Todaro v. Richman , 170 F. App'x 236 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-13-2006
Todaro v. Richman
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4371
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"Todaro v. Richman" (2006). 2006 Decisions. Paper 1447.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4371
FRANK S. TODARO,
Appellant
v.
ESTELLE RICHMAN, Secretary, Executive Office,
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE;
DANIEL RICHARD, Director, PA STATE COLLECTIONS & DISBURSEMENT UNIT
and BUREAU OF CHILD SUPPORT ENFORCEMENT, a Commonwealth Agency;
LYNN F. SHEFFER, Comptroller, PUBLIC HEALTH AND HUMAN SERVICES, a
Commonwealth Agency; PATRICK QUINN, Administrator, ALLEGHENY COUNTY
FAMILY DIVISION; MARY ANN BACH, Hearing Officer,
ALLEGHENY COUNTY FAMILY COURT DIVISION; DONALD JERICH, IV-D
Solicitor, ALLEGHENY COUNTY LAW DEPARTMENT
_______________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-cv-00274)
District Judge: Honorable Thomas M. Hardiman
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
MARCH 13, 2006
Before: SLOVITER, SMITH AND VAN ANTWERPEN, Circuit Judges.
(Filed: March 13, 2006)
OPINION
PER CURIAM
Appellant Frank Todaro filed a complaint under the Racketeer Influenced Corrupt
Organization Act (RICO) civil enforcement provision, 18 U.S.C. § 1964(c), against the
directors of Pennsylvania’s Department of Public Welfare, State Collections &
Disbursement Unit and Bureau of Child Support Enforcement, and Public Health and
Human Services, as well as three employees of the Court of Common Pleas of Allegheny
County. He alleges that the Appellees, working jointly as part of the Commonwealth’s
agencies dealing with child welfare, are leaders of an enterprise that seeks to extort
money through overcharging child-support debtors by committing mail, wire, and
financial institution fraud in violation of §§ 1961(1)(B), 1962(c). Specifically, Todaro
claims that the Appellees used the mail, courts, and other means to create and conceal
fraudulent earning totals, which were then used to compute an improperly high level of
child-support payments. He seeks monetary damages from each Appellee in his or her
individual capacity. The District Court dismissed the complaint for failure to state a
claim among numerous other reasons. For the reasons that follow, we will affirm.1
1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise de novo
review. See Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 559 (3d Cir. 2002).
2
To establish a RICO violation, Todaro must allege “(1) conduct (2) of an
enterprise (3) through a pattern (4) of racketeering activity [or the collection of unlawful
debt].” Lum .v Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004). Because Todaro relies
on fraudulent conduct to form the basis of the RICO violations, under Federal Rule of
Civil Procedure 9(b), the violation must be pled with particularity. Id. Todaro failed to
do so.
We have held that to satisfy Rule 9(b), plaintiffs must allege the “precise
misconduct” with which the defendants are charged. Id. at 224. “Plaintiffs also must
allege who made a misrepresentation to whom and the general content of the
misrepresentation.” Id. Todaro expends significant time citing cases which exhibit
conduct establishing patterns of fraudulent activities, but does not set forth precisely the
alleged fraudulent conduct engaged in by the Appellees. He does allege that Family
Court Hearing Officer Mary Ann Bach falsified Todaro’s income, but while this might
constitute fraudulent conduct, Todaro does not allege to whom or when this specific
information was mailed or transmitted. Further, as alleged, the activity cannot constitute
a pattern. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238-39 (1989) (requiring a
minimum of two predicate acts). It is simply unclear, beyond the more general
allegations of system wide inadequacies, what specific actions the Appellees took or
authorized which could constitute fraudulent behavior.
For the foregoing reasons, we will affirm the District Court’s order dismissing the
complaint for failure to state a claim.
3
4