Opinion
3:18-CV-250-SLH-KAP
11-30-2020
CYNTHIA J. ROWE, Plaintiff v. PENNY J. ROBERTS, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
RECOMMENDATION
Pending are motions to dismiss by defendant William Carroll, ECF no. 24, Jason Hunter, ECF no. 25, and Faye Cole and Penny Roberts, ECF no. 27. They should be granted, and the complaint should be dismissed without prejudice to refile the action in state court.
Report
Plaintiff Cynthia Rowe, the widow of Harold Rowe, is domiciled in Florida. Proceeding pro se, she filed a Complaint postmarked December 6, 2018, naming as defendants her sister in law Penny Roberts, Penny's sister Faye Cole, their attorney William Carroll, Esquire, and the Somerset County District Attorney's Office's Chief Detective, Jason Hunter. The defendants are domiciled in Pennsylvania. A fair reading of the Complaint, ECF no. 3, and several supplemental pleadings filed by plaintiff at ECF nos. 5, 7, 8, 31, 32, and 33, viewed in the light most favorable to plaintiff, indicates that Harold Rowe died on December 24, 2014 in Pennsylvania. Harold and the plaintiff were married in 2001 and were married at the time of Harold's death, although the two were separated. During Harold's last illness he was in a hospital in Pennsylvania, and during that time Penny was involved in the completion of Harold's advance health care directive, which is attached as an exhibit to the complaint. Plaintiff alleges that Harold would not have made the decisions memorialized therein. Harold's original death certificate, also attached as an exhibit to the complaint, listed his marital status as divorced. Harold's sister Penny was the source of the information on the death certificate.
Allegedly, after Harold's death, Penny disposed of Harold's property contrary to Harold's wishes, depriving plaintiff of items that should have been passed to her. One item of property allegedly is an insurance policy issued to Harold by the Colonial Penn Life Insurance Company. By letter dated March 2, 2018, the insurance company informed plaintiff that to disclose information about the policy it needed proof that plaintiff was the executor of Harold's estate. No further information is given about this policy. In the exhibits submitted by plaintiff there is reference made to a New York Life policy in the amount of $10,000.
Since plaintiff is proceeding in forma pauperis, 28 U.S.C.§ 1915(e)(2) commands:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
The legal theories for plaintiffs claims against the defendants are less than clear. Plaintiff describes Penny's conduct as “fraud.” Faye is not alleged to have committed an independent fraud but is Penny's sister, allegedly had knowledge of Penny's wrongdoing, and it is implied, benefited from Penny's conduct. Hunter's only role in this matter is that as a detective he interviewed Penny and concluded that Penny did not have the intent to defraud plaintiff. Hunter so advised plaintiff of this in a letter dated January 30, 2017, attached as an exhibit to the Complaint, and advised plaintiff that she could file an amended death certificate. Plaintiff subsequently did so, and it is dated January 10, 2018, and is attached as an Exhibit to the Complaint. Carroll is Penny's attorney: he spoke or wrote to defendant Hunter on Penny's behalf and has knowledge of Penny's disposition of Harold's belongings.
In the “Relief' section of the complaint, plaintiff seeks only that “she” (it is apparent that “she” is Penny) pay her legal fees and return or compensate plaintiff for the property “[t]hat my husband had for me.” Plaintiff mentions contacting attorneys in Florida and Pennsylvania in 2016, but does not even approximately give a figure for her legal expenses or for the value of the property she was allegedly deprived of. She describes that property generally as Elvis memorabilia and mentions “CDs” without any indication that she knows that any certificates of deposit existed.
No claim is stated against defendant Hunter. Hunter does not by virtue of his office owe any legal duty to plaintiff and accordingly breached no duty to plaintiff by deciding not to pursue any criminal charge against Penny. The Supreme Court has expressly stated that a private citizen lacks a judicially cognizable interest in either the federal prosecution or nonprosecution of another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)-Pennsylvania has a limited private criminal complaint process under Pa.R.Crim.P. 506, but it does not under state law confer a right to have another person prosecuted either. If there were such a right, absolute immunity would still protect Hunter from liability for money damages resulting from a decision not to prosecute.
No claim is stated against defendant Carroll. His alleged role in this matter is representing Penny and arguing that she lacked intent to commit fraud in Carroll's communication with defendant Hunter. In a local ease, as a matter of first impression, the Pennsylvania Superior Court considered “whether statements made preliminary to a criminal proceeding, made solely to the officials who might he responsible for prosecuting the criminal charges, and made by private parties for the purpose of initiating the prosecution of those charges, are absolutely privileged.” Pawlowski v. Smorto, 588 A.2d 36, 42 (Pa. Super. 1991). As a matter of state law, the court declared even defamatory statements in such a context to be privileged. See Schanne v. Addis, 121 A.3d 942, 947 (Pa. 2015), citing with approval Pawlowski v. Smorto, supra. Plaintiff does not allege any unprivileged defamatory statements by Carroll, and if the plaintiff could be taken to be asserting that Penny's statement that plaintiff and Harold Rowe were divorced is a defamatory statement, Carroll is not liable for conveying this statement to Hunter.
As for any claim of fraud against Penny (and anything concerning Penny would apply to Faye as well since her role is at worst no more culpable than Penny's), plaintiff must allege six elements:
(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 reliance. See Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994).
Plaintiff appears to be claiming that Penny represented on the original death certificate that plaintiff was divorced from Harold Rowe to defeat her claim to his estate. How this caused or could have caused her injury is not alleged.
Plaintiff also alleges that there never was an estate opened in Somerset County. It is not clearly alleged whether Harold died testate, in which case the proper venue for probating any will and for the distribution of the estate is the Orphans Court Division of the Court of Common Pleas of Somerset County, or whether Harold died intestate and plaintiff (assuming no issue or surviving parent) would be entitled to the entirety of the estate. 20 Pa.C.S.g 2102. A generous interpretation of the complaint as amended is that plaintiff is alleging that Penny has wrongfully appropriated some of the assets of the estate. That claim would not be one that is excluded from federal jurisdiction by the probate exception to diversity jurisdiction.
However, this would have diversity jurisdiction the claim against Penny and Faye only where: (1) the controversy is between citizens of different states, and (2) the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). The second requirement, that the matter in controversy exceeds $75,000, is not pleaded.
As the party invoking diversity jurisdiction, plaintiff bears the burden of alleging in good faith that the amount in controversy exceeds $75,000. Auto-Owners Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388, 395 (3d Cir.2016), citing St. Paul Mercury Indem. Cm v. Red Cab Co., 303 U.S. 283, 288-89 (1938)). Where a plaintiff makes no money damage demand in the complaint “and the court is unable to infer any specific value of such damages, ” the plaintiff has failed to meet the minimal burden of alleging that the amount in controversy exceeds $75,000. Johnson v. Rite Aid (Derek Faight), No. CV17-862, 2018 WL 4838540, at *6 (W.D. Pa. Oct. 4, 2018). Another way of phrasing the point is that when the complaint is so patently deficient as to reflect to a legal certainty that the plaintiff could not recover the jurisdictional amount the complaint should be dismissed. See Huber v. Taylor, 532 F.3d 237, 246 (3d Cir. 2008).
In response to this argument, plaintiff baldly states, “I did explain 75, 000.00 for Elvis collection, my belonging[s] in house, my engagement ring, pain, suffering....” ECF no. 31-5 at 10, ¶7. Pain and suffering cannot be relied on to push the amount in controversy over the threshold: in Pennsylvania, damages for fraud are limited to pecuniary losses caused by the fraud. Delahanty v. First Pa. Bank, N.A., 464 A.2d 1243, 1257 (Pa. Super. 1983). Further, at no place in the pleadings does plaintiff allege any value for the above-listed items or any other items she claims were taken from her. In various pleadings, petitioner offers pictures of or lists alleged missing personal property that was in her husband's possession at the time of his death, such as an Elvis collection (including a 3D picture and plates), a grandfather clock, clothing, Lost in Space models, and old Avon bottles; however, she does not assign any value to these items. Further, although she mentions CDs, which presumably would have an easily ascertained value, she does not assign any value to these either. There is the additional problem of the statute of limitations, in that plaintiff did not file her complaint until December 2018, and given a two year statute of limitations for fraud or conversion, 42 Pa.C.S. § 5524(7); only the value of property fraudulently taken or converted after December 2016 would be relevant. A fair reading of the complaint would indicate that any fraud or conversion took place during and shortly after Harold's last illness.
No one minimizes the heartbreak of the loss of a spouse, or claims that the items of property that plaintiff believes were taken were not of sentimental value to her. But because plaintiff has not met her burden of establishing subject matter jurisdiction in this Court, it is recommended that the complaint be dismissed against defendants without prejudice to transferring the matter to state court under 42 Pa.C.S. § 5103(b)(2).
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation.