Sones et al v. Smay et al

Filing 9

MEMORANDUM (Attachments: # 1 R&R)(eo, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER ALLEN SONES and
LAURA ANN SONES,
Plaintiffs
v.
JOHN ANDREW SMAY, et al.,
Defendants

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CIVIL ACTION NO. 4:CV-11-1073
(Judge Jones)
(Magistrate Judge Blewitt)

REPORT AND RECOMMENDATION
I. Background.
On June 3, 2011, Plaintiffs, Christopher Allen Sones and Laura Ann Sones, pro se,
filed this civil rights action, seemingly pursuant to 42 U.S.C. § 1983, alleging fraud, identity,
theft, extortion, collection of money under false pretenses, terrorizing witnesses, legal
malpractice and legal misrepresentation by a court-appointed Executor of an estate. (Doc. 1).
Plaintiffs simultaneously filed a Motion for Leave to Proceed in forma pauperis which they both
executed. (Doc. 2). Plaintiffs did not properly state the basis for this Court’s jurisdiction in their
Complaint. Plaintiffs indicated that their Complaint was filed under “Title 46A SS [section]
781.” (Doc. 1, p. 1). Also, Plaintiffs stated that the basis of their Complaint was legal
malpractice and legal misrepresentation. (Id., p. 4).
Plaintiffs named the following three Defendants in their Complaint: John Andrew
Smay, Esquire, The Commonwealth of Pennsylvania, and The Court of Common Pleas 44th
Judicial District Sullivan County Branch. (Doc. 1).

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Plaintiffs alleged that “John A. Smay made false accusations of fraud [against them.]
The Sullivan County Court of Common Pleas ... and the Commonwealth of PA commit[t]ed the
act of identity theft.” (Id., p. 1). Plaintiffs further allege as follows in the 6-paragraph
attachment to their Complaint:
1.
John A. Smay with the allowance of Sullivan County Court Of
Common Pleas unlawfuly (sic) given the name Christopher Williamson To
Christopher Sones to try to Collect Money From Christopher Sones that
Mr. Smay sayes (sic) is agenst (sic) my property Located at 221 Pecks Road
Sonestown PA, 17758.
2.
I Christopher A. Sones and Laura A. Sones respectfully Challange (sic)
the integraty (sic) and and (sic) compatance (sic) of John A. Smay and his
ability to conduct himself in a mannor (sic) suitable to conduct his dutys (sic)
as executix (sic)/administrator due to his involvement in 4 other cases
involveing (sic) family members and the involvement of his personal opinion
and feelings to plaintiffs and whitnesses (sic).
3.
John A Smay filed a case agenst (sic) The estate of Marvin R. Sones
after the the (sic) appropreate (sic) time allowed by Law. Marvin R. Sones
Died 5/24/2003 John A. Smay Filed his case 12/2007 after the fact the
statute of limitations had come into play. Abuseing (sic) the rights of the
deceaced (sic) Marvin R. Sones and Christopher A. and Laura A. Sones.
4.
John A. Smay and Robin A. Read have made fale (sic) accusations of
fraud agenst (sic) Christopher A. Sones and Laura A. Sones on several occasions
on official documents and under oath in court proceadings (sic) witch (sic)
has (sic) damaged the reputation and sound piece (sic) of mind that sayed (sic)
indeviduals (sic) are entitled to and have the right to enjoy. Also affected and
disrupeded (sic) the health of Christopher A. Sones physical and emotionaly (sic)
due to the stress and abuse set forth.
5.
John A. Smay is attempting to extort and collect money from the
sayed (sic) estate for bills that have already been payed (sic) by Jenny M.
Williamson.
6.
John A. Smay is attempting to collect money for David R. Sones
after David Sones had taken it upon his self (sic) after he read the will of
his father Marvin Richard Sones that his inharitance (sic) is the sum of $1.00
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to sighn (sic) a leagal (sic) binding contract with Grenoble & Wallis funral (sic)
home to pay one half of Marvin R. Sones funral (sic) bill on his own free
will and gread (sic) and anger that he did not receave (sic) the sayed (sic)
property in question.
(Id., pp. 3-4).
As relief, Plaintiffs request:
John A. Smay be removed as executrix/administrator of said estate, the
above named defendants be held criminaly (sic) liable for their actions
and compancate (sic) the plaintiffs for the damages caused by their
neglagent (sic) actions.
(Id., p. 2).1
A review of Plaintiffs’ in forma pauperis Motion revealed that it was deficient, since it
did not contain sufficient information for this Court to make a proper determination as to their
financial status. Specifically, Plaintiffs stated that they own a property located at 221 Pecks
Road, Sonestown, Sullivan County, Pennsylvania, with an “assessed value [of] $29,000" and a
1995 Plymouth Grand Voyager van with a “$1200 value.” Plaintiffs failed to state how much

1

The undersigned has been assigned this case for all pre-trial matters pursuant to 28
U.S.C. § 636(b)(1)(A).
We note that Plaintiffs incorrectly requested, in part, that a criminal action be filed against
Defendants. (Doc. 1, p. 2). To the extent Plaintiffs claim that Defendants committed criminal
violations, such claims are not proper in a federal civil action. This Court cannot grant as relief
in the present case the initiation of a criminal prosecution. The Third Circuit has held that a
private person could not impose criminal liability on a defendant since he lacked standing to do
so. See Conception v. Resnik, 2005 WL 1791699, *2, 143 Fed. Appx. 422, 425-26 (3d Cir.
2005) (Non-Precedential). This Court has no authority to grant Plaintiff relief with respect to
alleged criminal conduct in this action. See Matthews v. Villella, 2009 WL 311177, *2 (M.D.
Pa.) aff’d. in relevant part, C.A. No. 09-1486 (3d Cir. 5-21-10); Banks v. U.S. Attorney, 2008 WL
3853307, *2. Thus, insofar as Plaintiffs are seeking this Court to hold Defendants criminally
liable for their alleged illegal behavior, this request is subject to dismissal with prejudice.

3

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equity, if any, they had in their real property and van. Also, Plaintiffs only indicated that they
had debts for “mortgages, credit card, student loan, etc.” in the amount of $50.00 per month
and “15 credit card.” (Doc. 2).
In order for the Court to rule on Plaintiffs’ in forma pauperis Motion, it was found that
Plaintiffs must provide the following information:
1) Documentation as to the amount of equity Plaintiffs have in their property located
at 221 Pecks Road, Sonestown, Pennsylvania, and in their 1995 Plymouth Grand Voyager van;2
2) List all accounts Plaintiffs hold, either jointly of individually, and the amounts in
each account; and
3) Copies of Plaintiffs’ 2009 and 2010 Federal Income Tax Returns, if filed.
Accordingly, on June 10, 2011, the Court issued the following Order:
1. Within ten (10) days of the date of this Order, Plaintiffs shall file a supplement to
their Motion for Leave to Proceed in forma pauperis as specified above.
2. Plaintiffs’ failure to timely file the supplement to their Motion for Leave to
Proceed in forma pauperis will result in the issuance of an Order denying their in forma pauperis
Motion and directing Plaintiffs to pay the required filing fee.
(Doc. 4).

2

Plaintiffs merely stated the assessed value of their real property and did not indicate
what their property was worth. Plaintiffs were directed to state under penalty of perjury what
their property was worth, and they were also directed to provide the Court with the amount of
the mortgage balance, if any, on their property along with documentation to support these
amounts.
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Plaintiffs’ failure to timely file the supplement to their Motion for Leave to Proceed in
forma pauperis resulted in the issuance of an Order on June 27, 2011, in which the Court
denied Plaintiffs’ Motion for Leave to Proceed in forma pauperis and directed Plaintiffs to pay
the $350.00 filing fee within ten (10) days of the date thereof. (Doc. 5).
On July 6, 2011, Plaintiffs filed an 8-sentence response to the Court’s Order with
attachments. Plaintiffs stated that they have a bankruptcy petition which is pending, that they
do not have any equity in their mini van, that they do not have a mortgage on their property
located at 221 Pecks Road, Sonestown, Sullivan County, Pennsylvania, that they cannot obtain a
loan or borrow against their property due to their bankruptcy, and that they “did not file any
income tax for the year 2011.” (Doc. 6).
We then obtained copies of the docket sheets for Plaintiffs’ Middle District of
Pennsylvania Bankruptcy Petitions. Plaintiffs filed a Chapter 7 Bankruptcy Petition on June 4,
2009, Case # 09-bk-4339, M.D. Pa., and it was dismissed on August 28, 2009. Plaintiffs filed a
second Chapter 7 Bankruptcy Petition on September 15, 2009, Case # 09-bk-7120, M.D. Pa.,
and they received a discharge on April 8, 2010. Therefore, we found that Plaintiffs did not
have a pending Bankruptcy Petition in the Middle District of Pennsylvania as they indicated they
did in their Doc. 6 response.3
Thus, Plaintiffs indicated that they own their property located at 221 Pecks Road,
Sonestown, Sullivan County, Pennsylvania free and clear of any mortgage. Also, as stated,

3

It appeared from Plaintiffs‘ bankruptcy docket sheets that Plaintiffs were allowed to
keep the property located at 221 Pecks Road, Sonestown, Sullivan County, Pennsylvania, under
the Homestead Exemption.
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Plaintiffs do not have a pending Bankruptcy Petition in the Middle District of Pennsylvania.
Plaintiffs failed to provide the Court with the value of their property located at 221 Pecks Road,
Sonestown, Sullivan County, Pennsylvania, as previously directed.
Therefore, on July 15, 2011, the Court issued an Order directing Plaintiffs, within ten
(10) days of the date of the Order, to submit to the Court the following:
1. The full filing fee or documentation as to the value of Plaintiffs’ property located at
221 Pecks Road, Sonestown, Pennsylvania, which Plaintiffs state they own free and clear.
2. Copies of Plaintiffs’ 2009 and 2010 Federal Income Tax Returns, if filed.
(Doc. 7).
Plaintiffs were warned that their failure to timely comply with the Doc. 7 Order
would result in the issuance of a Report and Recommendation that their case be dismissed for
failure to pay the required filing fee as directed. (Doc. 7).
The time in which Plaintiffs were to have complied with the Doc. 7 Order has
expired. The Court, sua sponte, gave the pro se Plaintiffs an additional sixteen days to comply
with the Order. The Plaintiffs have neither complied with the Order nor requested an
extension of time in which to do so. In fact, the Court has received no filings from the Plaintiffs
since they filed their “Proof of In Forma Pauperis” on July 6, 2011. (Doc. 6).
II. Discussion.
Federal Rule of Civil Procedure 41(b) allows for the dismissal of an action for "failure
of the plaintiff to prosecute or comply with these rules or order of court, . . ." (emphasis added).
In the instant case, Plaintiffs have failed to both prosecute their action and to comply with the
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Order of this Court by their failure to timely file the document required by our July 15, 2011,
Doc. 7 Order. We shall recommend that this case be dismissed due to Plaintiffs’ failure to
prosecute it and due to their failure to comply with this Court’s Order. Plaintiffs should be
deemed as abandoning their action. See McCray v. Dauphin Co. Prison, 2007 WL 431886
(M.D. Pa); Nelson v. Berbanier, 2006 WL 2853968 (M.D. Pa.).
Since we find that Plaintiffs’ conduct clearly shows that they intended to abandon
their case, we do not find that an analysis of the factors of Poulis v. State Farm Fire & Cas. Co.,
747 F.3d 863, 868 (3d Cir. 1984), is required before recommending that this case be dismissed
under Rule 41(b). See Spain v. Galleon, 26 F.3d 439, 454-55 (3d Cir. 1994); Gayer v. Beard,
907 F. 2d 1424 (3d Cir. 1990)(the district court’s requirement to perform an analysis under
Poulis is obviated where Plaintiff’s conduct is so egregious as to demonstrate an abandonment
of his case).
Our Plaintiffs have taken no action with respect to their case since they filed their
“Proof of in forma pauperis Status” on July 6, 2011 (Doc. 6), over one month ago. The behavior
of Plaintiffs constitutes a wilful failure to prosecute their case, as opposed to a situation in which
they have had problems in pursuing their case but made efforts to comply with this Court’s
July 15, 2011 Order. We find that Plaintiffs‘ “behavior has been so egregious as to make selfevident the factual findings and analysis [of the Poulis factors].” Williams v. Sort, 223 Fed. Appx.
95, 103 (3d Cir. 2007). The consequences if Plaintiffs failed to prosecute their case were clearly
stated in our July 15, 2011 Order, namely, we would recommend that their case be dismissed.
(Doc. 7). See Leininger v. Twoton, Inc., 2009 WL 1363386 (M.D. Pa.).
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In Jackson v. Johnson, 2006 WL 2136218, *1 (M.D. Pa.), the Court stated that “Fed.
R. Civ. P. 41(b) allows for the dismissal of an action where the Plaintiff fails to prosecute or fails
to comply with rules or orders of the court.”
The Jackson Court also stated:
the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863,
868 (3d Cir.1984) [are analyzed] to determine whether dismissal of the
action is appropriate in this case. The Poulis factors the Court should
consider are: (1) the extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the failure to meet
scheduling orders and respond to discovery; (3) a history of dilatoriness;
(4) whether the conduct of the party or the attorney was willful or in
bad faith; (5) the effectiveness of sanctions other than dismissal, which
entails an analysis of alternative sanctions; and (6) the meritoriousness of
the claim or defense. Poulis, 747 F.2d at 868.
We agree with the Magistrate Judge's determination that the Plaintiff's
dilatoriness outweighs any of the other considerations set forth in Poulis,
and that Plaintiff's failure to comply with the Order of May 30, 2006
indicates that the Plaintiff has abandoned this lawsuit. Her inaction points to
no other logical conclusion.
Id.
Thus, out of an abundance of caution, we also analyze the Poulis factors. We find
that Plaintiffs’ stated conduct in delaying their case to be attributable to them personally.
Plaintiffs were required to have filed the document set forth in our July 15, 2011 Order by July
25, 2011. As mentioned, we sua sponte afforded Plaintiffs additional time within which to
comply with the July 15, 2011 Order. Plaintiffs have filed nothing in response to the stated
Order, and they have not notified the Court that they intend to pursue their action.
We find that Plaintiffs have caused prejudice to Defendants since they have been
named in a federal lawsuit and no action, including service of a proper pleading, has been
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made on them to date. While Plaintiffs do not yet have a significant history of dilatoriness in
this case, their present conduct in failing to prosecute their June 2011 case is nonetheless
evidence of dilatoriness, especially since this case cannot proceed without their compliance
with the July 15, 2011 Order.
Based on our discussion above, we find that the conduct of Plaintiffs is wilful,
especially since they have filed nothing with the Court in more than a month, since they have
failed to respond to the July 15, 2011 Order, and since they have not contacted the Court to
explain why they have failed to comply with the Order.
Plaintiffs have been forewarned that their failure to comply with the July 15, 2011
Order would result in a recommendation that their case be dismissed. As stated, this case
cannot proceed without Plaintiffs’ compliance with the July 15, 2011 Order. Since we will
recommend that Plaintiffs‘ case be dismissed without prejudice, and since Plaintiffs have not
paid the filing fee, we find that other sanctions would not be effective in this case.
Thus, we find that the Poulis factors weigh in favor of dismissing this case without
prejudice and that Plaintiffs‘ failure to comply with the Court’s July 15, 2011 Order
demonstrates they have abandoned their case.
Moreover, if the Court vacated our June 27, 2011 Order and granted Plaintiffs’ in
forma pauperis motion, it would be obliged to screen their Complaint.4 See Dunbar v. Dunbar,

4

As stated, we denied Plaintiffs’ in forma pauperis Motion on June 27, 2011 (Doc. 5).
However, it appears from Plaintiffs’ July 6, 2011 filing (Doc. 6-2) that the real estate located at
221 Peck Road, Sullivan County, Pennsylvania, is an asset of the Estate of Marvin R. Sones and
not owned by Plaintiffs. Thus, our June 27, 2011 Order denying Plaintiff’s in forma pauperis
Motion could be vacated, and the Court could grant Plaintiffs’ in forma pauperis Motion. Then
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Civil No. 11-0135, M.D. Pa. On February 11, 2011, the Court in Dunbar issued an Order and
granted Plaintiff‘s in forma pauperis motion (Doc. 3, Dunbar). The Dunbar Court then stated:
The proper procedure after a district court grants in forma pauperis
status is to file the complaint and then “screen it” before service pursuant
to 28 U.S.C. § 1915(e)(2)(B). Fisher v. Miller, 373 Fed. App’x 148,
148 (3d Cir. 2010) (citing Oates v. Sobolevitch, 914 F.2d 428, 429
n.1 (3d Cir. 1990)). ‘The District Court may dismiss the complaint if, inter
alia, it fails to state a claim upon which relief can be granted.” See 28
U.S.C. § 1915(e)(2)(B)(ii); Fisher, Fed App’x at 148. If the Court finds
that the Complaint fails to state a claim upon which relief can be granted,
the Court must grant Plaintiff leave to amend the Complaint unless
“amendment would be inequitable or futile.” Grayson v. May view State
Hosp., 293 F.3d 103, 106 (3d Cir. 2002) (citing Shane v. Fauver, 213 F.3d
113, 116-17 (3d Circ. 2000)); see also Fisher, 373 Fed. App’x at 149-50.

(Doc. 3, pp. 1-2, Dunbar).
Plaintiffs aver that the Sullivan County Court of Common Pleas appointed Defendant
Attorney Smay as the executor/administrator of the Estate of Marvin R. Sones and that Smay
improperly tried to collect money from them. Plaintiffs’ attachment to their Doc. 6 filing is a
copy of an Order of the Sullivan County Court dated February 3, 2009, appointing attorney
Smay as the Executor of the Estate of Marvin R. Sones and directing the Register of Wills to issue
Smay letters of administration. (Doc. 6-2, p. 5). Plaintiffs also attached a copy of a
Landlord/Tenant Complaint Defendant Smay filed, on behalf of the Estate of Marvin R. Sones,
against them in Sullivan County Court on April 8, 2011, in which he alleged that the Estate had
the right to possession of the property where Plaintiffs resided at 221 Pecks Road, Sonestown,
Sullivan County, Pennsylvania, and that the Estate had the right to sell the real estate as an asset

the Court could screen Plaintiffs’ Complaint.
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of the estate pursuant to two county court orders. (Doc. 6-2, pp. 1-4). Defendant Smay also
alleged that Plaintiffs owed the Estate rent in the amount of $360.
In their present Complaint (Doc. 1), Plaintiffs allege that Defendant Smay filed an
untimely action “agenst (sic) the estate of Marvin R. Sones” “abuseing (sic) the rights of the
deceased Marvin R. Sones and [Plaintiffs].” (Id., p. 3). Plaintiffs also allege that Defendant Smay
made false accusations of fraud against them numerous times on official documents and under
oath in court proceedings. Plaintiffs aver that Defendant Smay is trying to extort and collect
money for the Estate of Marvin R. Sones for bills which have already been paid, and that Smay
is trying to collect money for David R. Sones even though David only inherited $1.00 from the
Estate of Marvin R. Sones. (Id.).
Plaintiffs conclude that Defendant Smay committed legal malpractice and
misrepresentation. (Id., p. 4).
Initially, Plaintiffs’ claims against Defendant Commonwealth of Pennsylvania and
Defendant Court of Common Pleas 44th District of Sullivan County are barred under the
Eleventh Amendment. We find that Plaintiffs cannot proceed with respect to their claims
against Defendant Commonwealth of Pennsylvania and Defendant Court of Common Pleas 44th
District of Sullivan County since they are barred under the Eleventh Amendment. Based on
MCI Telecom. Corp. v. Bell Atl. Pa., 271 F.3d 491, 502 (3d Cir. 2001), because Defendant
Commonwealth of Pennsylvania is the State and Defendant Court of Common Pleas 44th
District of Sullivan County is an agency of the Commonwealth of Pennsylvania, this Court’s

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jurisdiction over these Defendants is barred by the Eleventh Amendment of the United States
Constitution, and all claims against them are subject to dismissal.
In Democracy Rising PA v. Celluci, 603 F. Supp. 2d 780, 795 (M.D. Pa. 2009), this
Court held that:
The Eleventh Amendment precludes private federal litigation against a
state and its agencies. n16 Hans v. Louisiana, 134 U.S. 1, 15-16, 10 S.
Ct. 504, 33 L. Ed. 842 (1890); see also Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 72-73, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000); Lombardo v.
Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). This is a
jurisdictional bar subject to only two exceptions: (1) Congress may
specifically abrogate a state's sovereign immunity by exercising its
enforcement power under the Fourteenth Amendment, or (2) a state
may waive its sovereign immunity by consenting to suit. Coll. Sav. Bank
v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670,
119 S. Ct. 2219, 144 L. Ed. 2d 605 (1999); Koslow v. Pennsylvania,
302 F.3d 161, 168 (3d Cir. 2002). It is well settled that Congress had
no intention to abrogate the states' sovereign immunity by enacting
§ 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S. Ct.
2304, 105 L. Ed. 2d 45 (1989). [**41] Furthermore, Pennsylvania has
unequivocally withheld its consent to such suits. See 42 PA. CONS.
STAT. § 8521(b); see also Lombardo, 540 F.3d at 196 n.3; Laskaris v.
Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

See also Urella v. PA State Troopers Ass’n, 2008 WL 1944069, *3.
In Beattie v. DOC SCI-Mahanoy, 2009 WL 533051, *6 (M.D. Pa. 3-3-09), the Court
stated:
As to Defendants DOC, SCI-Mahanoy,FN5 and Pennsylvania State Police, the
court does not find these defendants to be suitable entities for a § 1983
claim. Section 1983 creates a cause of action against every “person” who
under color of state law deprives an individual of a right secured by the
Constitution or federal statute. See 42 U.S.C. § 1983. Furthermore, the United
States Supreme Court maintains that state agencies are not subject to liability
under § 1983 actions brought in federal court.FN6 See Howlett v. Rose,
496 U.S. 356, 365, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ( “ Will [v.
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Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989) ] establishes that the State and arms of the State, which have
traditionally enjoyed Eleventh Amendment immunity, are not subject to suit
under § 1983 in either federal or state court.”). The Pennsylvania
Department of Corrections and the Pennsylvania State Police are state
agencies, not persons. However, even if it could be determined that the
Department of Corrections or the State Police is a “person” within the
meaning of § 1983, Beattie has only requested monetary damages from
each one. A request for monetary damages from a state agency is barred by
the state's sovereign immunity under the Eleventh Amendment. See Bd. of
Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64, 121 S.Ct. 955,
148 L.Ed.2d 866 (2001) (explaining private parties cannot sue states in federal
court for monetary damages). Therefore, the complaint must be dismissed
as to Defendants Department of Corrections and Pennsylvania State Police.
(Footnote omitted).
Thus, we find that this Court’s jurisdiction over Defendant Commonwealth of
Pennsylvania and Defendant Court of Common Pleas 44th District of Sullivan County is barred
by the Eleventh Amendment. See Democracy Rising PA v. Celluci, supra; Beattie v. DOC SCIMahanoy, supra.
We also find that Plaintiffs cannot proceed in this Court with their state law claims of
legal malpractice and legal misrepresentation against Defendant Smay. As relief, as mentioned,
Plaintiffs request this Court to remove Defendant Smay as executor/administrator of the Estate
of Marvin R. Sones. As stated, Defendant Smay is an attorney appointed by the Sullivan County
Court as the executor/administrator of said estate. Defendant Smay has recently filed a civil
action in Sullivan County Court on behalf of the Estate of Marvin R. Sones seeking possession of
the real property located at 221 Pecks Road, Sonestown, Sullivan County, Pennsylvania, and
stating that the Estate had the right to sell the real estate as an asset of the estate pursuant to two
county court orders. (Doc. 6-2, pp. 1-4). Plaintiffs’ instant action seeking this Court to
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intervene in the Sullivan County Court proceedings is barred by the Rooker-Feldman doctrine.
Insofar as Plaintiffs’ claims challenge the orders of the Sullivan County Court
regarding the handling of the Estate of Marvin R. Sones, and the appointment of Defendant
Smay as the Executor, we find that any relief Plaintiffs are seeking is clearly barred by the
Rooker-Feldman Doctrine. See Hansford v. Bank of America, 2008 WL 4078460,* 5 (E. D. Pa.)
(any claim that would “effectively undo” the state court’s foreclosure judgment and its finding
that a valid mortgage existed is “inextricably intertwined” with a prior state court judgment, and
the Court lacks jurisdiction over such claim under the Rooker-Feldman doctrine); Mason v.
Stroyan, Civil No. 10-1953 (M.D. Pa.), 2010 WL 6560738 (M.D. Pa. 10-29-10).
The Sullivan County Court, in dealing with the Estate of Marvin R. Sones, had to have
determined that Defendant Smay should be appointed Executor of the Estate and that Smay
should be allowed possess and to sell the real property where Plaintiffs reside. Thus, the
Sullivan County Court necessarily must have found that the real property was an asset of the
Estate of Marvin R. Sones and that Defendant Smay could sell it. Plaintiffs’ instant action
necessarily would require a determination that the orders of Sullivan County Court and the
permission for Defendant Smay to sell the stated property were void. This Court is precluded
by the Rooker-Feldman Doctrine from essentially vacating the Sullivan County Court’s orders
since this would have the effect of undoing the state court administration of the Estate of Marvin
R. Sones. Id. See also Johnson v. DeGrandy, 512 U.S. 997, 1005-1006 (1994)(“[A] party losing
in state court is barred from seeking what in substance would be appellate review of the state
judgment in a United States district court, based on the losing party’s claim that the state
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judgement itself violates the loser’s federal rights.”); Jacobowitz v. M&T Mortgage Corporation,
Civil No. 09-1332, M.D. Pa.; Mason, supra.
Thus, Plaintiffs’ attempt to set aside the Sullivan County Court’s decisions and orders
regarding the handling of the Estate of Marvin R. Sones and the sale of the stated real property
by Defendant Smay, as well as the Court Order appointing Smay as the Executor of the Estate of
Marvin R. Sones, is barred by the Rooker-Feldman Doctrine. Under the Rooker-Feldman
doctrine, this Court is precluded from exercising subject matter jurisdiction over Plaintiffs’ stated
claims asserted against Defendant Smay.
In McFall v. Register of Wills for Bucks County, PA, 352 F. Supp. 2d 544, 547 (E. D.
Pa. 2004), the Court stated:
A recent Third Circuit decision describes the Rooker-Feldman doctrine:
The Rooker-Feldman doctrine, which derives its name from the Supreme
Court's decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149,
68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), “preclude[s] lower
federal court jurisdiction over claims that were actually litigated or
‘inextricably intertwined’ with adjudication by a state's courts.”
Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 418 (3d Cir.2003)
(quoting Parkview Assocs. Pshp. v. City of Leb., 225 F.3d 321, 325
(3d Cir.2000) (citations omitted)). A claim has not been “actually
litigated” for purposes of the Rooker-Feldman doctrine if the plaintiff did
not present the federal claims in the state court proceeding or if the state
court's opinion “contains no discussion of any issues of federal law.” Desi's
Pizza, Inc., 321 F.3d at 420-21. A claim is not “inextricably intertwined”
unless “the federal court must determine that the state court
judgment was erroneously entered” in order to grant the federal plaintiff
the relief sought or “the federal court must ... take action that would render
[the state court's] judgment ineffectual.” Id. at 421 (citations omitted).

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In Gaynor v. Nelowet, 2000 WL 427274, *1 (E.D. Pa. 4-19-00), the Court stated:
The Rooker-Feldman doctrine,FN13 under which federal district courts
are not permitted to exercise judicial review over state court proceedings.
“District courts lack subject matter jurisdiction once a state court has
adjudicated an issue because Congress has conferred only original jurisdiction
not appellate jurisdiction on the district courts.” Guarino v. Larsen, 11 F.3d
1151, 1156-57 (3d Cir.1993); see also Pennzoil Co. v. Texaco, Inc., 481 U.S.
1, 24, 107 S.Ct. 1519, 1533, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring) (“It
is a well-settled principle that federal appellate review of judgments rendered
by state courts can only occur in this Court, on appeal or by writ of
certiorari.”). A federal proceeding is barred under the Rooker-Feldman
doctrine “when entertaining the federal court claim would be the equivalent
of an appellate review of [the state court] order.” FOCUS v. Allegheny County
Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996). Rooker-Feldman
applies to final state court judgments, Port Authority Police Benevolent Ass'n
v. Port Authority, 973 F.2d 169, 177 (3d Cir.1992), including those of
lower state courts. Id. (“[F]ederal district courts are certainly ... precluded
from reviewing decisions of lower state courts, which are subject to
correction and modification within the state court system.”).
FN10. Beth Nelowet is plaintiff's sister and executrix and beneficiary
of the estate of their father, and successor trustee of their mother's
non-marital trust. Complt. at exs. 4, 11.
FN11. Defendants Trueblood and Amacher are attorneys who
represented the estates.
FN12. Defendant McLafferty was the solicitor to the Register of Wills
and is now acting Register of Wills of Montgomery County. Complt. at
¶ 10.
FN13. The “ Rooker-Feldman ” doctrine is derived from two U.S.
Supreme Court decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413,
44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482 n. 16, 103 S.Ct. 1303, 1315
n. 16, 75 L.Ed.2d 206 (1983). See ASARCO Inc. v. Kadish, 490 U.S.
605, 622, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (“The
Rooker-Feldman doctrine interprets 28 U.S.C. 1257 as ordinarily
barring direct review in the lower federal courts of a decision reached
by the highest state court, for such authority is vested solely in [the
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Supreme Court].”).
In the present case, we find that Plaintiffs‘ claims are “inextricably intertwined” with
adjudication by a state’s court since this Court would have to determine that the Sullivan
County Court’s decisions and orders regarding the handling of the Estate of Marvin R. Sones
and the sale of said real property by Defendant Smay, as well as the appointment of Smay as
estate administrator, were erroneously entered in order to grant Plaintiffs relief with respect to
their instant claims. We find that Plaintiffs‘claims are not independent of the merits of the
Sullivan County Court’s decisions and orders, especially since their claims largely hinge upon
whether they have a legally cognizable interest in the stated real estate. Thus, we find that a
decision with respect to Plaintiffs‘ present claims by this Court requires a determination that the
Sullivan County Court’s decisions and orders were erroneous, and that a decision by this Court
would render the Sullivan County Court’s decisions and orders as ineffectual. Indeed, any relief
to which Plaintiffs may be entitled in this case with respect to their instant claims would clearly
be based on findings that the Sullivan County Court’s decisions and orders were issued in
violation of their constitutional rights, including their due process rights. See Gaynor, supra;
Mason, supra.
Thus, we will recommend that Plaintiffs‘ claims against Defendant Smay be
dismissed based on the Rooker-Feldman doctrine since the Court lacks subject matter
jurisdiction to review these claims which are inextricably intertwined with the Sullivan County
Court’s decisions and orders. See Roush v. Horner, 2008 WL 189556, *5-*7 (W.D. Pa. 1-1808).
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Additionally, Plaintiffs’ remedy with respect to their challenge to the Sullivan County
Court’s final orders regarding all matters pertaining the administration of the Estate of Marvin R.
Sones is to file an appeal with the Pennsylvania appellate courts. See Gaynor, supra. See also
In re Estate of Luongo, 823 A.2d 942 (Pa.Super. 2003); In re Estate of Britts, 906 A.2d 601 (Pa.
Super. 2006).
III. Recommendation.
Based on the foregoing, it is respectfully recommended that this action be dismissed
on the basis of Plaintiffs' failure to comply with the Court’s July 15, 2011 Order. It is also
recommended that Plaintiffs’ case be dismissed on the basis of their failure to prosecute their
action.
Alternatively, it is recommended that our June 27, 2011 Order (Doc. 5) denying
Plaintiffs‘ Motion to proceed in forma pauperis be vacated, and that Plaintiffs’ Motion to

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proceed in forma pauperis (Doc. 2) be granted solely for the purpose of filing this action.
Further, it is recommend that this entire case be dismissed with prejudice. 5

s/ Thomas M. Blewitt
THOMAS M. BLEWITT
United States Magistrate Judge
Dated: August 11, 2011

5

Pursuant to our above discussion, we find futility of any amendment of Plaintiffs’
claims against Defendants, and we shall not recommend Plaintiffs be granted leave to amend
their pleading with respect to these claims. See Forman v. Davis, 371 U.S. 178, 182 (1982);
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (The futility exception means that a
complaint, as amended, would fail to state a claim upon which relief can be granted); Alston v.
Parker, 363 F. 3d 229, 235 (3d Cir. 2004);Conway v. King Pharmaceuticals, Inc., 2008 WL
4128088, *2 (M.D. Pa.).

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER ALLEN SONES and
LAURA ANN SONES,
Plaintiffs
v.
JOHN ANDREW SMAY, et al.,
Defendants

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 4:CV-11-1073
(Judge Jones)
(Magistrate Judge Blewitt)

NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing
Report and Recommendation dated August 11, 2011.
Any party may obtain a review of the Report and Recommendation pursuant to
Rule 72.3, which provides:
Any party may object to a magistrate judge’s proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within fourteen (14)
days after being served with a copy thereof. Such party shall file
with the clerk of court, and serve on the magistrate judge and all
parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to which
objection is made and the basis for such objections. The briefing
requirements set forth in Local Rule 72.2 shall apply. A judge shall
make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection
is made and may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge, however,
need conduct a new hearing only in his or her discretion or where
required by law, and may consider the record developed before the

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magistrate judge, making his or her own determination on the basis
of that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with
instructions.

s/ Thomas M. Blewitt
THOMAS M. BLEWITT
United States Magistrate Judge

Dated: August 11, 2011

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