A.M., a Minor et al v. Landscape Structures, Inc.

Filing 41

MEMORANDUM re Mtns to Dismiss 28 and 29 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 10/28/15. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

A.M., a minor, by and through her parent
and natural guardian, GRETCHEN
FORGIONE, and GRETCHEN FORGIONE
in her own right,
Plaintiffs
v.
LANDSCAPE STRUCTURES, INC.,
Defendant/Third-Party Plaintiff
v.
CHAMBERSBURG AREA SCHOOL
DISTRICT, HAMILTON HEIGHTS
ELEMENTARY SCHOOL, and GEORGE
ELY ASSOCIATES, INC.,
Third-Party Defendants

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CIVIL NO. 1:14-CV-1376

MEMORANDUM

I.

Introduction
We are considering two motions to dismiss. This case relates to personal

injuries that Plaintiff A.M. suffered while she was using playground equipment. (Doc. 1-1).
Third-Party Defendants Chambersburg Area School District and Hamilton Heights
Elementary School (together School Defendants) have filed a motion to dismiss portions
of the third-party complaint and a motion to dismiss crossclaims asserted by Plaintiffs.
(Doc. 28; Doc. 29). For the reasons discussed below, we will deny the motion to dismiss
portions of the third-party complaint, we will grant the motion to dismiss Plaintiffs‟

crossclaims, and we will sua sponte dismiss Plaintiffs‟ crossclaims against Third-Party
Defendant George Ely Associates, Inc.
II.

Background
On June 8, 2010, Plaintiff A.M. suffered injuries while playing on a “Track

Ride” at Hamilton Heights Elementary School. (Doc. 1-1 at 13). Alleging strict products
liability, negligence, and breach of warranties, A.M. and her mother, Gretchen Forgione,
filed a complaint in the Pennsylvania Court of Common Pleas of Franklin County against
Landscape Structures, Inc. (Landscape), the manufacturer of the Track Ride. (Doc. 1-1).
Landscape removed the case to this court based on our diversity jurisdiction under 28
U.S.C. § 1332 – Plaintiffs are citizens of Pennsylvania, while Landscape is a citizen of
Minnesota. (Doc. 1). On January 29, 2015, Plaintiffs filed a motion for joinder. (Doc. 13).
They sought to add as a defendant George Ely Associates, Inc. (Ely Associates), a
Pennsylvania company that distributed the Track Ride in question. (Id.). The following
day, Landscape filed a motion for leave to file a third-party complaint against
Chambersburg Area School District and Hamilton Heights Elementary School. (Doc. 14).
Landscape opposed Plaintiffs‟ motion to join Ely Associates, asserting that
Plaintiffs were attempting to destroy diversity of citizenship. (Doc. 15). Plaintiffs replied by
offering to have Landscape add Ely Associates as a third-party defendant in order to
preserve diversity. (Doc. 18 at 2). We held a conference call on March 30, 2015 to
discuss the parties‟ positions. Inclined to grant Plaintiffs‟ motion for joinder and remand
the case to state court, we gave Landscape the option, as suggested by Plaintiffs, to add
Ely Associates as a third-party defendant, thereby preserving complete diversity of

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citizenship and our subject-matter jurisdiction under § 1332. Landscape chose to exercise
that option.
On April 27, 2015, Landscape filed an amended motion for leave to file a
third-party complaint, which we subsequently granted. (Doc. 19; Doc. 21). On May 1,
2015, Landscape filed its third-party complaint pursuant to Federal Rule of Civil Procedure
14 and named Chambersburg Area School District, Hamilton Heights Elementary School,
and George Ely Associates, Inc. as third-party defendants. (Doc. 23). In its complaint,
Landscape alleges that each third-party defendant is liable for contribution and indemnity.
(Id.). Although not named as a defendant, Plaintiffs filed an answer to Landscape‟s
complaint and asserted state-law crossclaims against each third-party defendant. (Doc.
24). On June 30, 2015, the School Defendants filed a motion to dismiss paragraphs
11(c)-(f) of Landscape‟s third-party complaint and a motion to dismiss Plaintiffs‟
crossclaims. We address each motion in turn.
III.

Discussion
A. Motion to Dismiss Paragraphs 11(c)-(f) of the Third-Party Complaint
1. Standard of Review
The School Defendants move to dismiss paragraphs 11(c)-(f) pursuant to

Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) authorizes the dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Under Rule
12(b)(6), we must “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 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, 231 (3d Cir.

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2008)). While a complaint need only contain “a short and plain statement of the claim,”
FED. R. CIV. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570. “The plausibility standard is not akin
to a „probability requirement,‟ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 556). “[L]abels and conclusions” are not enough, and a court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
2. Paragraphs 11(c)-(d)
In paragraphs 11(c)-(d), Landscape alleges that the School Defendants are
liable for contribution and indemnity because they failed to install, inspect, and maintain a
fall absorbing surface beneath the Track Ride. (Doc. 23 at 3). In their motion to dismiss,
the School Defendants argue that Pennsylvania‟s Political Subdivision Tort Claims Act
grants them immunity on these claims. (Doc. 33 at 6).
The Political Subdivision Tort Claims Act provides that “no local agency shall
be liable for any damages on account of any injury to a person or property caused by any
act of the local agency or an employee thereof or any other person.” 42 PA. CONS. STAT.
ANN. § 8541. There are exceptions, however. See 42 PA. CONS. STAT. ANN. § 8542.
Pursuant to the one exception relevant in this case, a local agency may be held liable for
the care, custody, or control of real property in its possession. § 8542(b)(3). The School
Defendants argue that the real property exception does not apply to the claims in

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paragraphs 11(c)-(d) because the fall absorbing surface below the Track Ride – mulch – is
personalty, not real property. (Doc. 33 at 6-8; Doc. 36 at 5-7).
Pennsylvania law separates chattels used in connection with real estate into
three categories to determine whether they are personalty or real property. First, if the
chattels “are manifestly furniture, as distinguished from improvements, and not peculiarly
fitted to the property with which they are used,” they are personalty. Clayton v. Lienhard,
167 A. 321, 322 (Pa. 1933). On the other end of the spectrum, if the chattels “are so
annexed to the property that they cannot be removed without material injury to the real
estate or to themselves,” the chattels are realty, “even in the face of an expressed
intention that they should be considered personalty.” Id. For chattels that fall between the
first two categories, intent governs. That is, if the chattels are physically connected with
the real property, but “are so affixed as to be removable without destroying or materially
injuring the chattels themselves, or the property to which they are annexed,” the chattels
“become part of the realty or remain personalty, depending upon the intention of the
parties at the time of the annexation.” Id. Implicitly placing mulch into this third category
of chattels, the School Defendants argue that mulch is personalty because it could be
removed without damage. (Doc. 33 at 7-8).
While we agree that mulch belongs in the third category,1 contrary to the
School Defendants‟ argument, property within this category does not automatically
become personalty simply because it can be removed without damage. Rather, the rule

1. Citing Rivera v. Pleasant Valley Sch. Dist., 32 Pa. D. & C. 5th 568 (Pa. Com. Pl. 2013),
Landscape suggests that mulch cannot be removed without damage and therefore it is real
property under the second category of chattels. Although we agree with the court in Rivera that
mulch is not so readily movable that it appropriately fits into the furniture category, we disagree
that the removal of mulch results in material damage to the real property or the mulch.
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makes clear that intent at the time of annexation dictates. Thus, the mulch is real property
if the School Defendants intended it to become part of the realty at the time it was
installed. Because our scope of review on 12(b)(6) motion is limited to the face of the
complaint, see Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010), we are unable to
determine, at this stage,2 that the School Defendants‟ intent was to the contrary.
Therefore, viewing the complaint in the light most favorable to Landscape, paragraphs
11(c)-(d) state a plausible claim under the real property exception to local agency
immunity. Accordingly, we will deny the School Defendants‟ motion to dismiss paragraphs
11(c)-(d).
3. Paragraphs 11(e)-(f)
In paragraphs 11(e)-(f) of the third-party complaint, Landscape claims that
the School Defendants are liable for contribution and indemnity because they failed to
follow recommendations and instructions for the installation and maintenance of the Track
Ride. (Doc. 23 at 3). In their motion to dismiss, the School Defendants reframe these
claims. They posit that Landscape, in reality, is claiming either: (1) the School Defendants
negligently supervised the installation and maintenance of the Track Ride; or (2) the
School Defendants themselves were negligent in the installation and maintenance of the
Track Ride. (Doc. 33 at 8-12; Doc. 36 at 7-8). If it is the former, the School Defendants
argue that they are immune from liability because the real property exception does not
extend to negligent supervision, and if it is the latter, they argue the claims should be
dismissed as duplicitous of paragraphs 11(a)-(b). (Id.).

2. The School Defendants are free to raise their immunity argument again at the summary
judgment stage, at which point we can examine all evidence produced during discovery.
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We disagree with the School Defendants‟ characterization of paragraphs
11(e)-(f) as negligent supervision claims. Again limiting our review to the face of the thirdparty complaint, we find nothing that alleges or otherwise suggests negligent supervision.
To the contrary, the plain language of paragraphs 11(e)-(f) allege that the School
Defendants, themselves, failed to follow recommendations and instructions for the
installation and maintenance of the Track Ride. Thus, the School Defendants‟ argument
that the real property exception does not extend to negligent supervision is immaterial.
Moreover, we decline to dismiss paragraphs 11(e)-(f) as duplicitous.
Reading paragraph 11 as a whole, we read subsections (a)-(b) to make general
allegations that the School Defendants failed to properly install and maintain the Track
Ride. Subsections (c)-(d), concerning the fall absorbing surface beneath the Track Ride,
and subsections (e)-(f), concerning the failure to follow recommendations and instructions,
provide specific allegations of how Landscape‟s installation and maintenance was
improper. We see no reason to dismiss portions of the third-party complaint that elucidate
the basis of Landscape‟s indemnity and contribution claim. Accordingly, we will deny the
School Defendants‟ motion to dismiss paragraphs 11(e)-(f).
B. Motion to Dismiss Plaintiffs’ Crossclaims
1. Standard of Review
The School Defendants move to dismiss Plaintiffs‟ crossclaims pursuant
Federal Rule of Civil Procedure 12(b)(1). Rule 12(b)(1) allows a court to dismiss a
complaint for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1). When subjectmatter jurisdiction is challenged based on the face of the complaint, a court looks only at
the allegations in the complaint and accepts those allegations as true. U.S. ex rel.

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Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). The Plaintiff bears the
burden to “convince the court it has jurisdiction,” Gould Elecs., Inc. v. United States, 220
F.3d 169, 178 (3d Cir. 2000), but a court should only dismiss a complaint for lack of
subject-matter jurisdiction if it appears with certainty that the assertion of jurisdiction would
be improper.3 Empire Kosher Poultry, Inc. v. United Food & Commercial Workers Health
& Welfare Fund of Ne. Pa., 285 F. Supp. 2d 573, 577 (M.D. Pa. 2003).
2. Subject-Matter Jurisdiction of Crossclaims Against School
Defendants
“The basic statutory grants of federal-court subject-matter jurisdiction are
contained in 28 U.S.C. §§ 1331 and 1332.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513
(2006). Section 1331 gives us original subject-matter jurisdiction when the claim arises
under the Constitution or the laws of the United States. 28 U.S.C. § 1331. Section 1332
gives us original subject-matter jurisdiction when the claim is between parties of diverse
citizenship and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. When a
federal court has original jurisdiction under §§ 1331 or 1332, “it can maintain
[supplemental] jurisdiction over claims that lack an independent basis of jurisdiction if
those claims „are so related to claims‟ within the court‟s jurisdiction „that they form part of
the same case or controversy under Article III of United States Constitution.‟” HB Gen.
Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1197 (3d Cir. 1996)(quoting 28 U.S.C.
§ 1367(a)).

3. The School Defendants argue that since Plaintiffs failed to file a brief in opposition as required
by the local rules, we must grant their motion to dismiss as unopposed. (Doc. 37). We disagree.
The Third Circuit has made it clear that district courts should conduct a merits analysis before
granting an unopposed motion to dismiss. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d
Cir. 1991).
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We agree with the School Defendants that we have neither original nor
supplemental subject-matter jurisdiction over Plaintiffs‟ crossclaims. Because Plaintiffs‟
crossclaims are all pursuant to Pennsylvania common law, not the Constitution or the laws
of the United States, we lack original jurisdiction under § 1331. (Doc. 24). Likewise, we
lack original jurisdiction under § 1332 because Plaintiffs and the School Defendants are
not of diverse citizenship – all are citizens of Pennsylvania. (Doc. 1; Doc. 23). Finally,
§ 1367(b) prohibits us from exercising supplemental jurisdiction in this circumstance.
Pursuant to § 1367(b), if our original jurisdiction is founded solely on diversity of
citizenship, we cannot exercise supplemental jurisdiction over claims against persons
made parties under Federal Rule of Civil Procedure 14, if it would be inconsistent with the
diversity requirements of § 1332. 28 U.S.C. § 1367(b). Here, our original jurisdiction is
based solely on diversity, see (Doc. 1; Doc. 23), the School Defendants were made
parties under Rule 14, see (Doc. 19), and since Plaintiffs‟ and the School Defendants are
all citizens of Pennsylvania, exercising supplemental jurisdiction would be inconsistent
with the diversity requirement of § 1332. Therefore, § 1367(b) precludes us from
exercising supplemental jurisdiction. Because we lack original and supplemental
jurisdiction over Plaintiffs‟ crossclaims against the School Defendants, we will grant the
School Defendants‟ motion to dismiss.
3. Subject-Matter Jurisdiction of Crossclaims Against Ely Associates
Although Ely Associates was not included in the motion to dismiss, federal
courts have an independent and ongoing obligation to satisfy themselves of their subjectmatter jurisdiction, even in the absence of a challenge from any party. Arbaugh, 546 U.S.
at 514. “A necessary corollary [of that obligation] is that the court can raise sua sponte

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subject-matter jurisdiction concerns.” Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d
Cir. 2003). We do so here and find that our analysis above is equally applicable to
Plaintiffs‟ crossclaims against Ely Associates: Plaintiffs‟ crossclaims are state-law claims;
Plaintiffs and Ely Associates are all citizens of Pennsylvania, see (Doc. 23 at 2); our
original jurisdiction is based solely on diversity jurisdiction; Ely Associates was made a
party pursuant to Rule 14; and exercising supplemental jurisdiction would be inconsistent
with the diversity requirement of § 1332.4 Accordingly, we will sua sponte dismiss
Plaintiffs‟ crossclaims against Ely Associates.5 See Zambelli Fireworks Mfg. Co. v. Wood,
592 F.3d 412, 421 (3d Cir. 2010) (“[W]e can dismiss a suit sua sponte for lack of subject
matter jurisdiction at any stage in the proceeding.”).
IV.

Conclusion
For the reasons discussed above, we will deny the School Defendants‟

motion to dismiss paragraphs 11(c)-(f) of the third-party complaint, we will grant the motion
to dismiss Plaintiffs‟ crossclaims, and we will sua sponte dismiss Plaintiffs‟ crossclaims
against George Ely Associates, Inc. Upon the School Defendants filing an answer to the
third-party complaint, we will schedule a case management conference. We will issue an
appropriate order.

4. This was clear to us when we entertained Plaintiffs‟ motion for joinder, and it was precisely the
reason Landscape included Ely Associates as a third-party defendant instead of Plaintiffs joining it
as a first-party defendant.
5. Even if we had subject-matter jurisdiction, we note that a crossclaim is not the appropriate
vehicle for Plaintiffs to assert claims against a third-party defendant. Federal Rule of Civil
Procedure 13(g) provides that crossclaims can only be properly asserted against a coparty. Fed.
R. Civ. P. 13(g); Stahl v. Ohio River Co., 424 F.2d 52, 56 (3d Cir. 1970) (defining “coparties” as
parties on the same side of the principal litigation). The appropriate procedural vehicle for
Plaintiffs‟ claims is Rule 14(a)(3).
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