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HomeMy WebLinkAbout00-424 civilRONALD L. KEPNER, Plaintiff VS. KEYSTONE FINANCIAL (formerly FINANCIAL TRUST COMPANY) and JACK V. HUTCHISON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-424 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE BAYLEY AND HESS, JJ_. ORDER AND NOW, this day of November, 2000, the preliminary objections of the defendants to Counts I, II, III, IV, V, VII, VIII, IX, X, XI, XIII, XIV, XV, and XVI of the plaintiff's complaint are SUSTAINED and said counts are DISMISSED. The preliminary objections of the defendants to the ad damnum clauses of the complaint are SUSTAINED. The plaintiff is granted leave to amend the prayer for relief of Count XII and Count XVII in compliance with Pa.R.C.P. 1021. The preliminary objection of the defendants to Count VI is DENIED. The plaintiff is granted leave to amend Count VI to consolidate and to clarify his claims with respect to damage to his personal property or the wrongful sale or conversion thereof and to amend his prayer for relief. BY THE COURT, K~'A., Hess, J. Ronald L. Kepner Pro Se Timothy J. McMahon, Esquire For the Defendants RONALD L. KEPNER, Plaintiff VS. KEYSTONE FINANCIAL (formerly FINANCIAL TRUST COMPANY) and JACK V. HUTCHISON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-424 CIVIL CIVIL ACTION- LAW JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER Before the court are the defendants' preliminary objections to the plaintiff' s complaint and a motion to amend the plaintiff's complaint. Normally speaking, we would defer disposition of the defendants' preliminary objections pending resolution of a motion to amend the complaint. Given the circumstances of this case, we are satisfied that we can resolve the motions simultaneously. As can be seen from a reprise of the filings, this case in its brief life has become something of a procedural morass. On January 24, 2000, the plaintiff filed virtually identical actions in the United States District Court for the Middle District of Pennsylvania and in the Court of Common Pleas of Cumberland County. On January 24, 2000, the plaintiff filed a motion in this court seeking the tolling of the statute of limitations in the event of a jurisdictional defect in the federal action. On February 17, 2000, the federal action was dismissed for lack of subject matter jurisdiction. On February 28, 2000, the plaintiff filed, in this court, a motion to amend his complaint. We thereafter issued a rule upon the defendants to show cause why the motion to amend ought not to be allowed. The plaintiff then filed an addendum to this motion on 00-0424 CIVIL April 7, 2000, and an addendum to the addendum on April 10, 2000. On April 17, 2000, the defendants filed preliminary objections to the plaintiff' s complaint. A response thereto was filed on May 1, 2000. On June 21, 2000, the plaintiff listed his motion to amend for argument. Preliminary objections of the defendants were listed on June 30, 2000. This lawsuit arises out of a mortgage foreclosure proceeding, including a sheriff' s sale, involving a home owned by the plaintiff and his wife. The defendant, Keystone Financial Bank (formerly Financial Trust Company),1 was the foreclosing mortgagee. The docket at the mortgage foreclosure proceeding, Civil Term 1997-2772, indicates that the mortgage foreclosure proceeding was not contested and no action was taken to stay the sheriff' s sale. As noted in the plaintiff' s complaint, his residence was sold at sheriff' s sale on March 4, 1998. The defendants were the high bidders. On March 4, 1998, following the sheriff' s sale, it is alleged that the defendant Hutchinson entered the property and took possession of the home on behalf of the bank. In this connection, he had obtained a court order which, essentially, evicted the defendant. The defendant has filed, pro se, a complaint containing seventeen counts and three hundred five paragraphs. The complaint seeks literally millions of dollars in compensatory and punitive damages. Despite the clear mandate of Pa.R.C.P. 1021, that a pleading "demanding relief for unliquidated damages shall not claim any specific sum" the complaint puts a specific value on items of damages traditionally regarded as noneconomic. For example, following. eighty-three paragraphs in Count I, the defendant makes demand for more than thirty specific items. These include, for example' 6. $ 8,100 Future Medical Treatments from January 2000 to age 72 ~ $ 300 1 The nom du jour is M & T Bank. 00-0424 CIVIL per year for 27 years 7. $ 15,050 Emotional distress, humiliation and embarrassment from March 4, 1998 to January 2000 ~ $50 per day for 9855 days 8. $ 492,750 Emotional Distress, humiliation and embarrassment from January 2000 to age 72 ~ $50 per day for 9855 days 9.$ 492,750 Loss of sleep from March 4, 1998 to January 2000 ~ $ 50 per day for 301 days 10. $ 492,750 Loss of sleep from January 2000 to age 72 ~ $50 per day for 9855 days Complaint, page 16. A theme throughout the complaint is that by their actions during and after the foreclosure, the defendants violated the civil rights of the plaintiff. Among the many counts in the complaint are some which advance legal theories which are, at best, novel. As noted previously, the defendant filed a nearly identical complaint in the United States District Court for the Middle District of Pennsylvania. By order dated February 17, 2000, United States District Judge Yvette Kane dismissed the plaintiff' s action. A copy of her memorandum and order is attached to the defendants' objection to the plaintiff' s motion for leave to amend. In dismissing the plaintiff' s claim pursuant to 42 U.S.C. Section 1983 for a violation of civil rights, Judge Kane noted: In order to state a viable Section 1983 claim, a plaintiff must plead two elements: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that said 00-0424 CIVIL conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Se__~e West v. Atkins., 487 U.S. 42.49 (1988). Plaintiff' s attempt to state a Section 1983 claim fails on prong one- his complaint seeks relief for the actions of a private individual and a Pennsylvania corporation. Plaintiff fails to recognize that 42 U.S.C. § 1983 provides a vehicle for federal jurisdiction over civil rights claims against state actors, not private citizens. The motion of the defendant for leave to amend, in addition to proposing relatively minor changes to dates and valuations, attempts to address the ruling of the federal court by seeking to include an allegation that the defendants' actions were carried out "under color of law." In this case, the plaintiff complains of the actions of a bank and one of its senior employees in the conduct of a foreclosure action. The defendants are clearly private parties. Nevertheless, at least three relevant paradigms of state action by a private individual have developed in Supreme Court jurisprudence: (1) the "public function" test, (where a private actor is performing activities or services which traditionally have been the exclusive prerogative of the state); (2) the "symbiotic relationship" test, (where interdependence between state and private actors is such that they were joint participants in the activity); and (3) the "close nexus" test, (where the state can be deemed responsible for the specific conduct of a private actor). (Citations omitted) Hennessy v. Santiago, 708 A.2d 1269 at 1276 (Pa. Super. 1999). Reading the plaintiff's complaint as a whole, the allegations of the complaint fail to satisfy any of the above "paradigms." Thus, the proffered amendment adds nothing to the complaint and will not be allowed. 00-0424 CIVIL We turn now to the preliminary objections of the defendants. Initially, they contend that counts I and II of the plaintiff' s complaint are barred by res judicata and/or collateral estoppel. We agree, noting that the federal court has already ruled that the plaintiff does not have claims for violations of due process or civil rights as pleaded under those counts, because he has brought an action against a purely private individual and a private entity. We are satisfied that the plaintiff is estopped from relitigating this issue. To invoke collateral estoppel, five elements must be present: (1) the issue decided in the prior case must be identical to the issue in the present case; (2) there was a final judgment on the merits; (3) the issue must be essential to the judgment; (4) the party against whom the estoppel is asserted must have a full and fair chance to litigate on the merit; and (5) the party against whom the estoppel is asserted must be a party or in privity with a party in the prior case. Com., Dept._ of Transp. v. Martinelli, 568 A.2d 973 at 976 (Pa. Cmmwlth. 1989). We agree with the defendants that many of the plaintiff' s other claims in this action are barred by the doctrine of collateral estoppel. The plaintiff is seeking, in essence, to attack the propriety of the proceedings at 98-1199 Equity, a case in which Financial Trust Company was the plaintiff and Mr. Kepner was the defendant. In that case, Financial Trust Company sought to enjoin the defendant from removing real estate fixtures, including doors, windows, shrubbery, plantings and built-in appliances from the foreclosed premises. The equity action resulted in the entry of an injunctive order in favor of the plaintiff, Financial Trust Company. The court, in other words, found that the bank had acted properly and that Mr. Kepner was wrongfully removing fixtures. In our order of April 8, 1998, docketed to 98-1199, the order of court reflects that there was no request before the court to evict the defendant and, therefore, none would be entered. In fact, the prior action 00-0424 CIVIL was grounded on the assumption that not only was Mr. Kepner not residing in the house, but he was committing waste. No appeal was taken from the equity action at 98-1199. We are satisfied, therefore, that in terms of the issues dealt with in the equity action, the defendant is estopped from pursuing them in this case. We are also satisfied that Count III of his complaint, alleging "abuse of power, process and wrongful institution of civil proceedings" must fail as the civil proceeding of which he complains was not terminated in his favor. It is a statutory requirement, to maintain an action for the wrongful use of civil proceedings, that the plaintiff prove that the defendant acted without probable cause in the underlying civil proceedings and that the proceedings terminated in favor of the person against whom they are brought. See 42 Pa.C.S.A. 8351. Not only did the court find that the bank had probable cause in bringing its action but it in fact ruled in its favor. Another of the plaintiff' s counts having no merit is that having to do with a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. The law provides for a violation of this Act where the defendant engages "in any other fraudulent conduct which creates a likelihood of confusion or misunderstanding." In this count, the plaintiff sets forth matters in defense of the foreclosure which could have been raised in that action or, if raised, were resolved adversely to Mr. Kepner. In addition, a large portion of the consumer protection claim revolves around the notice with respect to the sheriff's sale. A sampling includes the following averments' 252. On the form, Exhibit "J", at item "4, it states that "[i]f the amount due from the buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened." 00-0424 CIVIL 253. This statement, in # 252 above, caused confusion and misunderstanding for the Plaintiff. 254. This statement, in # 252 above, is misleading and confusing. 255. On the form, Exhibit "J", at item # 5, it states that "[y]ou have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict yoU.'' 256. This statement, in # 255, above, caused confusion and misunderstanding for the Plaintiff. 257. This statement, in # 255 above, is misleading and confusing. Complaint, at p. 51. In short, the plaintiff claims to have been confused and misled by what were accurate statements of the law. We agree with the defendants that the fact that the plaintiff may have misunderstood some of the documents served upon him by the sheriff relating to the impending sheriff's sale cannot be the basis for a violation of the UTP/CPL. In fact, it does it a kindness to refer to such an assertion as illogical. We have attempted by describing the complaint and quoting from it to give some sense of the difficulty in evaluating it from a legal standpoint. The complaint, itself, consists of more 'than sixty-one pages of text along with fifteen exhibits. Many of the exhibits, themselves, consist of numerous pages of documents. The sheer length of the complaint defends it well against any attempt on the part of the defendants to answer it. Were we to conduct a thorough exegesis of each count, the result would be nothing short of a tome. We will, instead, in the remainder of this opinion, attempt to deal with the counts of the complaint in a more summary fashion. 00-0424 CIVIL Count I is entitled "Violation of Constitution Rights - Due Process." Count II is entitled "Violation of Civil Rights- Negligent Retaliatory Eviction." As noted above, these counts, seeking redress by virtue of the violation of constitutional rights, will be dismissed for a failure to aver facts with respect to state actor. Count III is entitled "Abuse of Power, Process and Wrongful Institution of Civil Proceedings." This count makes averments concerning matters which were the subject of prior legal actions and are therefore subject to res judicata and/or collateral estoppel. The same can be said of Count IV entitled "Wrongful Eviction." Count V is entitled "Intentional Infliction of Emotional Distress." The gravamen of this count is that the defendants ought not to have proceeded with the foreclosure because of the plaintiff s illness and his need to shelter himself and his three children. If this were a defense to eviction, Charles Dickens would never have written his novels. Count VII is entitled "Intentional Negligence." Enough said. Count VIII is entitled "Intentional Bad Faith." The paragraphs of this count do not contain averments in support of its title. In essence, the plaintiff complains that the defendants failed to come to his aid in the course of the mortgage foreclosure and that they were motivated by greed. To the extent this paragraph alleges fraud, it is not pled with particularity. Count IX is entitled "Tortious Breach of the Covenant of Quiet Enjoyment." Count X is entitled "Tortious Interference with a Contract, a Perspective Advantage and Loss of Bargain." Count XI is entitled "Breach of the Covenant of Habitability." Count XIII is entitled "Tortious Theft of Property." Count XIV is denominated "Tortious Trespass." These five counts have a common thread and seek damages as a result of the fact that the bank took possession of the 00-0424 CIVIL foreclosed residence immediately after the sheriff' s sale, that the plaintiff was thereby deprived of the use of his residence. It is a principle of long-standing in Pennsylvania that, following a sheriff' s sale, the debtor is entitled to retain possession between the date of the sale and the date of the issuance of a sheriff' s deed to the creditor/purchaser. An exception is made in the event of waste or abandonment. See Hardenburg v. Beecher, 104 Pa. 20, 24 (1883). Thus, a claim that the mortgagor was wrongfully evicted because the creditor did not yet have a deed from the sheriff would have merit. Presumably, the foreclosure mortgagor would have the right to seek damages similar to those sought by Mr. Kepner. For reasons that we have stated earlier, we are satisfied that those claims in this particular case, however, are barred by collateral estoppel. The case filed to 98-1199 Equity began with the request of Financial Trust Company for an order seeking to enjoin the defendant from removing fixtures from the mortgaged premises at 1472 Zimmerman Road. The petition for preliminary injunction alleged, among other things, that Mr. Kepner had gone so far as to remove the front door from the premises. Mr. Kepner countered with, among other things, a request to remove his personal property. The initial hearing in the matter was held on March 9, 1998, six days after the sheriff' s sale. Again, according to the record of the case, on April 8, 1998, this court held a hearing and thereafter directed the parties to submit written proposals for a procedure to permit the defendant access to the property to remove his personal belongings. In the meantime, by order of March 16, 1998, the court ruled in favor of Financial Trust Company and enjoined Mr. Kepner from removing fixtures or otherwise causing damage to the property at Zimmerman Road. The prior proceedings were grounded, as we have said, on an assumption that Mr. Kepner was not residing 00-0424 CIVIL in the home and was, in fact, removing fixtures. The current allegation that he was somehow evicted stands the prior litigation on its head. Count XV avers a violation of the Pennsylvania Unfair Trade Practice and Consumer Protection Law. This matter was discussed previously. Counts XVI is entitled "Intentional Fraudulent and Negligent Misrepresentation.." This count is essentially redundant of earlier counts challenging the mechanics of the sheriff' s sale. The only counts which we have not thus far reviewed are VI, XII and XVII. Count VI, entitled "Intentional Negligent Tortious Destruction and Conversion of Property," seeks damages by virtue of the fact that the plaintiff was prevented from removing his personal property located on Zimmerman Road. The claim goes on to contend that the bank sold some of his property without authority to do so. Elsewhere in the complaint, the plaintiff contends that his personal property was improperly stored and allowed to deteriorate. In their preliminary objections, the defendants demurrer generally to these allegations but the demurrer to Count VI was neither briefed nor argued. Counts XII and XVII seek damages for "Defamation" and "Intentional Injurious Falsehood." These claims stem from alleged angry remarks made by the defendant Hutchison upon entering the Zimmerman Road residence shortly after the sheriff s sale. The defendants have not yet sought dismissal of these counts. Finally, the defendants preliminarily object to the ad damnum clauses and prayers for relief throughout the complaint. We agree With the defendants that the complaint does not comply with Pa.R.C.P. 1021. This rule provides, among other things, that a pleading demanding relief for unliquidated damages shall not claim any specific sum. The role also requires that the 10 00-0424 CIVIL plaintiff state whether the amount claimed does or does not exceed the jurisdiction of a Board of Arbitration. We will direct that the plaintiff amend his complaint to comply with this role. ORDER AND NO W, this day of November, 2000, the preliminary objections of the defendants to Counts I, II, III, IV, V, VII, VIII, IX, X, XI, XIII, XIV, XV, and XVI of the plaintiff's complaint are SUSTAINED and said counts are DISMISSED. The preliminary objections of the defendants to the ad damnum clauses of the complaint are SUSTAINED. The plaintiff is granted leave to amend the prayer for relief of Count XII and Count XVII in compliance with Pa.R.C.P. 1021. The preliminary objection of the defendants to Count VI is DENIED. The plaintiff is granted leave to amend Count VI to consolidate and to clarify his claims with respect to damage to his personal property or the wrongful sale or conversion thereof and to amend his prayer for relief. B Y THE COURT, Ronald L. Kepner Pro Se ~lff'A. Hess, J. Timothy J. McMahon, Esquire For the Defendants :rlm 11