INGRAM v. AMRHEIN et al
Filing
43
MEMORANDUM AND OPINION re 12 Motion to Dismiss filed by Defendant CARY JONES. Signed by Judge William L. Standish on 5/3/2011. (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 and CARY JONES,
Defendants.
MEMORANDUM
INTRODUCTION
In this diversity action, Plaintiff, Nancy Ingram,
proceeding pro se, asserts fraud claims against Defendants,
Richard Amrhein ("Amrhein"), Consol Energy and Cary Jones
("Jones").
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.
Jones, the attorney who represented Mrs. Rogers' estate in
the probate proceedings, has filed the following motions: (1) a
motion to dismiss under Fed.R.Civ.p. 12(b) (6); (2) a motion to
strike Plaintiff's request for treble damages under Fed.R.Civ.P.
12(f); and (3) an alternative motion for a more definite
statement under Fed.R.Civ.p. 12(e).
1
For the reasons set forth below, the motion of Jones to
dismiss Plaintiff's complaint for failure to state a claim will
be granted without prejudice to Plaintiff's right to file an
amended complaintjl the motion to strike Plaintiff's request for
treble damages will be grantedj and the alternative motion for a
more definite statement will be denied as moot.
FACTUAL ALLEGATIONS
In summary, Plaintiff's complaint alleges the following
facts:
Plaintiff and four siblings were the beneficiaries of Mrs.
Rogers' estate.
On August 2, 2004, despite Plaintiff's
objection in open court on two occasions in June 2004, ninetynine (99) acres of real estate owned by Mrs. Rogers were sold to
Consol Energy for $348,000.00.
In 2008, contrary to testimony
that had been given by unidentified individuals in a proceeding
on some unspecified date before Judge Gladden in the Orphan's
Court of the Court of Common Pleas of Washington County,
Pennsylvania, Plaintiff discovered "by chance
II
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.
1 A similar motion to dismiss under Fed.R.Civ.P. 12(b) (6)
that was filed by
Amrhein and Consol Energy has been granted without prejudice to Plaintiff's
right to file an amended complaint.
2
Amrhein, who served as counsel for Consol Energy, was
present during an argument on a motion to sell Mrs. Rogers' real
estate to Consol Energy before Judge Gladden in the probate
proceedings.
Despite Judge Gladden's denial of the motion,2
Amrhein effectuated the transfer of the real estate to Consol
Energy outside the probate proceedings, acting in total
disregard of Plaintiff's claim to \\2106.1/3
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 "21061/ outside of probate.
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.
(Docket No.1) .
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the
United States Supreme Court abrogated the oft-repeated standard
In this connection, the Court notes that a copy of Judge Gladden's order was
not attached to Plaintiff's complaint, or, if the order was issued orally in
court, a copy of the transcript of the proceeding during which the ruling was
made was not attached.
3 The complaint does not define Plaintiff's reference to "2106."
2
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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
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.''').
In addition, Fed.R.Civ.p. 9(b) requires a plaintiff
alleging fraud to "state with particularity the circumstances
constituting fraud .... "
Rule 9(b) requires plaintiffs to plead
with particularity the circumstances of the alleged fraud in
order to place the defendants on notice of the precise
misconduct with which they are charged, and to safeguard
defendants against spurious charges of immoral and fraudulent
behavior.
Seville Ind. Machinery Corp. v. Southmost Machinery
Corp., 742 F.2d 786, 791 (3d Cir.1984).
A cause of action for fraud under Pennsylvania law contains
the following elements: (1) a representation; (2) which is
material to the transaction at hand; (3) made falsely with
4
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) resulting injury proximately caused
by the reliance.
Gibbs v. Ernst, 538 Pa. 193, 889 (1994).
Jones' alleged fraudulent conduct in this case is based on
his failure to disclose a material fact, rather than an
affirmative representation of a material fact. 4
Specifically,
Plaintiff alleges that "Jones committed a fraud as against this
Plaintiff and all beneficiaries by failing to disclose that
portions of [Mrs. Rogers'] real estate had been transferred
outside of probate by pre death transfer."
5).
(Docket No. I, p.
However, Plaintiff fails to describe the pre death
transfers of Mrs. Rogers' real estate with any specificity, such
as identifying information regarding the property transferred,
the date the property was transferred, the reason the property
transfer was fraudulent and the basis for Jones' obligation to
disclose the property transfer to Plaintiff.
Because the fraud
claim against Jones is not pleaded with the required
particularity, his motion to dismiss under Fed.R.Civ.p. 12(b) (6)
will be granted.
4Fraud is a generic term used to describe anything calculated to deceive,
whether by single act or combination, or by suppression of truth, or
suggestion of what is false, whether it be direct falsehood or by innuendo,
by speech or silence, work of mouth, or look or gesture. Youndt v. First
National Bank of Port Allegany, 868 A.2d 539 (Pa.Super.2005). Thus, failure
to disclose a material fact when obligated to do so can constitute fraud.
5
In her pro se response to Jones' motion to dismiss,
Plaintiff requested an opportunity to file an amended complaint,
indicating that she is attempting to obtain legal
representation.
(Docket No. 33).
After consideration,
Plaintiff's request for an opportunity to file an amended
complaint will be granted.
Therefore, the dismissal of
Plaintiff's complaint as to Jones is without prejudice to her
right to file an amended complaint against Jones which complies
with the pleading standard enunciated in Twombly and
Fed.R.Civ.p. 9(b).
MOTION TO STRIKE
Jones' motion to strike Plaintiff's request for treble
damages also will be granted because there simply is no basis
for the request.
In Pennsylvania, the measure of damages in an
action for fraud is "actual loss."
Kaufman v. Mellon National
Bank & Trust Co., 366 F.2d 326 (3d Cir.1966).
Accordingly, in
the event Plaintiff files an amended complaint, no request for
treble damages shall be included. s
With respect to the issue of damages, Jones also asserts that Plaintiff has
failed to plead any damages.
(Docket No. 13, p. 4). After consideration,
the Court cannot agree.
Plaintiff's complaint can be construed as alleging
that Mrs. Rogers' real estate was sold for $1,044,000.00, rather than
$348,000.00 as represented to the Orphan's Court during probate.
If
Plaintiff can prove this allegation, as one of five beneficiaries of Mrs.
Rogers' estate, Plaintiff would be entitled to one fifth of $696,000.00, less
inheritance taxes and administrative expenses.
5
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MOTION FOR MORE DEFINITE STATEMENT
In light of the Court's ruling on Jones' motion to dismiss
Plaintiff's complaint for failure to state a claim, his
alternative motion for a more definite statement under
Fed.R.Civ.p. 12(e) will be denied as moot.
;ruage Willlam L. Standish
United States District Judge
Date: May~, 2011
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