Sanders v. County of Bradford et al

Filing 76

MEMORANDUM - (order to follow).Signed by Honorable Malachy E Mannion on 6/4/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(bs)

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

2009 WL 2194522
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Florence R. PARKER, Plaintiff,
v.
PENNSTAR BANK, NBT, et al., Defendants.
No. 3:09-CV-0490.

|

July 22, 2009.

Attorneys and Law Firms
Florence R. Parker, East Orange, NJ, pro se.
Joseph L. Denaples, Nogi Appleton Weiberger & Wren PC,
Scranton, PA, for Defendants.
Opinion
MEMORANDUM
A. RICHARD CAPUTO, District Judge.
*1 Presently before the Court is Report and
Recommendation (“R & R”) of Magistrate Judge J. Andrew
Smyser in the above-captioned matter (Doc. 38) as well as the
Brief in Objection to the R & R by Defendants Pennstar Bank,
NBT, David M. Gregory, Esq., Kathy Black, and LynDa
Starnes (sued as “Lyda Sterns”) (Doc. 40). For the reasons
stated below, the Court will overrule Defendants' objections
and adopt the Magistrate Judge's recommendations.

BACKGROUND
I. Factual & Procedural History
Pro se Plaintiff Florence Parker initiated the present civil
suit with a complaint filed on October 9, 2008 in the
U.S. District Court for the District of New Jersey. (Doc.
1.) Parker's original complaint alleges a number of civil
rights claims pursuant to 42 U.S .C. § 1983 and § 1985 as
well as several state law claims. Parker filed an amended
complaint on October 27, 2008, prior to the filing of any
responsive pleadings or motions. (Doc. 5.) The amended
complaint includes none of the claims from Parker's original
complaint, but instead raises several civil claims pursuant
to the Racketeer Influenced and Corrupt Organizations Act

Defendant Pennstar Bank, NBT (“Pennstar”), its attorney,
David Gregory, and certain of its employees, Kathy Black
and LynDa Starnes, 2 are among a number of Defendants
that Parker alleges engaged in an enterprise to deprive her
of certain rights and property, including a 24.7 acre parcel
of real estate in Wayne County, Pennsylvania. Parker had
earlier received a seventy-five thousand dollar ($75,000)
home equity loan from Pennstar, secured by this property.
(Ex. A, Doc. 16.) On October 9, 2007, Pennstar filed a
mortgage foreclosure proceeding against Parker in the Court
of Common Pleas of Wayne County, Pennsylvania, alleging
default on repayment of the loan. (Id.) This action resulted in
entry of a judgment in mortgage foreclosure against Parker
and in favor of Pennstar for eighty-one thousand, two hundred
twenty-nine dollars and fifty-nine cents ($81, 229.59). (Ex.
M, Doc. 16.)
On December 18, 2008, Defendants Pennstar, Gregory,
Black, and Starnes filed a motion to dismiss Parker's federal
court action. (Doc. 16.) The motion argues for dismissal based
on a lack of personal jurisdiction, or, in the alternative, for
a change of venue to the U.S. District Court for the Middle
District of Pennsylvania. It also argues for dismissal based on
principles of res judicata. Judge Hochberg of the District of
New Jersey granted the motion to transfer the action to this
Court by Order of March 12, 2009. (Doc. 24.) She did not
address the motion to dismiss on res judicata principles.
On January 6, 2009, prior to the action's transfer, Parker filed
a motion for sanctions under Federal Rule of Civil Procedure
11. (Doc. 19.) Parker requests sanctions on the grounds that
the Wayne County mortgage foreclosure action was frivolous
and initiated in bad faith. That motion was not addressed by
the District of New Jersey and is pending here.
*2 On March 26, 2009, Magistrate Judge Smyser issued
an Order directing Parker to show cause why certain as yet
unserved Defendants should not be dismissed from the action
pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 28.)
Parker failed to respond to the Order.
On April 28, 2009, Defendants Pennstar, Gregory, Black, and
Starnes filed a motion for involuntary dismissal of Parker's
action for failure to prosecute, pursuant to Federal Rule
of Civil Procedure 41(b). (Doc. 36.) Defendants move for
dismissal on the grounds that they have been prejudiced
by Parker's failure to respond to their correspondence,

(“RICO”), 18 U.S.C. §§ 1961 et seq. 1

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

1

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

communication, or court filings, or to meaningfully pursue
her action.

II. Report and Recommendation & Objections
Magistrate Judge Smyser's R & R addresses three issues.
First, he addresses Pennstar, Gregory, Black, and Starnes'
motion to dismiss based on res judicata principles. (Doc.
16.) He concludes that Parker's claims are not precluded
by the earlier Wayne County mortgage foreclosure action
and therefore recommends denying Defendants' motion to
dismiss on those grounds. Second, he addresses Parker's
failure to comply with his order to show cause why the
complaint should not be dismissed as to unserved defendants
and recommends dismissal of these parties pursuant to
Federal Rule of Civil Procedure 4(m). The Magistrate Judge
notes that the issue of Parker's failure to serve a number
of defendants was raised in Defendants Pennstar, Gregory,
Black, and Starnes' motion for involuntary dismissal, but
makes no recommendation for disposition of this motion.
Finally, he addresses Parker's motion for sanctions. (Doc. 19.)
He concludes that the motion lacks merit and recommends it
be denied.

F.2d 5, 6-7 (3d Cir.1984). In its de novo review, the Court
may accept, reject, or modify, in whole or in part, the factual
findings or legal conclusions of the magistrate judge. 28
U.S.C. § 636(b)(1)(C); Owens v. Beard, 829 F.Supp. 736, 738
(M.D.Pa.1993) (McClure, J.). Although the review is de novo,
the statute permits the Court to rely on the recommendations
of the Magistrate Judge to the extent it deems proper.
See United States v. Raddatz, 447 U.S. 667, 675-76, 100
S.Ct. 2406, 65 L.Ed.2d 424 (1980) (“Congress intended to
permit whatever reliance a district judge, in the exercise of
sound judicial discretion, chose to place on a magistrate's
proposed findings and recommendations”); Goney, 749 F.2d
at 6-7; Ball v. U.S. Parole Comm'n, 849 F.Supp. 328, 330
(M.D.Pa.1994) (Kosik, J.). Uncontested portions of the report
may be reviewed at a standard determined by the district
court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985) (the statute neither prevents
nor requires a particular standard if no objections are filed);
Goney, 749 F.2d at 7. At the very least, the Court should
review uncontested portions for clear error. See, e.g., Cruz v.
Chater, 990 F.Supp. 375, 376-77 (M.D.Pa.1998) (Venaskie,
J.) (citing Advisory Committee notes on Federal Rule of Civil
Procedure 72(b), implementing 28 U.S.C. § 636(b)(1)(C)).

Parker filed no objections to the R & R.
Defendants Pennstar, Gregory, Black, and Starnes filed a
Brief in Objection to the R & R, raising two objections.
(Doc. 40.) First, they object to the recommended denial of
their motion to dismiss based on res judicata principles.
Defendants concede that the Magistrate Judge accurately
set forth the applicable law, but argue that he erred in its
application. Second, Defendants object to “the recommended
disposition of defendants' motion for involuntary dismissal
pursuant to Federal Rule of Civil Procedure 41(b).” (Defs.'
Br. in Objection 7, Doc. 40.) Defendants apparently believe
that, because he made reference to the motion but did
not discuss Rule 41(b), the Magistrate Judge implicitly
recommends denial. Parker did not file a response to
Defendants' objections.

LEGAL STANDARD
Where objections to a magistrate judge's report are filed,
the Court must conduct a de novo review of the contested
portions of the report, 28 U.S.C. § 636(b)(1)(C), Sample v.
Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989), provided the
objections are both timely and specific, Goney v. Clark, 749

DISCUSSION
I. Recommendations with Objection
A. Motion to Dismiss on Res Judicata Principles
*3 Defendants Pennstar, Gregory, Black, and Starnes object
to the recommended denial of their motion to dismiss on
res judicata principles. Defendants argue that Parker's claims
against Pennstar are barred under the doctrine of res judicata
and her claims against Gregory, Black, and Starnes are
precluded under the doctrine of collateral estoppel.
As an initial matter, the Court must define the scope of
Parker's claims, as the record reflects some confusion on
this point. Parker filed her original complaint on October
9, 2009. (Doc. 1.) Prior to any response by a defendant,
Parker filed an amended complaint on October 27, 2008.
(Doc. 5.) Pursuant to Federal Rule of Civil Procedure 15(a)
(A), Parker had the right to file an amended complaint once
as of course before being served with a responsive pleading.
However, Parker included a paragraph in her amended
complaint asserting that: “All counts are incorporated within
this amended complaint and with the original civil complaint
filed October 9, 2008.” (Am.Compl.4.)

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

2

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

Parker may not incorporate by reference the claims of her
original pleading into her amended complaint. “An amended
complaint supercedes the original version in providing the
blueprint for the future course of a lawsuit.” Snyder v.
Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir.2002).
Thus, the amended pleading must include both the claims
previously asserted and the new claims a plaintiff seeks
to add. Hummel v. Care, No. 08-cv-1567, 2009 U.S. Dist.
LEXIS 26047, at *2, 2009 WL 813976 (M.D.Pa. Mar. 27,
2009) (Conner, J.). Parker's claims are thus limited to those
raised in her amended complaint, namely, to her several civil
RICO claims.
To determine whether Parker's RICO claims against
Defendants are barred by preclusion principles, this Court
must look to state preclusion law. See Marrese v. Am. Acad.
of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327,
84 L.Ed.2d 274 (1985) (“The preclusive effect of a state
court judgment in a subsequent federal lawsuit generally is
determined by the full faith and credit statute [28 U.S.C.
§ 1738] ... Section 1738 embodies concerns of comity and
federalism that allow the States to determine ... the preclusive
effect of judgments in their own courts.”)
Under Pennsylvania law, the concept of res judicata
“encompasses two related, yet distinct principles: technical
res judicata and collateral estoppel.” Stilp v. Pennsylvania,
910 A.2d 775, 783 (Pa.Commw.Ct.2006).
Technical res judicata provides that
where a final judgment on the merits
exists, a future lawsuit on the same
cause of action is precluded. Collateral
estoppel acts to foreclose litigation in
a subsequent action where issues of
law or fact were actually litigated and
necessary to a previous final judgment.

of action between this and the Wayne County mortgage
foreclosure action. “Generally, causes of action are identical
when the subject matter and the ultimate issues are the same
in both the old and new proceedings.” Id. The state mortgage
foreclosure action presented a breach of contract issue. The
elements of a RICO claim do not raise the same issue. 3
Moreover, the subject matter of the two suits is not the same.
Both actions involve the 24.7 acre parcel of real estate in
Wayne County deeded to Parker, but it features differently
in the two cases. In the state court action, Pennstar alleged
a right to foreclose on the property because it secured the
defaulted debt. At the heart of Parker's RICO allegations is
the contention that the moving defendants conspired with
other defendants to deprive her of her property, including the
parcel, through illegal means. While there is some overlap
between Parker's factual allegations here and allegations she
raised as a defendant in the state action, they form only part
of Parker's much broader allegations in the present action. 4
Defendants additionally argue that Parker should be barred
by technical res judicata because she did not raise her
present claims among her counterclaims to the state action.
Defendants correctly note, “[r]es judicata applies to claims
that were actually litigated as well as those matters that
should have been litigated.” Id. “A party must raise all matters
related to an issue at the first opportunity or be forever
barred from raising them again.” Winpenny v. Winpenny,
434 Pa.Super. 348, 643 A.2d 677, 679 (Pa.Super.Ct.1994).
However, Parker alleges a plan by multiple defendants to
obtain her property covering a time period prior to, including,
and after the state court litigation. Indeed, she alleges that
the state court action itself was instituted in order to coerce
her. With these allegations in mind, it cannot be said that
Parker's first opportunity to raise her RICO claims arose in the
course of the state action. Because the state court and present
actions do not present identical causes of action, the Court
will deny Defendants' motion as to their technical res judicata
argument.

Id. (citations omitted).
For technical res judicata to apply, the following four (4)
factors must be present: (1) identity of the thing sued upon
or for; (2) identity of the causes of action; (3) identity of the
persons or parties to the action; and (4) identity of the quality
or capacity of the parties suing or being sued. Id. (citations
omitted).
*4 Technical res judicata does not bar Parker's RICO
claims against Pennstar because there is no identity of causes

Defendants next argue that Parker's claims against Gregory,
Black, and Starnes are precluded under the doctrine of
collateral estoppel. Collateral estoppel, also known as issue
preclusion, “forecloses re-litigation in a later action, of
an issue of fact or law which was actually litigated and
which was necessary to the original judgment.” Hebden v.
Workmen's Comp. Appeal Bd., 534 Pa. 327, 632 A.2d 1302,
1304 (Pa.1993) (quoting City of Pittsburgh v. Zoning Bd. of
Adjustment of Pittsburgh, 522 Pa. 44, 559 A.2d 896, 901
(Pa.1989)) (internal quotation marks omitted). Defendants

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

3

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

argue that several issues raised by Parker as a defendant to
the state action must be precluded from relitigation here,
including the following allegations: (1) improper service of
court filings in the Wayne County action on Parker; (2) failure
to provide her adequate notice under state law of Pennstar's
intent to foreclose; and (3) fraudulent modification of the loan
contract by Pennstar. 5
*5 Relitigation of an issue of fact or law determined in a
prior proceeding is precluded under the doctrine of collateral
estoppel if five requirements are met:
(1) the issue decided in the prior case
is identical to the one presented in
the later action; (2) there was a final
adjudication on the merits; (3) the
party against whom the plea is asserted
was a party or in privity with a party in
the prior case; (4) the party or person
privy to the party against whom the
doctrine is asserted had a full and
fair opportunity to litigate the issue
in the prior proceeding; and (5) the
determination in the prior proceeding
was essential to the judgment.
Erisco Indus. v. Workers' Comp. Appeal Bd., 955 A.2d 1065,
1069 (Pa.Commw.Ct.2008) (citing Office of Disciplinary
Counsel v. Kiesewetter, 585 Pa. 477, 889 A.2d 47 (Pa.2005)).
After reviewing the record of the state action, as presented
on this record by the parties, the Court cannot conclude
whether the issues identified by Defendants were considered
by the state court and thus were actually litigated and
essential to the judgment. Defendants are correct that Parker
raised the these issues in the course of the Wayne County
action. Parker effectively acknowledges this point in her
amended complaint. (See Am. Compl. ¶¶ 12-25.) However,
the state court record does not indicate whether these issues
were before the court when it ruled on Pennstar's mortgage
foreclosure claim. This is largely due to the confusing
posture in which Parker raised them. She first raised the
issues of improper foreclosure notice and modification of the
loan contract, styled as counterclaims, with her answer to
Pennstar's complaint in mortgage foreclosure. (Gregory Aff.,
Ex. D, Doc. 16.) When Pennstar later moved for summary
judgment on its claim and requested oral argument, the state
court issued notice of the argument and required parties
to submit briefs. (Id. at Exs. H, I, J.) Parker filed a brief
titled “Argument for Summary Judgment and Dismissal with

Prejudice for Plaintiff's Egregious Acts,” in which she raises
the three identified issues and purports to move for summary
judgment. (Ex. E, Doc. 40.) It is not clear whether this filing
is intended as a brief in opposition to Pennstar's motion, a
cross-motion for summary judgment on Pennstar's claim, or
a motion for summary judgment on her counterclaims. After
Parker's failure to appear at oral argument, the state court
entered an order granting Pennstar's motion for summary
judgment without opinion, but did not dispose of or otherwise
discuss the purported counterclaims. (Gregory Aff., Ex. L.)
It is impossible to discern from the order whether the court
considered the issues raised by Parker in her counterclaims or
brief in coming to its decision.
Defendants argue that summary judgment on the mortgage
foreclosure action would have been precluded if the state
court credited Parker's arguments that she was improperly
served, that she received inadequate notice of intent to
foreclose, or that the loan contract was improperly modified.
However, it is also possible that the state court did not view
Parker's arguments as pled, argued, or otherwise raised as
defenses to Pennstar's claim-given the confused posture in
which she raised these issues-and did not consider them in
its disposition of Pennstar's motion for summary judgment.
The record simply does not shed light on how the state
court understood Parker's counterclaims and brief to relate
to Pennstar's claim, on which it entered judgment. Because
the Court cannot determine whether the identified issues were
finally decided by the state court and essential to its judgment,
Defendants motion will be denied as to the collateral estoppel
argument.
*6 For the foregoing reasons, the Court will adopt
Magistrate Judge Smyer's recommendation to deny
Defendants Pennstar, Gregory, Black, and Starnes' motion to
dismiss on preclusion principles. (Doc. 16.)

B. Motion for Involuntary Dismissal Pursuant to Federal
Rule of Civil Procedure 41(b)
Defendants Pennstar, Gregory, Black, and Starnes object
to “the recommended disposition of defendants' motion for
involuntary dismissal pursuant to Federal Rule of Civil
Procedure 41(b).” (Defs.' Br. in Objection 7.) Defendants
Brief in Objection argues in favor of dismissal of Parker's
action on Rule 41(b) grounds. 6 Though the R & R does not
discuss Rule 41(b) or explicitly recommend any disposition
of the relevant motion, Defendants apparently believe that

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

4

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

Magistrate Judge reaches and implicitly recommends its
denial.
The Court disagrees with Defendants that the R & R
recommends any disposition of their motion for involuntary
dismissal. Though mentioned in the R & R, the motion
was not directly addressed and appears to remain open.
Magistrate Judge Smyser notes that the existence of yet
unserved defendants was raised in Defendants' motion, but
also notes that the issue was ripe prior to its filing based
on Parker's failure to comply with his order to show cause.
(R & R at 4, Doc. 38.) He then specifically recommends
dismissal of the unserved defendants based on Parker's failure
to comply with his March 26 Order, pursuant to Federal Rule
of Civil Procedure 4(m) . 7 (Id. at 13, 14-15 & n. 1, 889
A.2d 47.) He does not address Rule 41(b) or recommend
disposition of Defendants' motion for involuntary dismissal.
Because the issue was not before the Magistrate Judge, this
Court will not address the question of dismissal on grounds of
Rule 41(b) in this review. Defendants' motion for involuntary
dismissal (Doc. 36) remains open.

II. Recommendations without Objection
Recommendations to which no objections are made are
reviewed for clear error. Cruz, 990 F.Supp. at 376-77. The
Court finds no clear error with regard to the recommended
disposition of Parker's motion for sanctions (Doc. 19) or the
recommendation to dismiss the amended complaint as against
a number of unserved defendants pursuant to Rule 4(m).
The Court will therefore adopt Magistrate Judge Smyser's
recommendations for the reasons set forth in the R & R. The
Court will deny Parker's motion and dismiss the amended
complaint as to Defendants CitiMortgage, Inc., John Doe
burglar-agent, Cadoza Lumber Valley Co., Inc., Carmen
Vitale, Ray Jenson, Lynda Starnes (sued as “Lyda Sterns”),
John Doe-affiant, Jane Doe-affiant, John Nolan, Credit
Counseling Center, John Doe-Supervisor/Director Dreher
Township, C. Daniel Higgins, Esq., Joan Carol Langston,
Milford Valley Abstract, First Penn Abstract, Kathy M.
Young, National Penn Bank, John Doe, Jane Doe, Arrow
Head Electric, and Bobby Lee.

Starnes to the R & R and adopt Magistrate Judge Smyser's
recommendations. The Court will therefore deny Defendants'
motion to dismiss on principles of res judicata (Doc. 16);
deny Plaintiff Parker's motion for sanctions (Doc. 19); and
dismiss the amended complaint as against certain unserved
defendants.
*7 An appropriate Order follows.

ORDER
NOW, this 22nd day of July, 2009, IT IS HEREBY
ORDERED that:
(1) The objections to Magistrate Judge Smyser's Report &
Recommendation by Defendants Pennstar Bank, NBT, David
M. Gregory, Esq., Kathy Black, and LynDa Starnes are
OVERRULED.
(2) The recommendations of Magistrate Judge Smyser's
Report & Recommendation (Doc. 38) are ADOPTED.
(3) Defendants Pennstar Bank, NBT, David M. Gregory, Esq.,
Kathy Black, and LynDa Starnes' Motion to Dismiss based
on Res Judicata (Doc. 16) is DENIED.
(4) Plaintiff Florence Parker's Application for Sanctions
(Doc. 19) is DENIED.
(5) The following Defendants are DISMISSED from this
action: CitiMortgage, Inc., John Doe burglar-agent, Cadoza
Lumber Valley Co., Inc., Carmen Vitale, Ray Jenson, Lynda
Starnes (sued as “Lyda Sterns”), John Doe-affiant, Jane Doeaffiant, John Nolan, Credit Counseling Center, John DoeSupervisor/Director Dreher Township, C. Daniel Higgins,
Esq., Joan Carol Langston, Milford Valley Abstract, First
Penn Abstract, Kathy M. Young, National Penn Bank, John
Doe, Jane Doe, Arrow Head Electric, and Bobby Lee.
(6) The case is RECOMMITTED to Magistrate Judge
Smyser for further proceedings.

REPORT AND RECOMMENDATION
CONCLUSION
J. ANDREW SMYSER, United States Magistrate Judge.
For the foregoing reasons, the Court will overrule the
objections of Defendants Pennstar, Gregory, Black, and

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

5

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

This civil action was initiated with a complaint filed in the
United States District Court for the District of New Jersey on
October 9, 2008. An amended complaint was filed on October
27, 2008.

a part of this concerted plan. She values the 24.7 acres at
$1,200,000 and the trees on the land at $300,000. She claims
that $10,450 in personal property items were stolen from or
broken or damaged in her residence.

The case was transferred to this District by Order of March
12, 2009, D.N.J. Civil No. 08-5009 (Hochberg, J.).

There are three motions pending. One is the motion to dismiss
the complaint for failure to state a claim upon which relief
can be granted, filed in the United States District Court for the
District of New Jersey on December 18, 2008 (Doc. 16), as a
part of the motion to dismiss filed there and left for resolution
in this court by the Order of March 12, 2009, Hochberg, J.
(Doc. 24). The other is the motion to dismiss the complaint as
to unserved defendants (Doc. 36), filed on April 28, 2009, an
issue that was ripe before that motion, however, by the Order
of March 26, 2009 (Doc. 28) and the absence of any response
from the plaintiff to that Order. The third is the plaintiff's
motion for sanctions. (Doc. 19).

The plaintiff's claims in the amended complaint are related
to a 24.7 acre parcel of real estate in Wayne County,
Pennsylvania that had been acquired by and deeded to the
plaintiff. She had borrowed money from defendant PennstarNBT using a $75,000 home equity line of credit secured by
the Wayne County parcel owned by the plaintiff. On October
9, 2007, Pennstar filed a claim in the Court of Common
Pleas of Wayne County to collect a debt due to Pennstar
from plaintiff Ms. Parker in the amount of $78,719.26, based
upon the use by the plaintiff of the home equity loan line of
credit and her alleged failure to repay the loan. The Wayne
County civil action resulted in a judgment in the amount
of $81,229.59 in favor of Pennstar and against the plaintiff.
Many of the plaintiff's claims in the amended complaint
concern alleged procedural errors and incorrect decisions
made in the course of the state court litigation of the civil
action by the bank against the plaintiff. She asserts that filed
documents were not served on her. She asserts that her due
process rights were not protected in that process, resulting in
a summary judgment against her.

The defendants have argued res judicata and claim
preclusion. The plaintiff argues that her civil rights cause(s) of
action are not precluded by the earlier mortgage foreclosure
litigation, particularly because her civil rights claims are
brought against persons and entities who were not parties
to the mortgage foreclosure action. Her argument is in part
also that the judgment in the mortgage foreclosure action is
not a valid judgment. She asserts that it was not entered in
compliance with due process requirements, was not entered
pursuant to an exercise of power granted to the court, and was
the result of extrinsic fraud, misrepresentation and duress.

Several of the plaintiff's claims in this civil action relate to her
Wayne County parcel, but involve matters and occurrences
other than the Pennstar action against her based upon the
home equity loan. Some of her claims involve contracts that
she had with persons to do work at her property. She alleges
a breach of a contract to cut timber from her acres and to
compensate her for the wood on the part of defendant Cadoza
Valley Lumber. She alleges a failure to complete electrical
repairs by defendant Arrow Head Electric and its owner,
Bobby Lee.

The April 22, 2008 Judgment in Mortgage Foreclosure
entered by the Court of Common Pleas of Wayne County,
was entered in Civil No. 696 of 2007, an action initiated upon
a Complaint in Mortgage Foreclosure brought by Pennstar
Bank, a division of NBT Bank, NA, against Florence R.
Parker. The complaint alleged that the defendant there, Ms.
Parker, had defaulted in payments under a $75,000 home
equity loan. The mortgaged property is described in the
complaint. The complaint sought recovery of $78,719.26.

*8 One of her claims involves the entry of her residence
by unknown person(s) (John Doe-burglar) after the Court
of Common Pleas of Wayne County had granted summary
judgment in favor of the bank and against her in the bank's
foreclosure action brought on the basis of the home equity
nonpayment claim. She alleges a concerted set of actions
by the Bank and Cadoza to deprive her of the value of her
property and the lumber on it without compensation to her.
She asserts that defendant Gregory, the Bank's attorney, was

A motion to dismiss pursuant to Rule 12(b)(6) challenges the
legal sufficiency of the plaintiff's complaint; the court must
decide whether, even if the plaintiff were able to prove all
of his allegations, he would be unable to prevail. Mortensen
v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d
Cir.1977). When deciding a motion to dismiss, the court
must accept all material allegations of the complaint as true
and draw all inferences in the light most favorable to the
plaintiff. Pennsylvania House, Inc. v. Barrett, 760 F.Supp.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

6

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

439, 449 (M.D.Pa.1991). However, “conclusory allegations
of law, unsupported conclusions and unwarranted inferences
need not be accepted as true.” Id. at 449-50.
*9 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a
short and plain statement of the claim showing that the pleader
is entitled to relief.’ “ Erickson v. Pardus, 551 U.S. 89, 127
S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Detailed factual
allegations are not required. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).
However, more is required than labels, conclusions and a
formulaic recitation of the elements of a cause of action.
Id. at 1965. “Factual allegations must be enough to raise
a right to relief above the speculative level.” Id. Stating a
claim requires a complaint with enough factual matter to
suggest the required elements of a claim. Phillips v. County of
Allegheny, 515 F.3d 224, 234 (3d Cir.2008). However, “this
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence
of’ the necessary element.” Id. (quoting Twombly, supra, 127
S.Ct. at 1965). The statement required by Rule 8(a)(2) need
only give the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests. Erickson, supra., 127
S.Ct. at 2200. The “notice pleading standard relies on liberal
discovery rules and summary judgment motions to define
disputed facts and issues and to dispose of unmeritorious
claims.” Swierkiewicz v. Sorema, 534 U.S. 506, 512, 122
S.Ct. 992, 152 L.Ed.2d 1 (2002).
A complaint filed by a pro se litigant is to be liberally
construed and “ ‘however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.’ ” Erickson, supra, 127 S.Ct. at 2200 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976)).
The burden to establish that a claim is foreclosed as a matter of
res judicata or claim preclusion is on the party asserting that
the claim is foreclosed. The plaintiff states a claim that there
was not a breach by her of her loan agreement. Even in the
absence of a stated set of factual findings or a stated rationale
for the Wayne County Court's Judgment, it can probably be
inferred from the fact of the Judgment that the Court found
there to have been a breach of the loan agreement. But the
plaintiff also claims procedural violations by the plaintiff
Bank and its attorney in the Wayne County litigation. There
is not any basis to infer that these claims were addressed in
the Wayne County case.

The fact that the state court's Judgment was entered pursuant
to a grant of summary judgment must be considered here
in the context of an issue of claim preclusion. There was
not a hearing. The opportunity that the defendant borrower
had to present her factual contentions in that litigation is
not shown. The Court acted upon a motion for summary
judgment. The plaintiff asserted in opposing the summary
judgment motion that the loan agreement presented with the
Bank's summary judgment motion was not the loan agreement
that she had signed. That assertion would appear to have given
rise to a material issue of factual dispute. How that claim
was resolved by the Court is not shown. That it was rejected
can be inferred. Why it was rejected can not be inferred,
and whether its rejection was pursuant to a procedure and a
standard justifying claim preclusion can not be addressed at
this time.
*10 We do not mean to state that the issue of whether
there was a breach of the loan agreement can be relitigated
in federal court. However, we are not prepared in this pro se
plaintiff case to conclude with certainty that the only claim
presented by the pleadings is the issue whether there was a
breach of the loan agreement.
Defendant David Gregory in a Declaration (Doc. 16-2) states
that he brought the Wayne County foreclosure action on
October 3, 2007. On October 31, 2007, defendant Ms. Parker
applied for Pennsylvania Homeowners' Emergency Mortgage
Assistance. That was denied on January 28, 2008, because she
was not a Pennsylvania resident.
After defendant Ms. Parker had on April 17, 2007 filed a
notification in the mortgage foreclosure litigation that all
correspondence should be sent to 290 Nevin Road, P.O. Box
A, Newfoundland, PA 18445, all pleadings in the litigation
were sent to Ms. Parker at that address, Gregory states.
On February 25, 2008, Gregory filed a summary judgment
motion in the Wayne County case. After briefing, the
Judgment of April 22, 2008 was entered. An appeal to the
Pennsylvania Superior Court was taken by Ms. Parker. The
appeal was dismissed on procedural grounds, on the basis that
Ms. Parker as the appellant did not file a brief when required.
The subject matter jurisdiction of the Wayne County Court
of Common Pleas over the mortgage foreclosure action
involving a Wayne County piece of real property is not
reasonably in dispute. Proper notice to Ms. Parker, defendant

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

7

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

there, plaintiff here, and the opportunity to defend against the
Wayne County mortgage foreclosure action is in dispute. She
filed a response to that complaint in mortgage foreclosure,
however there was not a hearing and issues raised here are not
shown to have been addressed.
The plaintiff argues in her brief (Doc. 21) that the Judgment
of the Wayne County Court of Common Pleas was not based
upon a hearing on the merits of the mortgage foreclosure
claim of Pennstar Bank. She asserts that her mortgage loan
was not in default. She alleges that there was a modification
of her loan agreement of which she did not have notice.
Res judicata or claim preclusion relieves the parties of
the cost and vexation of multiple lawsuits, conserves
judicial resources, and by preventing inconsistent decisions,
encourages reliance on adjudication. Drum v. Nasuti, 648
F.Supp. 888, 898 (E.D.Pa.1986), aff'd, 831 F.2d 286 (1987).
Claim preclusion requires a defendant to demonstrate that
there has been (1) a final judgment on the merits in a prior
suit involving (2) the same parties or their privies and (3) a
subsequent suit based on the same cause of action. Lubrizol
Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.1991).
The Wayne County Court of Common Pleas entered a
Judgment in Mortgage Foreclosure in Pennstar Bank v.
Florence A. Parker, in the amount of $81,229.59, on April
22, 2008. (Doc. 16-2, Exh. M). The court had granted the
plaintiff's motion for summary judgment, without an opinion.
(Id., Exh. L). The motion had been based upon the contention
that Ms. Parker had not made all payments due and owing
under the terms of the loan documents. The motion was
supported by a general statement in an affidavit that the
borrower had failed to make all monthly payments. Ms.
Parker's Answer to the complaint denying that she had failed
to make payments due under the loan agreement and asserting
that the loan document pleaded in that action by the bank was
not the loan document that she had signed in September of
2004. (Id., Exh. D).
*11 There is no indication in the record of this case of an
actual resolution of claim(s) or counterclaims and defenses
in the determination of the Wayne County Court to enter
a judgment, and accordingly there is not a basis presented
here for the application of claim preclusion or res judicata
principles.

It will be recommended that this complaint not be dismissed
as to defendants Pennstar Bank, NBT, Black, Starns and
Gregory on the basis of claim preclusion.
By Order of March 26, 2009 (Doc. 28) it was ordered that
the plaintiff show cause why defendants CitiMortgage, Inc.,
John Doe burglar-agent, Cadoza Lumber Valley Co., Inc.,
Carmen Vitale, Ray Jenson, LynDa Starns, John Doe-affiant,
Jane Doe-affiant, John F. Nolan, Credit Counseling Center,
John Doe-Supervisor/Director, Dreher Township, C. Daniel
Higgins, Esq., Joan Carol Langston, Milford Valley Abstract,
First Penn Abstract, Kathy M. Young, National Penn Bank,
John Doe, Jane Doe, Arrow Head Electric and Bobby Lee
should not be dismissed pursuant to Fed.R.Civ.P. 4(m).
The plaintiff did not respond to that Order directing her to
show cause why the complaint should not be dismissed as to
those named, unserved defendants.
The plaintiff's motion for sanctions (Doc. 19) is a motion in
which the plaintiff asked the federal court, while the case was
in the District of New Jersey, to impose sanctions against
defendant Gregory pursuant to Rule 11 of the Federal Rules
of Civil Procedure for instituting the Wayne County litigation
and for conduct relating to the discovery process on the part
of defendant Gregory in his earlier capacity as counsel for
the plaintiff Pennstar Bank in the Wayne County mortgage
foreclosure litigation. The plaintiff asserts that the claim in
the Wayne County case that a debt was due was frivolous
because there was not a debt due. The application of Rule 11
of the Federal Rules of Civil Procedure to a lawyer's conduct
in litigation in another court would not be an authorized
application of Rule 11.
For the foregoing reasons, it is recommended that the court
deny the motion of defendants Pennstar Bank, David M.
Gregory, Esquire, Kathy Black and LynDa Starnes (Doc. 16)
to dismiss the complaint for failure to state a claim upon
which relief can be granted; that the complaint be dismissed
as to defendants CitiMortgage, Inc., John Doe burglar-agent,
Cadoza Lumber Valley Co., Inc., Carmen Vitale, Ray Jenson,
LynDa Starns, John Doe-affiant, Jane Doe-affiant, John
F. Nolan, Credit Counseling Center, John Doe-Supervisor/
Director, Dreher Township, C. Daniel Higgins, Esq., Joan
Carol Langston, Milford Valley Abstract, First Penn Abstract,
Kathy M. Young, National Penn Bank, John Doe, Jane Doe,
Arrow Head Electric and Bobby Lee pursuant to Rule 4(m) 1 ,
that the plaintiff's motion for sanctions (Doc. 19) be denied
and that the case be remanded to this magistrate judge.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

8

Parker v. Pennstar Bank, NBT, Not Reported in F.Supp.2d (2009)

Footnotes

1
2
3
4
5
6
7

1

Parker raises a number of RICO claims, heading each Count with a different alleged predicate offense, including extortion, mail
fraud, obstruction of justice, and violation of the Pennsylvania Hate Crimes Act. (See Am. Compl., Doc. 5.)
Parker alleges that these individual defendants acted as agents of Pennstar. (See Am. Compl. at 2.)
The elements that must be pled to state a civil RICO claim are: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 (1985). The statutory definition of “racketeering activity” incorporates the
elements of a large number of federal and state crimes. See 18 U.S.C. § 1961(1).
As Magistrate Judge Smyser noted, Parker is not at liberty to relitigate the state judgment in mortgage foreclosure in this forum.
A valid state court judgment is afforded full faith and credit by federal courts. 28 U.S.C. § 1738. The Court merely concludes that
Parker does not raise an identical claim here to the claim decided in the Wayne County action.
By arguing that Parker's claims against Gregory, Black, and Starnes are precluded in their entirety by the doctrine of collateral
estoppel, Defendants apparently argue that the identified issues are dispositive of the RICO claims. Because I find collateral estoppel
inapplicable on other grounds, see infra, I need not reach this argument.
Federal Rule of Civil Procedure 41(b) provides, in relevant part: “If the plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or any claim against it.”
Federal Rule of Civil Procedure 4(m) provide, in relevant part:
If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
The motion of April 28, 2009 (Doc. 36) raises the failure to serve these defendants. The Order of March 26, 2009 (Doc. 28) had
directed the plaintiff to show cause why the complaint should not be dismissed as to these defendants. The plaintiff did not respond
to that Order. Without further briefing, the court should dismiss the complaint as to these unserved defendants pursuant to Rule 4(m).

End of Document

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

9