Upshur v. Hospedale et al

Filing 5

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 1/12/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALBERT W. UPSHUR and
ALBERT W. UPSHUR TRUST,
Plaintiffs,

v.

Civ. No. 17-1358-RGA

TONYA R. HOSPEDALE and
MARGIE D. POLES,
Defendants.

Albert W. Upshur, Yeadon, Pennsylvania. Pro Se Plaintiff.

MEMORANDUM OPINION

/J,

January
2018
Wilmington, Delaware

I

I

f

Plaintiffs Albert W. Upshur and Albert W. Upshur Trust proceed pro se. Albert W.
Upshur has been granted leave to proceed in forma pauperis. This action was
commenced on September 27, 2017 and invokes the jurisdiction of this Court by reason
of diversity of citizenship of the parties. (D.I. 2). The Court proceeds to review and
screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
The complaint alleges breach of contract and violations of the Fifth and Ninth
Amendments to the United States Constitution. Plaintiffs allege the Trust entered into a
contract (apparently for the sale/purchase of two vehicles) with Defendants and that
Defendants breached the contract. (D.I. 2 at p.3). The complaint alleges "psychological
injuries" after the Trust "fulfilled our part of contract" and that Albert W. Upshur "received
no medical treatment." (D.I. 2 at p.4). The complaint alleges the incidents giving rise to
the claim occurred in Pennsylvania. (Id. at p.3).
The Court perceives no basis for jurisdiction. The complaint alleges violations of
the Fifth and Ninth Amendments to the United States Constitution. However, when

I

I

bringing a claim alleging constitutional violations, a plaintiff must allege that some
person has deprived him of a federal right, and that the person who caused the
deprivation acted under color of state law or federal law. See West v. Atkins, 487 U.S.
42, 48 (1988); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 389 (1971). The complaint does neither. There is no jurisdiction by
reason of a federal question.
In addition, while Plaintiffs invoke diversity jurisdiction, the requirements have not
been met. The complaint alleges that Plaintiffs are citizens of the Commonwealth of

1

I..

l
I

f

I

l

Pennsylvania and Defendants are citizens of the State of Delaware, and it seeks
compensatory damages in the amount of $43, 121.65 (total value of both automobiles
plus interest) and punitive damages in the amount of $38,000.00 for a total of
$81, 121.65. Hence, at first blush it appears the requirements for diversity jurisdiction
have been met. See 28 U.S.C. § 1332(a)(1) (for diversity jurisdiction the matter in
controversy must exceed the sum or value of $75,000, exclusive of interest and costs
and is between citizens of different States).
Because the actions that give rise to this claim occurred in Pennsylvania,
Pennsylvania law is applied to this breach of contract claim. Pennsylvania courts have
stated, "[t]he law is clear that punitive damages are not recoverable in an action for
breach of contract." Thorsen v. Iron and Glass Bank, 476 A.2d 928, 932 (Pa. Super.
1984) (citations omitted). See also G.J.D. by G.J.D. v. Johnson, 713 A.2d 1127, 1129
(Pa. 1998) ("Punitive damages may be imposed for torts that are committed willfully,
maliciously, or so carelessly as to indicate wanton disregard of the rights of the party
injured.") (citation and internal quotations omitted); DiGregorio v. Keystone Health Plan

East, 840 A.2d 361, 370 (Pa. Super. 2003) ("It is settled law that one cannot recover
punitive damages independently from an underlying cause of action .... Even if the
cause of action for breach of contract had not been resolved, [the a]ppellants could not
recover punitive damages for an action solely sounding in breach of contract.") (citations
omitted). Under Pennsylvania law, punitive damages are not recoverable in a breach of
contract claim as a matter of law. As a result, the amount in controversy ($43, 121.65
plus interest for the total value of both automobile) which does not include the prayer for

2

I

I
punitive damages falls short of the $75,000 amount in controversy requirement under
§ 1332(a). The requisites for diversity jurisdiction have not been met, the Court lacks
subject matter jurisdiction over this matter, and the action will be dismissed.
In addition, the Court notes that there are two named plaintiffs: Albert W. Upshur
and Albert W. Upshur Trust. 1 They proceed prose. However, a trust or other artificial
entity cannot represent itself. See Rowland v. California Men's Colony, 506 U.S. 194,
201-02 (1993) (finding that a prose trustee may not represent the trust in federal court
because he is not an attorney and without counsel the trust may not appear in federal
court). Albert W. Upshur commenced this action on his behalf and on behalf of the
trust, however, Albert W. Upshur is not a lawyer and as a non-lawyer, he may not
represent a trust. Id.
Further, a party bringing a lawsuit in federal court, whether by original process or
removal, is obligated to either pay the applicable fees or seek leave to proceed in forma
pauperis. See 28 U.S.C. §§ 1914, 1915. Albert W. Upshur sought, and was granted

leave to proceed in forma pauperis (see 0.1. 1, 4), but the Albert W. Upshur Trust may
not proceed in forma pauperis in this case because "only a natural person may qualify
for treatment in forma pauperis under§ 1915." Rowland v. California Men's Colony,
Unit JI Men's Advisory Council, 506 U.S. 194, 196 (1993). Therefore, if this Court had

jurisdiction (which it does not) the Trust would be required to pay the $400 filing fee and
retain counsel.

1

Albert W. Upshur is named as a plaintiff in paragraph I.A of the complaint and the
Albert W. Upshur Trust is named as a plaintiff in the caption of the complaint.

3

For the above reasons, the Court will dismiss the complaint for lack of subject
matter jurisdiction. Amendment is futile.
An appropriate order will be entered.

4

I
l