Sarpolis Ex Rel. Estate of Milller v. Tereshko

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 14-3291
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KAREN SARPOLIS, individually and as administratrix
Of the Estate of Angela Anastacia Miller,
Appellant
v.
ALLAN TERESHKO; HEATHER TERESHKO; POST & SCHELL, P.C.;
PENNSYLVANIA PROFESSIONAL JOIN LIABILITY
UNDERWRITING ASSOCIATION;
UNIVERSITY OF PENNSYLVANIA COMMUNITY HEALTH NETWORK;
COMMUNITY HEALTH SYSTEMS, INC.; CHOP NEWBORN CARE;
LIVE MESSAGE AMERICA, INC.; CHESTNUT HILL HEALTHCARE
MEDICAL ASSOCIATES
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-13-cv-005521)
District Judge: Honorable Petrese B. Tucker
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Submitted Under Third Circuit LAR 34.1(a)
November 19, 2015
Before: AMBRO, HARDIMAN, and NYGAARD, Circuit Judges
(Filed: January 7, 2016)
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OPINION*
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AMBRO, Circuit Judge
Appellant Karen Sarpolis appeals the dismissal with prejudice of her state-law
civil conspiracy and fraud claims. She contends that the District Court erred in
exercising supplemental jurisdiction over those claims rather than remanding them to
state court. Sarpolis also contends that the District Court erred in dismissing her civil
conspiracy claim because the element of malice was adequately pleaded. For the reasons
stated below, we affirm the District Court.1
I. Background
This case stems from a prior medical malpractice action that Sarpolis started in
state court. In 2005, she filed a complaint in the Philadelphia Court of Common Pleas
alleging that her daughter died as a result of medical malpractice at Chestnut Hill
Hospital. In December 2008 and January 2009, certain pretrial motions in the case were
assigned to Judge Allan Tereshko, who ordered the parties to attend a settlement
conference. After the conference, on January 23, 2009, Judge Tereshko entered an order
stating that, as the Court had been informed that the parties had reached a settlement, the
case would no longer be listed for trial save that any party could request that it be
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367, and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
2
returned to the trial list by written motion. Although Sarpolis was represented by counsel
in the malpractice action, no such motion was filed.
Proceeding pro se, Sarpolis began this action in 2013 by filing a complaint against
Judge Tereshko in the Philadelphia Court of Common Pleas. In an amended complaint,
Sarpolis claimed that Judge Tereshko was part of a wide-ranging conspiracy to defraud
her and devalue her malpractice claim, and also named all of the Appellees as defendants,
including the University of Pennsylvania Community Health Network, Community
Health Systems, Inc., and Post & Schell, P.C.2 Although the basis of her claims is not
altogether clear, Sarpolis appears to make two central allegations: first, that the
University of Pennsylvania and Community Health Systems conspired to avoid liability
for malpractice claims in their acquisition of Chestnut Hill Hospital, and did so by
“tampering with evidence, witnesses and judges in the pending [malpractice] cases.”
Am. Compl. at ¶ 18. Second, “[b]efore Defendant Allan Tereshko … perform[ed] any
judicial acts, he conspired with Post and Schell, [the Pennsylvania Professional Liability
Joint Underwriting Association], and his wife Heather Tereshko to have the case
transferred to his jurisdiction with the intent to obstruct justice and assist in carrying out
the [d]efenses’ objectives for disposition of the case.” Id. at ¶ 45 (emphasis in original).
Specifically, Judge Tereshko allegedly failed to disclose that his wife was employed by
Post & Schell and to recuse himself on that basis, pressured Sarpolis to accept a low
2
Sarpolis’ claims against the remaining Appellees are no longer at issue, as by
order dated June 29, 2015, we granted motions to affirm the District Court’s dismissal of
all claims against the Pennsylvania Professional Liability Joint Underwriting Association,
Heather Tereshko, and the Children’s Hospital of Philadelphia Newborn Care.
3
settlement offer, and made the false promise that the case could be easily reinstated if the
settlement were not finalized.3 Sarpolis does not deny that she accepted a tentative
settlement in the malpractice action, but she alleges that the settlement never became
final because opposing counsel from Post & Schell insisted on unreasonable settlement
terms.
Based on these allegations, the amended complaint alleged one count of civil
conspiracy and three counts for violation of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1961, et seq. (“RICO”). The defendants removed the
case to the Eastern District of Pennsylvania and filed motions to dismiss. In
Pennsylvania, a civil conspiracy claim requires allegations sufficient to state an
independent cause of action underlying the conspiracy, see McKeeman v. Corestates
Bank, N.A., 751 A.2d 655, 660 (Pa. Super. Ct. 2000), and the District Court liberally
construed the amended complaint to allege fraud and fraudulent inducement as the
objects of the conspiracy (although the latter claim was first raised in Sarpolis’ briefing).
The Court analyzed the fraud claims in conjunction with the civil conspiracy claim and
determined that it should be dismissed for four reasons:
(1) [Sarpolis’] underlying claim of fraud is barred by the applicable statute
of limitations;
(2) [She] is not entitled to the equitable remedy of statutory tolling because
[she] did not exercise due diligence in bringing this action;
(3) to the extent [she] seeks to assert a claim for fraud in the inducement in
entering the settlement agreement, [the District Court] is not the proper
forum for [her] to bring such a claim; and
3
While these allegations arise from judicial acts by Judge Tereshko, the parties do
not raise the issue of judicial immunity, and because we affirm the dismissal of all claims
on other grounds, it is not necessary for us to address it.
4
(4) [She] has not, and cannot, allege that [the] [d]efendants’ sole motivation
was to cause her harm.
J.A. at 35A. The District Court dismissed all of Sarpolis’ claims, including her federal
RICO claims, but did not explain its decision to exercise supplemental jurisdiction over
the state-law civil conspiracy and fraud claims.
Sarpolis then moved for reconsideration and requested remand of her state-law
claims for the first time. Without waiting for the District Court to decide her motion for
reconsideration, however, she filed a notice of appeal. One day after that was filed, the
District Court summarily denied the motion for reconsideration. Sarpolis later retained
counsel who represents her in this appeal.
II. Discussion
We begin by addressing Sarpolis’ argument that the District Court erred in
exercising supplemental jurisdiction over her civil conspiracy and fraud claims. Federal
courts may exercise supplemental jurisdiction over claims that share “a common nucleus
of operative fact” with claims over which the district court has original jurisdiction.
Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991) (quoting United Mine
Workers v. Gibbs, 383 U.S. 715, 725 (1966)). 28 U.S.C. § 1367(c)(3) confers discretion
on federal district courts to decline to exercise supplemental jurisdiction if “the district
court has dismissed all claims over which it has original jurisdiction.” When exercising
this discretion, a district court should not retain supplemental jurisdiction over any
remaining state-law claims “unless considerations of judicial economy, convenience, and
fairness to the parties provide an affirmative justification for doing so.” Hedges v.
5
Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citation omitted). We review a district court’s
decision to exercise supplemental jurisdiction for abuse of discretion. De Ascensio v.
Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003).
At the outset, Appellees contend that Sarpolis waived the issue of supplemental
jurisdiction by failing to raise it until she moved for reconsideration. Although they are
unable to cite any case from this Circuit to the effect that issues raised for the first time
on reconsideration are waived, Appellees argue that we should nonetheless find waiver
based on the well-settled rule that reconsideration is improper when a party should have
raised an argument earlier. See, e.g., United States v. Dupree, 617 F.3d 724, 732 (3d Cir.
2010). This rule applies only to the merits of a motion for reconsideration, however, and
does not determine whether an issue is waived on appeal.
Seizing on Sarpolis’ failure to comply with Federal Rule of Appellate Procedure
4(a)(4)(B)(ii) by filing an amended notice of appeal after the District Court denied
reconsideration, Post & Schell makes two further arguments that the issue of
supplemental jurisdiction was waived. First, the firm contends that Sarpolis’ failure to
file an amended notice of appeal deprives us of jurisdiction over the District Court’s
order denying reconsideration. Whether an issue has been waived on appeal is a distinct
inquiry from our jurisdiction to review a particular order, however, and Post & Schell
cites no authority showing that failure to file an amended notice of appeal waives any
claims first raised on reconsideration.
Second, relying on Carrascosa v. McGuire, 520 F.3d 249 (3d Cir. 2008), Post &
Schell argues that Sarpolis’ failure to file an amended notice of appeal deprives us of
6
jurisdiction to review any arguments first raised on reconsideration. Although in
Carrascosa the appellant failed to file an amended notice of appeal and the Court stated
that we “d[id] not have jurisdiction to review any arguments raised for the first time in
Carrascosa’s Motion for Reconsideration,” id. at 254, this statement simply set out the
limits of our jurisdiction in a case where the appellant sought to challenge both the denial
of reconsideration and the underlying order. In this case, however, Sarpolis challenges
only the District Court’s exercise of supplemental jurisdiction in the order dismissing her
claims. As we are mindful that she was proceeding pro se in the District Court, we thus
decline to treat as waived the issue of supplemental jurisdiction.
As for that issue, Sarpolis’ primary argument is that the District Court erred in
exercising supplemental jurisdiction and dismissing her claims without addressing the
merits of her claims for fraudulent misrepresentation and fraud in the inducement.
Although Sarpolis asserts that the District Court should have ruled on a claim that the
University of Pennsylvania and Community Health Services fraudulently misrepresented
the funds available to pay malpractice claims against Chestnut Hill Hospital, the amended
complaint does not list any counts of fraudulent misrepresentation. The Court liberally
construed the amended complaint to state claims of fraud and fraud in the inducement as
objects of the conspiracy, and held that the fraud claim was time-barred. Sarpolis does
not explain how her purported claim of fraudulent misrepresentation is different from the
7
general claim of fraud decided by the District Court, and hence we see no error in the
lack of a separate ruling on fraudulent misrepresentation.4
Sarpolis also contends that the District Court erred in exercising supplemental
jurisdiction over a claim that she was fraudulently induced to accept the settlement
agreement and withdraw her malpractice claim. The Court dismissed the fraudulent
inducement claim because it was not the proper forum to hear the claim, as only the
Philadelphia Court of Common Pleas could grant Sarpolis relief from a settlement
reached in that Court. Although this reasoning does not explain why the District Court
chose to exercise supplemental jurisdiction, as Sarpolis had not yet raised the issue, the
Court was not required to give a supplemental jurisdiction analysis before dismissing the
fraudulent inducement claim. See Acri v. Varian Assocs., 114 F.3d 999, 1000 (9th Cir.
1997).
An affirmative justification for exercising supplemental jurisdiction, however, is
apparent in the District Court’s analysis of the statute-of-limitations defense to Sarpolis’
closely related civil conspiracy claim. The Court reasoned that Sarpolis had failed to
state a claim for civil conspiracy because the underlying tort of fraud was time-barred.
The Pennsylvania statute of limitations for fraud is two years, 42 Pa. Cons. Stat. Ann. §
To the extent that Sarpolis contends in a footnote that the District Court’s ruling
4
on conspiracy to commit fraud is irrelevant to the fraudulent misrepresentation claim
because “[she] did not allege that [the University of Pennsylvania] conspired with [Judge]
Tereshko,” see Reply to Brief for Appellee the University of Pennsylvania at 3 n.1, the
amended complaint establishes that this is not the case. See Am. Compl. at ¶ 58 (alleging
that the University of Pennsylvania and Community Health Systems “conspired” to avoid
malpractice liability through fraud, and did so “[w]ith the assistance of all other
defendants”).
8
5524(7), and although the existence of a conspiracy tolls the statute of limitations, see
Baker v. Rangos, 324 A.2d 498, 510 (Pa. Super. Ct. 1974), Judge Tereshko’s January
2009 order was the last alleged act of the conspiracy. Similarly, no act of fraudulent
inducement is alleged to have occurred after the January 2009 order, and the statute of
limitations therefore expired two years before Sarpolis filed this case in 2013.
On appeal, Sarpolis argues that the statute of limitations should be tolled because
the alleged insistence of Post & Schell attorneys on unreasonable terms renders the
fraudulent inducement claim a continuing tort. This argument fails because the
continuing tort doctrine is not applicable to claims of ongoing harm from a completed
tort. See Dellape v. Murray, 651 A.2d 638, 640 (Pa. Commw. Ct. 1994). To the extent
that Sarpolis alleges that opposing counsel insisted on unreasonable settlement terms
after she had agreed to settle and to withdraw her malpractice claim, their insistence is
not part of any fraudulent inducement to accept the settlement and withdraw her claim
but rather an ongoing harm to Sarpolis in the form of withholding the promised benefits
of the settlement. The continuing tort doctrine is therefore not in play. Because the
District Court already had before it the statute-of-limitations issue, remand would merely
have wasted judicial resources by requiring the defendants to make substantially the same
arguments in state court. The interest of judicial economy thus justified the District
Court’s retaining jurisdiction over the fraudulent inducement claim. See Blakely v.
United States, 276 F.3d 853, 863 (6th Cir. 2002).
Sarpolis’ remaining arguments on the issue of supplemental jurisdiction are
unpersuasive. Although Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988),
9
counsels remand when the statute of limitations prevents a plaintiff from re-filing in state
court, the case does not support remand of Sarpolis’ state-law claims because they were
untimely when filed. The grant of discretion in 28 U.S.C. § 1367(c)(1) to remand claims
that “raise[] a novel or complex issue of State law” also does not support remand because
Sarpolis’ claims do not raise such an issue. Finally, it is simply not the case that most
courts accept that the proper course is to remand whenever all federal claims are
dismissed. We therefore conclude that the District Court did not abuse its discretion in
exercising supplemental jurisdiction.
Sarpolis also claims that the District Court erred in dismissing her civil conspiracy
claim because the element of malice was adequately pleaded. We exercise plenary
review of the District Court’s decision to grant a motion to dismiss. Connelly v. Steel
Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). “Proof of malice is an essential part
of a cause of action for conspiracy,” Goldstein v. Philip Morris, Inc., 854 A.2d 585, 590
(Pa. Super. Ct. 2004), and malice requires that the conspirators act with the sole purpose
of injuring the plaintiff. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa.
1979). Even had Sarpolis sufficiently pleaded that Appellees had the sole purpose of
injuring her, she failed to state a civil conspiracy claim because, as the District Court
held, the underlying claim of fraud is time-barred. See Pelagatti v. Cohen, 536 A.2d
1337, 1342 (Pa. Super. Ct. 1987) (holding that civil conspiracy claim requires availability
of an independent cause of action for the acts alleged).
* * * * *
10
The District Court therefore did not err in dismissing Sarpolis’ civil conspiracy
claim, and it also did not err in exercising supplemental jurisdiction. Thus, we affirm its
judgment.5
5
As we affirm on other grounds, it is not necessary for us to address Post &
Schell’s argument that Sarpolis’ claims are barred by Pennsylvania’s absolute privilege
against liability for libelous or defamatory statements made in the course of judicial
proceedings.
11