SULLIVAN et al v. TRUIST BANK et al

Filing 19

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CHAD F. KENNEY ON 2/5/24. 2/5/24 ENTERED AND COPIES E-MAILED.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES SULLIVAN, JR., et al.,
Plaintiffs,
v.
TRUIST BANK, et al.,
Defendants.

:
:
:
:
:
:
:

CIVIL ACTION

NO. 23-cv-3363

MEMORANDUM
KENNEY, J.

February 5, 2024

Plaintiffs James Sullivan, Jr., Kathleen Sullivan, and James Sullivan, Jr., Administrator of
the Estate of John Michael Sullivan bring this suit against Defendants Truist Bank and Truist Bank
employees Shawon Goodman and Shemane Cave. Plaintiffs James Sullivan, Jr. and Kathleen
Sullivan are the parents of Decedent John Michael Sullivan (“John” or “Decedent”). Plaintiff
James Sullivan, Jr., also serves as the Administrator of the estate of his son, Decedent John Michael
Sullivan. Plaintiffs allege that Decedent was the victim of an online extortion scheme and that he
suffered a wrongful death on January 4, 2023, caused by Defendants’ negligence.
Presently before this Court is Defendant Truist Bank’s Motion to Dismiss Plaintiffs’
Complaint under Fed. R. Civ. P. 12(b)(6). ECF No. 13. For the reasons set forth below, the Court
will GRANT Defendant’s motion.
I.

BACKGROUND AND PROCEDURAL HISTORY
Decedent John Michael Sullivan and his mother, Plaintiff Kathleen Sullivan, were joint

account holders of a bank account at Defendant Truist Bank. ECF No. 1-3 ¶ 9. John was a minor
when he and Ms. Sullivan opened the account on July 29, 2019. ECF No. 13-1, Ex. 1. In January
2023, a third-party contacted John and attempted to access his banking information through
blackmail and extortion. ECF No. 1-3 ¶ 10. John sought to provide this third-party his banking
1

information so that these individuals could access funds in the joint account. Id. ¶ 11. Several
withdrawals from the account ensued, some of which John did not initiate. Id. ¶ 12. Other
withdrawals were initiated from John’s personal devices. Id. Several thousand dollars were
released from the account via Zelle, an online payment application. Id. ¶ 13.
Defendant Truist Bank then began to flag additional transactions as fraudulent and blocked
withdrawals from the account. Id. ¶ 14. Distressed and desperate, John placed several calls to Truist
Bank’s corporate customer service line, seeking the release of funds to the extortioners. Id. ¶¶ 15,
20. On January 4, 2023, John went several times to the Glenside, PA, branch of Truist Bank to
withdraw funds. Id. ¶ 19. There, Shawon Goodman, manager of the branch, Shemane Cave,
employee of the branch, and other branch employees told John that he could not access his funds.
Id. ¶¶ 18, 22, 26. John then left the bank and took his own life on the same day, January 4, 2023.
John was twenty years old. ECF. No. 8-2 at 1.
Thereafter, on April 4, 2023, Plaintiffs received a notice from the bank and a telephone call
from Truist Bank’s representatives. ECF No. 1-3 ¶ 29. Plaintiffs allege that in this notice and on
the call, bank representatives made admissions regarding Truist Bank’s policies with respect to the
events of January 4, 2023. Id.
On August 8, 2023, Plaintiffs Kathleen Sullivan and James Sullivan, Jr. filed their
complaint against Defendants Truist Bank, Shawon Goodman, and Shemane Cave in the
Pennsylvania Court of Common Pleas of Philadelphia County. ECF Nos. 1-3, Ex. 1. Plaintiffs
brought the following claims of action against all Defendants: Negligence (Counts I and III);
Vicarious Liability (II); Wrongful Death under the Pennsylvania Wrongful Death Act, 42 Pa.
C.S.A. § 8301 (Count IV); and a Survival Action under the Pennsylvania Survival Act, 42 Pa.
C.S.A. § 8302 (Count V). Id.

2

On August 29, 2023, Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441
on the basis that Plaintiffs (both Pennsylvania residents) fraudulently joined individual Defendants
Goodman and Cave (also Pennsylvania residents) to defeat this Court’s diversity jurisdiction.
(Defendant Truist Bank is a North Carolina corporation.) ECF No. 1 ¶ 16. Plaintiffs moved to
remand the case to the Philadelphia County Court of Common Pleas. ECF No. 8. This Court denied
the motion to remand and dismissed Shawon Goodman and Shemane Cave as parties to the action
on November 7, 2023. ECF No. 12. As the sole remaining Defendant in the action, Truist Bank
filed its Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) on November 13, 2023. ECF No. 13.
II.

LEGAL STANDARD
Fed. R. Civ. P. 12(b)(6) allows a party to move for dismissal of a complaint or a portion of

a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of the allegations contained in the
complaint.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). The Court will
grant a motion to dismiss if the factual allegations do not “raise a right to relief above the
speculative level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
“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.” Zuber v. Boscov's, 871 F.3d
255, 258 (3d Cir. 2017) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010))
(internal quotation marks omitted). A complaint is plausible on its face when the plaintiff pleads a
factual contention that “allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts are required
to “accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may
3

be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). However, the complaint must
provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555. A complaint will not survive if it contains merely
“an unadorned, the defendant-unlawfully-harmed-me accusation,” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555) or “‘naked assertion[s]’ devoid of ‘further factual enhancement,’” id.
(quoting Twombly, 550 U.S. at 557) (alteration in original).
III.

DISCUSSION
All counts in this action are dismissed. Plaintiffs have made clear that all their counts sound

in negligence only. See, e.g., ECF No. 17-1 at 6. These counts fail because Plaintiffs cannot sustain
a claim for negligence, which requires a plaintiff to establish the following four elements: 1) the
existence of a duty or obligation recognized by law; 2) a failure on the part of the defendant to
conform to that duty, or a breach thereof; 3) a causal connection between the defendant’s breach
and the resulting injury; and 4) an actual loss or damage suffered by the complainant. Orner v.
Mallick, 527 A.2d 521, 523 (Pa. 1987).
A. Plaintiffs cannot plausibly allege that Defendant Truist Bank proximately caused
Decedent’s death because, under Pennsylvania law, suicide is not recognized as a
type of harm resulting from ordinary negligence.
We begin our negligence analysis with the element of causation and will then address the
element of duty. Under Pennsylvania law, even if the Plaintiff “has established that a duty of care
is breached, the Plaintiff must still establish a causal connection between the defendant’s negligent
conduct and the plaintiff’s injuries.” McPeake v. William T. Cannon, Esquire, P.C., 553 A.2d 439,
441 (Pa. Super. Ct. 1989) (citation omitted). Proximate or legal causation is defined as “[t]hat
which, in a natural and continuous sequence, unbroken by any [su]fficient intervening cause,
4

produces the injury, and without which the result would not have occurred.” Wisniewski v. Great
Atl. and Pac. Tea Co., 323 A.2d 744, 748 (Pa. Super. Ct. 1974) (citations omitted). “Generally,
suicide has not been recognized as a legitimate basis for recovery in wrongful death cases. This is
because suicide constitutes an independent intervening act so extraordinary as to not have been
reasonably foreseeable by the original tortfeasor.” McPeake, 553 A.2d at 440-41 (citations
omitted).
Pennsylvania courts have recognized suicide as a legitimate basis for wrongful death in
limited instances only, namely in cases involving hospitals, mental health institutions, and mental
health professions. See, e.g., Simmons v. St. Clair Mem’l Hosp., 481 A.2d 870, 877 (Pa. Super. Ct.
1984) (finding that jury could have concluded that decedent – a patient with suicidal tendencies
receiving treatment in the psychiatric unit of a hospital – looked to the hospital for care); see also
Smith v. United States, 437 F.Supp. 1004, 1010. (E.D. Pa. 1977) (suicide of a veteran under
treatment for paranoia and schizophrenia and with a long history of violent behavior was
reasonably foreseeable and hospital was negligent in releasing him). In these cases, there is a
custodial relationship between hospital and patient, and the hospital has a recognized duty of care
towards the defendant. McPeake, 553 A.2d at 441.
In other negligence cases involving suicide, “courts have required both a clear showing of
a duty to prevent the decedent’s suicide and a direct causal connection between the alleged
negligence and the suicide.” Id. (citing Malloy v. Girard Bank, 436 A.2d 991, 993-94 (Pa. Super.
Ct. 1981) (employer’s practice of keeping a loaded gun at work, which “feeble-minded” decedent
used to commit suicide, did not constitute a dereliction of due care); Freedman v. City of
Allentown, 651 F.Supp. 1046, 1048 (E.D. Pa. 1987) (no facts alleged support a conclusion that
police should have known that prisoner might take his own life)).

5

Finally, courts have recognized suicide as a basis for recovery under the Pennsylvania
Workers’ Compensation Act, in circumstances where an employer-employee relationship exists.
In those instances, compensation may be granted if a suicide was caused by pain, depression, or
despair resulting from a workplace injury so severe as to override rational judgment. See, e.g.,
Globe Sec. Sys. Co. v. W.C.A.B (Guerro), 520 A.2d 545, 547 (Pa. Commw. Ct. 1987) (medical
evidence shows that decedent suffered a work-related injury which resulted in his suicide).
Here, none of these limited exceptions apply to override the general rule that under
Pennsylvania law, suicide is not recognized as a legitimate basis for recovery in wrongful death
cases. Defendant Truist Bank is not a hospital or mental health institution, and the parties did not
have a custodial relationship such that Truist Bank had a special duty of care to Decedent, his coaccount holder (who was also his mother), or his father. Plaintiffs were ordinary customers with
ordinary bank accounts, free to use Truist Bank’s services at will.
Plaintiffs thus attempt to circumvent the long-held principle of Pennsylvania law that
suicide is not a legitimate basis for recovery in wrongful death cases by positing that this rule does
not apply to the facts of this case. Plaintiffs assert that Decedent’s suicide was neither a superseding
cause of harm nor so extraordinary as to make it unreasonably foreseeable. ECF No. 17-1 at 1011. Rather, Plaintiffs identify eight instances of alleged negligence, which Plaintiffs claim caused
foreseeable harm to Plaintiffs. These breaches include:
a) failure to notify Kathleen Sullivan of the fraudulent activity on the bank in violation of
the bank’s internal policies and industry standards;
b) failure to contact law enforcement despite knowing of fraudulent activity on the
account;
c) failure to notify Plaintiff Kathleen Sullivan, as co-account holder, of Decedent’s
erratic and concerning behavior on the phone and in the bank;
d) failure to establish policies that would identify extortion occurring on susceptible
6

customers of the bank, namely Decedent;
e) failure to enforce policies that would identify extortion occurring on susceptible
customers of the bank, namely Decedent;
f) failure to adopt and enforce policies, procedures, and/or industry standards that would
identify online extortion and take reasonable steps to protect customers’ funds;
g) failure to meet with Decedent to address the fraudulent activity on his account; and
h) failure to identify that the fraudulent activity was associated with online extortion and
take reasonable steps to protect Decedent’s funds and mental and physical well-being.
(ECF No. 1-3, at ¶¶ 40, 49).
Plaintiffs further assert that because Truist Bank operates in “today’s social media crazed
culture, along with the well and recently documented spate of sextortion scandals causing suicide
of young boys and men in [the] United States,” Decedent’s suicide was foreseeable. ECF No. 17
at 10-11. That is, Truist Bank knew, or should have known, from news reports that refusing to
release funds from Decedent’s bank account to criminal extortionists could cause Decedent to take
his own life.
However well-stated, these allegations have no legal foundation and do not support
creating another exception to the general rule that suicide is not recognized as a legitimate basis
for recovery in wrongful death cases. Accordingly, under the Court’s negligence analysis,
Plaintiffs’ negligence claims fail because Plaintiffs fail to show a causal connection between
Defendant’s negligent conduct and Plaintiffs’ injuries.
B. Plaintiffs’ negligence claims also fail because Truist Bank did not owe a duty of
care to Plaintiffs.
Even if there were causation here, there is no duty. Plaintiffs plead that Defendant “owed
a duty to the Plaintiff’s Decedent and Plaintiff Kathleen Sullivan to protect their funds [and] to
notify Kathleen Sullivan about the extortion and/or fraud attempts on the funds in the account.”

7

ECF No. 1-3 ¶ 25. “The primary element in any negligence cause of action is that the defendant
owes a duty of care to the plaintiff.” Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa.
2000) (citation omitted). This “question of whether a defendant owes a plaintiff a duty of care is a
question of law to be answered by the court.” Hoffman v. Paper Converting Mach. Co., 694 F.
Supp. 2d 359, 368 (E.D. Pa. 2010) (applying Pennsylvania law) (citation omitted).
A trial court applies the “Althaus test” to determine if a duty of care is owed by Defendant
to Plaintiff. Under the five-part test, the court weighs discrete factors, which include “(1) the
relationships between the parties; (2) the social utility of the [defendant’s] conduct; (3) the nature
of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a
duty upon the [defendant]; and (5) the overall public interest in the proposed solution. Althaus,
756 A.2d at 1169 (citations omitted). “[A] duty will be found to exist where the balance of these
factors weighs in favor of placing such a burden on a defendant.” Hoffman, 694 F.Supp. 2d at 368
(quoting Phillips v. Cricket Lighters, 841 A.2d 1000, 1008-09 (Pa. 2003)). 1
With respect to element one, the relationship between Truist Bank and Plaintiffs does not
weigh in favor of imposing a duty of care. “The existence of a duty in any given situation is

1

Plaintiffs invoke Section 323 of the Restatement (Second) of Torts to assert that Truist Bank owed duties to
Decedent and Plaintiffs. Section 323 provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should
recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for
physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if:
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
Restatement (Second) Torts § 323 (1965).
Yet Section 323 does not “change the burden of a plaintiff to establish the underlying elements of an action
in negligence nor can it be invoked to create a duty where one does not exist.” Gardner by Gardner v. Consol. Rail
Corp., 573 A.2d 1016, 1020 (Pa. 1990) (emphasis in original) (citation omitted). Other than references to unspecified
policies, procedures, and industry standards, Plaintiffs fail to show how Section 323 provides a legally cognizable
basis for a duty of care owed by Truist Bank to Plaintiffs.

8

predicated on a relationship existing at the time in question.” Dumanski v. City of Erie, 34 A.2d
508, 509 (Pa. 1943). 2 Plaintiffs have cited no case, statute, or express bank policy indicating that
the parties “stand in a special position of respect or trust with each other, so as to impose a special
duty of care.” See Commerce Bank/Pennsylvania v. First Union Nat. Bank, 911 A.2d 133, 138-39
(Pa. Super. Ct. 2006) (discussing duties owed between banks). The relationship between the parties
was one of banker and depositor, not one of caregiver or custodian. Thus, Plaintiffs here have
failed to show that the relationship between Truist Bank and Decedent and Ms. Sullivan created a
duty of care beyond their banking relationship.
Next, the Court weighs the social utility of Truist Bank’s actions against the nature of the
risk and foreseeability at harm. Online extortion, scams, and fraud are indeed invidious and
criminal, as Plaintiffs note. See, e.g., ECF No. 17.1 at 3, n.1. Protection against these schemes is
needed. See Commerce Bank, 911 A.2d at 139 (“There is high social utility in a bank taking action
against a client’s account when it suspects fraud or check-kiting.”). And, to be clear, Truist Bank
took actions to protect Decedent and Ms. Sullivan’s banking funds from extortion. But also
insisting that Truist Bank assume additional obligations intended to protect a customer’s mental
and physical well-being against these schemes lacks both practical and reasonable social utility.
Further, as discussed supra, Truist Bank did not create the harm that was suffered by
Decedent. “‘[D]uty arises only when one engages in conduct which foreseeably creates an
unreasonable risk of harm to others.’ Generally, our Courts have been reluctant to impose a duty
to protect a member of the general public from the harmful acts of third parties, in the absence of
special circumstances.” Commerce Bank, 911 A.2d at 139 (quoting R.W. v. Manzek, 888 A.2d 740,

The parties disagree as to whether Truist Bank had a contractual obligation under the account’s Business
Services Agreement to notify Ms. Sullivan of fraudulent activity on the account, but Plaintiffs are not making a breach
of contract claim here. See, e.g., ECF No. 17-1 at 11.
2

9

747 (Pa. 2005) (additional citations omitted)). Criminal extortionists created the harm here, not
Truist Bank. Decedent’s suicide was not a foreseeable outcome of Truist Bank’s obligations to
protect Decedent’s funds or purported obligation to notify Ms. Sullivan of fraudulent activity on
the account. Thus, after weighing the social utility of imposing a duty of care on Truist Bank
against the foreseeability of harm to Decedent, these factors weigh against imposing a duty of care
upon Truist Bank to Plaintiffs.
Factor four – the consequences of imposing a duty upon the actor – also weighs against
imposing a duty of care upon Truist Bank. Truist Bank was tasked with providing banking services
to Decedent and Ms. Sullivan. Truist Bank seemingly met its duty to guard against fraud by
flagging suspect transactions and freezing assets in Plaintiffs’ joint account, in compliance with
bank policies. ECF No. 13 at 4. When Decedent went to the bank on January 4, 2023, bank
employees continued to adhere to bank policies by refusing to release bank funds. ECF No. 1-3 ¶
25. In fact, Plaintiffs acknowledge that the bank employees owed this duty to protect Plaintiffs’
funds. Id.
But Plaintiffs go a step further to assert that Truist Bank had a duty to notify the co-account
holder, and that doing so would have enabled Ms. Sullivan “to address the attempted extortion
with the Plaintiff’s Decedent and prevent[] his tragic taking of his own life.” Id. ¶ 31. Such an
assertion presumes that the bank knew or should have known that notifying Ms. Sullivan would
have prevented Decedent’s suicide. Such knowledge is well beyond the purview and expertise of
a bank. At the time, Decedent was no longer a minor. Ms. Sullivan could have been a business
partner or distant relation of Decedent. In other words, imposing a general duty on a bank to notify
joint account holders of fraud to prevent one of the account holders from self-harm is not
reasonable. A duty between parties arises from policy considerations, which in this instance weigh

10

heavily against imposing a duty of care on Truist Bank beyond those related to guarding against
fraud.
Finally, there is a public interest in imposing on banks a legal duty to care for customers’
mental and physical well-being, yet doing so would create an unreasonable burden. The banking
industry is well-regulated and banks routinely take measures to protect against fraud. However,
imposing an additional duty to protect the mental and physical well-being of customers from the
effects of fraud is beyond the purpose and competencies of a bank.
In sum, an analysis of the allegations here under the five-part Althaus test makes clear that
there is no legally cognizable duty of care between the parties. Accordingly, Plaintiffs’ negligence
claims are not viable.
IV.

CONCLUSION

This young man’s passing was tragic and we have compassion and sympathy for him and his
loved ones. While an intervention at some point might have led to a different outcome, no legal
duty required Defendant to intervene under the circumstances here. Unfortunately, we are left only
with heart-wrenching “what ifs” that are compelling, yet not legally cognizable. Accordingly, all
counts here are dismissed.
BY THE COURT:
/s/ Chad F. Kenney
CHAD F. KENNEY, JUDGE

11