O'HARE v. MEZZACAPPA
MEMORANDUM. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 6/8/2015. 6/8/2015 ENTERED AND COPIES E-MAILED.(lbs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Henry S. Perkin, M.J.
June 8, 2015
This matter is before the Court on the Defendant Joann Mezzacappa’s (“Defendant
Mezzacappa”) Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6), filed by
Defendant Mezzacappa on April 22, 2015. 1 The Plaintiff’s Brief in Opposition to Defendant’s
Motion to Dismiss was filed on May 4, 2015. This Court has jurisdiction over this diversity suit
pursuant to 28 U.S.C. §1332(a)(1). 2 Having reviewed and considered the contentions of the
parties, the Court is prepared to rule on this matter.
On March 30, 2015, Plaintiff Bernie O’Hare (“O’Hare”) commenced this action by filing
a suit in diversity against Defendant Mezzacappa pursuant to the Pennsylvania Uniform
Fraudulent Transfer Act (“PUFTA”). 12 Pa.C.S. § 5104. O’Hare seeks to collect on a previously
obtained judgment against Defendant Mezzacappa’s daughter Tricia Mezzacappa (“Tricia”).
O’Hare alleges that Tricia transferred property to Defendant Mezzacappa in order to fraudulently
This case was originally assigned to the docket of the Honorable Lawrence F. Stengel, and the parties consented to
trial before the undersigned pursuant to 28 U.S.C. §636 on May 26, 2015. See Dkt. No. 7 The consent was approved
and the case was transferred on May 27, 2015. See Dkt. No. 9.
The Plaintiff is a citizen of Pennsylvania while Defendant is a citizen of New Jersey. See Complaint (Dkt. No. 1)
¶3; Mot. to Dismiss, pp. 3, 6.
avoid O’Hare’s attempt to levy judgment on the property. O’Hare seeks to recover through this
litigation the $67,140.00 owed by Tricia from Defendant Mezzacappa, and in addition seeks
punitive damages against Defendant Mezzacappa for the allegedly fraudulent transfer.
According to the Complaint, the pertinent facts to this Court’s determination are as
O’Hare obtained a defamation verdict in the Court of Common Pleas of Northampton
County against Tricia on March 28, 2014 in the sum of $67,140.00. Complaint (Dkt. No. 1) ¶5.
At that time and throughout the litigation Tricia was the owner in fee simple of the
unencumbered premises at 817 Ridge Street, West Easton Borough, Northampton County. Id. at
¶6. On April 2, 2014, Tricia transferred the Ridge Street property to Defendant Mezzacappa by
quitclaim deed. Id. at ¶8. On April 3, 2014 the deed was recorded. Id. Defendant Mezzacappa
paid no consideration for the property. Id. at ¶9. On July 30, 2014, the trial court denied post-trial
motions and entered judgment for O’Hare against Tricia for $67,140.00. Id. at ¶11. Although
Tricia has appealed that judgment in state court, she failed to post the required bond to prevent
execution of the judgment against her property. Id. at ¶12.
Upon learning that the Ridge Street property had been transferred from Tricia to
Defendant Mezzacappa, O’Hare contacted Defendant Mezzacappa and gave her the option to
vacate the transfer and return the property to Tricia. Id. at ¶13. Defendant Mezzacappa refused to
do so, and retained legal counsel. Id. at ¶14. Plaintiff then filed the present suit to collect on the
judgment under PUFTA. See Complaint (Dkt. No. 1).
Standard of Review
On a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ P.
12(b)(1), the court must consider whether the allegations in the complaint are sufficient to invoke
jurisdiction over the case. Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406 (3d Cir. 1991). The
plaintiff bears the burden of alleging facts sufficient to invoke proper subject matter jurisdiction.
Id. at 1409. A claim should be dismissed under rule 12(b)(1) if it is wholly impossible for it to
invoke subject matter jurisdiction, not merely “because the legal theory is probably false.”
Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895, 898 (3d Cir. 1986). A 12(b)(1) motion is
easier to survive than a 12(b)(6) motion. Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir.
On a motion to dismiss for failure to state a claim on which relief can be granted, the
court construes all factual allegations in the light most favorable to the plaintiff and looks to see
if there is a reasonable reading of the complaint under which the plaintiff could be entitled to
relief. Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008). The complaint must contain
more than a mere recitation of the elements of a cause of action or conclusory allegations of
wrongdoing to survive a 12(b)(6) motion. Bell Atlantic v. Twombly, 550 U.S. 554 (2007). The
complaint must include a claim for relief that is not just possible, but plausible after the court
makes reasonable inferences from facts presented in the complaint. Ashcroft v. Iqbal, 556 U.S.
Defendant Mezzacappa asserts three intertwined bases for dismissal. First, Defendant
Mezzacappa asserts that the Complaint does not meet the $75,000.00 minimum amount in
controversy to invoke federal diversity jurisdiction because the state court judgment amount is
only $67,140.00. Second, Defendant Mezzacappa asserts that the Plaintiff cannot recover more
than the judgment amount through an unliquidated tort because the Plaintiff fails to state a claim
for punitive damages against Defendant Mezzacappa, instead stating claims only against Tricia.
Third, Defendant Mezzacappa asserts that Tricia is an indispensable party to this litigation and
that her joinder would eliminate this Court’s jurisdiction by destroying diversity of citizenship.
For the following reasons, this Court disagrees with Defendant Mezzacappa on all bases and
denies the motion for dismissal. For purposes of clarity and efficiency, the issues regarding
amount in controversy and the alleged failure to state a claim against Defendant Mezzacappa will
be examined together. The failure to join Mezzacappa will be examined separately.
Amount in Controversy and Failure to State a Claim Against Defendant Mezzacappa
The amount in controversy requirement is assessed according to the “legal certainty” test
first applied by the Supreme Court in 1938. St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283 (1938). Under this test, in order for a party to defeat jurisdiction for failure to meet the
amount in controversy requirement, it must be impossible for the plaintiff to recover an amount
greater than the jurisdictional requirement. Id. The party asserting federal jurisdiction bears the
burden of proving that it is possible to recover a larger sum. Samuel-Bassett v. Kia Motors Am.,
Inc., 357 F.3d 392, 396 (3d Cir. 2004). Punitive damages can be used to reach the amount in
controversy requirement where available. Golden v. Golden, 382 F.3d 348, 356 (3d Cir. 2004),
overruled in part on other grounds by Marshall v. Marshall, 547 U.S. 293 310-11 (2006).
O’Hare asserts that the jurisdictional amount is met in this case by the request for
punitive damages. Complaint (Dkt. No. 1) at ¶22. The Third Circuit has predicted that the
Pennsylvania Supreme Court would likely allow punitive damages in cases under PUFTA
because the “catch all” provision supplements the statute with the common law of fraud. Klein v.
Weidner, 729 F.3d 280, 291-93 (3d Cir 2013). While Klein dealt with punitive damages against
the transferor rather than against a transferee involved in the fraud, PUFTA makes no distinction
between remedies against the transferor or the transferee, allowing “(2) An attachment or other
provisional remedy against the asset transferred or other property of the transferee…” along with
the catch-all provision interpreted to include punitive damages in Klein. 12 Pa.C.S. § 5107(a)(2),
(3); Klein, 729 F.3d at 290, 296. §5108 of PUFTA provides defenses for transferees who
purchased the property in good faith for reasonable value, but these do not avail Defendant
Mezzacappa on a 12(b)(6) motion because O’Hare asserts that she was likely aware of the
fraudulent intent of the transfer at the time of the transfer. 12 Pa.C.S. § 5108(a); Complaint (Dkt.
No. 1) ¶13-14. It is therefore plausible that there is a legitimate cause of action for punitive
damages above the jurisdictional amount by O’Hare against Defendant Mezzacappa. Iqbal, 556
U.S. 662; 28 U.S.C. §1332 (a). Because the punitive portion of the PUFTA claim is plausible
against Defendant Mezzacappa and survives the 12(b)(6) motion, the 12(b)(1) motion must also
be denied because the potential unliquidated tort damages place the amount in controversy over
the jurisdictional limit. Golden, 382 F.3d 348.
Failure to Join Tricia Mezzacappa as a Necessary Party
Defendant Mezzacappa also challenges this Court’s jurisdiction pursuant to Rule 12(b)(7)
because O’Hare has not joined Tricia, who Defendant Mezzacappa asserts is an indispensable
party to this litigation. Fed. R. Civ. P. 12(b)(7). A party is necessary and must be joined under
Rule 19 if without that party it would be impossible to accord relief among the already present
parties, or if that party claims an interest so close to the subject of litigation that proceeding
without that party would impede their ability to protect that interest. Fed. R. Civ. P. 19. Joint
tortfeasors have been held to be permissive rather than necessary defendants. Temple v. Synthes
Corp., 498 U.S. 5 (1990); Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412 (3d Cir. 2010).
Plaintiffs can choose to sue any individual tortfeasor for the entire amount of the judgment.
Temple, 498 U.S. 5.
O’Hare asserts that Tricia has no remaining interest in the real property which is the
subject of this fraudulent transfer action. See Complaint (Dkt. No. 1) ¶5-17. Tricia’s alleged
participation in the events underlying this suit is as an alleged joint tortfeasor with Defendant
Mezzacappa seeking to defraud her creditor O’Hare. Id. at ¶15. Because Tricia’s only role in the
suit is as a joint tortfeasor and conspirator in fraud, she is a permissive rather than a necessary
party. Temple, 498 U.S. 5; Zambelli, 592 F.3d 412. Therefore, O’Hare’s decision not to join
Tricia does not serve as grounds to dismiss the complaint.
For the reasons stated above Defendant Mezzacappa’s Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b) (1) and (6) is denied.
An order follow
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