BROBST, JR. et al v. CROSSETT, ESQ. et al

Filing 35

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 5/31/17. 6/1/17 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM F. BROBST, JR., et al,

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Plaintiffs,
v.
DAVID W. CROSSETT, ESQ., et al.,
Defendants.

CIVIL ACTION

NO. 16-4051

MEMORANDUM
STENGEL, J.

May 31, 2017

This case involves a father’s efforts to evict his son from land the father owns, but on
which the son maintains a mobile home. The father and several attorneys involved in this
unhappy saga filed motions to dismiss. For the following reasons, the motions to dismiss are
granted in part and denied in part.
I.

FACTUAL BACKGROUND 1
The plaintiffs 2 filed the amended complaint raising various federal and state law claims

in connection with a property located at 118 N Kemp Road in Kutztown, Pennsylvania. (Compl.
Ex. A.) The plaintiffs had been living at the property for some period of time, including while
they cared for Brobst, Jr.’s disabled brother. 3 (Am. Compl. ¶¶ 32–34.) The plaintiff’s brother

1

This Memorandum is written primarily for the parties, and therefore much of the
lengthy factual history set forth in the amended complaint has been omitted.
2

Plaintiff William F. Brobst, Jr., is the son of defendant William F. Brobst, Sr.; Roxanne
Brobst is William F. Brobst, Jr.’s wife and Keshia Brobst is their daughter.
3

The amended complaint also references a property located at 122 N Kemp Road. It is
not entirely clear from the amended complaint when, or in what combination, William F. Brobst,

had been granted a life estate in the property by their mother. (Id. at ¶¶ 28–32.) Four days after
the brother’s death, Brobst, Sr. sent the plaintiffs an eviction notice, prepared by his attorneys.
(Id. at ¶¶ 33, 39.) Thereafter, Brobst, Sr. filed a Complaint in Ejectment in the Court of
Common Pleas of Berks County, Pennsylvania. (Id. at ¶ 40.) The parties litigated the matter
over the course of the next year, and ultimately the court granted Brobst, Sr.’s motion for
summary judgment as to legal title of the premises. (Id. at ¶¶ 40–48.)
The defendants subsequently paid for a certified copy of the Berks County court’s order,
without notice or copy to the plaintiffs. (Id. at ¶ 49.) On July 11, 2016, the defendants filed for
an ex-parte Writ of Possession and for the Berk’s County Sheriff’s Department to forcibly evict
the plaintiffs from the property, bar them from entering their mobile homes, or retrieving their
personal property. (Id. at ¶ 50.) On July 19, 2016, a Sheriff’s Deputy arrived and informed
Keshia that he had a Writ of Possession and that she had to leave without taking anything. 4 (Id.
at ¶ 51.) Defendants Crossett and Brobst, Sr. were present during the eviction. (Id. at ¶ 55.)
After being contacted by the plaintiffs’ counsel, the Berks County Court of Common
Pleas issued an order striking the ex-parte writ. (Id. at ¶ 59.) That same evening, the Berks
County Sheriff’s Department served the order striking the ex-parte writ. (Id. at ¶ 60.)
II.

STANDARD OF REVIEW
Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has

not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), the United States Supreme Court recognized that “a plaintiff’s obligation to provide
Jr.’s mother, his brother, or Brobst, Jr. and his family, were living at which property at what
time.
4

The amended complaint contains a description of the events and alleged abuses that the
defendants committed as the eviction process was unfolding. (See Am. Compl. ¶¶ 51–58.)
2

the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Following
these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), subsequently
defined a two-pronged approach to a court’s review of a motion to dismiss. “First, the tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. Thus, although “Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not
unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at
678–79.
Second, the Supreme Court emphasized that “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 232–34 (3d Cir. 2008) (holding that: (1) factual allegations of
complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the
proscribed conduct; and (3) the complaint’s “‘factual allegations must be enough to raise a right
to relief above the speculative level.’” (quoting Twombly, 550 U.S. at 555)).
Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of
review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008
WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a

3

short and plain statement of the claim showing that the pleader is entitled to relief and need not
contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must “accept all
factual allegations in the complaint as true and view them in the light most favorable to the
plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the
court must “determine whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).
III.

DISCUSSION
The Smith defendants 5 and Brobst, Sr. each move to dismiss the plaintiffs’ amended

complaint in its entirety for failure to state a claim under Rule 12(b)(6) and for lack of subject
matter jurisdiction under Rule 12(b)(1), and argue that I should not exercise supplemental
jurisdiction over the plaintiffs’ state law claims. The defendants also argue that the plaintiffs’
claims are barred by the Rooker-Feldman doctrine. Having considered the amended complaint
and the parties’ briefs, I find that the Rooker-Feldman doctrine does not apply to the plaintiffs’
claims. I also find that they have sufficiently stated claims pursuant to § 1983, and I will
therefore exercise supplemental jurisdiction over those state law claims which have been
sufficiently pled as outlined below. I also find, however, that the FDCPA, FCEUA, UTPCPL,
Landlord Tenant Act, civil conspiracy, wrongful use of civil proceedings, and Dragonetti Act
claims fail as a matter of law. I will therefore grant the defendants’ motions to dismiss with
respect to counts four, five, six, seven, eight, ten, and twelve.
A. The Federal Law Claims
In counts one, two, and three of the amended complaint, the plaintiffs set forth claims
pursuant to 42 U.S.C. § 1983 for violations of their Fourteenth Amendment due process rights
5

The “Smith defendants” are defendants David W. Crossett, Esquire, James M. Smith,
Esquire, and Smith Law Group, LLC.
4

and their Fourth Amendment rights against search and seizure, as well as a related claim for
attorneys’ fees pursuant to 42 U.S.C. § 1988. (See Am. Compl. ¶¶ 79–110.) In count four, the
plaintiffs allege that the defendants violated the Fair Debt Collection and Practices Act, 15
U.S.C. § 1692 (“FDCPA”). (Id. ¶¶ 111–17.)
1. Grounds for Dismissal Pursuant to Rule 12(b)(6)
a. Claims Pursuant to § 1983 and § 1988
The plaintiffs allege that, by obtaining the writ in the eviction proceeding without
following the Pennsylvania rules for providing notice, the defendants caused the sheriff to
conduct an unlawful eviction that violated their Fourteenth Amendment due process rights as
well as their Fourth Amendment rights. (See Am. Compl. ¶¶ 81–89, 93–106.)
While conceding that a private individual may be found to have acted under color of state
law for purposes of a § 1983 claim, the defendants argue that they cannot be liable for Fourteenth
Amendment violations in connection with the eviction proceedings because the plaintiffs have
not shown that the defendants had a subjective appreciation that the Pennsylvania ejectment
statute was unconstitutional, or that they acted with malice. (See Smith Defs.’ Mem. Supp. Mot.
Dismiss 7.) This argument misses the mark for two reasons. First, the plaintiffs do not yet have
a burden to “show” that the defendants had a particular state of mind—at the motion to dismiss
phase, the plaintiffs need only set forth plausible allegations. Second, the defendants ignore the
fact that the plaintiffs’ claims are based on the defendants’ alleged failure to comply with all the
necessary Pennsylvania rules relating to notice in eviction proceedings, and not the ejectment
statute or the state court ejectment proceedings.
As to the Fourth Amendment claim, the defendants focus on the fact that the plaintiffs
had notice of the ejectment proceedings, and that they had no possessory interest in the property

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as a result of the state court’s entry of a judgment of possession for Brobst, Sr. (Smith Defs.’
Mem. Supp. Mot. Dismiss 8–9.) As the plaintiffs point out, however, they are asserting Fourth
Amendment claims for an unlawful seizure of their personal property and the mobile homes, in
which they allege that they do have a possessory interest. (Am. Compl. ¶¶ 99–100.) And, as
stated above, the plaintiffs base their claims on the lack of notice as to the “forcible, double
secret eviction,” not the ejectment action. (Am. Compl. ¶ 87.)
Based on the above, the defendants’ motions to dismiss the § 1983 claims and the § 1988
attorneys fee claim in counts one, two, and three are denied.
b.

FDCPA Claim

The FDCPA defines a “debt” as “any obligation or alleged obligation of a consumer to
pay money arising out of a transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5)
(emphasis added). In the amended complaint, the plaintiffs allege that the defendants were
trying to obtain possession of real property that they could not obtain under the law, and
attempting to collect money not expressly authorized or permitted by law. (Am. Compl. ¶¶ 112,
114.) They argue that the defendants’ actions “revolve around the collection of monies Sr. feels
he is due” and that “[p]ursuant to the contingency agreement by and between he and Smith, they
seek to liquidate the property and share the spoils.” (Pls.’ Resp. Opp’n to Smith Defs.’ Mot.
Dismiss 19.) The plaintiffs argue that the defendants made a specific demand for money that the
plaintiffs do not owe, citing an email from defendant Crossett to their attorney in which Crossett
states that he will recommend a certain dollar amount to his client as the amount of security that
the plaintiffs should file in connection with their appeal of the state court’s decision in the

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ejectment proceeding. (Id. and Ex. A.) Even if the plaintiffs are correct that they need not post
security in connection with their appeal, (id. at 19 n.14), the contents of that email do not amount
to an attempt to collect a “debt” as defined by the FDCPA. Accordingly, the FDCPA claim in
count four is dismissed. 6
2. Grounds for Dismissal Pursuant to Rule 12(b)(1)
The defendants argue that the amended complaint must be dismissed for lack of subject
matter jurisdiction because of the Rooker-Feldman doctrine. (See Smith Defs.’ Mem. Supp.
Mot. Dismiss 22–24; Brobst, Sr. Mem. Supp. Mot. Dismiss 19–22.) The Rooker-Feldman
doctrine applies to “cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries
Corp., 544 U.S. 280, 284 (2005). The Supreme Court has also “explained that Rooker–Feldman
is not implicated ‘simply because a party attempts to litigate in federal court a matter previously
litigated in state court.’” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,
166 (3d Cir. 2010) (quoting Exxon Mobile, 544 U.S. at 293). The Third Circuit has stated that
“there 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 ‘complain[s] of injuries caused by [the] statecourt 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., 615 F.3d at 166 (quoting Exxon Mobile, 544 U.S. at 284).
Here, the plaintiffs’ claims do not invite a review and rejection of the state court
judgment in the ejectment action. The plaintiffs’ claims are premised on the way in which the
6

The plaintiffs withdrew their FDCPA claim against Brobst, Sr., but that claim would
otherwise be dismissed for the reasons discussed above. (See Pls.’ Resp. Opp’n to Brobst, Sr.
Mot. Dismiss 1 n.1.)
7

defendants obtained a writ that started the eviction proceeding, not whether they were permitted
to begin proceedings to evict the plaintiffs based on the judgment in state court or whether the
state court decision was correct. Accordingly, the Rooker-Feldman doctrine does not apply to
bar the plaintiffs’ claims from consideration, and the defendants’ motions to dismiss the
amended complaint for lack of subject matter jurisdiction are denied.
B. The State Law Claims
The plaintiffs also assert numerous state law claims, each of which are discussed below.
1. The Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”) and the
Pennsylvania Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”)
The plaintiffs allege that, pursuant to the terms of the FCEUA, a violation of the FDCPA
is a per se violation of the FCEUA and the UTPCPL. (Am. Compl. ¶¶ 199–200.) As discussed
above, the plaintiffs have failed to state an FDCPA claim, and therefore cannot state FCEUA and
UTPCPL claims on that basis. They further alleged that the “Defendants’ conduct as alleged
above also constitutes separate and independent substantive violations of the FCEUA” and that
“Defendants’ acts, as described herein, violated the FCEUA.” (Am. Compl. ¶¶ 121, 123.) These
conclusory allegations are simply insufficient to state a claim. For both these reasons, therefore,
the FCEUA claim in count five is dismissed.
The UTPCPL claim must also be dismissed. As to the Smith defendants, the parties
dispute whether the UTPCPL may be applied to attorneys at all, or whether, as the plaintiffs
assert, that it may apply to attorneys engaged in collection actions. (See Pls.’ Resp. Opp’n to
Smith Defs.’ Mot. Dismiss 19 (citing Pls.’ Ex. A).) As discussed above, Crossett’s email
regarding a proposed amount of security to be posted in connection with an appeal is not an
attempt to collect a debt. As to Brobst, Sr., the allegations are plainly insufficient. The plaintiffs

8

do not indicate how Brobst, Sr. violated the UTPCPL, other than by making vague references to
the underlying dispute in the state court proceedings and the parties’ differing viewpoints as to
who has what rights in the property. Accordingly, count six is dismissed.
2. The Landlord Tenant Act
The plaintiffs have not alleged facts in support of their allegations that the defendants
violated the Landlord Tenant Act, other than by stating that the defendants “intentionally avoided
all” of Pennsylvania’s notice and practice requirements in eviction proceedings. (Am. Compl. ¶
134.) The plaintiffs also failed to make any argument in response to the defendants’ assertions
regarding the state court’s findings that there was no landlord tenant relationship between Brobst,
Sr. and the plaintiffs, and that the plaintiffs were not tenants because they did not pay rent. (See
Smith Defs.’ Mem. Supp. Mot. Dismiss 15.) Count seven is therefore dismissed.
3. Civil Conspiracy
In order to establish liability for civil conspiracy under Pennsylvania law, a plaintiff must
show that: (1) two or more defendants conspired with a common purpose to do (a) an unlawful
act, or (b) a lawful act by unlawful means or for an unlawful purpose; (2) the defendants
committed an overt act in furtherance of the conspiracy; and (3) the plaintiff suffered legal
damages. Weaver v. Franklin County, 918 A.2d 194, 202 (Pa. Commw. Ct. 2007).
Here, the plaintiffs allege that the Smith defendants, who are attorneys and a law firm,
engaged in a civil conspiracy with their client, Brobst, Sr. “Under Pennsylvania law, the
intracorporate conspiracy doctrine holds that, ‘[a] single entity cannot conspire with itself and,
similarly, agents of a single entity cannot conspire among themselves.’” Jarzyna v. Home
Properties, L.P., 114 F. Supp. 3d 243, 279 n.44 (E.D. Pa. July 17, 2015) (quoting Rutherfoord v.
Presbyterian–Univ. Hosp., 417 Pa. Super. 316, 612 A.2d 500, 508 (1992)). The doctrine also

9

applies in the attorney-client context, such that defendants acting within the scope of an attorneyclient relationship cannot be considered conspirators. See Heffernan v. Hunter, 189 F.3d 405,
407, 412–13 (3d Cir. 1999) (addressing an allegation of civil conspiracy under 42 U.S.C. §
1985); General Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313–14 (3d Cir.
2003) (applying Pennsylvania law). Because the Smith defendants cannot be considered
conspirators for acting on behalf of their client, and because Brobst, Sr. cannot have conspired
with himself, count eight must be dismissed.
4. Intentional Infliction of Emotional Distress
While the defendants correctly point out in their briefs that the degree of extreme
behavior required to support a claim for intentional infliction of emotional distress is difficult to
establish, I will allow this claim to proceed past the motion to dismiss phase. The motions to
dismiss count nine are therefore denied.
5. Wrongful Use of Civil Proceedings/The Dragonetti Act
The plaintiffs allege that the defendants’ conduct—which they describe as a “self-serving
bastardization of legal process” that was “intended to thwart [the p]laintiffs’ appeal rights,
possessory interests, and to pressure and humiliate Bill, Roxanne, and Keshia”—constitutes the
tort of wrongful use of civil proceedings. (Am. Compl. ¶¶ 149–50.) They also vaguely plead
some of the elements of a Dragonetti Act claim. (Am. Compl. ¶¶ 123–28.)
“Via the Dragonetti Act, 42 Pa. C.S. § 8351, ‘Pennsylvania has codified the common-law
cause of action for wrongful use of civil proceedings. The tort is interpreted and applied broadly
against those who use legal process as a tactical weapon to coerce a desired result that is not the
legitimate object of the process.’” Di Loreto v. Costigan, 600 F. Supp. 2d 671, 686–87 (E.D. Pa.
2009) (quoting Schmidt v. Currie, 470 F. Supp. 2d 477, 480 (E.D. Pa. 2005)) (additional

10

citations and internal quotation marks omitted). “The Dragonetti Act provides that a person who
takes part ‘in the procurement, initiation or continuation of civil proceedings against another’
may be liable for wrongful use of civil proceedings if, ‘(1) [h]e acts in a grossly negligent
manner or without probable cause and primarily for a purpose other than that of securing the
proper discovery, joinder of parties or adjudication of the claim in which the proceedings are
based; and (2) [t]he proceedings have terminated in favor of the person against whom they are
brought.’” Id. at 687 (quoting 42 Pa. Cons. Stat. § 8351).
The plaintiffs’ Dragonetti Act claim fails as a matter of law because they cannot satisfy
the first element. The defendants, in instituting the eviction proceedings, acted with a purpose of
adjudicating the claims that were the subject of the state court ejectment proceedings. Even if, as
the plaintiffs allege, they did so without complying with the necessary rules, it is still the case
that their primary purpose was to evict the plaintiffs from the property to which Brobst, Sr. was
entitled to possession based on the outcome of the underlying state court action. Because the
plaintiffs cannot bring the common law version of Dragonetti Act claim, 7 and because they
cannot satisfactorily plead the first element of a Dragonetti Act claim, counts ten and twelve are
dismissed.
6. Abuse of Process
The plaintiffs next allege that the defendants intentionally used the Pennsylvania Rules
of Civil Procedure “to circumvent Plaintiffs[’] procedural due process rights so as to displace
them of their possessory interest in the premises before they could timely and properly assert

7

In discussing the advent of the Dragonetti Act, courts have noted that “[i]t is apparent
that the legislature’s purpose was to replace the common law cause of action with a new and
broader cause of action, not to create an alternative to the common law cause of action.” Nw.
Nat. Cas. Co. v. Century III Chevrolet, Inc., 863 F. Supp. 247, 250 (W.D. Pa. 1994).

11

such as proscribed under [the law,]” and that such conduct constitutes abuse of process. (Am.
Compl. ¶¶ 121–22.)
Despite Brobst, Sr.’s argument to the contrary, Pennsylvania courts still recognize the tort
of abuse of process, 8 as described below.
Pennsylvania common law defines a cause of action for abuse of
process as follows: The tort of “abuse of process” is defined as the
use of legal process against another primarily to accomplish a
purpose for which it is not designed. To establish a claim for
abuse of process it must be shown that 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.
Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. 2008) (internal citation omitted). “The
gravamen of abuse of process is the perversion of the particular legal process for a purpose of
benefit to the defendant, which is not an authorized goal of the procedure.” Id. To support an
abuse of process claim, “the [plaintiff] must show some definite act or threat not authorized by
8

Brobst, Sr. cites Stone Crushed Partnership v. Jackson, 908 A.2d 875, 887 n.1 for the
proposition that the abuse of process tort was subsumed by the passage of the Dragonetti Act.
(Def. Brobst, Sr. Mem. Supp. Mot. Dismiss 16.) Subsequent decisions, however, make clear that
the abuse of process tort is still recognized by the Pennsylvania courts. Although the
Pennsylvania “Supreme Court has stated, in dicta, that the Dragonetti Act ‘subsumes both the
torts of malicious use of process and abuse of process,’ . . . since Stone Crushed Partnership, this
Court has continued to recognize common law abuse of process claims.” Freundlich & Littman,
LLC v. Feierstein, No. 3381 EDA 2015, 2017 WL 712911, at *4 (Feb. 23, 2017), reargument
denied (May 2, 2017); see also Langman v. Keystone Nazareth Bank & Trust Co., 502 F. App’x
220, 224 (3d Cir. 2012) (noting that “the Pennsylvania Supreme Court’s statement in Stone
Crushed regarding subsumption within § 8351 was obiter dicta” and that Pennsylvania “courts
have consistently treated common law abuse of process claims as separate from Dragonetti §
8351 wrongful use of civil proceedings claims, notwithstanding the Stone Crushed dicta.”)
(citation omitted).
Brobst, Sr. also incorrectly argues that an abuse of process claim requires a termination
favorable to the plaintiff. (Def. Brobst, Sr. Mem. Supp. Mot. Dismiss 17.) In fact, there is “a
judicial chorus of support demonstrat[ing] that a plaintiff need not show favorable termination of
judicial proceedings as part of an abuse of process claim.” Langman, 502 F. App’x at 225
(internal citation and quotation marks omitted).

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the process, or aimed at an objective not legitimate in the use of the process.” Id. But, “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.” Id. As the plaintiffs have alleged that
the defendants both purposely failed to provide notice in connection with the eviction
proceedings and did so with bad intentions, I must decline to dismiss the abuse of process claim
in count eleven at this stage of proceedings.
7. Trespass/Assumpsit
The plaintiffs also bring a claim for trespass, based on the defendants’ actions which they
allege unlawfully evicted them and displaced them from their mobile homes, outbuilding, and
their personal items. (Am. Compl. ¶¶ 131–33.) The defendants argue that they cannot have
committed trespass because Brobst, Sr. was awarded possession of the property in the state court
proceedings. These arguments ignore the distinction between the state court ejectment
proceedings and the entry and striking of the writ in the eviction proceedings, as well as the
entrance on the property as opposed to entry into the plaintiffs’ mobile homes that were located
on the property. Whether the plaintiffs can ultimately prevail on a trespass claim remains to be
seen. 9 It is for now sufficient that the plaintiffs have alleged that the defendants entered their
property, as opposed to “the property,” during an unlawful eviction proceeding undertaken
without the required notice. The motions to dismiss count thirteen are, therefore, denied.
8. Conversion
The plaintiffs’ last substantive claim alleges that the defendants deprived them of the use
of their mobile homes, outbuilding, and the personal items within those structures as a result of
9

The parties rely on case law pertaining to a landlord’s trespass in claims brought by
tenants. As discussed above, the state court found that there was no landlord tenant relationship
between Brobst, Sr. and the plaintiffs. Going forward, therefore, the plaintiffs will have to
establish that a trespass occurred without reference to tenants’ rights.
13

the eviction proceedings. (Am. Compl. ¶¶ 135–36.) They argue that, because the eviction was
prompted by “an illegal Writ,” and because it denied them access to their property, the
defendants are liable for conversion. (Pls.’ Resp. Opp’n to Smith Defs.’ Mot. Dismiss 22.) The
Smith defendants argue that the eviction was lawful because it was set in motion by a judgment
of possession, but they do not address the plaintiffs’ contention that the nature of the writ, which
was obtained and executed without notice, renders the eviction unlawful. (See Smith Defs.’
Mem. Supp. Mot. Dismiss 21.) Their argument, therefore, does not require dismissal of this
claim.
Brobst, Sr. argues that the conversion claim fails because real property cannot be the
subject of an action for conversion. (Brobst, Sr. Mem. Supp. Mot. Dismiss 18–19 (citing
Sterling v. Redevelopment Authority of City of Philadelphia, 836 F. Supp. 2d 251, 270 (E.D. Pa.
2011)).) It is not clear from the amended complaint whether the plaintiffs’ trailers are
permanently affixed to the land such that they are realty, or whether they are still movable and
therefore considered personalty. 10 Thus, I cannot determine whether the mobile homes, or only
their contents, are chattels which can be the subject of a conversion claim.

10

As Pennsylvania courts have stated,
“[t]he test to determine whether a chattel becomes part of the realty
[is] as follows:
A fixture is an article in the nature of personal property which has
been so annexed to the realty that it is regarded as part and parcel
of the land. Black’s Law Dictionary 575 (5th ed. 1979). The
considerations to be made in determining whether or not a chattel
becomes a fixture include (1) the manner in which it is physically
attached or installed, (2) the extent to which it is essential to the
permanent use of the building or other improvement, and (3) the
intention of the parties who attached or installed it.
Custer v. Bedford Cnty. Bd. of Assessment & Revision of Taxes, 910 A.2d 113, 116–17 (Pa.
Commw. Ct. 2006) (quoting In re Sheetz, Inc., 657 A.2d 1011, 1013 (Pa. Commw. Ct. 1995))
(additional citation omitted).

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For these reasons, the defendants’ motions to dismiss count fourteen are denied.
9. Declaratory Relief and Jury Demand
Finally, the motions to dismiss counts fifteen and sixteen are denied, as those counts
simply set forth forms of requested relief in connection with the plaintiffs’ § 1983 claims, as well
as their state law claims.
IV.

CONCLUSION
In light of the foregoing, the defendants’ motions to dismiss are granted in part and

denied in part. For the reasons discussed above, counts four, five, six, seven, eight, ten, and
twelve are dismissed without prejudice.
An appropriate Order follows.

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