INGRAM v. AMRHEIN et al, No. 2:2010cv01728 - Document 65 (W.D. Pa. 2011)
Court Description: MEMORANDUM OPINION re: The 48 MOTION to Dismiss filed by Defendants Richard Amrhein and Consol Energy and the 50 MOTION to Dismiss filed by Defendant Cary Jones. Signed by Judge William L. Standish on 9/1/2011. (md)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA NANCY INGRAM, Plaintiff, v. Civil Action No. 10-1728 RICHARD AMRHEIN, CONSOL ENERGY, and CARY JONES, Defendants. MEMORANDUM OPINION Pending before the Court are motions to dismiss Plaintiff's Amended Complaint filed by Defendants chard Amrhein and Consol Energy (Doc. No. 48) and by Defendant Cary Jones (Doc. No. 50.) both motions, brought pursuant to Fed. R. Civ. P. In 12(b) (6), Defendants argue that the claims of Plaintiff Nancy Ingram are barred by the statute of limitations, that she has failed to meeting the minimal pleading standards set forth in Ashcroft v. Iqbal, U.S. ,129 S. Ct. 1937, 1949 (2009), and/or that she has failed to plead with particularity the elements of her fraud claims as required by Fed. R . Ci v. P. 9 (b) . motions are granted. For the reasons that follow, Defendants' I. INTRODUCTION A. Factual Historyl Nancy Ingram was one of her mother, aintiff's Doris sister, A. six beneficiaries of Rogers, Sharon who died Caldwell, and on August her estate 11, brother, Rogers, were named co-executors of Mrs. Rogers' will. 2003. Kenneth Attorney Cary Jones was hired by the co-executors to assist in probate of the estate Washington County, Pennsylvan The only substantial assets of estate were two parcels of real property, one consisting of approximately 22 acres of what appears from the record to be farmland located in East Finley Township, Washington County, Pennsylvania. The other property was approximately 77 acres of land, contiguous to the first property, Washington County. but located in South Franklin Township, Part of the East Finley Township property, consisting of a house and approximately one acre of land, mailing address Pennsylvania. of 2106 Pleasant Grove Road, had a Claysville, Plaintiff refers to this house and acreage in her pleadings as "2106." (We will re to the two parcels of real estate collectively, including the 2106 house and land, as "the Property" and to the house and land at 2106 Pleasant Grove Road as "the 2106 property.") The facts in this section are taken from the Amended Complaint and the exhibits thereto and construed in favor of Plaintiff. 2 Because there were no other assets which could be used to pay inheri tance tax and other costs of estate executors decided to sell the Property. on November 10, 2003, administration, the Mr. Jones wrote to the heirs advising them that the farm land had been appraised at $210,000.00 and "the house" (apparently referring to 2106 property) at $87,500. (Doc. No. 47, Amended Complaint, "Am. Compl. ," Exh. 5.) As the estate was going through probate, disputing how the assets should be allocated. the heirs began Ms. Ingram alleges in her Amended Complaint and the attachments thereto that she and her father had orally agreed sometime in t 1970s that Plaintiff and her former husband could purchase the 2106 property for $30,000. This sale was never consummated and aintiff conceded she had never recei ved a deed to the house and land. However, Ms. Ingram insisted that she be allowed to purchase the house for $30,000 rather than the $87,000 at which it was then appraised and that she also share equally with the five other heirs; in short, she wanted to receive the 2106 property "off the top." Sometime before June 16, 2004, Consol Coal Company of Pennsylvania ("Consol") was identified as a potential purchaser of the Property.2 After some negotiations, Consol agreed to purchase Plaintiff named Consol Energy, not Consol Coal Company of Pennsylvania, as a defendant in this suit but has not explained why she did so. Al though 2 3 the Property for $348,000 and the transfer aintiff's objections -- on August 2, 2004. was made over Richard Amrhein served as attorney on behalf of Consol in the transaction. aintiff claims that all three Defendants defrauded her by violating an order purportedly issued by the Honorable Thomas Gladden in the Orphans Court Washington County. Division of the Court of Common Pleas of According to Ms. Ingram, on June 16 and June 23, 2004, Judge Gladden held two hearings to address the objections of Plaintiff (and perhaps those of other heirs) to the upcoming sale to Consolo At either t June 16 or the June 23 hearing, Gladden ruled possible fraud and denied. . . to sell [the Property.]" "Judge use of the Pef code 3 (Am. Compl., "Exhibits Attached," <fi 1.)4 Despite having been at the hearings and thus aware of this ruling, Mr. Jones and Mr. Amrhein proceeded with the sale of the Property in violation of the Judge's order. Plaintiff alleges that "sometime in 2008," after doing a t Ie all the evidence related to the sale clearly shows Consol Coal Company of Pennsylvania as the purchaser, we will refer simply to "Consol" since the distinction is irrelevant in light of the dismissal of this case in its entirety. 3 The Court believes, based on the context, that Plaintiff's use of the phrase "Pef code" is a reference to the Probate, Estates and Fiduciary Code of Pennsylvania, 20 Pa Cons. Stat. § 101 et seq. Plaintiff has attached to the Amended Complaint a list in which she explains the source or evidentiary purpose of each Exhibit. The Court has construed these statements as if they were allegations even though they are not part of the Amended Complaint per se. 4 search, she learned that there had actually been three individual the 2106 property, sales: Township and the 77 the 22 acres of land in East Finley acres in South Franklin Township, $348,000, a total of $1,044,000. each for "[B]y not making a full disclosure to the Court at the time of the adjudication [i.e., the June 16 and June 23, 2004 hearings] and subsequently acting to manipulate the chain of title, Defendants herein defrauded aintiff." (Am. CompI., en 1.) Briefly stated, Mr. Jones is alleged to have defrauded Plaintiff and the other heirs by selling the 2106 property over her wishes, failing to record two of the three transactions and, withholding $696,000 from them. defrauded Ms. As apparently, counsel for Consol, Mr. Amrhein Ingram by "effectuating the sale of the Property outside of probate," despite knowing that Judge Gladden had "denied the abil y of Amrhein being able to sell any real estate to Consol." Moreover, Mr. Amrhein knew of her claim to the 2106 property, but acted with total disregard for that claim and later "covered up" the trans r in the county tax records. (Am. Compl. en L. ) Consol acted fraudulently by effectuating "the transfer of the estate outside of probate, without approval of the Court," that is, "over above Judge Gladden's ruling." B. (Am. Compl., en N.) Procedural History Acting pro se, Plaintiff filed suit on December 23, 2010, 5 alleging fraud against Mr. Amrhein, Consol, and Mr. Jones (Counts I through III respectively), and against her former attorney, David Barton, for failing to fi a peti tion for contempt against the other Defendants when they transferred the Property "in direct defiance of Judge Gladden's ruling." (Count IV, Complaint, ~ 22.) Consol and Mr. Amrhein, Mr. Barton, and Mr. Jones all moved to dismiss the Complaint. On April 21, 2011, the Court issued a Memorandum Opi on and Order granting Mr. Barton's motion with prejudice, concluding that Plaintiff had failed to state a plausible claim for fraud against him and that amendment would be ile. (Doc. Nos. 38 and 39.) May 4, 2011, the Court granted the motion to dismiss On led by Consol and Mr. Amrhein (Doc. Nos. 41 and 42), along with Mr. Jones' motion (Doc. Nos. 43 and 44.) The two latter dismissals were without prejudice to Plaintiff's right to file an amended complaint by May 27, 2011. Plaintiff filed an Amended Complaint 5 with a number of exhibits Plaintiff's Amended Complaint again named as a Defendant David Barton, the attorney who initially represented her in her dispute wi th the executors and who, according to the initial Complaint, had aided and abetted the other Defendants in their fraud. The claims against Mr. Barton in the Amended Complaint were in direct contradiction to the Court's previous Order which had dismissed all such claims with prejudice. Ms. Ingram subsequently moved to dismiss him from this action. (See Doc. No. 60, granted at Doc. No. 61.) Therefore, none of the claims against Mr. Barton in the Amended Complaint have been addressed by the Court. In addition, Plaintiff again demanded treble damages (based on the sale price of the Property) against each Defendant in the Amended Complaint, despi te having been advised that "there simply is no basis for the request" under Pennsylvania law, which limits her damages in a case alleging fraud 5 6 in which she reiterated her claims of fraud against Mr. Jones, Mr. Amrhein and Consol for their activities relating to the sale of the Property. Defendants subsequently moved to dismiss the Amended Complaint in its entirety. The parties having fully briefed the motions, they are now ripe for decision. C. Jurisdiction and Venue Ms. Ingram is a Amrhein and Mr. resident and ci ti zen of Florida; Jones are residents of Pennsylvania, Mr. and Consol Energy is a corporation with its principal place of business in Pennsylvania. This Court therefore has jurisdiction based on complete diversity of the parties and, according to the Complaint, an amount in controversy in excess of the statutory minimum. 28 U.S.C. § 1332(a)-(c). See Venue is appropriate in this Court under 28 U.S.C. § 1391(a) because all defendants reside in the same state and the same judicial district. II. STANDARD OF REVIEW In the aftermath of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, U.S. , 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and the interpretation of those two cases by the Third Circuit Court of Appeals, the pleading standards which allow a complaint to withstand a motion to dismiss pursuant to Rule 12 (b) (6) have taken on slightly new parameters. to her "actual loss.u (Doc. No. 43 at 6.) 7 The standard is now whether the complaint includes "sufficient factual matter to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) i see also Twombly, 550 U.S. at 555, holding that a complaint which offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." The Fowler court further directed that in considering a motion to dismiss, the district court should undertake a two-part analysis: First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Fowler, 578 F.3d at 210-211 (quotations and citations omitted.) "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949; see also Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009), and Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific 8 task that requires the reviewing court to draw on its judicial experience and common sense." In re Ins. Brokerage Anti trust Litig., 618 F.3d 300, 361 (3d Cir. 2010), quoting Iqbal, 129 S. Ct. at 1950. A complaint should not be dismissed even if it seems unlikely that the plaintiff can prove the facts alleged in the complaint or will ultimately prevail on the merits. The Twombl pleading standard "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element. Cir. 2009) II McTernan v. City of York, 564 F. 3d 636, 646 (3d (internal quotations omitted.) Since Plaintiff's claims sound entirely in fraud, the Amended Complaint must be able to withstand the heightened pleading standard imposed by Fed. R. Civ. P. 9 (b). This Rule requires a party to "state wi th particulari ty the circumstances consti tuting fraud or mistake," al though "mal ice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Id. particularity order requirement is imposed "in The to heightened 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." 223-224 (3d Cir. 2004), Lum v. Bank of Am., 361 F. 3d 217, quoting Seville Indus. Mach. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). 9 Corp. v. In establishing the circumstances of the alleged fraud, the plaintiff must plead "the date, place or time" of the fraud or use an "alternative means of injecting precision and some measure of substantiation into (her] allegations," Seville Indus., Frederico v. Home DeE2!, 507 F.3d 188, 200 (3d Cir. 2007). Court of Appeals for the Seventh Circuit has id. As the commented, "particularity" in describing the circumstances "means the who, what, when, where, and how: story." the first paragraph of any newspaper DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7 th Cir. 1990). III. ANALYSIS Inasmuch as Ms. Ingram is liberally interpret her p acting pro se, this Court will adings as required by the United States Supreme Court and the Court of Appeals of this Circuit. See Dasilva v. Sheriff's Dep't, No. 10-1406, 2011 U.S. App. LEXIS 1095, *5 (3d Cir. Jan. 20, 2011), citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the allegations of a pro se complaint "to less stringent standards than formal pleadings dra ed by lawyers.") Plaintiff has now submitted at least four documents attempt to state her claims against Defendants: 46, and 47. All allegations made in Doc. No. Doc. Nos. 47, 6 which I, 45, the Amended Complaint which Defendants now move to dismiss, appear in earlier A fifth document, referred to in the docket as an amended motion to amend/correct the case was interpreted by the Court as a motion to file an amended complaint. (Doc. No. 32.) 10 6 versions of the complaint. More importantly, there are no new allegations in Doc. No.4 7 which have not been previously put forward. The Court has also considered Plaintiff's responses to Defendants Motions to Dismiss, i.e., Doc. Amrhein/Consol motion) and 58 attachments thereto. Nos. 55 (response to the (response to Jones' motion) and the We find Ms. Ingram has still iled to state a claim for fraud against any Defendant. A. Requirements for Stating a Claim of Fraud As requires this six Court elements has in previously noted, order to establish Pennsylvania fraud: law "1) a misrepresentation, 2) material to the transaction, 3) made falsely, 4) with the intent of misleading another to rely on it, 5) j usti reliance resulted, reliance." and 6) injury was proximately caused by the Santana Prods., Inc. v. Bobrick Washroom Equip., Inc., 401 F.3d 123, 136 (3d USA, able r. 2005), citing Viguers v. Philip Morris Inc., 837 A.2d 534, 540 (Pa. Super. Ct. 2003). At the very least, "(p]laintiffs also must allege who made a misrepresentation to whom and the general content of the misrepresentation." Lum, 361 F.3d at 224. Here, the misrepresentation Plaintiff alleges was not made directly to her, but rather to Judge Gladden at the hearing on June 16 or 23, 2004, about the number of sales which were pending. She was apparently present at one or both of these hearings and could 11 theoretically have relied on it. alleged in the Amended Compl learn that Such reliance could be adequately because she states that she did not re had been three sales until sometime in 2008. Even construing the Amended Complaint in Plaintiff's favor, however, we conclude she has failed to state the author(s), time, or content of this alleged misrepresentation in sufficient detail inasmuch as she alleges only transaction that at "The issue Defendants in the herein disclosed adjudication. By misrepresentation, they avoided full disclosure." 1.) In short, there is insufficient p in this statement to pass the particula Anot r option remains open to Ms. establish Defendants fraud claim. the fraudulent (Am. Compl., ty test. Ingram in attempting to To the extent her claim is based on iling to reveal the fact that there were to establish ~ sion and substantiality separate sales of the Property, a material non-disclosure can suf instances single fraud. "The tort of ce in some intentional non-disclosure has the same elements as the tort of intentional misrepresentation [or frauq] except that in a case of intentional non-disclosure the party intentionally conceals a material fact rather than making an affirmative misrepresentation." Ern s t, 647 A. 2 d 882, 88 9 n. 12 (P a. 1994) . Gibbs v. While active concealment can be fraud, mere silence is not, unless there is a duty to speak. Smith v. Renaut, 564 A.2d 188, 192 (Pa. Super. Ct. 1989) i see also 12 A.2d 555, 560 (Pa. 1999) (comparing the elements of intentional misrepresentation and intentional non-disclosure). With these guidelines in mind, we turn to Plaintiff's claims against each Defendant. B. Claims against Cary Jones In the Amended Complaint, PI ntiff alleges, as she did in her earlier complaints: Defendant Jones acted to effectuate trans r of 2106 outside of probate. As couns for the estate, Jones knew of the pre-death transfers that had to have been made so as to effectuate such trans r. It was he who drafted the certi cate of transfer (unrecorded quit claim deed) ,7 and perfected trans r by securing the signatures of the executors of the estate indicating in direct contravention to the facts - that "no unrecorded claims" existed on the property. Defendant Jones proceeded wi th the sale of real estate wi th total disregard for Judge Gladden's ruling. Proceeding with the sale was an act of contempt of Court. Subsequently, Jones committed a fraud as against this Plaintiff and all beneficiaries by iling to disclose that portions of the real estate had been transferred outside of probate by pre-death transfer. (Am. Compl., ~~ 0 and P.) The Court interprets the first paragraph as an allegation that Mr. Jones defrauded Plaintiff and the other beneficiaries by allowing the 2106 property to be sold as part of the estate even though he Plaintiff's reference to a "certificate of transfer" or "an unrecorded quit claim deed" remains obscure to the Court. The evidence shows that the two deeds which appear among Plaintiff's exhibits were both recorded. (Am. Compl., Exhs. 7 and 15.) 13 knew that the property had been the subj ect of "a pre-death trans r." The only relevant "pre-death transfer" of property the Court can glean from t intent to trans exhibits to the Amended Complaint is t purported r the house and surrounding one acre property under an oral agreement between Ms. Ingram acknowledged during the Ingram and her father. probate process that 8 she Ms. never recei ved a deed to the house and lot, but insisted to the other heirs and Mr. Jones that she should receive them in addi tion to her portion of the estate. fees ass In exchange, she would pay inheritance tax and any ated with subdividing the 2106 property from the rest of the real estate in East Finley Township; she would also "buyout" the interest of Ms. Caldwell (the only heir who opposed the plan) by paying her one-sixth of the appraised value of the house. Jones contacted the other heirs by letter on November 10, outlining this distribution, proposal. Mr. 2003, and asking for their consent to her (Am. Compl., Exh. 5.) It appears the consents were not forthcoming. iff further contends that de te her claim, the 8 There is an additional transfer of property in the record, the relevance of which the Court has been unable to decipher. Ms. Ingram refers to the fact that another 10-acre property belonging to her parents was divided into "plot plans" and that Ms. Caldwell "put it in her name." (Am. Compl., Exhibits Attached, ~ 15.) Exhibit 15 is a deed conveying approximately 10.3 acres from Mrs. Rogers to her daughter Sharon Caldwell and Ms. Caldwell's husband on May 2, 2002. The property was divided into three lots and is identified as being part of tax parcel 270-011-00-00-0030-00. It appears these lots were subsequently transferred to Consol as part of the sale on August 2, 2004, but how and why are unclear. 14 executors of the estate signed an Owner's Affidavi t stating that they knew of no unrecorded claims against the property. 6.) (Am. Compl., Exh. Mr. Jones and the executors then deleted a provision from a petition requiring approval by the Orphans' Court for the sale to proceed. (Am. Compl., Exh. 10.) The property was sold to Consol on August 2, 2004, and Mr. Jones advised the heirs - including Ms. Ingram -- of these actions by letter on August 30, 2004. 8.) Id. Exh. Plaintiff also claims Mr. Jones "committed fraud on a Will" by ignoring Judge Gladden's purported order that the Property could not be sold. In Pennsylvania, an action alleging tortious conduct, including fraud, must be brought within two years of the date on which the conduct occurred. See 42 Pa. C.S.A.§ 5524(7). The limitations period begins to run when the plaintiff "learned or reasonably should have learned through the exercise of due diligence" of the existence of the claim. Beauty Time, Inc. v. VU Skin Sys., Inc., 118 F. 3d 140, 148 (3d Cir. 1997)i Pearce -------~-----------------~ (Pa. Super. Ct. 1996) device which tolls 674 A.2d 1123, 1125 ("The discovery rule is a judicially created the running of the applicable statute of limitations until that point when the plaintiff knows or reasonably should know (1) that he has been injured, and (2) that his injury has been caused by another party's conduct.") omitted.) (Internal quotation The fact that Ms. Ingram is and was aware of this rule 15 is clear on the face of her Amended Complaint, since she states that "[i]n August of 2006, to avoid having the Statute of Limitations run out, Ingram filed a Praecipe for Summons." (Am. Compl. Exhibits Attached, en 9; see also the last page of Exh. 9, identifying Mr. Jones as a defendant in Ms. Ingram's action filed in the Court of Common Pleas of Washington County.) We need not consider whether any actions by Mr. Jones satisfied the criteria for stating a cause of action for fraud because we conclude Plaintiff's claims against him are barred by the statute of limitations. To the extent Mr. Jones defrauded Ms. Ingram by effectuating the sale of the 2106 property over her objections, by directing the executors to delete the provision from the petition which required court approval of the sale, allowing) or by directing (or the executors to sign the affidavit stating they were unaware of any unrecorded claims against the property, those events all occurred not later than August 2, 2004, when the transfer was made. Similarly, if, in fact, Mr. Jones did commit "fraud on a Will" by defying Judge Gladden's order, that fraud occurred simultaneously with or prior to the sale. Plaintiff had to have been aware of the sale not later than August 30, 2004, when Mr. Jones wrote to her and the other heirs. Although the (Am. Compl., Exh. 8.) statute of limitations is considered an affirmati ve defense (Fed. R. Ci v. P. 8 (c) ), it may be properly raised 16 a motion noncompliance to dismiss with the "where the limitations complaint period defense clearly appears on the face of the pI and facially shows the affirmative ng." McCreary v. Redevelopment Auth. of the City of Erie, No. 10-4243, 2011 U.S. App. LEXIS 10009, *6 (3d Cir. May 17, 2011), quoting Oshiver v. Levin, shbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994). The letter of August 30, 2004, provided by Plaintiff, shows she was aware of all Mr. Jones's actions on which her claim of fraud is based more than six years be this Court. she filed her complaint against him in Plaintiff's fraud claims against therefore time-barred and are dismissed with C. Mr. Jones are jUdice. 9 Claims against Richard Amrhein Plaintiff al ges that Defendant Amrhein, as counsel for Consol, acted to effectuate transfer (the] Estate to Consol outside of probate. Amrhein, having been present at argument on a motion before Judge Gladden, heard His Honor deny the lity of Amrhein being able to sell any real estate to Consol(,] ignored Judge Gladden's ruling and proceeded with the sale. He had knowledge of Ingram's c im to 2106. He acted with total disregard to any valid claim to the real estate. Additionally, Amrhein did act ly cover up the transfer on t public record. As recently as August 2010, Defendant Amrhein refused to speak of the trans r or to allow Ingram or Ingram's agent Al though Ms. Ingram also states that Mr. Jones is \\ in Contempt of Court for ignoring Judge Gladden's order and withdrawing the Petition" (Am. Compl., Summary, at 8), as this Court has previously noted, only the Orphan's Division of the Court of Common Pleas of Washington County can address this claim. See Memorandum Opinion, Doc. No. 41, at 6, n. 7. 9 17 to engage in discovery. Specifically, Amrhein indicated that Ingram "will have to find out on your own. H 10 ~~ (Am. Compl., Land M.) To the extent the allegations of fraud are based on actions Mr. Amrhein took regarding the sale of the Property despite his knowledge of Ms. Ingram's claim to the 2106 property, such claims are time-barred for the reasons discussed in the previous section. Plaintiff further alleges that Mr. Amrhein "separated and deeded off the property and never recorded it in the Courthouse." (Am. Compl., Exhibits Attached, ~ 11.) Plaintiff's proposed evidence for this claim is that a title search performed in 2008 showed there are two separate deeds for the property, one for 22 acres in South Franklin Township and a second for 77 acres in East Finley Township, each showing the individual parcel was sold to Consol on August 2, 2004 for $348,000. Summary List" shows instrument number. two deeds Moreover "Doris Rogers' for the (Am. Compl., Exh. 11.) Instrument transfer under a single The third portion of the property sold for $348,000 is 2106 property; Plaintiff alleges that a deed for this property was never recorded but the separate sale is evident Statement. H from the estate's 2004 tax form and a "Settlement (Am. Compl., Exhs. 12 and 14.) Again, the Court is unsure of the relevance of this statement to Ms. Ingram's claims of fraud. Mr. Amrhein acted as attorney for Consol and owed Plaintiff no legal duty, e.g., to speak to Ms. Ingram or to allow her to "engage in discovery.H 10 18 Finally, Plaintiff alleges that despite having been at the June 23, 2004 hearing before Judge Gladden at which he denied "the use of the Pef code," Mr. Amrhein facil to Consol Coal. of Court." ated the sale of the property "He is involved in fraud on a Will and is in Contempt (Am. Compl., Summary, at 8.) We separate Plaintiff's claims against Mr. Amrhein into (1) those actions which (1) pertain to his alleged contempt of Judge Gladden's order regarding transfer of the estate and (2) those which pertain to his alleged fraudulent actions by "covering up" the fact that the Property had been divided into three parcels and sold for a total of $1,044,000. as noted in our We may deal with the first in short order: previous Memorandum Opinion addressing these allegations, this Court has no authority to hold Mr. Amrhein or any other Defendant in contempt of the Court of Common Pleas of Washington County Pennsylvania. (See note 10, supra.) Plaintiff's argument that she and the other heirs were defrauded when Mr. Amrhein facilitated three separate sales of the Property is undercut by her own evidence. Plaintiff attaches to her Amended Complaint a copy of the Special Warranty Deed between the executors of the estate and Consol Pennsylvania Coal Company which describes by metes and bounds the property being transferred. The acreage described totaled approximately 109.338 acres, of which approximately 12.75 acres were subject to prior conveyances, leaving 19 a total of approximately 96.628 acres in the sale to Consolo Compl., Exh. identified 7.) as (Am. The deed notes that the property conveyed is tax parcel numbers 270-011-00-00-0030-00 and 590-007-00-00-0010-00, and that the "actual consideration for the within conveyance" was $348,000.00. Attached to the deed is a receipt from the Recorder of Deeds of Washington County, noting a single instrument number, 200425709, the same tax parcel identification numbers as above, and the same consideration. (Id. ) The same parcel numbers and instrument number are shown in the tax records of South Franklin Township and East Finley Township, also included. In addition, Plaintiff provides a "Settlement Statement" which she alleges shows that the 2106 property was separately sold for $348,000.00. (Am. Compl., Exh. 14.) This claim is refuted by the fact that the "property location" shown on the statement at that address has two tax parcel identification numbers, the same as those shown above. Since a rough survey provided by Plaintiff (Am. Compl., Exh. 11) shows that the property at 2106 Pleasant Grove Road sits entirely in East Finley Township, it is inconceivable that the Settlement Statement could only to that property. Moreover, the total settlement charges paid from the refer single acre of buyer's funds at settlement, $7,013.00, precisely match the amount shown on the Recorder of Deeds invoice attached to the Special 20 warranty Deed for the transfer of the entire 97 acres. ll In sum, Plaintiff has not supported her claim that Mr. Amrhein defrauded her by facilitating three separate sales $1,044,000 for the property in her mother's estate. totaling We conclude, based on her allegations and the evidence she has submi tted in support thereof, that her fraud claim against Mr. Amrhein is not "plausible on its face." Twombly, 550 U. S. at 570. All claims against him are therefore dismissed. D. Claims against Consol Energy The claims against Consol Energy are solely that acting through its agent, Mr. Amrhein, and in violation of Judge Gladden's ruling, Consol Energy purchased the property, and as recently as August 2010, again through Mr. Amrhein, "denied Plaintiff discovery relevant Moreover, in the "Consol perpetuation Pennsylvania of fraud." Coal Co. (Am Compl., purchased the ¬]I N.) estate illegally [because] Consol needed all the heirs' signatures as they purchased the estate wi th a Qui t Claim Deed on it. fraud on a Will and was in Contempt of Court. II Consol committed (Id., Summary at 9.) These claims are even more tenuous than those against Messrs. Amrhein and Jones. Again, they fail the plausibility test and must 11 The dubiousness of this claim is further reinforced by the fact that the 2106 property was appraised at no more than $97,500. (Am. Compl., Exh. 13.) It is incongruous to believe that a corporation would pay $348,000 for property appraised at that value unless there were other compelling reasons, none of which appear in the record. 21 be dismissed with prej udice. Equally important, Plaintiff has iled to recognize that she has erroneously named Consol Energy as a defendant rather than Consol Pennsylvania Coal Company, despite having been advised of this problem in earlier pleadings. ( See, e.g., Doc. No. 29 at 9.) Ms. Ingram has latest numerous amendment opportunities still fails to to amend complaint, yet particula ty the events and actions on which her fraud cIa based. the had her state with are The documents she provides to support her claims are equally unavailing. We conclude that further attempts at amendment would be futile and therefore dismiss all claims with prejudice. appropriate Order follows. September I , 2011 William L. Standish United States District Judge 22 An
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