 
provide grounds for dismissal under Rule 12(b)(6) if its applicability is apparent on the face of the 
complaint.” Hinton v. Sansom Street, Inc., 

2021 WL 1313107

 (E.D. Pa. April 7, 2021). Under 
Pennsylvania law, a cause of action generally does not accrue until the injured party discovers, or 
through reasonable diligence should have discovered, the facts forming the basis of the claim. 
Beauty Time, Inc. v. VU Skin Sys., 

118 F.3d 140

 (3d Cir. 1997). The Defendants’ Motion to Dismiss 
based the statute of limitations and laches is denied because the Complaint does not specify when 

the Plaintiffs discovered, or through reasonable diligence should have discovered, the publication 
of their images on Defendants’ social media accounts.                     
   Defendants further contend that Plaintiff’s claims brought under the Lanham Act should 
be dismissed because they fail to state a claim upon which relief can be granted. The Court 
disagrees. Section 43(a) of the Lanham Act, codified at 

15 U.S.C. § 1125

(a), creates “two distinct 
bases of liability: false association ... and false advertising.” Lexmark Int'l, Inc. v. Static Control 
Components, Inc., 

572 U.S. 118, 122

 (2014). Section 1125(a)(1)(A) prohibits “false or misleading” 
claims that are “likely to cause confusion, or to cause mistake, or to deceive as to ... the origin, 
sponsorship, or approval of his or her goods, services, or commercial activities by another 
person[.]” Claims made under this provision are often called “false designation of origin” or “false 

association” claims.                                                      
   To state a claim for false association under § 1125(a)(1)(A) of the Lanham Act, a Plaintiff 
must allege that the defendant “uses a designation, (2) in interstate commerce, (3) in connection 
with goods, (4) which designation is likely to cause confusion, mistake, or deception as to (5) the 
origin, sponsorship, or approval of [the] [d]efendant's goods, and (6) [the] [p]laintiff has been or 
is likely to be damaged by these acts.” Hinton v. Sansom Street, Inc., 

2021 WL 1313107

, at *4 
(E.D. Pa. April 7, 2021) (quoting First Keystone Fed. Sav. Bank v. First Keystone Mortg., 

923 F. Supp. 693, 707

 (E.D. Pa. 1996)). Additionally, (1) the mark at issue must be legally protectable, 
(2) the plaintiff must own the mark, and (3) the defendant's use of the mark to identify its goods 
or services must be likely to create confusion concerning the plaintiff's sponsorship or approval of 
the goods or services. Facenda v. N.F.L. Films, Inc., 

542 F.3d 1007, 1014

 (3d Cir. 2008). 
   To state a claim for false advertising under 

15 U.S.C. § 1125

(a)(1)(B), a plaintiff must 
show that “(1) [the] defendant has made false or misleading statements about their own product 

[or another’s]; (2) that there is actual deception or at least a tendency to deceive a substantial 
portion of the intended audience; (3) that the deception is material in that it is likely to influence 
purchasing decisions; (4) that the advertised goods traveled in interstate commerce; and (5) that 
there is a likelihood of injury to the plaintiff[s] in terms of declining sales, loss of good will, etc.” 
Hinton v. Sansom Street, Inc., 

2021 WL 1313107

, at *4 (E.D. Pa. April 7, 2021) (quoting Pernod 
Ricard USA, LLC v. Bacardi U.S.A., Inc., 

653 F.3d 241, 248

 (3d Cir. 2011); Johnson & Johnson-
Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharm., Inc., 

19 F.3d 125, 129

 (3d Cir 
1994).                                                                    
   The Complaint sufficiently alleges the factual basis for Plaintiffs’ false association and 
false advertising claims under the Lanham Act. It asserts that each Plaintiff is a well-known 

professional model who earns their livelihood by modeling and licensing their images for use in 
advertising Complaint ¶ 19. The Complaint further alleges that “Plaintiffs’ careers in the 
modeling industry place a high degree of value on their good will and reputation, which is 
critical to maximize their earning potential, book modeling contracts, and establish each of their 
individual brands.” Complaint ¶ 20.                                       
   According to the Complaint, Defendants misappropriated and intentionally altered 
Plaintiffs’ images to create the false impression that Plaintiffs worked at, endorsed, or were 
otherwise associated or affiliated with Defendants. Complaint ¶ 21. Plaintiffs also allege that 
Defendants knowingly created this false impression to potential clientele and were aware of the 
confusion their advertising would cause. Complaint ¶¶48-49, 73. For example, the Complaint 
states that, “[i]n publishing Plaintiffs’ altered images and likeness, it was Defendants’ intention 
to create a false impression to the general public that Plaintiffs were entertainers working at the 
Defendants, or endorsed the Defendants.” Complaint ¶ 124. The Complaint also states that 

Defendant knew or should have known that their unauthorized use of Plaintiffs’ image, likeness, 
and identities would result in consumer confusion. Complaint ¶ 87. Plaintiffs allege that this was 
done to “generate revenue” by attracting increased business to MainGate. Complaint ¶ 101. They 
specifically allege that Defendants’ unauthorized use of their images “deprives them of income 
they are owed relating to commercialization of their Images,” and has harmed their careers and 
reputations. Complaint ¶¶ 58-59.                                          
   Defendants also argue that Plaintiffs’ Lanham Act claims should be dismissed because 
the alleged conduct does not implicate interstate commerce. The Complaint, however, alleges 
that Defendants posted Plaintiffs’ images on social media platforms including Facebook, Twitter, 
and Instagram. Complaint ¶ 46 (alleging that Defendants used these accounts to promote 

MainGate and attract patrons). These allegations are sufficient at the pleading stage because 
Internet-based advertising inherently implicates interstate commerce, as the Internet is an 
instrumentality and channel of interstate commerce capable of reaching a worldwide audience. 
See United States v. MacEwan, 

445 F.3d 237, 244-245

 (3d Cir. 2006).       
   C.  State Law Claims                                                 
   Plaintiffs’ claims brought under the Lanham Act will not be dismissed. Because those 
federal claims remain in the case, the Court will also retain supplemental jurisdiction over 
Plaintiff’s  state-law  claims.  Defendants  argue  in  the  alternative  that,  even  if  supplemental 
jurisdiction exists, each of the state-law claims should be dismissed for failure to state a claim. The 
Court addresses those arguments below.                                    
        a.  Right of Privacy Claim                                      
   Defendants move to dismiss Plaintiffs’ claim for invasion of privacy by appropriation of 
name or likeness. At this stage, the claim is adequately pled, and dismissal is unwarranted. 

Plaintiffs allege that Defendants took their Images and used them in advertisements promoting 
Defendants’ business. These allegations satisfy the elements of the tort: Defendants used Plaintiffs’ 
likenesses; the use was for Defendants’ commercial benefit; Plaintiffs did not consent; and 
Plaintiffs suffered resulting harm, including reputational injury and loss of income. Pennsylvania 
recognizes a claim for invasion of privacy by appropriation where a defendant uses a plaintiff’s 
name of likeness for advertising or other commercial purposes without consent. See Vogel v. W.T. 
Grant Co., 

327 A.2d 133

 (Pa. 1974) (“One who appropriates the name or likeness of another is 
subject to liability to the other for invasion of privacy”); Lewis v. Marriott Int’l Inc., 

527 F. Supp. 2d 422, 429

 (E.D. Pa. 2021) (reiterating that Pennsylvania has “expressly recognized a cause of 
action for invasion of privacy by appropriation of name or likeness.”). Accordingly, the Complaint 

sufficiently states a right-of-privacy claim at this stage.               
        b.  Right of Publicity Claim                                    
   Defendants also move to dismiss the right of publicity claim, asserting that Plaintiffs have 
not alleged a sufficient commercial purpose or resulting injury. Neither argument is persuasive. 
Under Pennsylvania law, an individual violates another’s right of publicity by “appropriating its 
valuable  name  or  likeness,  without  authorization,  and  using  it  to  defendant’s  commercial 
advantage.” Lewis v. Marriott International, Inc., 

527 F. Supp. 2d 422, 428

 (E.D. Pa. 2007) 
(holding that the unauthorized use of a person’s name for commercial purposes is sufficient to 
state a right of publicity claim) (citing Rose v. Triple Crown Nutrition, Inc., 

2007 WL 707348

, at 
*3 (E.D. Pa. Mar. 2, 2007). Plaintiffs have adequately pled a common law right of publicity claim. 
   The Complaint alleges that Defendants used Plaintiffs’ photographs and likenesses in 
advertisements and promotional materials for Defendants’ business, and that Defendants did so 
without Plaintiffs’ knowledge or consent. These allegations are sufficient to establish commercial 

use at the pleading stage. Whether Defendants in fact used the images for commercial gain is a 
factual question inappropriate for resolution at this stage. Plaintiffs further allege that the use was 
plainly promotional, intended to attract customers by creating the false impression that Plaintiffs 
were  affiliated  with  or  endorsed  MainGate.  Taken  together,  these  allegations  satisfy  the 
requirements of the claim: Defendants used Plaintiffs’ likenesses for commercial purpose without 
consent, thereby appropriating the commercial value of Plaintiffs’ identities and causing both 
reputational and economic harm, including lost modeling opportunities and dignitary injury. As a 
result, Plaintiffs’ right of publicity claims will proceed.               
        c.  Defamation Claim                                            
   Plaintiffs’  defamation  claim,  however,  cannot  survive.  According  to  Plaintiffs,  the 

advertisements falsely implied that they were employed by or endorsed MainGate, and such 
implications  allegedly  exposed  them  to  “hatred,  shame,  ridicule,”  and  diminished  their 
professional standing as models. Even accepting these allegations as true, the claim fails because 
the challenged advertisements do not contain a false statement of fact about any Plaintiff.  
   To plead defamation, a plaintiff must allege a false statement of fact that tends “to harm 
the reputation of another as to lower him in the estimation of the community or deter third persons 
from associating or dealing with him.” Tucker v. Fischbein, 

237 F.3d 275, 282

 (3d Cir. 2001). The 
alleged implication that Plaintiffs worked, promoted, or were otherwise associated with MainGate 
does not inherently convey any defamatory meaning as a matter of law. While these allegations 
potentially support other theories, they do not constitute defamation.    
   Plaintiffs’ defamation per se theory fares no better. Plaintiffs contend that Defendants’ 
advertisements constitute defamation per se because they (1) would tend to injure Plaintiffs in their 
profession  as  models,  and  (2)  falsely  portray  Plaintiffs  as  “entertainers,”  thereby  imputing 

unchastity. Neither theory is legally sufficient. The advertisements do not contain any false factual 
statement about Plaintiffs’ professional competence or integrity. The mere use of a model’s 
photograph in promotional materials, without more, does not communicate a defamatory assertion 
capable of injuring Plaintiffs in their trade. Moreover, nothing in the advertisements at issue assert 
or imply criminal, immoral, or sexually inappropriate conduct. The mere suggestion that Plaintiffs 
worked at or endorsed a nightclub does not, as a matter of law, convey an accusation of unchastity 
to a reasonable viewer. Because amendment would be futile, the defamation claim is dismissed 
with prejudice.                                                           
        d.  Negligence Claim and Respondeat Superior                    
   Plaintiffs also contend that Defendants maintained, or should have maintained, policies 

governing the use of intellectual property and publicity rights for promotional and advertising 
purposes. They further allege that Defendants failed to adopt or enforce procedures to ensure that 
their advertising materials were not deceptive or misleading. According to Plaintiffs, Defendants 
owed them, and consumers at large, a duty to maintain and follow adequate policies and procedures 
to ensure that their advertising materials did not infringe on their property rights and were not 
deceptive or misleading; that Defendants breached their duty by failing to implement or enforce 
and follow procedures to ensure that the use of intellectual property, publicity rights, and/or the 
image and likeness of individuals for promotional and advertising purposes were not unauthorized 
and deceptive; that Defendants proximately caused harm to Plaintiffs; and that Plaintiffs have 
suffered damages as a result.                                             
   Although Plaintiffs’ negligence theory overlaps substantially with their other claims and 
may ultimately prove duplicative, the Court will permit it to proceed at the pleading stage because 
Plaintiffs allege a cognizable duty, a breach of that duty, causation, and resulting harm. At this 

juncture, the Court cannot conclude as a matter of law that Defendants owed no duty to prevent 
the unauthorized use of Plaintiffs’ images or that the negligence claim is entirely displaced by their 
other causes of action. For the same reasons, Plaintiffs’ respondeat superior claim, which seeks to 
hold Defendants vicariously liable for the acts of their employees, also survives dismissal at this 
stage.                                                                    
        e.  Conversion Claim                                            
   Plaintiffs’ claim for conversion cannot stand where they have alleged only that Defendants 
used or copied their photographs without consent. Under Pennsylvania law, conversion is defined 
as the “deprivation of another’s right of property in, or use of possession of, a chattel, or other 
interference therewith, without the owner’s consent and without lawful justification.” McKeeman 

v. Corestates Bank, N.A., 

751 A.2d 655, 659

 (Pa. Super. Ct. 2000). Conversion requires an 
intentional  exercise  of  dominion  or  control  over  property  that  seriously  interferes  with  the 
plaintiff’s right to possess it. See Restatement (Second) of Torts § 222(A)(1). See also Baram v. 
Farugia, 

606 F.2d 42

, 43–44 (3d Cir. 1979) (“A person not in lawful possession of a chattel may 
commit  conversion  by  intentionally  dispossessing  the  lawful  possessor  of  the  chattel,  by 
intentionally using a chattel in his possession without authority so to use it”). Unauthorized use of 
a photograph in advertising does not deprive Plaintiffs of possession, access, or control of the 
photos. The mere copying or use of intangible property, where the owner remains fully able to use, 
does not constitute conversion, and no additional factual allegations could transform this type of 
conduct into a deprivation of possession. Accordingly, the conversion claim is dismissed with 
prejudice.                                                                
        f.  Unjust Enrichment and Quantum Meruit                        
   Defendants contend that Plaintiffs’ unjust enrichment and quantum meruit claims should 

be dismissed as duplicative because the two theories are synonymous and therefore cannot be 
pled separately. This argument misses the mark. Under Pennsylvania law, unjust enrichment and 
quantum meruit claims are properly evaluated together, not dismissed for being pled in the 
alternative. See Killian v. Ricchetti, 

2016 WL 6471245

 (E.D. Pa. Oct. 31, 2016) (“We consider 
unjust enrichment and quantum meruit together because a plaintiff must prove the same elements 
for [both claims].”).                                                     
   Defendants also argue that Plaintiffs have not sufficiently pled either claim. The Court 
reaches a different conclusion. As to the unjust enrichment claim, Defendants argue that 
Plaintiffs have failed to state how MainGate unjustly enriched itself. To state a claim for unjust 
enrichment, Plaintiffs must allege facts tending to show: (1) “benefits conferred on defendant by 

plaintiff;” (2) appreciation of such benefits by defendant;” (3) “acceptance and retention of such 
benefits nder such circumstances that it would be inequitable for defendant to retain the benefit 
without payment of value.” MLB Players Inc. v. DraftKings, Inc., 

771 F. Supp. 3d 513

, 536 
(E.D. Pa. March 17, 2025).                                                
   Plaintiffs assert that Defendants used their images and likenesses in promotional 
materials without their consent, thereby obtaining a commercial benefit – namely, the advertising 
and marketing value ordinarily associated with compensated models or brand representatives. 
Because Plaintiff alleges that Defendants used their images without authorization and for their 
own commercial gain, this Court finds that the claim is adequately alleged and will survive. See 

id.

 (concluding that Plaintiffs stated a plausible unjust enrichment claim because Defendants 
allegedly derived commercial benefits from using Plaintiffs’ names, images, and likenesses 
without authorization); see also Barnett v. Topps Co., 

1998 WL 257859

, at *1–2 (E.D. Pa. May 
21, 1998) (denying a motion to dismiss an unjust enrichment claim where 13 MLB umpires 

alleged that the defendant commercially exploited their “photographs, likenesses and personas” 
on baseball cards without their permission, authorization, or knowledge).  
   For similar reasons, Plaintiffs have adequately pled a claim for quantum meruit. Under 
Pennsylvania law, quantum meruit permits where a plaintiff has conferred a benefit on a defendant, 
the defendant appreciated that benefit, and the circumstances make it inequitable for the defendant 
to retain it without payment. Plaintiffs allege that they are professional models, that companies 
and brands customarily compensate them for the use of their images, and that Defendants “availed 
themselves of the benefit of being associated with Plaintiffs” by using their images and likenesses 
without consent or compensation. At the pleading stage, it is not relevant whether Defendants 
ultimately derived substantial promotional value from the use of Plaintiffs’ images. It is enough 

that Plaintiffs allege Defendants accepted and retained a benefit for which models are ordinarily 
paid. These allegations sufficiently assert that Plaintiffs conferred a benefit on Defendants and that 
equity may require payment for the reasonable value of that benefit. Accordingly, Plaintiffs may 
pursue both theories at this stage.                                       
        g.  Punitive Damages                                            
   Plaintiffs  request  punitive  damages,  and  Defendants  move  to  dismiss  that  demand, 
asserting that the conduct alleged does not reflect the level of malice, recklessness, willfulness, 
outrageousness, or evil motive required under Pennsylvania law. Pennsylvania’s standard for 

punitive  damages  is  well  settled.  Punitive  damages  are  permitted  only  for  conduct  that  is 
outrageous, arising from either an evil motive or a reckless indifference to the rights of others. 
McCready v. Edison Schools, Inc., 

2009 WL 805401

 (E.D. Pa. Mar. 26, 2009). The actor’s state 
of mind is central, and the conduct must be intentional, reckless, or malicious. See Hutchison ex 
rel. Hutchison v. Luddy, 

870 A.2d 766

, 770–72 (Pa. 2005); Feld v. Merriam, 

485 A.2d 742

, 747–
48 (Pa. 1984); Burke v. Maassen, 

904 F.2d 178, 181

 (3d Cir. 1990). The Complaint alleges that 
Defendants used Plaintiffs’ images without consent for advertising purposes, but it does not plead 
facts suggesting malicious intent, wanton misconduct, or the type of egregious behavior necessary 
to support punitive damages. Accordingly, the punitive-damages demand is dismissed without 
prejudice.                                                                

V.   CONCLUSION                                                         
   For the reasons set out above, the Court grants in part and denies in part the Defendants’ 
Motion to Dismiss. An appropriate Order follows.                          

                                 BY THE COURT:                          

                                 /s/ John M. Gallagher__________        
                                 JOHN M. GALLAGHER                      
                                 United States District Court Judge