MANORCARE OF EASTON PA LLC v. NAGY
MEMORANDUM/OPINION THAT THAT MOTIONS NOS. 36, 51, 52, 53, 59, 60, 62, 77, 88, AND 91 AND 95 ARE GRANTED. MOTION NO. 96 IS DENIED. THE FOLLOWING COUNTER-DEFENDANTS ARE DISMISSED: KENNEDY, PC; NORTHAMPTON COUNTY; AETNA, INC.; DR. EDWARD CUMBO; DR. DILI P BERA; BRAKELY PART CENTER; NEW EASTWOOD CARE AND REHAB; COMMONWEALTH OF PA; DR. STEPHEN KSIAZEK; AND ST. LUKE'S WARREN HOSPITAL. THEREFORE MANORCARE'S ORIGINAL SUIT SHALL PROCEED AGAINST THE NAGYS. AN ACCOMPANYING ORDER WILL FOLLOW. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 9/29/17. 9/29/17 ENTERED AND COPIES MAILED TO PRO SES' AND E-MAILED. (ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MANORCARE OF EASTON PA LLC,
THE ESTATE OF JOSEPH A. NAGY,
THE ESTATE OF JOSEPH A. NAGY and
JOSEPH EUGENE NAGY,
MANORCARE OF EASTON PA LLC;
KENNEDY, PC; NORTHAMPTON COUNTY;
AETNA, INC.; DR. EDWARD CUMBO; DR.
DILIP BERA; BRAKELEY PARK CENTER;
NEW EASTWOOD CARE AND REHAB;
COMMONWEALTH OF PENNSYLVANIA;
DR. STEPHEN KSIAZEK; and ST. LUKE’S
SCHMEHL, J. /s/ JLS
SEPTEMBER 29, 2017
Counter-Defendants moved to dismiss the Nagys’ amended counterclaim in
eleven individual motions. This Court will address each Count from the amended
counterclaim below as it corresponds to Counter-Defendants. Given this Court’s
longstanding history with the facts of this case and its procedural complexity, the Court
will adopt the facts and procedural history outlined in its June 25, 2015 Memorandum
Opinion (ECF Docket No. 33). 1
The Nagys removed this case from the Court of Common Pleas in Northampton County, PA, and filed a
counterclaim against multiple defendants. The Court is unclear whether the Nagys invoked federal
question jurisdiction arising from their counterclaim as a basis for removal. However, this attempt would
As stated in our June 25, 2015 Opinion, given the relative comprehensibility of
the Nagys’ amended counterclaim and the fact that the newly served Counter-Defendants
eventually timely moved to dismiss, it made sense and was more efficient to focus on the
document as filed rather than grant the Counter-Defendants’ Motion for a More Definite
Statement. The Nagys’ amended counterclaim contained identifiable, enumerated lists of
counts on which court proceedings could focus. 2
However, this Court sufficiently reviewed the Nagys’ amended counterclaim and
finds that it fails to satisfy the pleading standard required to survive a Rule 12(b)(6)
motion. Therefore, the Counter-Defendants’ motions are granted and each count in the
amended counterclaim shall be dismissed. The Court’s reasoning is stated below.
STANDARD OF REVIEW
“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)). A claim satisfies the plausibility standard when the facts alleged “allow
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing
Iqbal, 556 U.S. at 678). While the plausibility standard is not “akin to a ‘probability
requirement,’” there nevertheless must be more than a “sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
be improper because “[r]emoval based on federal question jurisdiction is governed by the ‘well-pleaded
complaint’ rule, whereby jurisdiction exists only ‘where an issue of federal law appears on the face of the
complaint.’” Fosnocht v. Demko, 438 F.Supp.2d 561, 563-64 (E.D. Pa. 2006). Therefore, a counterclaim
appearing as part of the defendant’s answer may not serve as a basis for ‘arising under’ jurisdiction. Id. at
564. Notwithstanding the requirements, the Nagys’ removal was proper under diversity jurisdiction and
amount in controversy which was satisfied on the face of ManorCare’s complaint in Northampton County.
The Court again reminds the Nagys that as a non-lawyer, Joseph Eugene really may not represent the
interests of Joseph A. Nagy’s Estate and urges both of them to retain counsel moving forward.
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability,
it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6)
motion: (1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a
claim;’” (2) “it should identify allegations that, ‘because they are no more than
conclusions, are not entitled to the assumption of truth;’” and, (3) “[w]hen there are wellpleaded factual allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.” Connelly v. Lane
Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675,
679); see also Burtch, 662 F.3d at 221; Malleus v. George, 641 F.3d 560, 563 (3d. Cir.
2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d. Cir. 2010).
However, a document filed pro se must be “liberally construed.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,”
must be held to “less stringent standards than formal pleadings drafted by lawyers” and
can only be dismissed for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Haines v. Kerner, 404 U.S. 519, 520–21 (1972). The Third Circuit has instructed
that if a complaint is vulnerable to dismissal for failure to state a claim, the district court
must permit a curative amendment, unless an amendment would be inequitable or futile.
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
1. Count I-IV: Fair Debt Collection Practices Act
To establish a prima facie case under 15 U.S.C. 1692i(a)(1) of the Fair Debt
Collection Practices Act (“FDCPA”), a plaintiff must prove: “(i) she is a natural person
who is harmed by violations of the FDCPA, or is a ‘consumer’ within the meaning of 15
U.S.C. §§ 1692a(3), 1692(d) for purposes of a cause of action; (ii) the ‘debt’ arises out of
a transaction entered primarily for personal, family, or household purposes; (iii) the
defendant is a ‘debt collector’ within the meaning of 15 U.S.C. § 1692a(6); and (iv) the
defendant has violated, by act or omission, a provision of the FDCPA.” 3 Goins v.
MetLife Home Loans, 2014 WL 5431154, at *3 (E.D. Pa. 2014).
The Nagys allege ManorCare’s complaint violates the FDCPA in Counts One (§
1692i(a)(1)), Two (§ 1692i(a)(2)(A)), and Three (§ 1692i(a)(2)(B)) because: 1) it was
brought in the wrong location, as Northampton County is not the place of any involved
real property; 2) there was no contract; and 3) the suit was improperly filed in
Pennsylvania as Mr. Nagy is “an inhabitant of the land of New Jersey.” Count Four (§
1692g(a)(1)) alleges a violation of FDCPA notice requirements for the amount of debt
owed. Given the similarity of Counts I-IV against ManorCare, the Court will address
them together before moving to Counts V-XII.
Under 15 U.S.C. § 1692a(6), the term “debt collector” is defined as: “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last
sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts,
uses any name other than his own which would indicate that a third person is collecting or attempting to
collect such debts.” The term “debt collector” does not include persons defined in Section (F): “any person
collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent
such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii)
concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the
time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a
commercial credit transaction involving the creditor.”
ManorCare moved to dismiss the Nagys’ amended counterclaim for insufficiency
on Counts I-IV, alleging the Nagys failed to plead any element establishing a prima facie
case for a violation under the FDCPA. (ECF Docket No. 36, at 3) (emphasis added).
This Court agrees with ManorCare that Counts I-IV should be dismissed, however, not
because the Nagys failed to plead any element of the FDCPA; rather, this Court finds the
Nagys did not allege ManorCare was a “debt collector” within the meaning of 15 U.S.C.
§ 1692a(6). Additionally, this Court does not consider ManorCare a “debt collector”
within the meaning of 15 U.S.C. § 1692a(6).
The Supreme Court has found that “attorneys who regularly engage in debt
collection or debt collection litigation are covered by the FDCPA, and their litigation
activities must comply with the requirement of the act.” Goins, 2014 WL 5431154, at *4
(citing Heintz v. Jenkins, 514 U.S. 291 (1995)). Moreover, our Circuit has defined “debt
collector” based on the volume of in rem mortgage foreclosure actions filed in the Court
of Common Pleas. Id. (citing Crossley v. Lieberman, 868 F.2d 566 (3d Cir. 1989)). 15
U.S.C. § 1692a(6) defines a “debt collector” as “any person who uses any instrumentality
of interstate commerce or the mails in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due asserted to be owed or due another. 15 U.S.C. § 1692a(6)
While the Nagys’ amended counterclaim factually alleges ManorCare “filed their
debt claim in Northampton County PA,” the disjointed allegations within the amended
counterclaim merely allege ManorCare attempted to collect an unpaid bill for Mrs.
Nagy’s care at the ManorCare of Easton, PA facility. Specifically, the Nagys aver that “a
letter addressed to Joseph Nagy, Jr. with important billing information enclosed was
received at the Nagy home and refused.” (ECF Docket no. 14, at 20 ¶109) (emphasis
added). Additionally, “ManorCare again wrongly sent Joseph Nagy, Jr. another
important bill for Joseph Eugene.” (Id. at 20 ¶118) (emphasis added). And finally, “[o]n
or about September 15, 2013, Joseph Albert received process for ManorCare’s lawsuit for
the nursing home facility’s debt.” (Id. at 23 ¶127.) Taken together, these factual
allegations do not establish a prima facie case under the FDCPA. The Nagys do not
allege ManorCare was a debt collector, let alone a debt collector within the meaning of
15 U.S.C. § 1692a(6).
Assuming the Nagys properly pled ManorCare was a “debt collector” under the
FDCPA, this Court does not find ManorCare to be a debt collector. ManorCare’s
business is not the “principal purpose of which is the collection of any debts” and does
not regularly collect or attempt to collect “debts owed or due asserted to be owed or due
another.” ManorCare’s principal business is to “provide individualized post-hospital
skilled nursing care,” not debt collection. See ManorCare Health Services-Easton,
Thus, this Court does not find ManorCare itself to be a debt collector.
However, it is understood that our circuit and sister courts recognize law firms
engaging in debt collection on behalf of clients as debt collectors. Crossley v.
Lieberman, 868 F.2d 566 (3d. Cir 1989) (finding an attorney that regularly engaged in
debt collection activities on behalf of clients was a “debt collector” subject to the
FDCPA); see also Sandlin v. Shapiro & Fishman, 919 F. Supp. 1564 (M.D. Fla. 1996)
(concluding a law firm hired by a mortgagee to collect a note and mortgage debt through
correspondence or legal proceedings, and where the firm directed the mortgagor to pay
the law firm instead of the creditor, was a debt collector under the FDCPA).
Here, Kennedy, PC Law Offices (“Kennedy Law”) represented ManorCare in the
collections case in the Court of Common Pleas of Northampton County, Case No. C48Cv2013-8832; later removed by Joseph A. Nagy, and presently before this Court.
Presumably, Kennedy Law represented ManorCare in the state court proceedings as
attorney and debt collector. 4 However, the Nagys amended counterclaim before this
Court does not allege Kennedy Law acted as debt collector on behalf of ManorCare; nor
did the amended counterclaim allege Kennedy Law specifically violated the FDCPA.
The Nagys allege “Mr. Nagy was sent a Certified Mail Delivery Notice from
Kennedy Law” and two days later “Joseph Eugene was sent a large envelope from
Rodney Myer, [of] Kennedy, PC.” (ECF Docket No. 14, at 21 ¶115, 117.) On April 1,
2013, Joseph Eugene called Rodney Myer, counsel for ManorCare, and stated “the court
does not have jurisdiction over a man, a sovereign living soul,” to which Mr. Myer
responded they were proceeding in Orphans’ Court. (Id. at 21 ¶119.) Further, “Kennedy,
PC sent the Nagy’s a letter concerning guardianship.” (Id. at 23, ¶124.) Clearly, the
Nagys failed to satisfy the pleading standards to survive a Motion to Dismiss under Rule
12(b)(6) by failing to allege: 1) Kennedy Law violated, by act or omission, the provisions
of the FDCPA; 2) Kennedy Law was a “debt collector” defined by the FDCPA.
The Court presumes this relationship between ManorCare and Kennedy Law despite Mr. Nagy’s failure to
properly attach the complaint filed by ManorCare in C48-Cv2013-8832 when removing the case to this
Court. The Court was able to locate the original Northampton County complaint filed by ManorCare
against Mr. Nagy after coming across a similar case before the Honorable Joel H. Slomsky, docketed as
It appears beyond doubt that the Nagys can prove no set of facts which would
entitle them to relief. Therefore, Counts I-IV are dismissed with prejudice as to
2. Count V: Major Fraud Against the United States (18 U.S.C. § 1031)
Title 18 of the United States Code is a federal criminal statute which “does not
create civil liability or a private right of action.” U.S. ex rel. Stafford v. Lugano, C.A. No.
85-1642, 1989 WL 45910, at *2 (E.D. Pa. Apr. 19, 1989). Generally, a private party may
not maintain suit under most provisions of Title 18. In the criminal context, the Supreme
Court has refused to imply a private right of action in a bare criminal statute. Shipp v.
Donaher, C.A. No. 09-2475, 2010 WL 1257972, at *12 (E.D. Pa. Apr. 1, 2010); Jones v.
Lockett, C.A. No. 08-16, 2009 WL 2232812, at *8 (W.D. Pa. July 23, 2009); Concert v.
Luzerne County Children and Youth Services, C.A. No. 08-1340, 2008 WL 4753709, at
*3 (M.D. Pa. Oct. 29, 2008) (“Criminal statutes do not generally provide a private cause
of action nor basis for civil liability); Prunte v. Universal Music Group., 484 F.Supp.2d
32, 42 (D.D.C. 2007) (citing Cort v. Ash, 422 U.S. 66, 79-80 (1975)).
However, the above reasoning does not apply to 18 U.S.C § 1031 (Count V), also
known as the “Whistle Blower Act.” Section 1031 permits a private cause of action
limited to employee whistle blowers. Shipp, 2010 WL 1257972, at *12 (citing Jones,
2009 WL 2232812, at *9). 18 U.S.C. § 1031(h)(1) provides a private cause of action for
individuals who are “discharged, demoted, suspended, threatened, harassed, or in any
other manner discriminated against in the terms and conditions of employment by an
employer because of lawful acts done by the employee.” 18 U.S.C. § 1031(h)(1)
Here, the Nagys do not allege they are, or ever were, employees of ManorCare,
Kennedy Law, Northampton County, The Commonwealth of Pennsylvania, Heartland
Hospice, or Aetna. The Whistle Blower Act limits this private right of action to
employee whistle blowers. Therefore, the Nagys have failed to state a claim as a matter
of law and Count V is dismissed with prejudice as to ManorCare, Kennedy Law,
Northampton County, The Commonwealth of Pennsylvania 5, Heartland Hospice, or
3. Count VI: Racketeering (18 U.S.C. § 1957)
Federal criminal statute 18 U.S.C. § 1957, under Title 18 of the United States
Code, does not create civil liability for a private right of action as defined in the previous
section of this Opinion. U.S. ex rel. Nagy v Patton, C.A. No. 11-267, 2012 WL 1858983
(E.D. Pa. May 22, 2012) (finding 18 U.S.C. § 1957 does not create an implied private
right of action for civil suits by private parties against violators); Barrett v. City of
Allentown, 152 F.R.D. 50, 55-56 (E.D. Pa. 1993) (concluding 18 U.S.C. § 1957 does not
The Commonwealth additionally argues the Nagys’ amended counterclaim should be dismissed because
Eleventh Amendment immunity bars federal subject matter jurisdiction of suits by private parties against
states, state agencies, and state officials in their official capacities, with few exceptions. (ECF Docket No.
52, at 9) (citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-70 (1997)). The Nagys’
amended counterclaim seeks monetary damages against the Commonwealth of Pennsylvania. However, “a
suit against a state is barred, regardless of the relief requested,” and “neither supplemental jurisdiction nor
any other basis of jurisdiction, including diversity jurisdiction under 28 U.S.C. § 1332, overrides the
Eleventh Amendment.” (Id.) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 121
(1984); see Coeur d’Alene Tribe, 521 U.S. at 270). As the Commonwealth correctly argues, states may
consent to be sued in federal court; however, Pennsylvania has withheld this consent. (ECF Docket No. 52,
at 10) (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000); see Seminole Tribe of Florida v.
Florida, 517 U.S.44, 55-56 (1996); see Pennhurst, 465 U.S. at 99; see 42 Pa. C.S. § 8521(b); see 1 Pa.C.S.
§ 2310). Because Pennsylvania has not waived its immunity, the Eleventh Amendment bars the Nagys’
counterclaims against the Commonwealth.
Aetna further argues the Nagys’ amended counterclaim should be dismissed for failure to exhaust
administrative remedies under ERISA. Aetna argues the Nagys seek benefits under the employersponsored plan which is subject to the exhaustion requirement. (ECF Docket No. 62, at 11.) “Except in
limited circumstances . . . a federal court will not entertain an ERISA claim unless the plaintiff has
exhausted the remedies available under the plan.” Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 249
(3d Cir. 2002). Absent limited circumstances, courts have granted Rule 12(b)(6) dismissal of ERISA cases
regarding claims for benefits for failure to exhaust administrative remedies. Shephard v. Aetna Life Ins.
Co., 2009 WL 2448548, at *3 (E.D. Pa. 2009) (citing Menendez v. United Food & Commercial Workers
Local 450T, AFL–CIO, No. 05–1165, 2005 WL 1925787, at *1–2 (D.N.J. Aug.11, 2005); see also Weldon
v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir. 1990). Aetna argues the Nagys “failed to allege exhaustion of
remedies under the plan or that they took any action to pursue administrative remedies.” (ECF Docket No.
61, at 11-12.) This Court agrees with Aetna.
create a private right of action). 18 U.S.C. § 1957 imposes liability on any individual
who “knowingly engages or attempts to engage in a monetary transaction in criminally
derived property that is of a value greater than $10,000 and is derived from specified
unlawful activity.” 18 U.S.C. § 1957.
Accordingly, the Nagys’ Racketeering claim (Count VI) will be dismissed
because § 1957 does not create a private right of action for civil suits by private parties.
Therefore, Count VI is dismissed with prejudice as to ManorCare, Kennedy, PC,
Northampton County, The Commonwealth of Pennsylvania, Heartland Hospice, Aetna,
Dr. Stephen Ksiazek, Brakeley Park Center, and New Eastwood Care and Rehab. 7
4. Count VII: Racketeer Influenced and Corrupt Organizations Act (RICO) (18
U.S.C. § 1962)
Racketeer Influenced and Corrupt Organizations Act (“RICO”) prohibits certain
conduct involving a “pattern of racketeering activity.” 18 U.S.C. § 1962. Although Title
18 of the U.S. Code does not typically provide for a private right of action, The Supreme
Court has stated that one of RICO’s enforcement mechanisms grants a private right of
action to “[a]ny person injured in his business or property by reason of a violation” of
RICO. 18 U.S.C. § 1964(c); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453 (2006).
“RICO accordingly proscribes various ways in which an ‘enterprise,’ § 1961(4), might be
controlled, operated, or funded by a ‘pattern of racketeering activity,’ § 1961(1), (5).”
RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090, 2112 (2016). Specifically, §
1962 of RICO consists of four separate subsections – each addressing a different issue. 8
The Nagys’ amended counterclaim names Dr. Keyurkumar Daisaniya under Count VI, VII, VIII, and XII.
However, Dr. Daisaniva is no longer a party to the action.
“The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., makes it
unlawful ‘to ... invest’ in an enterprise income derived from a pattern of racketeering activity, § 1962(a), ‘to
acquire or maintain’ an interest in an enterprise through a pattern of racketeering activity, § 1962(b), ‘to
The Nagys assert blanket violations of § 1962, therefore this Court will address all four
First, under § 1962(a), a plaintiff must allege that he or she “suffered an injury
specifically from the use of investment of income in the named enterprise.” Dianese, Inc.
v. Com. of Pennsylvania, 2002 WL 1340316, at *8 (E.D. Pa. 2002). “This provision was
primarily directed at halting the investment of racketeering proceeds into legitimate
business, including the practice of money laundering.” Id. (citing Lightning Lube, Inc. v.
Witco Corp., 4 F.3d 1153, 1188 (3d Cir.1993). The injury resulting from the use or
investment of the racketeering income must be separate and distinct from the injury that
occurred as a result of the racketeering acts themselves. Id. (citing Lightening Lube, 4
F.3d at 1188).
Second, under § 1962(b), the plaintiff must allege that he or she suffered an injury
from the defendant’s acquisition or control of an interest in a RICO enterprise. Id. at 9.
For example, such injury occurs when the “owner of an enterprise infiltrated by the
defendant as a result of racketeering activities is injured by the defendant’s acquisition or
control of his enterprise.” Id. (citing Lightening Lube, 4 F.3d at 1190). The injury must
be a consequence of the acquisition or control of an interest in a RICO enterprise, rather
than the pattern of racketeering. Id. The plaintiff must also show control of the RICO
enterprise by the Defendant resulted from the pattern of racketeering and must firmly
show a “nexus between the interest and the alleged racketeering activities.” Id. (citing
Lightening Lube, 4 F.3d at 1190).
conduct or participate ... in the conduct’ of an enterprise through a pattern of racketeering activity, §
1962(c), or ‘to conspire’ to violate any of those provisions, § 1962(d).” RJR Nabisco, Inc. v. European
Community, 136 S.Ct. 2090, 2112 (2016).
Third, § 1962(c) requires establishing the existence of an enterprise. A RICO
enterprise consists of a group of people connected for the common purpose of engaging
in a course of conduct. Dianese, Inc., 2002 WL 1340316, at *10. Under § 1962(c), the
plaintiff must demonstrate:
(1) that the enterprise is an ongoing organization with some sort of
framework or superstructure for making or carrying out decisions; (2) that
the members of the enterprise function as a continuing unit with
established duties; and (3) that the enterprise must be separate and apart
from the pattern of activity in which it engages.
Id. Typically, pleading bare allegations that the members consisted of an enterprise
would be sufficient to survive a motion to dismiss, no matter how implausible. Id.
However, as stated above, under RICO law, the alleged racketeering activity must be
separate from the enterprise itself. Id. at 11.
Finally, under § 1962(d), the plaintiff must plead that the defendant: “(1) knew of
the RICO violations of the enterprise, and (2) agreed to facilitate those activities.” Id. at
12. Under subsection (d), the injury must have been caused by the RICO violation, rather
than any act in furtherance of the conspiracy. Id. (citing Beck v. Prupis, 529 U.S. 494,
505-507 (2000)). “Any claim under section 1962(d) based on a conspiracy to violate the
other subsection of § 1962 necessarily must fail if the substantive claims are themselves
deficient.” Id. (citing Lightning Lube, 4 F.3d at 1191).
Here, notwithstanding the Nagys’ attempt to plead a RICO violation in the
abstract, this Court finds the Nagys’ amended counterclaim deficient as it fails to plead
any element of § 1962(a)-(d). Nowhere does the amended counterclaim allege the Nagys
were injured “from the use of investment of income in the named enterprise,” nor do the
Nagys allege injury “due to the acquisition or control of an interest in a RICO enterprise”
by any of the Counter-Defendants. Moreover, the Nagys do not provide even bare
allegations that Counter-Defendants consisted of an enterprise, which would have been
sufficient to survive a motion to dismiss.
Therefore, the Nagys fail to state a claim upon which relief may be granted under
RICO and Count VII is dismissed with prejudice as to ManorCare, Kennedy, PC,
Northampton County, The Commonwealth of Pennsylvania, Heartland Hospice, Aetna,
and Dr. Stephen Kaiazek.
5. Count VIII: Conspiracy against Rights (18 U.S.C. § 241)
Conspiracy against Rights (or conspiracy to violate federal rights) is federal
criminal statute prohibiting persons from interfering with another’s free exercise or
enjoyment of any right or privilege secured by the Constitution or laws of the United
States. 18 U.S.C. § 241. However, Title 18 of the United States Code is a federal
criminal statute which does not create civil liability or a private right of action. U.S. ex
rel. Stafford, 1989 WL 45910, at *2. As repeated throughout this Opinion, a private party
generally may not maintain suit under most provisions of Title 18, with certain
exceptions. Shipp, 2010 WL 1257972, at *12. This is not one of those exceptions.
As such, the Nagys are precluded from bringing a private cause of action under 18
U.S.C. § 241, conspiracy to violate federal rights. This Court and our circuit agree this is
well settled law. U.S. ex rel. Nagy, 2012 WL 1858983 (rejecting private right of action
for civil suits by private parties against violators); see also Carpenter v. Ashby, 351 Fed.
Appx. 684, 687 (3d Cir. 2009) (per curiam) (“18 U.S.C. § 241 does not create a private
right of action”); see also Walthour v. Herron, C.A. No. 10-1495, 2010 WL 1877704, at
*3 (E.D. Pa. May 6, 2010) (concluding that no private right of action exists under 18
U.S.C. §§ 241, 242). Accordingly, this Court will dismiss Count VIII with prejudice as
to ManorCare, Kennedy, PC, Northampton County, The Commonwealth of
Pennsylvania, Heartland Hospice, Aetna, and Dr. Stephen Ksiazek.
6. Count IX: Legal Malpractice
Count IX (Legal Malpractice) of the Nagys’ amended counterclaim was dismissed
in this Court’s June 25, 2015 Opinion (ECF Docket No. 33). Therefore, no further
discussion is required.
7. Count X: Civil Rights and Elective Franchise (28 U.S.C. § 1343)
District Courts have jurisdiction over federal statutory claims under 28 U.S.C. §§
1331 (federal question) and 1343 (civil rights and elective franchise). Williams v. CVS
Caremark Corporation, 2016 WL 3912839, at *2 (E.D. Pa. 2016). Section 1343
specifically states “[t]he district courts shall have original jurisdiction over any civil
action authorized by law to be commenced by any person.” 28 U.S.C. § 1343. Section
1343, however, does not provide a statutory basis for a cause of action; it provides this
Court with jurisdiction over federal constitutional questions. Vangerve v. Pennsylvania,
C.A. No. 10-2581, 2011 WL 2326970, at *3 (E.D. Pa. June 14, 2011). As the
Commonwealth argues, “Section 1343 does not in itself create any rights but merely
gives the district court power to hear the causes and act when rights are asserted under
other provisions” pursuant to acts of Congress where a federal right is being asserted that
provides for the equal rights of citizens. (ECF Docket No. 52, at 17) (citing Dorak v.
Shapp, 403 F.Supp. 863, 865 (M.D. Pa. 1975); Henderson v. Defense Contract Admin
Serv. Reg., 370 F.Supp. 180, 181 (S.D.N.Y. 1973)).
Here, the Nagys improperly plead Section 1343 as a cause of action and argue
ManorCare, et al., willfully precluded Mrs. Nagy’s durable power of attorney, Joseph
Eugene, from making health and legal decisions. Because § 1343 does not itself create
any rights and only confers jurisdiction on the United States District Courts to hear
certain causes of action, Count X (civil rights and elective franchise) is dismissed with
prejudice as to Kennedy, PC, Northampton County, The Commonwealth of
Pennsylvania, Aetna, and Heartland Hospice.
8. Count XI: Abuse of Process
Some confusion exists as to whether the traditional common-law abuse of process
still exists as a source of relief in Pennsylvania given the existence of the statute for
wrongful use of civil proceedings (Dragonetti Act) under 42 Pa.C.S.A. § 8351(a). Much
has been made of the comment from the Third Circuit and Pennsylvania Supreme Court
that the Dragonetti Act “subsumed” the common law tort for abuse of process. Langman
v. Keystone Nat'l Bank & Trust Co., 672 F.Supp.2d 691, 699 (E.D. Pa. 2009). However,
the Pennsylvania state and federal courts – including our Circuit – have not taken that
approach and require the plaintiff show 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.” Id. at 700.
This Court can identify at least one element within the Nagys’ disjointed
counterclaim necessary to establish a claim for abuse of process: “use of legal process
against the plaintiff.” (ECF Docket No. 14, at 23 ¶127.) The Nagys aver that Joseph
Albert received process for ManorCare’s lawsuit over the Nagys’ upaid bills. Yet, this
allegation only references ManorCare and not any of the other named Counter-
Defendants under Count XI. Furthermore, the Nagys’ amended counterclaim does not
allege the Counter-Defendants’ use of the legal process was done primarily to accomplish
a purpose for which the process was not designed. An argument can be made that the
Nagys’ amended counterclaim alleges that “harm was caused to the plaintiff,” however, it
is not within the purview of this Court to manufacture allegations raised if not so
specifically pled by a party.
Therefore, Count XI is dismissed with prejudice as to against ManorCare,
Kennedy, PC, Northampton County, The Commonwealth of Pennsylvania, Aetna, and
9. Count XII: Capitis Diminutio (diminishing of status)
The Nagys allege Capitis Diminutio following the care provided by CounterDefendants under Count XII. Prior to her death, the Nagys claim Joseph Eugene
requested that the Doctors, nursing home, and hospital treat Mrs. Nagy with natural
herbs; however, the Counter-Defendants allegedly responded that they were required to
administer medicines approved by the Food and Drug Administration (“FDA”). (ECF
Docket No. 14, at 44 ¶189.) Thus, the Nagys allege they were prevented from exercising
alleged rights to choose certain treatments.
Notwithstanding the allegations under Capitis Diminutio, this Court does not
recognize the foregoing as an identifiable cause of action. Capitis Diminutio is defined
as the destruction of the ‘caput’ or legal personality. Black’s Law Dictionary 239 (9th ed.
2011). As it is not a recognized cause of action by this Court or any other court in the
United States, Count XII Capitis Diminutio, is dismissed with prejudice as to ManorCare,
Kennedy, PC, Northampton County, The Commonwealth of Pennsylvania, Heartland
Hospice, Aetna, Dr. Stephen Ksiazek, Dr. Cumbo, Dr. Bera, Brakeley Park Center, New
Eastwood Care and Rehab, and St. Luke’s Warren Hospital.
10. Count XIII: Petition for Constructive Trust
Constructive trust is a remedy imposed to restore particular funds or property to
the true owner. In re Kamand Constr., Inc., 298 B.R. 251, 255 (Bkrtcy. M.D. Pa. 2003).
Constructive trusts are enforced when a party acquires legal title to property by violating
some implied or express duty owed to another, or through bad faith, fraud, or lack of
good conscience; constructive trusts have also been imposed absent wrongful conduct in
order to prevent unjust enrichment. In re Kulzer Roofing, Inc., 139 B.R. 132, 141
(Bkrtcy. E.D. Pa. 1992) (citing Pierro v. Pierro, 264 A.2d 692, 696 (Pa. 1970)).
In a constructive trust, the defendant must have acquired legal title in a way that
creates an equitable duty in favor of the plaintiff. Pierro, 264 A.2d at 696. A
constructive trust does not require parties’ intent to create a trust, rather, “it is an
equitable remedy designed to prevent unjust enrichment.” Stauffer v. Stauffer, 351 A.2d
236, 241 (Pa. 1976). Therefore, because there is no “rigid standard” to impose a
constructive trust, the test is whether unjust enrichment can be avoided. Id.
Here, the Nagys’ amended counterclaim petitions this Court for a constructive
trust against Counter-Defendants. The Nagys do not specify what, if any, property the
Counter-Defendants acquired legal title to, thereby creating an equitable duty. This Court
cannot impose a constructive trust without the Nagys identifying a violation of some
implied or express duty owed, or the presence of unjust enrichment to CounterDefendants. Absent some alleged unjust enrichment, this Court declines to impose a
constructive trust without details or allegations compelling equitable remedy.
Accordingly, Count XIII is dismissed with prejudice as to all Counter-Defendants.
11. Count XIV: Wrongful Death
The Nagys allege a state-law claim under the Wrongful Death Act for the death of
Mrs. Nagy while in the care of Counter-Defendants. Wrongful death requires the
plaintiff prove the death was caused by violence or negligence of the defendant. 9 Quinby
v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1077 (Pa. 2006) (citing 42
Pa.C.S. § 8301(a)). Wrongful death is not a substantive and independent cause of action
but is “derivative of the injury which would have supported the decedent’s own cause of
action and is dependent upon the decedent’s cause of action being viable at the time of
death.” Sullivan v. Warminster Tp., 765 F.Supp.2d 687, 707 (E.D. Pa. 2011); see also
Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 391 (Pa. Super. Ct. 2002)
(citing Moyer v. Rubright, 651 A.2d 1139, 1143 (Pa. Super. Ct. 1994). Thus, an action
for wrongful death cannot survive if the decedent could not have recovered for the
injuries sustained had they lived. Sunderland, 791 A.2d at 391. The action for wrongful
death merely provides a remedy for plaintiffs to recover when unlawful conduct results in
death. A finding of negligence – along with proximate cause – is required to impose
liability for wrongful death. Quinby, 907 A.2d at 1077. Therefore, the plaintiff must
establish the defendant’s negligence was a proximate cause of the death.
Here, the Nagys do not plead negligence as derivative of the injury leading to
Mrs. Nagy’s death. Moreover, the Nagys do not allege Counter-Defendants’ negligence
“An action may be brought, under procedures prescribed by general rules, to recover damages for the
death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another
if no recovery for the same damages claimed in the wrongful death action was obtained by the injured
individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful
death claim so as to avoid a duplicate recovery.” 42 Pa.C.S.A. § 8301(a).
was a proximate cause of Mrs. Nagy’s death. However, in the alternative, assuming the
Nagys successfully alleged negligence as a derivative of wrongful death, the Nagys failed
to provide a certificate of merit. The Nagys’ claim for wrongful death appears to be
based on a claim that Mrs. Nagy’s death was caused by nursing care that deviated from
the acceptable standard of care. Under Pennsylvania law, “in any action based upon an
allegation that a licensed professional deviated from an acceptable professional standard .
. . the plaintiff shall file with the complaint or within sixty days after the filing of the
complaint, a certificate of merit.“ Pa. R. Civ. P. 1042.3.
Although pro se litigants are afforded more deference, they are still required to
provide a certificate of merit to the court given the “substantive” nature of the certificate.
Boring v. Sanders, 2013 WL 4080308, at *5-6 (M.D. Pa. August 13, 2013) (citing
Liggon-Reading v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011); see also Ramos v.
Quien, 631 F.Supp.2d 601, 611 (E.D. Pa. 2008); see also Stroud v. Abington Mem. Hosp.,
546 F.Supp.2d 238, 248 (E.D. Pa. 2008). Although the Nagys are representing
themselves pro se, albeit improperly, they are still required to provide a valid certificate
of merit. Therefore, Count XIV is dismissed with prejudice as to all Counter-Defendants.
For the foregoing reasons, the motions are granted and the Nagys’ amended
counterclaim is dismissed with prejudice. The following Counter-Defendants are
dismissed: Kennedy, PC; Northampton County; Aetna, Inc.; Dr. Edward Cumbo; Dr.
Dilip Bera; Brakeley Park Center; New Eastwood Care and Rehab; Commonwealth of
Pennsylvania; Dr. Stephen Ksiazek; and St. Luke’s Warren Hospital. Therefore,
ManorCare’s original suit shall proceed against the Nagys. An accompanying order will
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