                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 14-4575
                                ________________

                   MILTON REGIONAL SEWER AUTHORITY,
                                             Appellant

                                         v.

            TRAVELERS CASUALTY & SURETY CO. OF AMERICA

                                ________________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                           (D.C. Civil No. 4-13-cv-02786)
                    District Judge: Honorable Matthew W. Brann
                                 ________________

                              Argued: October 29, 2015

          Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit Judges

                               (Filed: April 28, 2016)


Preston L. Davis, Esq. [ARGUED]
Davis Davis & Kaar
37 Arch Street
P.O. Box 319
Milton, PA 17847

      Counsel for Appellant

Benjamin E. Gordon, Esq.
Patrick R. Kingsley, I, Esq. [ARGUED]
Karl S. Myers, Esq.
Stradley Ronon Stevens & Young, LLP
2005 Market Street
Suite 2600
Philadelphia, PA 19103

       Counsel for Appellee


                                    ________________

                                        OPINION*
                                    ________________

SCIRICA, Circuit Judge

       Milton Regional Sewer Authority (“Milton”) appeals from an order of the District

Court dismissing its complaint against Travelers Casualty and Surety Company of

America (“Travelers”). For the reasons detailed below, we will affirm.

                                              I.

       Milton is a municipal authority located in Milton, Pennsylvania. On July 25, 2011,

it entered into a construction contract with Ankiewicz Enterprises (“Ankiewicz”) for a

public works project. The contract was secured by a performance bond issued by

Travelers. The contract with Ankiewicz contains several provisions specifying when and

how Milton could terminate the contract. The provision relevant to this appeal is

commonly referred to as a right-to-cure provision. It states:

       [Ankiewicz’s] services will not be terminated if [Ankiewicz] begins within
       seven days of receipt of notice of intent to terminate to correct its failure to
       perform and proceeds diligently to cure such failure within no more than 30
       days of receipt of said notice.

In other words, before Milton could terminate the contract, it was required to give

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                              2
Ankiewicz thirty days to fix whatever problem had arisen.

       The bond likewise contains several provisions specifying when and how an

obligation could arise for Travelers. The provision relevant to this appeal is the Owner

Default provision, which states that no obligation for Travelers can arise if Milton

defaults on its contract with Ankiewicz. The bond defines default as the “[f]ailure of

[Milton] . . . to pay [Ankiewicz] as required by the Contract or to perform and complete

or comply with the other terms thereof.” In other words, no obligation could arise for

Travelers if Milton failed to comply with the terms of its contract with Ankiewicz,

including the right-to-cure provision.

       After the contract and the bond were finalized, Ankiewicz began working on the

project. Milton quickly became unsatisfied with the work being done. On February 20,

2012, Milton sent a letter to Ankiewicz ordering it to suspend work on the project.

Ankiewicz responded on February 24, offering to correct any failures in the work it had

performed. On February 28, Milton rejected that offer, forbidding Ankiewicz from

performing any more work under the contract. After a meeting between the parties,

Milton terminated the contract without affording Ankiewicz an opportunity to fix its

allegedly defective work.

       Following the termination of the contract, Milton hired another construction firm

to complete the project, incurring additional costs as a result. Milton asserted a bond

claim against Travelers for these additional costs, and after Travelers refused to pay,

Milton filed a complaint in state court. Travelers removed the case to federal court, and

moved to dismiss the complaint.

                                             3
       The District Court granted Travelers’ motion to dismiss. Its opinion included two

separate holdings. First, the court held Milton did not follow the right-to-cure provision

of the contract. Milton Reg’l Sewer Auth. v. Travelers Cas. & Sur. Co. of Am., No. 4:13-

CV-2786, 2014 WL 5529169, at *3 & n.1 (M.D. Pa. Nov. 3, 2014). That holding is not

on appeal.

       Second, the court held Milton had no valid reason under Pennsylvania law to

violate the right-to-cure provision. Id. at *8. It acknowledged Pennsylvania allows parties

to violate right-to-cure provisions in cases of an extreme breach. Id. at *5 (citing LJL

Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639 (Pa. 2009)). But the court held

Milton “failed to plead that Anki[ew]icz materially breached the contract such that the

material breach would excuse [Milton] from complying with the contractually agreed to

termination procedures.” Milton, 2014 WL 5529169, at *8. Because Milton failed to

comply with the terms of the contract, Travelers’ obligation under the bond was not

triggered, and the complaint against Travelers was dismissed with prejudice. Id. at *9.

       Following the dismissal, Milton filed this timely appeal.

                                            II.1




1
  The District Court had jurisdiction under 28 U.S.C. § 1332(a)(1) and we have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of a district court’s
ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Pearson v.
Sec’y Dep’t of Corr., 775 F.3d 598, 601 (3d Cir. 2015). “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

                                             4
        Pennsylvania follows the general rule of contract law that “a material breach of a

contract relieves the non-breaching party from any continuing duty of performance

thereunder.” LJL Transp., 962 A.2d at 648. But this general rule gives way to a more

specific one “if the contract includes an express provision granting the breaching party

the opportunity to cure before the contract is terminated.” Id. Such a contract may only be

terminated without providing an opportunity to cure “when there is a material breach of

the contract so serious it goes directly to the heart and essence of the contract, rendering

the breach incurable . . . .” Id. at 641. The breach must be so severe that “requiring . . .

notice before termination . . . would be a useless gesture.” Id. at 652.

       A typical example of a breach that goes directly to the essence of a contract is

fraud. Indeed, the only case in which the Pennsylvania Supreme Court found a breach to

be severe enough to justify immediate termination of a contract with a right-to-cure

provision involved fraudulent conduct by one of the contracting parties. Id. at 642-43.

Moreover, the court’s opinion in that case relied heavily on two cases from other

jurisdictions that likewise involved fraudulent conduct by a contracting party. See id. at

648, 650 (citing Olin v. Central Indus., Inc., 576 F.2d 642 (5th Cir. 1978), and Larken v.

Larken City Ltd. P’ship, 589 N.W.2d 700 (Iowa 1998)). The court recognized that, when

one contracting party defrauds the other, the breach “is so fundamentally destructive, it

understandably and inevitably causes the trust which is the bedrock foundation and

veritable lifeblood of the parties’ contractual relationship to essentially evaporate.” LJL

Transp., 962 A.2d at 652. Thus, there is no need to allow for a right to cure in such

instances.

                                               5
       Milton’s complaint does not allege so severe a breach. Even assuming, as we

must, the allegations in Milton’s complaint are true, and drawing all inferences in

Milton’s favor, Milton does not allege a breach “so serious it goes directly to the heart

and essence of the contract, rendering the breach incurable.” Id. at 641. The complaint

does not allege that Ankiewicz defrauded or deceived Milton. Instead, it alleges various

deficiencies in the work performed by Ankiewicz which, taken together, amount to an

allegation that Ankiewicz performed poorly, even quite poorly. But unlike fraud, poor

performance is not incurable. In fact, Ankiewicz demonstrated its willingness to cure its

deficiencies if given the chance, and Milton admits another party was able to complete

the project.

       The purpose of right-to-cure provisions is to give contractors the opportunity to

correct unsatisfactory work before their contracts may be terminated. Were poor

performance a justification for ignoring such provisions, their utility would be severely

undercut. Pennsylvania contract law therefore requires a more severe breach before

contracting parties may violate right-to-cure provisions. Because Milton’s complaint does

not allege such a breach, the District Court correctly held it had no valid reason to violate

the right-to-cure provision of its contract. Accordingly, Travelers’ obligation under the

bond was not triggered, and the complaint against it was properly dismissed.

                                             IV.

       For the foregoing reasons, we will affirm the order of the District Court dismissing

Milton’s complaint.



                                              6
