ITUAH v. THE CITY OF PHILADELPHIA et al

Filing 21

MEMORANDUM SIGNED BY HONORABLE GERALD J. PAPPERT ON 5/15/17. 5/15/17 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ABRAHAM ITUAH,
Plaintiff,

CIVIL ACTION
NO. 16-05772

v.
CITY OF PHILADELPHIA, et al.
Defendants.
PAPPERT, J.

May 15, 2017
MEMORANDUM

This lawsuit concerns actions various Defendants allegedly took to secure the
sale of property Plaintiff Abraham Ituah previously owned at 3842 Fairmount Avenue
in Philadelphia. Defendants filed motions to dismiss the Complaint pursuant to the
Rooker-Feldman doctrine, res judicata and Rule 12(b)(6). For the reasons below, the
Court grants Defendants’ motions and dismisses Ituah’s claims.1
I.
A.
The state-court action that resulted in the sale of Ituah’s property commenced on
April 22, 2015, when the City of Philadelphia filed a real estate tax lien claim against
him in the Philadelphia Court of Common Pleas pursuant to the Municipal Claims and

To the extent Ituah’s claims are barred by Rooker-Feldman, the Court dismisses them
without prejudice for lack of subject matter jurisdiction. However, the Court dismisses with
prejudice those claims that do not implicate Rooker-Feldman but are nonetheless barred by res
judicata.
1

1

Tax Lien Act (“MCTLA”).2 (Defs.’ Mot. to Dismiss, at 2, ECF No. 6.) On May 13, 2015,
Judge Linda Carpenter issued a rule to show cause why the property should not be sold
at a sheriff’s sale to satisfy delinquent real estate taxes. (Id.) The property was posted
on July 5, 2015 and the Affadavit of Posting was filed with the court on July 9. (Id.)
The Affadavit of Service of the Posting was filed with the court on August 4, certifying
that all interested parties had been served by certified and first class mail on July 20.
(Id.) Ituah did not file a response to the court’s May 13 rule, and the court entered a
decree on August 11, 2015 approving a sheriff’s sale of the property.
On September 16, 2015, Dimitrios Dimopoulos purchased the property at the
sheriff’s sale. (Id.) Ituah claims he learned of the sale on September 17 from a city
accountant. (Pl.’s Resp., at 4.) On September 21, Ituah filed a motion to set aside the
sale, arguing that he had not received proper notice. (Id.) He claimed that he had not
seen the postings at the property because it had been vacant since November 2013 and
he had not received notice at the address where he resided. See Mot. to Set Aside at 1–
2, City of Philadelphia v. Ituah, No. 1504T0504 (Sep. 21, 2015).
The City filed a response on October 13 claiming that it had complied with the
MCTLA’s notice requirements under 53 PA. STAT. AND CONS. STAT. ANN. § 7193.2 by
posting notice at the property and mailing a copy of the petition and rule to Ituah’s
registered address. See Answer in Opp’n at 1, 3–4, City of Philadelphia v. Ituah, No.
1504T0504 (Oct. 13, 2015). Though Ituah claimed the City failed to send notice to his

In deciding a motion to dismiss, “[i]n addition to the complaint itself, the court can review
documents attached to the complaint and matters of public record, Lum v. Bank of America, 361 F.3d
217, 221 n. 3 (3d Cir. 2004), and a court may take judicial notice of a prior judicial opinion.”
McTernan v. City of York, Penn., 577 F.3d 521, 526 (3d Cir. 2009). The Court reviewed the
publically-accessible filings from the state-court proceedings and cites them to the extent they are
relevant to the res judicata analysis.
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current residence, the City explained that he had not registered that address pursuant
to § 7193.1. (Id.) Under the statute, a party who fails to accurately register his interest
and address pursuant to [§ 7193.1] lacks standing to complain of improper notice if the
city complied with [§ 7193.2(a)]. See 53 PA. STAT. AND CONS. STAT. ANN. § 7193.2(b).
The City argued that because Ituah failed to do so and the City complied with §
7193.2(a), he could not complain of improper notice. (Id. (citing 53 PA. STAT. AND CONS.
STAT. ANN. § 7193.2(b))). In Ituah’s reply, he argued that the sale should be set aside
because the Defendants “fraudulently obtained the judgment in [his] absence by failing
to properly [notify him] of the action that led to the sale.” See Reply at 1, City of
Philadelphia v. Ituah, No. 1504T0504 (Oct. 22, 2015). Judge Carpenter denied Ituah’s
motion to set aside the sale on October 26, holding that Defendants had complied with
the statutory notice requirements.
In the meantime, Defendants were processing the transfer of the deed to
Dimopoulos and/or his corporate designee, Cool Spaces LLC. The sheriff’s deed was
acknowledged on October 21, 2015 and recorded on November 14, 2015. See Answer in
Opp’n at 4 (Oct. 13, 2015); Reply to Mot. to Redeem at 4, City of Philadelphia v. Ituah,
No. 1504T0504 (Feb. 24, 2016); Answer in Opp’n to Mot. for Post-Trial Relief at 3, City
of Philadelphia v. Ituah, No. 1504T0504 (Apr. 11, 2016).
Ituah filed a motion for reconsideration on November 11, arguing that the City
failed to comply with the statutory notice requirements because it had not searched the
taxpayer information system to locate the correct address at which to serve him. See
Mot. for Reconsideration at 1–2, City of Philadelphia v. Ituah, No. 1504T0504 (Nov. 11,
2015). Judge Carpenter denied the motion on November 18. On December 2, Ituah

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filed a motion to redeem the premises, reasserting his argument that the City had
fraudulently obtained the judgment in his absence by “deliberately fail[ing] to locate
[his] mailing address” using tax records. See Mot. to Redeem at 1–2, City of
Philadelphia v. Ituah, No. 1504T0504 (Dec. 2, 2015). The City responded on December
22, stating that it “did not deliberately fail to locate [Ituah’s] address” but rather “it was
[Ituah] who failed to accurately register his address pursuant to 53 PA. STAT. AND CONS.
STAT. ANN. § 7193.1.” See Reply to Mot. to Redeem at 2, 4 (Feb. 24, 2016). The City
further argued that the property was not eligible to be redeemed because it had been
vacant for ninety days prior to the sale and the sheriff’s deed had already been
acknowledged. (Id.)
Section 32 of the MTCLA “provides that a petition to redeem premises cannot be
filed for vacant property once the sheriff’s deed has been acknowledged.” City of
Philadelphia v. F.A. Realty Inv’rs Corp., 95 A.3d 377, 388 (Pa. Cmwlth. Ct. 2014); see
also 53 PA. STAT. AND CONS. STAT. ANN. § 7293(c). In Ituah’s case, the sheriff’s deed was
acknowledged on October 21, 2015. See Answer in Opp’n at 4 (Oct. 13, 2015); Reply to
Mot. to Redeem at 4 (Feb. 24, 2016); Answer in Opp’n to Mot. for Post-Trial Relief at 3
(Apr. 11, 2016). Ituah did not file his petition to redeem until December 2. Judge
Carpenter denied the motion on March 28, 2016 after a hearing, holding that Ituah had
no right of redemption because the property was vacant for ninety days before the sale
and the sheriff’s deed was acknowledged before he filed his petition. See Order, City of
Philadelphia v. Ituah, No. 1504T0504 (March 28, 2016).
On April 1, 2016, Ituah filed a motion for post-trial relief, contending that
Defendants intentionally failed to notify him of the sale and then deliberately processed

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the transfer of the deed “expeditiously” and “without due process” in order to prevent
him from redeeming the premises. See Mot. for Post-Trial Relief at ¶¶ 1, 3, City of
Philadelphia v. Ituah, No. 1504T0504 (Apr. 1, 2016). Judge Carpenter denied the
motion on April 19. On April 22, Ituah appealed to the Pennsylvania Superior Court
the Judge’s March 28 decision that he had no right to redeem the property. The
Superior Court dismissed the appeal on September 13, 2016. On September 1, 2016,
Ituah filed an Application for Leave to File a Petition for Allowance of Appeal Nunc Pro
Tunc with the Pennsylvania Supreme Court. It was denied on December 29, 2016. See
City of Philadelphia v. Ituah, No. 182-EM-2016, 2016 Pa. LEXIS 2968 (Pa. Dec. 29,
2016).
B.
Now a New York resident, Ituah filed this suit pro se on November 7, 2016
against the City, the Sheriff’s Department, Sheriff Jewell Williams, City Attorney
Cynthia Stavrakis, Dimopoulos and Cool Spaces LLC. (ECF No. 1.) Construing his pro
se pleadings generously, see Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002), the
Court understands Ituah to be attempting to assert state law claims for abuse of
process and fraudulent misrepresentation. See (ECF No. 15, at 1; ECF No. 16, at 1–2).
In his Complaint, Ituah reasserts the same arguments he made unsuccessfully in state
court. He contends that his property was sold “without proper notice from the City of
Philadelphia and Sheriff’s Department to Dimitros Dimopoulos for $34,500.” (Compl.,
at 3.) He argues that Williams “concealed the information [Ituah] needed to know in
order to prevent the sale of the property” and filed a “false and malicious” affidavit of
service despite the fact that he “never notified [Ituah] that the sale of [his] property was

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set for September 16, 2015.” (ECF No. 15, at 4–5.) He then claims that after the
property was sold, Williams “agreed to transfer the deed quickly” from Dimopoulos to
Cool Spaces without legally processing or paying for the transfer as required by the
City so as to “prevent [Ituah] from redeeming the property.” (Id.); see also (Compl., at
3). He contends Williams “concealed the information and filed [a] fraudulent affidavit
to deceive the judge to enter judgment” in Dimopoulos’s favor. (Id.) Finally, Ituah
claims that Stavrakis organized the sale, masterminded the formation of Cool Spaces
and the quick deed transfer and filed responses opposing his petitions to set aside the
sheriff’s sale and redeem the property. (Id.)
In other words, Ituah’s suit concerns “the role of the Defendants [in contributing]
to the unfair decision entered in state court.” (ECF No. 15, at 1.) Defendants allegedly
intentionally “failed to notify [him] about the judgment to sell the property” and
“agreed to transfer the deed quickly to prevent [him] from redeeming the property” in
order to deprive him of his property rights without due process and fair notice. (Id. at
5.) He claims that the resulting loss of his property has caused him serious financial
and psychological pain and forced him to file Chapter 13 Bankruptcy.3 (Compl., at 4.)
Ituah seeks the return of his property, records reflecting all of his payments to the City
and $100,000 in compensatory damages for the psychological pain and financial
problems he has suffered as a result of Defendants’ alleged abuse of process and
fraudulent misrepresentation. (Id.)

3

Ituah filed for bankruptcy on June 28, 2016. See In Re: Abraham I. Ituah, No. 16-BK-14559.

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II.
A.
The Rooker-Feldman doctrine prohibits lower federal courts from exercising
subject-matter jurisdiction in a narrow range of cases already heard in state court. See
Exxon Mobil v. Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Under the
doctrine, a losing state-court party is “barred from seeking what in substance would be
appellate review of the state judgment in a United States district court, based on [a]
claim that the state judgment itself violates the loser’s federal rights.” Johnson v. De
Grandy, 512 U.S. 997, 1005–06 (1994). “[T]here are four requirements that must be
met for the Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost in state
court; (2) the plaintiff complains of injuries caused by the state-court judgments; (3)
those judgments were rendered before the federal suit was filed; and (4) the plaintiff is
inviting the district court to review and reject the state judgments.” Great W. Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (internal citations,
quotations, and alterations omitted).
Rooker-Feldman is not implicated every time a federal plaintiff seeks to litigate a
matter already determined by a state court: if a federal plaintiff brings “some
independent claim, albeit one that denies a legal conclusion that a state court has
reached in a case to which he was a party,” the doctrine does not apply. Great W.
Mining, 615 F.3d at 166 (quoting Exxon Mobil, 544 U.S. at 293). The Third Circuit
Court of Appeals recently emphasized the narrowness of the doctrine, distinguishing
between injuries caused by the state-court judgment and those brought about by the
defendants’ actions. See Gray v. Martinez, 465 F. App’x 86, 88 (3d Cir. 2012) (citing

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Great W. Mining, 615 F.3d at 167–68). In so doing, the Third Circuit “recognized that
caution is now appropriate in relying on [the prior] formulation of the RookerFeldman doctrine, which focused on whether the state and federal suits were
‘inextricably intertwined.’” Id. (citing Great W. Mining, 615 F.3d at 169 (internal
quotations and citations omitted)); see also Conklin v. Anthou, 495 F. App’x 257, 262 (3d
Cir. 2012) (“[Plaintiff] is not prevented from otherwise attacking the parties to the
foreclosure proceedings or alleging that the methods and evidence employed were the
product of fraud or conspiracy, regardless of whether his success on those claims might
call the veracity of the state-court judgments into question.”). In the event that the
Rooker-Feldman doctrine applies, the Court lacks subject matter jurisdiction. Great W.
Mining, 615 F.3d at 164.
B.
Federal Rule of Civil Procedure 12(b)(1) permits dismissal for “lack of
jurisdiction over the subject matter” of claims asserted in the Complaint. FED. R. CIV.
P. 12(b)(1). Generally, Rule 12(b)(1) motions fall into two categories: facial attacks and
factual attacks. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack
“challenges subject matter jurisdiction without disputing the facts alleged in the
complaint” and requires the Court to consider the allegations of the complaint as true.
Id. (citing Petruska v. Gannon Univ., 462 F.3d 294, 302 n. 3 (3d Cir. 2006)). A factual
challenge “attacks the factual allegations underlying the complaint’s assertion of
jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing
facts.’” Id. (quoting Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir.
2014)). Here, Defendants make a facial attack on jurisdiction, see (Defs.’ Mot., at 8–10,

8

ECF No. 6; Defs.’ Mot., at 9–12, ECF No. 12), and the Court accordingly accepts as true
the allegations in the Complaint. “[W]hen a federal court concludes that it lacks
subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
C.
“A federal court looks to the law of the adjudicating state to determine its
preclusive effect.” Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 573
(3d Cir. 2002). “Pennsylvania law regarding claim preclusion essentially mirrors the
federal doctrine.” Laychock v. Wells Fargo Home Mortgage, 399 F. App’x 716, 718–19
(3d Cir. 2010). “Res judicata, or claim preclusion, is a doctrine by which a former
adjudication bars a later action on all or part of the claim which was the subject of the
first action. Any final, valid judgment on the merits by a court of competent
jurisdiction precludes any future suit between the parties or their privies on the same
cause of action.” Id. (quoting Balent v. City of Wilkes–Barre, 669 A.2d 309, 313 (Pa.
1995)). “The doctrine applies not only to claims that are actually litigated, but also to
those that could have been litigated in the first proceeding, so long as they were part of
the same cause of action.” Id. (quoting Balent, 669 A.2d at 313); see also Riverside
Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62, 66–67 (3d Cir. 1978) (Res
judicata also bars consideration in a second suit of previously raised defenses, as well
as defenses that the party “might have, but did not raise” in a prior matter.).
Though the Third Circuit Court of Appeals has not defined “cause of action” for
purposes of claim preclusion, it has stated that it takes “a broad view of what
constitutes the same cause of action and that res judicata generally is thought to turn

9

on the essential similarity of the underlying events giving rise to the various legal
claims.” Davis, 824 F.3d at 342 (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 277 (3d Cir. 2014)). “In short, the focus is on facts rather than legal theories.” Id.
(citing Elkadrawy v. Vanguard Grp., 584 F.3d 169, 173 (3d Cir. 2009)).
D.
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead factual
allegations sufficient “to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “mere possibility of
misconduct” is not enough. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court must
construe the complaint in the light most favorable to the plaintiff. See Connelly v. Lane
Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016) (citations omitted). However, a court
need not accept as true inferences drawn by the plaintiff that are unsupported by facts.
See Cal. Pub. Emps.’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell, 550 U.S. at 555 (2007)
(citations and alterations omitted); see Iqbal, 556 U.S. at 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). A court should “consider only the allegations in the complaint, exhibits
attached to the complaint, matters of public record, and documents that form the basis
of a claim.” Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). Whether a

10

complaint states a plausible claim for relief is a context-specific task that “requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S.
at 679 (citations omitted).
III.
Ituah purports to bring state law claims for abuse of process and fraudulent
misrepresentation. Under Pennsylvania law, an abuse of process occurs where “the
defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a
purpose for which the process was not designed; and (3) harm has been caused to the
plaintiff.” Rosen v. Am. Bank of Rolla, 627 A.2d 190, 192 (Pa. Super. Ct. 1993); see also
Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 304 (3d Cir. 2003). For
a cause of action to lie, there must have been a “perversion” of legal process. Gen.
Refractories, 337 F.3d at 304. “‘[T]here is no action for abuse of process when the
process is used for the purpose for which it is intended, but there is an incidental
motive of spite or an ulterior purpose of benefit to the defendant.’” Rosen, 627 A.2d at
192 (quoting Restatement (Second) of Torts § 682 cmt. b (1977)). Put differently, “[a]
cause of action for abuse of process requires some definite act or threat not authorized
by the process, or aimed at an objective not legitimate in the use of the process; there is
no liability where the defendant has done nothing more than carry out the process to its
authorized conclusion, even though with bad intentions.” Shaffer v. Stewart, 473 A.2d
1017, 1019 (Pa. Super. Ct. 1984).
To establish a claim for fraudulent misrepresentation under Pennsylvania law, a
plaintiff must prove: “(1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an
intention by the maker that the recipient will thereby be induced to act, (4) justifiable

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reliance by the recipient upon the misrepresentation and (5) damage to the recipient as
the proximate result.” Petruska v. Gannon Univ., 462 F.3d 294, 310 (3d Cir. 2006)
(quoting Martin v. Lancaster Battery Co., 606 A.2d 444, 448 (Pa. 1992)).
Though somewhat ambiguous, Ituah’s Complaint can be read as attempting to
state such claims pursuant to three different legal theories, one of which would render
them barred by Rooker-Feldman and all of which would render them barred by res
judicata. The Court addresses each in turn.
A.
Ituah’s Complaint can be read as alleging that Defendants utilized the statecourt foreclosure proceedings to deprive him of his property without giving him
adequate notice. (Id. at 5.) While foreclosing upon property in order to collect a debt
owed would be a proper purpose in the state-court proceedings, see Schwartz v.
OneWest Bank, FSB, 614 F. App’x 80, 83–84 (3d Cir. 2015), attempting to do so without
giving Ituah adequate notice of the same would not. Ituah has therefore sufficiently
alleged an improper purpose.
In order to prevail, however, Ituah would need to show not only that the
Defendants intended to use the system improperly, but also that they succeeded in
doing so. See Shaffer, 473 A.2d at 1019 (To constitute abuse of process, “[s]ome definite
act or threat not authorized by the process, or aimed at an objective not legitimate in
the use of the process, is required; and there is no liability where the defendant has
done nothing more than carry out the process to its authorized conclusion, even though
with bad intentions.”). And to conclude that Defendants abused the legal process and
harmed Ituah in this way, the Court would have to hold that they succeeded in

12

depriving him of proper notice. This would likely violate the Rooker-Feldman doctrine,
applicable where (1) a plaintiff who lost in state court (2) complains of injuries caused
by a state-court judgment (3) that was rendered before the federal suit was filed and (4)
invites the district court to review and reject the state judgment. See Great W.
Mining, 615 F.3d at 166. The second and fourth factors are “the key to determining
whether a federal suit presents an independent, non-barred claim.” Id.
The first and third factors are satisfied here. The “critical task” in evaluating
the second factor is to “identify those federal suits that profess to complain of injury by
a third party, but actually complain of injury ‘produced by a state-court judgment and
not simply ratified, acquiesced in, or left unpunished by it.’” Great Western, 615 F.3d at
167 (quoting Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 87 (2nd Cir. 2005)).
The Third Circuit Court of Appeals has stated that the timing of the injury can be a
“useful guidepost” in determining its source, “that is, whether the injury complained of
in federal court existed prior to the state-court proceedings and thus could not have
been ‘caused by’ those proceedings.” Id. (quoting McKithen v. Brown, 481 F.3d 89, 98
(2d Cir. 2007)). Of course, this inquiry “becomes more complicated when a federal
plaintiff complains of an injury that is in some fashion related to a state-court
proceeding.” Id.
Here, the injuries of which Ituah complains are the loss of his property and the
resulting psychological and financial harm. On one hand, these injuries did not predate
the state-court judgment and could be framed as injuries that were produced by the
state-court judgment. On the other hand, however, these injuries could be framed as
the result of the actions Defendants allegedly took to obtain the state-court judgment

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that the judgment merely left unpunished. See Johnson v. Draeger Safety Diagnostics,
Inc., 594 F. App’x 760, 764 (3d Cir. 2014) (“[W]hen the source . . . is the defendant’s
actions (and not the state-court judgments), the federal suit is independent, even if it
asks the federal court to deny a legal conclusion reached by the state court.”). Although
the latter is permissible, and arguably applicable to Ituah’s other legal theories, such a
characterization fails with respect to this claim. The abuse of process as it is alleged—
that Defendants utilized the state-court foreclosure proceedings to deprive Ituah of his
property without giving him adequate notice—could not have occurred absent the statecourt judgment declaring Defendants’ notice adequate and permitting the foreclosure to
proceed and stand; thus, the claim impermissibly complains of injury “produced by a
state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.”
Great Western, 615 F.3d at 167.
The fourth factor also clearly implicates Rooker-Feldman. The state court’s
actions—ordering the sheriff’s sale, denying Ituah’s motion to set it aside, denying
Ituah’s motion for reconsideration and denying his motion for post-trial relief—were all
based on the state court’s conclusion that the Defendants complied with the requisite
notice requirements. Holding that the Defendants committed an abuse of process by
foreclosing on the property without providing adequate notice would be the equivalent
of reviewing and rejecting the state-court judgment that Defendants provided adequate
notice. See In re Porovne, 436 B.R. 791, 797–800 (Bankr. W.D. Pa. 2010) (“In
Pennsylvania, once an in rem foreclosure judgment is obtained, part of the relief
afforded by the judgment is the resulting sheriff’s sale of the property. The Debtor’s

14

attack on the notice procedure implicated during the execution process of this judgment
is tantamount to an attack on the state court judgment itself.”).
Finally, “the nature of the relief requested by the federal plaintiff may be critical
in the court’s evaluation of the second and fourth requirements.” In re Sabertooth,
LLC, 443 B.R. 671, 681–82 (E.D. Pa. 2011) (citing In re Randall, 358 B.R. 145, 155–56
(E.D. Pa. 2006)). In addition to compensatory damages, Ituah requests that the Court
set aside the sheriff’s sale and return his property to him. This would directly negate
the state-court proceedings. See also In re Madera, 586 F.3d 228, 232 (3d Cir. 2009) (a
lower federal court may not review a state court’s foreclosure decision and prohibit the
victorious party from enforcing its judgment).
In sum, Ituah’s claim is barred by Rooker-Feldman because “in order to grant the
federal plaintiff the relief sought, the federal court must determine that the state court
judgment was erroneously entered or must take action that would render that
judgment ineffectual.” In re Madera, 586 F.3d at 232; see also Great W. Mining, 615
F.3d at 170 n.4 (citing In Re Madera approvingly). Even if the Court were to find that
Rooker-Feldman did not bar Ituah’s claim, the claim would nevertheless be precluded
by res judicata because Ituah raised and litigated this argument on several occasions in
the state-court proceedings. See Balent, 669 A.2d at 313.
B.
Ituah’s Complaint can also be read as alleging that Defendants abused the
process or made a fraudulent misrepresentation by filing a misleading affidavit of
service certifying to the court that they had attempted to give Ituah notice when, in
reality, they had not informed Ituah about the sheriff’s sale and were actively trying to

15

prevent him from receiving notice. Such a claim may not be barred by Rooker-Feldman
since it would not concern the merits of the state-court judgments, but rather
“independent torts committed to obtain them.” Williams v. BASF Catalysts LLC, 765
F.3d 306, 315 (3d Cir. 2014); see also Monclova v. US Bank NA, No. 16-3677, 2017 WL
118015, at *2 (3d Cir. Jan. 12, 2017) (“[Plaintiff’s] complaint can also be read to contain
claims concerning harm caused by the defendants, not the state-court judgment, which
would not be barred by Rooker-Feldman.”); Mikhail v. Kahn, 991 F. Supp. 2d 596, 614
(E.D. Pa. 2014), aff’d, 572 F. App’x 68 (3d Cir. 2014) (holding that even injuries that are
related to the state-court proceeding in some fashion or helped to cause the adverse
state judgment, such as a fraud on the court or a claimed conspiracy with the judges,
may be independent of those judgments because they do not necessarily compel the
conclusion that the state court erred in its decisions).
Ituah’s allegations regarding Defendants’ alleged abuse of process and
fraudulent misrepresentation are sufficiently independent from the state-court
judgment to survive Rooker-Feldman. See Gray, 465 F. App’x at 89 (“Were the financial
defendants to have engaged in fraud, collusion, or other malfeasance in securing
foreclosure, Rooker-Feldman would not prevent the exercise of jurisdiction simply
because relief would cast doubt on the state-court judgment.”); Mikhail, 991 F. Supp. 2d
at 620 (“Of course, any harms caused by [the defendant] and her attorneys, such as
fraud upon the court or malicious prosecution, for example, are not barred by Rooker–
Feldman because they are not caused by any state court judgment.”); cf. Gage v. Wells
Fargo Bank, NA AS, 521 F. App’x 49, 51 (3d Cir. 2013).

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This claim, however, is barred by res judicata. Even after the delivery of the
sheriff’s deed, a sheriff’s sale may be set aside based on fraud or lack of authority to
make the sale. Mortgage Elec. Registration Sys., Inc. v. Ralich, 982 A.2d 77, 80 (Pa.
Super. Ct. 2009). In fact, Ituah raised this argument on at least two occasions in the
state-court proceedings. In arguing for the sale to be set aside, he claimed that the
Defendants “fraudulently obtained the judgment in [his] absence by failing to properly
[notify him] of the action that led to the sale.” See Reply at 1, City of Philadelphia v.
Ituah, No. 1504T0504 (Oct. 22, 2015). He later argued that he should be permitted to
redeem the property because “[t]he City deliberately failed to locate [his] address” in
the taxpayer information system so as to fraudulently prevent him from finding out
about the sale of his property. See Mot. to Redeem at 1–2, City of Philadelphia v. Ituah,
No. 1504T0504 (Dec. 2, 2015). The court denied these motions. Because Ituah litigated
this issue in state court, res judicata bars him from re-litigating it now. See Balent, 669
A.2d at 313 (a valid, final judgment on the merits precludes future litigation between
the parties or their privies on the same cause of action, including claims that could have
been litigated during the first proceeding).
C.
Finally, Ituah contends that Defendants committed an abuse of process by
agreeing to transfer the deed quickly and illegally from Dimopoulos to Cool Spaces, his
corporate designee, so as to prevent Ituah from redeeming the property. He claims
Defendants then concealed this information and deceived the judge into entering
judgment in Dimopoulos’s favor. Effectuating a procedurally improper transfer of the
deed in order to deprive Ituah of his right to redeem his property could constitute an

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improper purpose for an abuse of process claim. Likewise, fraudulently concealing or
misrepresenting such actions to the Court could theoretically constitute a fraudulent
misrepresentation. Moreover, because Ituah’s claim implicates the actions Defendants
allegedly took to secure the state-court judgment rather than the accuracy of the
judgment itself, it would not be barred by Rooker-Feldman. See, e.g., Gray, 465 F.
App’x at 89.
However, this claim is also barred by res judicata. After the state court denied
his motion for reconsideration and his motion to redeem, Ituah filed a motion for posttrial relief. He argued that because his motion to set aside the sale “notified the city
and the third party purchaser of [his] intention to redeem the premises,” Williams
“should have informed the third party purchaser that the property was subject to
redemption as permitted by state law.” See Mot. for Post-Trial Relief at ¶ 7, City of
Philadelphia v. Ituah, No. 1504T0504 (Apr. 1, 2016). He claimed that, instead, the
Defendants had “alleg[ed] that the property was vacant” and “expeditiously processed
the transfer of deed without due process” in order to wrongfully “prevent [him] from
redeeming the premises.” See id. at ¶¶ 1, 3. He asked the state court to approve his
petition to redeem on account of this alleged misconduct. The state court denied the
motion. Because he has already sought relief on this basis in state court, res judicata
bars him from doing so again.
IV.
Even if Ituah’s claims were not barred by Rooker-Feldman and res judicata, they
would be dismissed pursuant to Rule 12(b)(6). As an initial matter, because the
Sheriff’s Department does not have an independent corporate existence from the City, it

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would be dismissed from the suit and all claims against it would have to be brought
against the City. See Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 377 (E.D. Pa.
1995), aff’d, 91 F.3d 125 (3d Cir. 1996).
Furthermore, the City, as a municipal entity with governmental immunity,
cannot be sued for intentional torts premised on the willful misconduct of its employees.
See Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. Ct. 2014)
(collecting cases). Ituah would therefore be barred from bringing claims of abuse of
process and fraudulent misrepresentation against the City. See id.
Ituah’s allegations are also insufficient to state claims against the remaining
Defendants. Ituah has failed to identify a fraudulent misrepresentation made by
Defendants and falls far short of meeting the particularity with which Rule 9(b)
requires misrepresentations to be alleged. See State Farm Mut. Auto. Ins. Co. v. Ficchi,
No. 10-555, 2011 WL 2313203, at *7 (E.D. Pa. June 13, 2011) (collecting cases).
Likewise, with respect to his purported abuse of process claim, he has not identified a
“definite act or threat not authorized by the process, or aimed at an objective not
legitimate in the use of the process” committed by Defendants. Shaffer, 473 A.2d at
1019. Ituah proffers no argument as to how the transfer of the deed was procedurally
improper, beyond the one that was already rejected by the state court. And nothing in
the Act suggests that the Defendants were not allowed to effectuate the transfer of the
deed or were required to delay doing so until it became apparent that Ituah did not
wish to exercise his right to redeem. In fact, Williams may not have been able to delay
the transfer even if he had wanted to—in Pennsylvania, the “purchaser at the sheriff’s
sale obtains equitable ownership of the property and upon settling with the Sheriff, the

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right to compel delivery of the deed.” In re Townsville, 268 B.R. 95, 118 (Bankr. E.D.
Pa. 2001) (quotation omitted).
Moreover, the deed transfer did not violate Ituah’s procedural rights. Under
Pennsylvania law, “if [Ituah] wished to redeem this vacant property, [he] was required
to do so before the sheriff’s deed was acknowledged.” Brentwood Borough Sch. Dist. v.
HSBC Bank USA, 111 A.3d 807, 809 (Pa. Cmwlth. Ct. 2015), appeal granted sub nom.
Brentwood Borough Sch. Dist. v. Held, 123 A.3d 776 (Pa. 2015), and aff’d sub nom.
Brentwood Borough Sch. Dist. v. Held, 139 A.3d 187 (Pa. 2016). While Defendants’
actions may have shortened the time that Ituah had to exercise his right, they were not
unauthorized, fraudulent or inconsistent with the legitimate objectives of the state
foreclosure scheme. See id. at 813 (“It is clear from the very limited period within
which an owner may redeem a ‘vacant property’ that the Legislature did not intend a
lengthy redemption period. On the contrary, the Act was specifically enacted to
facilitate sales of those properties which are abandoned, vacated, uninhabitable and
uninhabited, and which contribute to blight or the risk of property crime, such as arson,
theft, and vandalism, while, at the same time, providing to an owner that presently
resides on a property sold for its taxes, nine months within which to raise the money
needed to avoid displacement.”).
Thus, even accepting as true Ituah’s allegations that Defendants agreed to
effectuate an expeditious transfer of the deed knowing that it would cut off Ituah’s right
of redemption under the Act and intending the same, he nevertheless fails to state a
claim for abuse of process because “there is no liability where the defendant has done

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nothing more than carry out the process to its authorized conclusion, even though with
bad intentions.” Id.
Ituah’s claims must therefore be dismissed because to the extent he seeks
redress for injuries caused by the state-court judgments, they are barred by RookerFeldman, and to the extent he seeks relief for injuries independent of, albeit related to,
the state-court proceedings, they are both barred by res judicata and insufficient under
Rule 12(b)(6).
An appropriate order follows.

BY THE COURT:

/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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