Wojciechowski et al v. Musial et al
MEMORANDUM (Order to follow as separate docket entry) re 9 MOTION to Dismiss Signed by Honorable James M. Munley on 1/11/18. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN WOJCIECHOWSKI and
ANNE DALVET, as
CO-ADMINISTRATORS FOR THE
ESTATE OF ELEANOR S. MURPHY,
MARLENE MUSIAL, MELINDA
CUPPLES and WILLIAM CUPPLES, :
Before the court for disposition is the defendants’ motion to dismiss for lack
of subject matter jurisdiction and for failure to state a claim under Rule 12(b)(1)
and Rule 12(b)(6) of the Federal Rules of Civil Procedure. The parties have
briefed their respective positions and the matter is ripe for disposition.
Decedent Eleanor Murphy passed away on February 4, 2016. (Doc 1,
Compl. ¶ 2). Shortly after her death, defendants Marlene Musial, Melinda
Cupples and Williams Cupples, all residents of Delaware, traveled to decedent’s
home in Blythe Township, Schuylkill County, PA. (Id. ¶¶ 6-8, 16).
Plaintiff Anne Dalvet was also at the residence and in her presence, the
defendants went through the decedent’s home looking for valuables that had
been owned by the decedent. (Id. ¶ 17). While searching, Defendant Marlene
Musial removed two fire boxes filled with tightly bound $50 and $100 bills. (Id. ¶
19). The money was not counted at the time, but Plaintiff Dalvet estimates that
the amount of cash was in excess of $100,000.00. (Id. ¶¶ 19-20).1
The three defendants left the decedent’s house with the boxes of cash. (Id.
¶ 22). In addition to the cash, the defendants also took two curio cabinets from
the house. (Id. ¶ 23). The cabinets were filled with antiques and collectibles,
which plaintiff estimates to be worth in excess of $75,000. (Id.) Several weeks
later Defendant Marlene Musial and Plaintiff Anne Dalvet were selected as coadministrators of the decedent’s estate. (Id. ¶ 25).
In a meeting between the estate lawyer and the co-administrators, Musial
failed to mention the items and cash that she and the others had already
removed from the decedent’s residence. (Id. ¶ 28). Plaintiff Dalvet
subsequently informed the attorney of the items and cash that defendants had
removed from the house. (Id. ¶ 29). She also confronted Defendant Marlene
Musial about them. (Id. ¶ 30). Musial informed Plaintiff Dalvet that all she had to
return to the estate was $250.00 in quarters and that plaintiff should not say
anything to the attorney about the other items and cash. (Id. ¶ 31).
According to plaintiffs’ brief, the defendants placed the boxes of cash on the
kitchen table and then began to dance around and scream in excitement over the
discovery of the money. (Doc. 11, Pl. Br. at 2).
Subsequently, the estate lawyer confronted Musial, who then admitted
having the cash and indicated she was “sitting on it” to ensure that estate bills
were paid. (Id. ¶ 32). Later, Marlene Musial indicated that she and the other
defendants had taken a few thousand dollars, and she deposited a substantial
sum of cash into the estate’s bank account. (Id. ¶ 50).
Marlene Musial was eventually removed as co-administrator of the estate.
(Id. ¶ 35). Plaintiffs aver that defendants made numerous purchases and other
transactions with the assets removed from the decedent’s residence. (Id. ¶ 34).
Based on these facts, the plaintiffs instituted the instant case by filing a two-count
complaint. The complaint alleges: Count 1, Conversion against all the
defendants (Id. ¶¶ 36-42); and Count 2, Fraud against Marlene Musial. (Id. ¶¶
43-57). Plaintiff seeks damages in excess of $100,000, pre- and post-judgment
interest, punitive damages and attorney’s fees.
In response to service of the complaint, the defendants filed the instant
motion to dismiss. Defendants’ motion raises two issues, whether the complaint
is subject to the probation exception to federal jurisdiction in that it is an issue
that would ordinarily be decided by the probate court and that otherwise, the
complaint fails to state a claim because the factual allegations are not sufficient
to support the causes of action.
Plaintiffs claim that we have jurisdiction under the diversity jurisdiction
statute, 28 U.S.C. ' 1332. Plaintiffs are citizens of Pennsylvania and the
decedent’s estate is filed in Pennsylvania. (Doc. 1, Compl. ¶¶ 10-11). The
defendants are citizens of Delaware. (Id. at ¶12). Additionally, plaintiffs allege
that the amount in controversy exceeds $75,000. (Id. ¶ 13). As discussed
below, however, defendants argue that we do not have jurisdiction because of
the “probate exception” to federal jurisdiction.
As noted above, the defendants’ motion to dismiss raises two issues,
whether the probate exception divests us of jurisdiction and whether plaintiffs
failed to allege sufficient facts to support their claims. We will address each
I. Probate exception
The defendant invokes the “probate exception” to federal jurisdiction and
asserts that because this matter falls within the exception, we should dismiss the
The Supreme Court has described the probate exception as follows:
[T]he probate exception reserves to state probate courts
the probate or annulment of a will and the administration
of a decedent’s estate; it also precludes federal courts
from endeavoring to dispose of property that is in the
custody of a state probate court. But it does not bar
federal courts from adjudicating matters outside those
confines and otherwise within federal jurisdiction.
Marshall v. Marshall, 547 U.S. 293, 310 (2006).
Application of the elements of this exception reveals that it does not bar
jurisdiction in the instant case. The plaintiffs do not ask this court to probate or
annul a will. Further, they do not seek to have this court administer the
Next, we must determine whether the plaintiffs are calling on the federal
courts to dispose of property that is in custody of the state probate court. Id. A
reading of the complaint reveals that they are not. Plaintiffs allege that the
defendants converted over $100,000.00 in cash and other valuable items. This
property is not in the custody of the state probate court, but is evidently still in the
possession of the defendants.
Accordingly, we find that the cause of action which plaintiffs assert do not
fall under the probate exception to federal diversity jurisdiction.
II. Sufficiency of the complaint’s factual allegations
Next, the defendant attacks the complaint’s factual allegations pursuant to
Federal Rule of Civil Procedure 12(b)(6). When a 12(b)(6) motion is filed, the
sufficiency of the allegations in the complaint is tested. Granting the motion is
appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff
has not pleaded Aenough facts to state a claim to relief that is plausible on its
face,@ or put another way, Anudged [his or her] claims across the line from
conceivable to plausible.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The Third Circuit interprets Twombly to require the plaintiff to describe
Aenough facts to raise a reasonable expectation that discovery will reveal
evidence of@ each necessary element of the claims alleged in the complaint.
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that Ajustify
moving the case beyond the pleadings to the next stage of litigation.@ Id. at
The issue is whether the facts alleged in the complaint, if true, support a
claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court
must accept as true all factual allegations in the complaint and give the pleader
the benefit of all reasonable inferences that can fairly be drawn therefrom, and
view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir.1997). To decide a motion to dismiss, a court
generally should consider only the allegations in the complaint, exhibits attached
to the complaint, matters of public record, and documents that form the basis of a
claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993).
The defendant challenges the sufficiency of both of plaintiffs’ causes of
action. We will address them in turn.
The first count of plaintiffs’ complaint alleges conversion of the decedent’s
assets by all three defendants. Defendants argue that this count only pleads a
claim against Defendant Marlene Musial and not the other two individual
defendants. We disagree. As discussed above, the factual allegations of the
complaint assert that all three defendants searched through the defendants’
house and removed cash and other valuables. Thus, the motion to dismiss
Count I of plaintiffs’ complaint for failure to state a claim, will be denied.
Count II of plaintiffs’ complaint asserts a cause of action for fraud against
Defendant Marlene Musial. Defendants argue that this count is faulty as it does
not properly assert fraud. After a careful review, we disagree.
The element of a cause of action for fraud are as follows:
(1) a representation; (2) which is material to the
transaction at hand; (3) made falsely, with knowledge of
its falsity or recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on it;
(5) justifiable reliance on the misrepresentation; and (6)
the resulting injury was proximately caused by the
Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super. Ct. 2001) (internal
quotation marks omitted).
The law provides special requirements for pleading fraud in a complaint.
Rule 9 of the Federal Rules of Civil Procedure states: “In alleging fraud or
mistake, a party must state with particularity the circumstances constituting fraud
or mistake. Malice, intent, knowledge, and or other conditions of a person’s mind
may be alleged generally.”
Defendants argue that no statements were made to induce the plaintiffs to
act in reliance thereon or that plaintiff took action in reliance on the correctness of
the presentation resulting in damage or injury.
The complaint alleges, however, that Musial misrepresented the following:
whether she removed cash and personal property from decedent’s home;
whether she eventually turned over all of the cash and personal property to the
estate; and the amount of money she had to return to the estate. (Doc. 1,
Compl. ¶¶ 44-46, 48-50). Also allegations are made regarding whether plaintiffs
relied on Musial’s misrepresentations. Specifically, the complaint alleges: “The
Plaintiffs did rely on said misrepresentations to the detriment of the Estate and its
beneficiaries.” (Doc. 1, Compl. ¶ 53). The decedent’s estate was unable to
declare and account for the items that Musial took and concealed. (Id. ¶ 54). “In
addition, because of Defendant Musial’s misrepresentations, the Estate lost the
ability to react immediately to her actions to ensure that all property, cash and
personal, was promptly returned and/or accounted-for.” (Id. ¶ 55). Although, this
allegation is not overly specific, we find that it is sufficient to withstand a motion
to dismiss. The parties may decide to revisit this issue at the summary judgment
The defendants’ motion to dismiss will be denied. The probate exception to
diversity jurisdiction does not apply because plaintiffs are not attempting to
probate a will in federal court and the property at issue is not in custody of the
state probate court. Additionally, plaintiffs have sufficiently pled the conversion
and fraud claims to overcome the motion to dismiss. An appropriate order
Date: January 11, 2018
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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