INGRAM v. AMRHEIN et al

Filing 38

MEMORANDUM re: 15 MOTION to Dismiss Plaintiff's Complaint filed by defendant DAVID BARTON; and 24 Supplemental MOTION to Dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) filed by defendant DAVID BARTON. Signed by Judge William L. Standish on 4/21/2011. (md)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVNIA

NANCY INGRAM,

Plaintiff,
vs.

Civil Action No. 10-1728

RICHARD AMRHEIN, CONSOL
ENERGY, CARY JONES and
DAVID BARTON,
Defendants.
MEMORANDUM
INTRODUCTION
In this diversity action, Plaintiff, Nancy Ingram,
proceeding pro se, asserts fraud claims against Defendants,
Richard Amrhein ("Amrhein"), Consol Energy, Cary Jones ("Jones")
and David Barton ("Barton").

Plaintiff's claims arise out of

probate of the estate of Doris A. Rogers, Plaintiff's late
mother, in the Orphan's Division of the Court of Common Pleas of
Washington County, Pennsylvania.

Barton has filed a motion to

dismiss and a supplemental motion to dismiss under Fed.R.Civ.P.
12(b) (6).

For the reasons set forth below, the motion to

dismiss will be denied as moot and the supplemental motion to
dismiss will be granted.
FACTUAL ALLEGATIONS
In summary, Plaintiff's complaint alleges the following
facts:

1

Plaintiff and four siblings were the beneficiaries of their
mother's estate.

On August 2, 2004, despite Plaintiff's

objection in open court on two occasions in June 2004, ninety­
nine (99) acres of real estate owned by Mrs. Rogers was sold to
Consol Energy for $348,000.00.

Contrary to subsequent testimony

by unidentified individuals in a proceeding on some unspecified
date before Judge Gladden in the Court of Common Pleas of
Washington County, pennsylvania, Plaintiff discovered "by
chance H in 2008 that Mrs. Rogers' real estate had been divided
into three parcels prior to sale and each parcel had been sold
for $348,000.00.

By failing to disclose the division of the

real estate and the actual proceeds realized from its sale,
Defendants defrauded Plaintiff.
Amrhein, who served as counsel for Consol Energy, was
present during an argument in the probate proceedings on a
motion to sell Mrs. Rogers' real estate to Consol Energy, which
was denied by Judge Gladden.

Following the denial of the

motion, Amrhein effectuated the transfer of the real estate to
Consol Energy outside the probate proceedings, acting in total
disregard of Plaintiff's claim to "2106. H

In addition, Amrhein

actively covered up the improper transfer of the real estate to
Consol Energy on the public record.
Jones, who served as counsel for Mrs. Rogers' estate,
effectuated the transfer of "2106 H outside of probate.
2

In

proceeding with the sale of the real estate to Consol Energy,
Jones acted in contempt of Judge Gladden's ruling.

Jones knew

of pre death transfers that had to have been made to effectuate
the sale of Mrs. Rogers' real estate outside probate.

In

failing to disclose the pre-death transfers, Jones committed
fraud against Plaintiff and the other beneficiaries of Mrs.
Rogers' estate.
Barton, who was retained to represent Plaintiff in the
probate of her mother's estate, aided and abetted the other
Defendants' fraudulent conduct by refusing to file a petition
for contempt in connection with the transfer of the real estate
to Consol Energy in direct defiance of Judge Gladden's ruling.
If a contempt hearing had been held, Defendants' fraudulent
conduct may have been discovered in 2004, rather than 2008,
prior to completion of the probate proceedings in 2007. 1

(Docket

No.1) .
LEGAL STANDARD

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the
United States Supreme Court abrogated the oft repeated standard
for dismissal of a complaint under Fed.R.Civ.p. 12(b) (6)
enunciated in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), i.e.,
that a complaint may not be dismissed "unless it appears beyond
Plaintiff seeks "treble damages (3 times the sale price)" of the real estate
from all Defendants for the fraud that is alleged to have been perpetrated
upon her.
I

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doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief."
Twombly, a plaintiff must "nudge[]

Following

[his or her] claims across

the line from conceivable to plausible" in order to survive a
motion to dismiss.

550 U.S. at 570.

See also Phillips v.

county of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) ("After
Twombly, it is no longer sufficient to allege mere elements of a
cause of action; instead 'a complaint must allege facts
suggestive of [the proscribed] conduct.'").
DISCUSSION
As noted above, Plaintiff asserts that Barton aided and
abetted the other Defendants' fraudulent conduct by failing to
file a petition for contempt after the real estate owned by
Plaintiff's late mother was sold to Consol Energy in defiance of
an alleged ruling by Judge Gladden in the probate proceedings.
After filing a motion to dismiss arguing that Plaintiff's
complaint failed to comply with the requirements of Fed.R.Civ.p.
9(b) for pleading fraud and that the Court lacked subject matter

jurisdiction under the Rooker-Feldman doctrine,

2

Barton received,

2With regard to Rule 9(b), when pleading a claim for fraud, a party must state
with particularity the circumstances constituting fraud.
"Rule 9(b)
requires, at a minimum, that plaintiffs support their allegations of [] fraud
with all of the essential factual background that would accompany 'the first
paragraph of any newspaper story' - that is, the 'who, what, when, where and
how' of the events at issue."
In re Rockefeller Center Properties,
Inc.
Sec. Litigation, 311 F.3d 198, 217 (3d Cir.2002) (citations omitted). As to
the Rooker-Feldman doctrine, the lower Federal courts are precluded from
exercising jurisdiction if the relief requested in the federal action would

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among other things, a copy of the transcript of the October 14,
2004 hearing before Judge Gladden - the only proceeding before

Judge Gladden at which Barton represented Plaintiff. 3

Based on

the transcript and other court documents related to probate of
Mrs. Rogers' estate, Barton filed a supplemental motion to
dismiss.

After consideration of the supplemental motion to

dismiss and the court documents attached thereto,4 the Court
agrees with Barton that Plaintiff has failed to state a claim
against him upon which relief can be granted. 5
During the initial hearing on the petition for audit of
Mrs. Rogers' estate before Judge Gladden on October 14, 2004,
Jones was present for the estate and Barton was present for
Plaintiff.

Discussions between the Court and counsel during the

brief hearing were limited to the following matters:

(1) the

inheritance tax return which had not yet been approved;

(2) the

effectively reverse a State court decision or void its ruling. Gulla v.

North Strabane Twp., 146 F.3d 168, 171 (3d Cir.1998).

3Judge Gladden presided over another hearing in connection with the petition

for audit of Mrs. Rogers' estate on December 16, 2004. By this time,

Plaintiff had replaced Barton with Julie Freeman, Esquire, who attended this

hearing on Plaintiff's behalf.
(Docket No. 24-4).

4 When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b) (6), a court may

consider the allegations in the complaint, exhibits attached to the

complaint, matters of public record, and documents that form the basis of a

claim.
Berry v. Klem, 283 Fed.Appx. 1, 3 (3d Cir.2008), quoting, Lum v. Bank

of America, 361 F.3d 217, 280 (3d Cir.2000).
Because the documents attached

to Barton's supplemental motion to dismiss are matters of public record and

form the basis for Plaintiff's fraud claim, the Court may consider the

exhibits without converting the motion to a motion for summary judgment under

Fed.R.Civ.P. 56.

5Because the argument raised in Barton's supplemental motion to dismiss is

dispositive, it is not necessary for the Court to address the additional

arguments raised in his initial motion to dismiss, which will be denied as

moot.

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possibility of another beneficiary of Mrs. Rogers' estate;6 (3)
correspondence sent to the court by Patty Rogers, one of
Plaintiff's siblings; (4) the possibility of collusion in
connection with Mrs. Rogers' expressed desire to change her will
shortly before she died; and (5) advance distributions to
beneficiaries which were not reflected on the account of the
estate filed with the court.?

In light of these outstanding

issues, Judge Gladden continued the hearing on the audit
petition to the December list of the Orphan's Court.

(Docket

No. 24-3).
As noted by Barton, to establish contempt, a petitioner
must show that (1) a valid court order existed,

(2) the

defendant had knowledge of the order, and (3) the defendant
disobeyed the order.
(3d Cir.1990).

Roe v. Operation Rescue, 919 F.2d 857, 871

The transcripts of the hearings before Judge

Gladden on October 4, 2004 and December 16, 2004 and the
Orphans' Court docket for Mrs. Rogers' estate (Docket Nos. 24-3,
24-4 and 24-5) show that Barton's representation of Plaintiff
before Judge Gladden was limited to the October 14, 2004 hearing
and that Judge Gladden did not issue any orders in connection
During the
Mrs . Rogers had a son, Daniel Rogers, who predeceased her.
probate of Mrs. Rogers' estate, Jones became aware of an individual named
Gary Malarky who may be the son of Daniel Rogers, and, therefore, a
beneficiary of Mr. Rogers' estate.
Jones sought, and received, an oral 30­
day extension of time for Mr. Malarky to file a formal claim or an objection
in the probate proceeding.
7 There was no discussion regarding the sale of Mrs. Rogers' real estate to
Consol Energy during the October 4, 2004 hearing before Judge Gladden.
6

6

with that hearing.

As a result, there was no order on which

Barton could have based a petition for contempt.
In sum, because his failure to file a contempt petition is
the sole basis for Plaintiff's assertion that Barton aided and
abetted the other Defendants' alleged fraudulent conduct, and no
orders were entered by Judge Gladden while Barton represented
Plaintiff in the probate proceedings, Plaintiff has failed to
state a plausible claim against Barton for fraud.

Further,

because amendment of the complaint would be futile with regard
to the fraud claim against Barton, Plaintiff will not be given
leave to amend her claim against him.

Judge William L. Standish
United States District Judge

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