Reisinger v. Luzerne County, Civil Action No. 3:09-CV-1554.
| Decision Date | 02 February 2010 |
| Docket Number | Civil Action No. 3:09-CV-1554. |
| Citation | 712 F.Supp.2d 332 |
| Parties | Joseph R. REISINGER, Plaintiff,v.LUZERNE COUNTY, Luzerne County Tax Claim Bureau, Mary Dysleski, Stephen A. Urban, Neil T. O'Donnell, James P. Blaum, The Cadle Company II, Inc., Daniel C. Cadle, Michael Kermec, Doug Harrah, Kevin T. Fogerty, Tina Randazzo, Nova Savings Bank, and Craig J. Scher, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
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Peter G. Loftus, Loftus Law Firm, P.C., Waverly, PA, for Plaintiff.
Bruce K. Anders, Law Office of Bruce K. Anders, LLC, Mark W. Bufalino, Elliott Greenleaf & Dean, Wilkes Barre, PA, John G. Dean, Joseph J. Joyce, III, Elliott Greenleaf & Siedzikowski, P.C., Scranton, PA, Kevin T. Fogerty, Law Offices of Kevin T. Fogerty, Allentown, PA, Anthony P. Tabasso, Klehr Harrison Harvey Branzburg LLP, Philadelphia, PA, for Defendants.
Here we consider the three motions to dismiss pending in this action in which Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and pendant state law claims. With these motions, all Defendants who have acknowledged service seek dismissal.1 The Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) Filed on Behalf of Defendants, The Cadle Company II, Inc., Daniel C. Cadle, Michael Kermec, Doug Harrah, Tina Randazzo and Kevin Fogerty (Doc. 25) (“Cadle Defendants' Motion”) was filed on October 12, 2009, and became ripe on December 18, 2009, with the filing of their reply brief (Doc. 41). The Motion to Dismiss Plaintiff's Complaint Pursuant to F.R.C.P. 12(b)(6) (Doc. 28) (“Nova Motion”) was filed by Defendant Nova Savings Bank on October 16, 2009, and became ripe on December 7, 2009, with the filing of Plaintiff's Brief in Opposition to the Defendants' 12(b)(1) and 12(b)(6) Motions (Doc. 38) in that Defendant Nova did not file a reply brief. Defendants Luzerne County, Luzerne County Tax Claim Bureau, Mary Dysleski, Stephen A. Urban, Neil T. O'Donnell and James Blaum's Motion to Dismiss (Doc. 30) (“County Defendants' Motion”) was filed on October 16, 2009, and became ripe on December 21, 2009, with the filing of their reply brief (Doc. 41). For the reasons discussed below, we conclude dismissal of this action is appropriate.
Plaintiff owned twenty-six rental properties in and around Wilkes-Barre, Pennsylvania, which are the properties at issue in this lawsuit. (Doc. 1 ¶ 19.) Plaintiff is a licensed attorney with a masters degree in taxation. (Doc. 26 at 2.)
There are fourteen (14) Defendants named in this action. Based on the allegations in the Complaint and the pending motions, Defendants fall into three categories: County Defendants, Cadle Defendants, and Nova Defendants.
County Defendants are the following: 1) Defendant Luzerne County, the county in which the properties are located; 2) Luzerne County Tax Claim Bureau; 3) Mary Dysleski, Interim Director of the Tax Claim Bureau; 4) Stephen Urban, Luzerne County Commissioner; 5) Neil O'Donnell, Solicitor Assistant for the Tax Claim Bureau; and 6) James Blaum, County Solicitor for Luzerne County. (Doc. 1 ¶¶ 5-10.) Individuals are sued in both their individual and official capacities. ( Id. ¶¶ 7-10.)
Cadle Defendants are the following: 1) The Cadle Company II, Inc. (“Cadle”); 2) Daniel C. Cadle, President and Owner of Cadle; 3) Michael Kermec, an agent, servant and/or employee of Cadle who managed various properties for Cadle; 4) Doug Harrah, an agent, servant and/or employee of Cadle who managed various properties for Cadle; 5) Kevin T. Fogerty, an agent, servant and/or employee of Cadle who acted as an attorney for Cadle; and 6) Tina Randazzo, an agent, servant and/or employee of Cadle who managed various properties for Cadle. (Doc. 1 ¶¶ 11-16.) Individuals are sued in both their individual and corporate capacity. ( Id. ¶¶ 12-16.)
The Nova Defendants are the following: 1) Nova Savings Bank (“Nova”); and 2) Craig J. Scher, an agent, servant and/or employee of Nova. (Doc. 1 ¶¶ 17-18.) Defendant Scher is sued in both his individual and corporate capacity. ( Id. ¶ 18.)
As of January 1, 1998, the twenty-six rental properties owned by Plaintiff which are the subject of this action (all located in Luzerne County) were collateral for twenty-nine notes and twenty-six mortgages. (Doc. 1 ¶ 19.) For the period of December 17, 1998, through September 28, 2004, Defendant Nova allegedly owned the notes and mortgages. ( Id. ¶ 20.) Because Plaintiff did not pay all of the real estate taxes due on the twenty-six properties and substantial arrearages had accrued, the properties were going to be sold by the Luzerne County Tax Claim Bureau (“Tax Claim Bureau”) in 2003. ( Id. ¶¶ 21-22.)
In February 2003, Plaintiff requested Nova to amend the amount of his debt service so he could timely pay his real estate taxes. (Doc. 1 ¶ 23.) After conversations and correspondence with Defendant Scher, Plaintiff secured a draft of a loan agreement to be used to establish an escrow account for the payment of the properties' real estate taxes. ( Id. ¶ 24.) Plaintiff gave representatives of the Tax Claim Bureau a copy of the draft. ( Id. ¶ 25.) The Tax Claim Bureau agreed to the draft escrow tax payment arrangement and consented not to list the twenty-six properties for the next tax sale. ( Id. ¶ 26.) Based on the Tax Claim Bureau's approval of the loan agreement, Plaintiff signed the agreement with Nova. ( Id. ¶ 27.) The arrangement was that all of the funds allocable to the real estate taxes for the properties would be paid by Plaintiff to Nova and Nova would remit the funds to the Tax Claim Bureau. ( Id. ¶ 28.)
Pursuant to this agreement, along with his monthly debt service payment Plaintiff submitted a stipulated amount of funds to be held in escrow by Nova which Nova was then to pay to the Tax Claim Bureau for real estate taxes related to his twenty-six properties on a timely basis. (Doc. 1 ¶ 30.) Between February 2003 and September 21, 2004, Plaintiff paid a total of $67,982.72 of real estate tax escrow account payments to Nova. ( Id. ¶ 32.) Nova, at the direction of Defendant Scher, never made any tax escrow account payments to the Tax Claim Bureau. ( Id. ¶ 33.)
On or about September 21, 2004, Nova apparently assigned all right, title and interest to the notes and mortgages to Defendant Cadle. (Doc. 1 ¶ 31.) After the alleged assignment, Cadle notified Plaintiff that it was in possession of only $37,234.00 in real estate tax escrow account payments that Nova had been holding and transferred to Cadle rather than the $67,982.72 which Plaintiff had paid to Nova leaving a balance of $30,748.72 unaccounted for. ( Id. ¶ 34.)
Plaintiff confirmed that as of the filing of the Complaint, the $30,748.72 in real estate tax escrow account payments and all accrued interest of $23,431.20 through June 30, 2009, (total of $54,179.92), and all applicable penalties, have never been remitted by Nova to the Tax Claim Bureau in violation of the loan agreement. (Doc. 1 ¶ 35.) Nova has also refused to return the funds to Plaintiff. ( Id. ¶ 67.)
After Cadle acquired the notes and mortgages from Nova on September 21, 2004, until December 13, 2006, Plaintiff paid Cadle real estate tax escrow payments of $57,000.00 plus $741.29 in funds that were remitted by Nova to Cadle but not forwarded to the Tax Claim Bureau. (Doc. 1 ¶ 37.) At the direction of Defendant Daniel Cadle, Defendant Cadle has not forwarded any of the above real estate tax escrow account payments (paid by Plaintiff to Cadle) to the Tax Claim Bureau.3 ( Id. ¶ 38.) This $57,741.29 plus accrued interest through June 30, 2009, of $22,031.08-for a total of $79,772.37-has been used by Cadle for its own use. ( Id. ¶ 39.)
In September 2006 4 Defendant Cadle filed an action in the Luzerne County Court of Common Pleas captioned The Cadle Company II, Inc. v. Joseph R. Reisinger, Tina Bolen and Tina Randazzo (Civil Action No. 10356-2006). (Doc. 26 at 4.) According to Cadle Defendants, the purpose of the action was to recover rents from the Reisinger properties against which it held mortgages, and by that time the Trustee in Plaintiff's bankruptcy case had abandoned these twenty-six properties because they lacked equity beyond the liens for taxes and mortgages. ( Id. ( citing Ex. C).) In this state court case, Cadle filed a petition for a preliminary injunction which a Luzerne County Court of Common Pleas judge granted. (Doc. 1 ¶ 40.) Pursuant to that Order, “Cadle was allowed to collect rents from tenants for the properties against which it held mortgages, and was conditioned on Cadle posting a Bond, which it promptly delivered to the Luzerne County Prothonetary.” (Doc. 26 at 4.) Plaintiff characterizes this as the court “allowing Cadle to serve as a mortgagee in possession.” (Doc. 1 ¶ 40.) Plaintiff filed an appeal of the Luzerne County Court of Common Pleas Order and the Pennsylvania Superior Court granted a writ of supersedeas on January 19, 2007, reinstating Plaintiff as the manager of his properties. (Doc. 1 ¶ 41.) Thus, Plaintiff obtained a temporary stay of the injunction Order. (Doc. 26 at 4.)
Following Plaintiff's reinstatement as the manager of his properties, at the direction of Defendant Daniel Cadle, Defendants Cadle, Kermec, Randazzo, and Fogerty, in conjunction with others interfered with Plaintiff's resumption of the management of his properties.5 (Doc. 1 ¶ 42.)
On August 23, 2007, the Pennsylvania Superior Court affirmed the Court of Common Pleas ruling thereby again allowing Cadle to serve as “mortgagee-in-possession.” (Doc. 26 at 5.)
For the period from December 13, 2006, to the date of this Complaint (August 13, 2009), as mortgagee-in-possession of the twenty-six properties, Cadle partially accounted for the collection of rents, indicating collections totaling...
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