WARTLUFT et al v. THE MILTON HERSHEY SCHOOL AND SCHOOL TRUST et al

BRIEF IN OPPOSITION re MOTION to Strike THIRD-PARTY COMPLAINT AGAINST THOMAS AND KAREN FITZPATRICK PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 14

M.D. Pa.March 14, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JULIE ELLEN WARTLUFT F/K/A JULIE ELLEN BARTELS AND FREDERICK L. BARTELS, JR., Individually and as Administrators of the Estate of Abrielle Kira Bartels, Deceased, Plaintiffs, vs. THE MILTON HERSHEY SCHOOL and THE HERSHEY TRUST COMPANY, AS TRUSTEE OF THE MILTON HERSHEY SCHOOL TRUST, Defendants, vs. KAREN FITZPATRICK and THOMAS FITZPATRICK, Third-Party Defendants. : : : : : : : : : : : : : : : : : C.A. NO.: 1:16-cv-02145-JEJ (Jones III, J.) DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE Jarad W. Handelman, Esquire Kyle M. Elliott, Esquire 17 N. Second Street, Suite 1420 Harrisburg, PA 17101 717.307.2600 (phone) / 717.307.2060 (fax) 215.977.1000 (phone) / 215.977.1099 (fax) jwh@elliottgreenleaf.com kme@elliottgreenleaf.com Attorneys for Defendants, the Milton Hershey School, and Hershey Trust Company, as trustee of the Milton Hershey School Trust Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 1 of 30 i TABLE OF CONTENTS I. INTRODUCTION ....................................................................................... 2 II. FACTUAL AND PROCEDURAL HISTORY ............................................ 4 III. COUNTER STATEMENT OF QUESTIONS INVOLVED......................... 5 IV. ARGUMENT............................................................................................... 6 A. The Third-Party Complaint Was Timely Filed Within Fourteen Days of Defendants’ Original Answer to the Reinstated Claims. ............................................................................. 6 B. The Third-Party Complaint Is Not “Obviously Unmeritorious,” and Plaintiffs Have Waived Any Such Argument, Thus Precluding This Court From Striking the Third-Party Complaint. .....................................................................15 C. Denying Defendants’ Procedural and Due Process Rights to Pursue Third-Party Claims Authorized by F.R.C.P. 14 in Defense of the Reinstated Claims is Highly Prejudicial to Defendants. ...................................................................................21 V. CONCLUSION ..........................................................................................23 Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 2 of 30 ii TABLE OF AUTHORITIES Cases Aiello v. Midwest Operating Eng’rs Health & Welfare Fund , 1992 U.S. Dist. LEXIS 7353 (N.D. Ill. May 27, 1992) ................................... 15 Apple Am. Grp., L.L.C. v. GBC Design, Inc., 294 F. Supp. 3d 414 (W.D. Pa. 2018) ............................................................. 12 Atchison Casting Corp. v. Deloitte & Touche, L.L.P. , 2003 Phila. Ct. Com. Pl. LEXIS 11 (Pa. Com. Pl. 2003) ................................ 12 Brown v. Club Assist Rd. Serv. U.S., Inc., 2015 U.S. Dist. LEXIS 193935 (N.D. Ill. 2015) ............................................. 15 Bupp v. Bupp, 718 A.2d 1278 (Pa. Super. Ct. 1998) ........................................................ 17-18 Burns v. Experian Info. Sols., Inc., 2018 U.S. Dist. LEXIS 199094 (M.D. Pa. 2018) ............................................ 15 Capodanno v. Premier Transp. & Warehousing, Inc. , 2010 U.S. Dist. LEXIS 30014 (S.D. Fla. Mar. 29, 2010) ...................... 7, 10, 11 Danis Envtl. Indus., Inc. v. Greenville Utils. Comm’n, 2006 U.S. Dist. LEXIS 103231 (E.D.N.C. 2006) .................................. 7, 10, 11 Derenick v. Kohl's Dep’t Store, Inc., 2016 U.S. Dist. LEXIS 148044 (M.D. Pa. Oct. 26, 2016) .................... 15-16, 19 EQT Prod. Co. v. Terra Servs., L.L.C., 179 F. Supp. 3d 486 (W.D. Pa. 2016) ............................................................. 12 Evans v. Valley Forge Conv. Ctr., 1996 U.S. Dist. LEXIS 12091 (E.D. Pa. Aug. 15, 1996) ................................. 18 Falco v. Pados, 282 A.2d 351 (Pa. 1971) ................................................................................. 18 FTC v. Capital City Mortg. Corp., 186 F.R.D. 245 (D.D.C. 1999) .............................................................. 7, 10, 11 Garcia v. Cummings, 2009 U.S. Dist. LEXIS 3539 (M.D. Pa. Jan. 20, 2009) ....................... 12, 17, 20 Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 3 of 30 iii Glomb v. Glomb, 530 A.2d 1362 (Pa. Super. Ct. 1987) .............................................................. 18 Hanover Ins. Co. v. Engineered Sys. All., L.L.C., 2019 U.S. Dist. LEXIS 32749 (D. Md. 2019) .......................................... passim Hartford Fire Ins. Co. v. A.J. Cianciulli, 2002 U.S. Dist. LEXIS 22572 (S.D.N.Y. Nov. 21, 2002) ............................... 15 Heckler & Koch, Inc. v. German Sport Guns GmbH , 976 F. Supp. 2d 1020 (S.D. Ind. 2013) ................................................. 7, 10, 11 Higgins Erectors & Haulers, Inc. v. E.E. Austin & Son, Inc. , 714 F. Supp. 756 (W.D. Pa. 1989) .................................................................. 12 Horneman v. Hills Dep’t Store , 8 Pa. D. & C.4th 361 (Pa. Com. Pl. 1990) ...................................................... 18 Meekins v. Law, 2008 U.S. Dist. LEXIS 59339 (M.D. Pa. Aug. 5, 2008) ............................... 8, 9 Miller v. Leljedal, 455 A.2d 256 (Pa. Commw. Ct. 1983) ...................................................... 17, 19 Nolan v. Duffy Connors L.L.P., 542 F. Supp. 2d 429 (E.D. Pa. 2008) ........................................................ 17, 20 Pa. Real Estate Inv. Tr. v. SPS Techs., 1995 U.S. Dist. LEXIS 17361 (E.D. Pa. Nov. 20, 1995) ................................. 16 Packer v. Imboden , 37 Pa. D. & C.3d 13 (1984) ............................................................................ 18 Reynolds v. Rick's Mushroom Serv., 2006 U.S. Dist. LEXIS 34514 (E.D. Pa. May 26, 2006) .......................... passim Rich v. Brandywine Ins. Advisors, L.L.C., 2017 U.S. Dist. LEXIS 34404 (E.D. Pa. Mar. 9, 2017) ................................... 16 Safranski v. Seman, 40 Pa. Super. 219 (1909) ................................................................................ 18 Schlegel v. Wilson-Cook Med., Inc., 2007 U.S. Dist. LEXIS 13066 (M.D. Pa. Feb. 8, 2007) ................ 12, 16, 17, 20 Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 4 of 30 iv SEPTA v. Aecom USA, Inc., 2010 U.S. Dist. LEXIS 123097 (E.D. Pa. Nov. 19, 2010) ............................... 16 Unique Techs., Inc. v. Micro-Stamping Corp., 2003 U.S. Dist. LEXIS 12060 (E.D. Pa. Apr. 15, 2003) ................................. 12 United States v. Mouzon, 2014 U.S. Dist. LEXIS 31952 (M.D. Pa. Mar. 12, 2014) ................................ 15 Watson v. Highland Grove Traction Co., 68 Pa. Super. 332 (1917) ................................................................................ 18 Yurcic v. Purdue Pharm., L.P., 343 F. Supp. 2d 386 (M.D. Pa. 2004) ............................................................. 13 Statutes 42 Pa. Cons. Stat. Ann. § 7102 ............................................................................. 13 42 Pa. Cons. Stat. Ann. § 8321 ....................................................................... 13, 14 Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 5 of 30 1 Milton Hershey School (“MHS”), and Hershey Trust Company (“HTC”), as trustee of Milton Hershey School Trust (collectively “Defendants”), by and through undersigned counsel, hereby submit this Brief in Opposition to Plaintiffs’ Motion to Strike the Third-Party Complaint against Karen and Thomas Fitzpatrick. (Doc.232.) After previously agreeing that the reinstated claims had never been answered prior to the Court’s December 7, 2018, Order (Doc.219), 1 Plaintiffs’ counsel now duplicitously requests this Court to conclude that the Answer filed by Defendants on August 24, 2017, fourteen (14) days after the dismissal of Plaintiffs’ state law negligence claims, was the “original answer” to the dismissed claims for purposes of assessing the timeliness of Defendants’ third-party claims authorized by Rule 14. In addition to being timely, the Third-Party Complaint is also clearly meritorious in response to the reinstated claims. Accordingly, Plaintiffs’ Motion to Strike must be denied. 1 On December 20, 2018, the undersigned requested Plaintiffs’ counsel’s agreement to extend the time for Defendants to answer the reinstated claims because the claims were “not viable claims in the case at the time of the filing of the original Answer to the Amended Complaint.” In response, Plaintiffs’ counsel John Higson, Esq. expressly agreed to the extension, responding, “No problem at all with the answer extension.” (Ex.A.) The parties then submitted a Joint Stipulation that was signed by the Court on December 26, 2018, and extended Defendants’ time to answer the reinstated claims to January 22, 2019. (Doc.219.) Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 6 of 30 2 I. INTRODUCTION On August 10, 2017, this Court granted Defendants’ Motion to Dismiss, dismissing Plaintiffs’ claims for Negligence, Intentional and Negligent Infliction of Emotional Distress, Civil Conspiracy, and Breach of Fiduciary Duty (collectively the “reinstated claims”). In so ruling, the Court held that Plaintiffs’ “state law claims therefore sound only in contract,” and the case proceeded as such – exclusively on a single federal law claim under the Fair Housing Act, and state law theories sounding “only in contract” – for the next sixteen (16) months. Then, on December 7, 2018, this Court, sua sponte, reinstituted the dismissed claims, thereby requiring Defendants, for the first time, to defend new theories of liability, i.e. state law tort theories (also the “reinstated claims”), which had never before been subjected to Defendants’ answer, responsive pleading, or trial strategies because of the Court’s August 10, 2017 dismissal of these claims. Whatever “procedural tangle” has been caused by the Court’s December 7, 2018, Order, one thing is clear – Defendants did not create it. The Court’s exercise of its “inherent power” to reconsider orders “when consonant with justice” is not in question. It is equally clear that the exercise of such power cannot prejudice a litigant’s rights or claims. Plaintiffs’ Motion to Strike improperly attempts to weaponize the Court’s December 7, 2018, Order to prevent Defendants from defending against the Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 7 of 30 3 reinstated claims in the same way that they would have been entitled to had they been viable all along. 2 If the Court had not dismissed the reinstated claims on August 10, 2017, Defendants’ right to exercise their procedural and due process rights to defend against state law tort theories of liability by filing third-party claims would be indisputable. Defendants must be afforded the same rights today to defend against the reinstated claims, as they would have had in August 2017 had the state law tort claims never been dismissed. Anything less violates Defendants’ due process rights, and unfairly prejudices Defendants by precluding trial strategies and defenses that it would have had but for the Court’s sua sponte reinstatement of claims. Accordingly, Plaintiffs’ Motion must be denied, and this Court should reconsider its premature denial of the Motion to Sever and grant the relief requested therein. 3 2 This same prejudicial consequence of the Court’s December 2018 reinstatement of claims has been imposed upon Defendants by the denial of their Motion to Sever, thus warranting the Court’s reconsideration of such denial in light of the applicable arguments advanced herein. 3 All of Defendants’ third-party claims can be prosecuted within the same extended case management deadlines that the Court and the parties have acknowledged are required by the reinstatement of the state law tort claims. The third-party claims present no prejudice to the prosecution of Plaintiffs’ claims, nor do such claims compel the expenditure of judicial resources beyond that already required by the Court’s December 7, 2018, reinstatement of claims. Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 8 of 30 4 II. FACTUAL AND PROCEDURAL HISTORY Defendants incorporate by reference the allegations of the Third-Party Complaint, and the above Introduction, as though set forth at length herein. (Doc.225.) In addition to the foregoing, Defendants are compelled to correct opposing counsel’s blatant misrepresentation of the procedural status of this case. As Plaintiffs’ counsel knows, in compliance with the Court’s December 7, 2018, Order, the parties, on December 28, 2018 (Doc.220), submitted a joint proposed scheduling order in recognition of the impact of the reinstated claims, revising and extending deadlines, among others, for discovery (April 1, 2019), expert reports and discovery (May-August 2019), and dispositive motions (September 19, 2019). Indeed, the parties recently jointly requested the additional extension of these case management deadlines, extending deadlines further into calendar years 2019 and 2020 (Doc.233; see also Doc.236.) Thus, Plaintiffs’ counsel knows that fact discovery concerning the reinstated claims is not closed; expert reports and discovery relating to the reinstated claims is not complete; and dispositive motions are not filed or fully briefed concerning any claims, including the reinstated claims. 4 These misrepresentations are 4 In fact, the Court’s December 7, 2018, Order expressly stated that the Order was “without prejudice to [Defendants’] right to reinstitute and supplement said motions at the request of the parties.” (Doc.217.) Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 9 of 30 5 contrived to mislead the Court and deny Defendants’ substantive and procedural due process rights. The undeniable reality is that the Court’s December 7, 2018, Order compels the extension of case management deadlines, not the pursuit of third-party claims. Moreover, the litigation of third-party claims can be efficiently completed within the same extended case management deadlines directed by the Court to be revised, and upon which the parties have already agreed. This fact is equally confirmed by the Court’s scheduling order issued this date. (Doc.236.) Thus, in addition to being false, Plaintiffs’ counsel has knowingly recited stale and inoperative case management deadlines in a deliberate attempt to mislead the Court. III. COUNTER STATEMENT OF QUESTIONS INVOLVED 1. Should this Court deny Plaintiffs’ Motion to Strike the Third-Party Complaint where the Third-Party Complaint was timely filed, is not “obviously unmeritorious,” and Defendants would suffer prejudice if the Third-Party Complaint is stricken? SUGGESTED ANSWER: YES Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 10 of 30 6 IV. ARGUMENT A. The Third-Party Complaint Was Timely Filed Within Fourteen Days of Defendants’ Original Answer to the Reinstated Claims. Under Rule 14, a defendant may file a third-party complaint without seeking leave from the Court so long as the defendant does so within “14 days after serving its original answer.” Fed.R.Civ.P.14(a). 5 Three interpretations of the “original answer” have emerged in other federal courts across the country, and courts within the Third Circuit have adopted the majority view outlined below, under which the Third-Party Complaint was timely filed. In contrast, Plaintiffs request this Court to apply a view that has not been accepted by any federal court. First, one approach, supported by no legal precedent, provides that, “[u]nder a ‘plain language’ interpretation, the ‘original’ answer is the one that responds to the ‘original’ complaint.” Hanover Ins. Co. v. Engineered Sys. All., LLC, 2019 U.S.Dist.LEXIS 32749, at *32-33 (D.Md.,2019). This interpretation has not been accepted by any federal court in the United States. Yet, this is the interpretation Plaintiffs exclusively rely upon in their Motion to Strike, while improperly omitting reference to the other two interpretations, both of which are supported by federal case law, including in the Third Circuit, and pursuant to which the Third- Party Complaint was timely filed. 5 Plaintiffs repeatedly reference L.R. 14.1 (Pls.’ Br., 2-5), however, L.R. 14.1 has no application here as Defendants timely filed the Third-Party Complaint under Rule 14(a) as a matter of right. Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 11 of 30 7 Second, courts have concluded that “because an amended complaint which stands alone supplants any prior complaints, such an amended complaint becomes the original complaint and therefore the answer to such amended complaint becomes the ‘original answer’ within the meaning of Rule 14(a).” Id. at *33. In other words, under this view, a defendant has fourteen (14) days from the filing of any Answer to bring third-party claims. Finally, under the majority view, or what is referred to as the “nuanced, functional reading,” a subsequent answer can constitute the “original answer” if the subsequent answer is responding “to any new theories of liability.” Id. (emphasis added). Under this majority view, the subsequent answer constitutes the “original answer” because it is the first time that the party filed an “answer to such new theories,” meaning it “is indeed ‘original.’” Id.; Reynolds v. Rick’s Mushroom Serv., 2006 U.S.Dist.LEXIS 34514, at *11 (E.D.Pa.,2006) (holding that under this theory, a subsequent answer can be the “original answer” so long as “the basis for impleader is that which is new”); Heckler & Koch, Inc. v. German Sport Guns GmbH, 976 F.Supp.2d 1020, 1029 (S.D.Ind.,2013) (“Under this interpretation, elements of an answer should be considered ‘original’ where they respond to new material” because this gives the defendants “the same chance to respond to new claims by impleading new parties that they would have had in answering an initial complaint”); FTC v. Capital City Mortg. Corp., 186 F.R.D. 245, 247 Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 12 of 30 8 (D.D.C.,1999); Capodanno v. Premier Transp. & Warehousing, Inc., 2010 U.S.Dist.LEXIS 30014, at *3 (S.D.Fla.,2010); Danis Envtl. Indus., Inc. v. Greenville Utils. Comm’n, 2006 U.S.Dist.LEXIS 103231, at *5-7 (E.D.N.C.,2006). In Reynolds, the Eastern District of Pennsylvania adopted the “functional approach to determining whether an answer is the ‘original answer’ for purposes of Rule 14.” Reynolds, 2006 U.S.Dist.LEXIS 34514, at *11. Indeed, “[t]his approach is ‘adopted by most courts’ and ‘is most in keeping with the intent of the rule.’” Hanover Ins. Co., 2019 U.S Dist.LEXIS 32749, at *33-34 (emphasis added); Capital City Mortg. Corp., 186 F.R.D. at 247 (same). Again, under this approach, “what is significant” is whether the subsequent answer is responding to “new theories of liability.” Reynolds, 2006 U.S.Dist.LEXIS 34514, at *11. “Thus, third-party claims based on the new liability theories are timely if filed within fourteen days of the amended answer.” Hanover Ins. Co., 2019 U.S.Dist.LEXIS 32749, at *33. Here, despite stipulating to an extension for Defendants to answer the reinstated claims, Plaintiffs now argue that the Third-Party Complaint – filed just ten (10) days after Defendants filed their Amended Answer on the stipulated date of January 22, 2019 – was untimely. Significantly, Plaintiffs fail to cite any case law concerning timeliness under Rule 14, but their briefing suggests the Court should apply the “plain language” reading of Rule 14’s “original answer,” Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 13 of 30 9 disingenuously ignoring their prior acknowledgement and stipulated extension of the time to answer the reinstated claims (Pls.’ Br. at 2-5). 6 However, as set forth above, this view has never been adopted by any federal court in the United States. Rather, the majority view, and the interpretation adopted by the Eastern District, is the “functional approach.” Reynolds, 2006 U.S.Dist.LEXIS 34514, at *11; Meekins v. Law, 2008 U.S.Dist.LEXIS 59339, at *13 n.4 (M.D.Pa.,2008) (“The motion is timely as it was filed within six (6) months after the date of service of Defendants’ answer to Plaintiff's amended complaint.”). Defendants’ Third-Party Complaint was timely filed because it sought impleader based upon “new theories” of liability – the state law torts that the Court, on December 7, 2018, reinstated sua sponte – which had been dismissed before any answer was ever filed. 7 Defendants answered the reinstated claims for the first time on January 22, 2019, ten (10) days prior to filing the Third-Party 6 Pls.’ Br., 4 (“Again, the original answer was filed on August 24, 2017.”) 7 The Court’s dismissal of the state law negligence claims on August 10, 2017, (Doc.62.), established that “[a]ny duty of care that the School owed Bartels during her enrollment arose exclusively from their contractual relationship.” (Id.; emphasis added). The Court further explained that Plaintiffs had not “articulated any social obligation or duty existing outside of the contract with the School that the School allegedly violated” and “[t]he parents’ state law claims therefore sound solely in contract.” (Id. at 7; emphasis added). Thus, the reinstatement of negligence claims on December 7, 2018 introduced entirely new theories of liability to the case that the Court had previously dismissed, thus prompting the Court to direct the establishment of revised case management deadlines. Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 14 of 30 10 Complaint. In other words, Defendants’ January 22, 2019, Answer was the “original answer” to Plaintiffs’ reinstated claims, and these claims compel Defendants’ impleader. Accordingly, Defendants’ Third-Party Complaint is timely. Defendants Third-Party Complaint alleges that if the Defendants are liable on any of the reinstated claims, i.e. the “new theories of liability” that the Court had previously dismissed, then Karen and Thomas Fitzpatrick are liable to Defendants for contribution pursuant to Pennsylvania’s Uniform Contribution Among Joint Tortfeasors Act. (Doc.225.) 8 Accordingly, Defendants timely filed their Third-Party Complaint within “14 days after serving its original answer” as required by Rule 14(a). See Reynolds, 2006 U.S.Dist.LEXIS 34514, at *11; Hanover Ins. Co., 2019 U.S.Dist.LEXIS 32749, at *33-34; Heckler & Koch, Inc., 976 F.Supp.2d at 1029; Capital City Mortg. Corp., 186 F.R.D. at 247; Capodanno, 2010 U.S.Dist.LEXIS 30014, at *3; Danis Envtl. Indus., Inc., 2006 U.S.Dist.LEXIS 103231, at *5-7. 8 Defendants simultaneously filed a Motion to Sever in order to permit Defendants to pursue third-party claims against Plaintiffs Wartluft and Bartels. Those claims, like the claims here, are capable of prosecution within the same time as the extended case management deadlines compelled by the Court’s reinstatement of the state law tort claims, obviating any judicial economy or efficiency concerns. Moreover, Defendants’ substantive and procedural due process rights are being denied, namely the right to defend the reinstated claims in the same manner they would have been entitled to defend them had the reinstated claims never been dismissed from the case in the first instance. Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 15 of 30 11 Plaintiffs also erroneously claim that the January 22, 2019, Answer was not the “original Answer” with respect to the reinstated claims because they contend that Defendants could have filed “viable” contribution claims against Karen and Thomas Fitzpatrick, presumably with respect to dismissed theories of liability not actionable in the case, when it filed its first Answer on August 24, 2017. (Pls.’ Br. at 5-10.) There are two fatal flaws in Plaintiffs’ argument. First, even assuming arguendo that Defendants could have filed a “viable” contribution claim regarding other theories of liability, which they could not for the reasons set forth infra, this does not foreclose Defendants from later asserting a third-party claim for contribution with respect to different “theories of liability,” relating to claims that had already been dismissed from the case, but that were subsequently reinstated by the Court. With respect to these “new theories of liability,” the “original answer” was filed by Defendants on January 22, 2019, (Doc.222). See Reynolds, 2006 U.S.Dist.LEXIS 34514, at *11; Hanover Ins. Co., 2019 U.S.Dist.LEXIS 32749, at *33-34; Heckler & Koch, Inc., 976 F.Supp.2d at 1029; Capital City Mortg. Corp., 186 F.R.D. at 247; Capodanno, 2010 U.S.Dist.LEXIS 30014, at *3; Danis Envtl. Indus., Inc., 2006 U.S.Dist.LEXIS 103231, at *5-7. It could not be otherwise, as the reinstated claims had already been dismissed before Defendants’ first Answer was ever filed. Second, Plaintiffs’ argument that Defendants could have filed a “viable” Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 16 of 30 12 contribution claim at the time it filed its first Answer is wrong as a matter of well- settled law. On August 10, 2017, this Court held that “[a]ny duty of care that the School owed Bartels during her enrollment arose exclusively from their contractual relationship.” (Doc.62, at 6; emphasis added). The Court further explained that the Plaintiffs had not “articulated any social obligation or duty existing outside of the contract with the School that the School allegedly violated” and “[t]he parents’ state law claims therefore sound solely in contract.” 9 (Id., 7; emphasis added). Thus, from the time of the Court’s ruling on August 10, 2017, through December 7, 2018, when the Court vacated its August 10, 2017 opinion, the law of the case mandated that Defendants, as a matter of fact and law, could not have asserted a third-party claim for contribution. This is because “[u]nder Pennsylvania law, a claim for contribution is only appropriate when it arises between joint tort-feasors.” Garcia v. Cummings, 2009 U.S.Dist.LEXIS 3539, at *7-8 (M.D.Pa.,2009)(emphasis added); Schlegel v. Wilson-Cook Med., Inc., 2007 9 Because the Court held that Plaintiffs could not assert any state law tort claims, Defendants thereafter sought judgment on the pleadings with respect to Plaintiffs’ claims for wrongful death, survival act, and negligence per se. (Doc.120.) Plaintiffs argue that this motion somehow “acknowledged” that state tort-based claims were still viable in this action, despite the Court’s unambiguous August 10, 2017 Opinion. (Pls.’ Br., 6-7.) In addition to being illogical, this argument is simply legally incorrect. Defendants did not “acknowledge[]” that tort claims were viable; rather, Defendants sought judgment on these claims specifically because the Court had previously held that tort claims were not legally cognizable. (Doc.120, 6-11.) Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 17 of 30 13 U.S.Dist. LEXIS 13066, at *9 (M.D.Pa.,2007)(same). But, a party cannot, as a matter of law, be considered a joint tort-feasor where its duty “sounds in contract, not in tort.” Atchison Casting Corp. v. Deloitte & Touche, L.L.P., 2003 Phila.Ct.Com.Pl.LEXIS 11, at *9 (Pa.Com.Pl.,2003)(emphasis added) (dismissing contribution claim because the only duty involved “sounds in contract, not in tort”); Apple Am. Grp., LLC v. GBC Design, Inc., 294 F.Supp.3d 414, 424 (W.D.Pa.,2018) (holding that the Court must dismiss a third-party claim for contribution if the claim “sound[s] in contract rather than tort.”). 10 Contrary to Plaintiffs’ uninformed view, simply because the word “negligence” appears in the claim for negligence per se does not mean that Plaintiffs had a viable state law negligence claim to which Defendants could have filed a third-party claim for contribution. Indeed, there were no negligence or tort claims left in the case as of August 2017. But, in any event, negligence per se requires the violation of some statutory duty. Here, Plaintiffs pleaded that duty arose under the FHA (Am. Compl. ¶255), a federal statute that neither the Fitzpatricks nor Plaintiffs could have violated, and thus no claim for contribution could arise out of this claim. 10 Unique Techs., Inc. v. Micro-Stamping Corp., 2003 U.S.Dist.LEXIS 12060, at *10 (E.D.Pa.,2003); EQT Prod. Co. v. Terra Servs., LLC, 179 F.Supp.3d 486, 493 (W.D.Pa.,2016); Higgins Erectors & Haulers, Inc. v. E.E. Austin & Son, Inc., 714 F.Supp. 756, 759 (W.D.Pa.,1989). Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 18 of 30 14 Likewise, the term “wrongful” in wrongful death does not equate to a negligence claim. Wrongful death is not a stand-alone cause of action – it too requires some underlying wrongful act in order for the claim to be viable. However, the only viable averment of “wrongful” conduct existing in Plaintiffs’ Amended Complaint following the Court’s August 2017 ruling was the alleged violation of the FHA or breach of a contractual agreement. Thus, no third-party claim could have been pursued as of August 2017 as neither the Fitzpatricks, nor the individual Plaintiffs, were legally capable of violating the FHA, nor were they obligated under the contractual theories upon which Plaintiffs’ remaining claims were, by virtue of this Court’s holding, singularly based. Simply put, the contribution claim only became cognizable when the Court vacated its prior order on December 7, 2018. 11 Thereafter, Defendants filed an Answer to the reinstated claims on January 22, 2019, and timely filed the Third- Party Complaint ten (10) days later. Accordingly, the Third-Party Complaint was 11 Plaintiffs’ argument that a third-party claim was viable because Defendants pleaded an affirmative defense of comparative and/or contributory negligence in their August 24, 2017 Answer is meritless. (Pls.’ Br. at 7-9.) Defendants’ cautionary assertion of this affirmative defense cannot override the law of the case that the Plaintiffs’ claims “sound solely in contract.” Yuric v. Purdue Pharma, L.P., 343 F.Supp.2d 386,390 (M.D.Pa.,2004). Moreover, there is a fundamental difference between asserting contributory liability as an affirmative defense to each of the three plaintiffs’ remaining claims pursuant to 42 Pa. C.S.A. §7102, and asserting a third-party cause of action for contribution pursuant to 42 Pa. C.S.A. §8321 et seq., based on different theories of liability. Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 19 of 30 15 filed within “14 days after serving its original answer” as required by Rule 14(a) and Plaintiffs’ Motion must be denied. B. The Third-Party Complaint Is Not “Obviously Unmeritorious,” and Plaintiffs Have Waived Any Such Argument, Thus Precluding This Court From Striking the Third-Party Complaint. Plaintiffs improperly contend that the Court should exercise its discretion to strike the Third-Party Complaint because it would “be highly prejudicial to Plaintiffs” because “fact discovery closed in April 2018. Expert reports were exchanged during the Summer of 2018. Dispositive motions were fully briefed by September 2018.” (Pls.’ Br. at 10.) In addition to being wholly irrelevant to Plaintiffs’ request to strike the timely filed Third-Party Complaint, as set forth at length supra in Part II, this argument is an egregious and disingenuous misrepresentation calculated to mislead this Court. The parties have already agreed to extend all of these deadlines in light of the Court’s December 7, 2018 Order, which also expressly recognized Defendants’ right to re-file dispositive motions in the future. Where, as here, a third-party complaint is timely filed, the Court’s discretion to strike it is limited to those instances where the Court finds that the third-party complaint is “obviously unmeritorious.” Reynolds, 2006 U.S.Dist.LEXIS 34514, at *11; see also Aiello v. Midwest Operating Eng'rs Health & Welfare Fund, 1992 U.S.Dist.LEXIS 7353, at *3 (N.D.Ill.,1992)(“A motion to strike should be granted Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 20 of 30 16 only where the claim stated in the third-party complaint is ‘obviously unmeritorious’....Because the claim in Count I of the amended complaint is not obviously unmeritorious, the motion to strike is denied.”); Hartford Fire Ins. Co. v. A.J. Cianciulli, 2002 U.S.Dist.LEXIS 22572, at *9 (S.D.N.Y.,2002)(“Because it cannot be said that County Asphalt’s contention is ‘obviously unmeritorious,’ there is no basis for striking the claims against ACE.”). Plaintiffs have failed to argue that the third-party complaint is “obviously unmeritorious,” and thus have waived the argument. Burns v. Experian Info. Sols., Inc., 2018 U.S.Dist.LEXIS 199094, at *5 (M.D.Pa.,2018)(Jones, J.)(“It is ‘well- settled’ that ‘issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’”); United States v. Mouzon, 2014 U.S.Dist.LEXIS 31952, at *11 n.4 (M.D.Pa.,2014). Even had they not waived this argument, any such argument by Plaintiffs would be patently frivolous. “[F]or purposes of determining whether to strike or dismiss the third-party complaint as ‘obviously unmeritorious,’ the Court will take Defendant’s well-pleaded allegations as true.” Brown v. Club Assist Rd. Serv. U.S., Inc., 2015 U.S.Dist.LEXIS 193935, at *12 (N.D.Ill.,2015); Derenick v. Kohl's Dep't Store, Inc., 2016 U.S.Dist.LEXIS 148044, at *6-7 (M.D.Pa.,2016)(the Court “must accept as true all well-pleaded allegations in the third-party complaint and view them in the light most favorable to [the third-party plaintiff].”); Pa. Real Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 21 of 30 17 Estate Inv. Tr., 1995 U.S.Dist.LEXIS 17361, at *2 n.1(E.D.Pa.,1995); Rich v. Brandywine Ins. Advisors, LLC, 2017 U.S.Dist.LEXIS 34404, at *2-3 (E.D.Pa.,2017). Accepting as true, as this Court must, all factual allegations pleaded in the Third-Party Complaint, it is obvious that the “obviously unmeritorious” standard cannot be met. The Third-Party Complaint properly asserts a claim for contribution against Karen and Thomas Fitzpatrick, who were AB’s custodians and guardians when she committed suicide in their home in Newport, Perry County, PA. (Doc.225, ¶¶81- 92.) “The Uniform Contribution Among Tortfeasors Act provides that the right of contribution exists among joint tortfeasors.” Schlegel, 2007 U.S.Dist.LEXIS 13066, at *9. Individuals are considered joint tortfeasors, and thus entitled to contribution, “[i]f the tortious conduct of two or more persons causes a single harm which cannot be apportioned...even though they may have acted independently.” Id.; see also SEPTA v. Aecom USA, Inc., 2010 U.S.Dist.LEXIS 123097, at *20 (E.D.Pa.,2010) (“To be joint tortfeasors, parties must either act together in committing a wrong, or their acts, if independent of each other, must unite in causing a single injury.”). Therefore, “any tort-feasor has a right of contribution if such a party can establish that another is also liable to the plaintiff for the same injury.” Nolan v. Duffy Connors LLP, 542 F.Supp.2d 429, 432 (E.D.Pa.,2008); Garcia, 2009 Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 22 of 30 18 U.S.Dist.LEXIS 3539, at *9. Significantly, “[m]ost personal injury cases are by their very nature incapable of division.” Schlegel, 2007 U.S.Dist.LEXIS 13066, at *9. Karen and Thomas Fitzpatrick are “also liable to [AB] for the same injury,” Nolan, 542 F.Supp.2d at 432, because, as set forth herein and in the Third-Party Complaint, their negligent actions and/or inactions were a factual and legal cause of AB’s injuries. Accordingly, they are joint tortfeasors, entitling Defendants to contribution from them for the liability for the alleged injuries to AB, any such liability of the Defendants being expressly denied. Schlegel, 2007 U.S.Dist.LEXIS 13066, at *9. Plaintiffs have repeatedly identified Karen Fitzpatrick as AB’s “stepmother” and a “guardian of [AB],” who along with her father, Thomas, had custodial care of AB. (Am. Compl. ¶¶1, 81, 143; Third-Party Compl. ¶¶3-4.) AB was living at their home in Newport, Perry County, PA, on the day of her death. (Third-Party Compl. ¶¶11-12, 56, 64, 66.) Accordingly, Karen and Thomas Fitzpatrick had a duty “to exercise reasonable care to protect [AB] and keep [her] from danger.” Miller v. Leljedal, 455 A.2d 256, 259 (Pa.Commw.Ct.,1983); Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa.Super.Ct.,1998) (holding that where an individual puts themselves “in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 23 of 30 19 adoption” that individual must nonetheless “assum[e] ... parental status” and “discharge...parental duties”). 12 Defendants contend that Karen and Thomas Fitzpatrick breached their duty to AB by, inter alia: (i) dismissing AB’s depression and suicidal thoughts as merely “teenage angst” and generally ignoring the severity of her mental health symptoms; (ii) failing to administer the Pennsylvania Psychiatric Institute’s (“PPI”) prescribed psychotropic medications to AB prior to her death; (iii) failing to notify authorities or AB’s treating physicians that her psychotropic medication had gone missing three (3) days before her suicide; (iv) failing to follow PPI’s clear and direct discharge instructions for AB’s aftercare; (v) failing to schedule the earliest available appointment for AB’s psychological treatment after discharge from PPI, leaving AB with no psychological care during the ten (10) days from her discharge from PPI until she died by suicide at the home of Plaintiff Bartels and the Fitzpatricks on June 29, 2013; (vi) and failing to adequately supervise AB, 12 Falco v. Pados, 282 A.2d 351, 352 (Pa.,1971)(permitting defendant to join mother of child as joint tortfeasor based upon allegations that mother’s negligence caused the child’s injuries); Evans v. Valley Forge Convention Ctr., 1996 U.S.Dist.LEXIS 12091, at *9 (E.D.Pa.,1996); Glomb v. Glomb, 530 A.2d 1362 (Pa.Super.Ct. 1987); Watson v. Highland Grove Traction Co., 68 Pa.Super. 332, 335 (1917)(“A parent owes to the child protection. It is his duty to shield it from danger, and the duty is the greater the more helpless and indiscreet the child is.”); Safranski v. Seman, 40 Pa.Super.Ct. 219, 222 (1909)(“protection is a paternal duty. Entire failure to extend it must be negligence.”); Packer v. Imboden, 37 Pa.D.&C.3d 13, 18 (Pa.Com.Pl.,1984); Horneman v. Hills Dep't Store, 8 Pa.D.&C.4th 361, 363 (Pa.Com.Pl.,1990). Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 24 of 30 20 leaving her on the day of her death, and just ten (10) days following her discharge from a mental health institution (PPI) for severe suicidal ideations, in the custody of Mr. Fitzpatrick, who advised the Pennsylvania State Police that despite AB having told him recently that “life was not worth living,” coupled with his knowledge that AB’s psychotropic medication had “gone missing” days before, left her alone in the home in the morning hours of June 29, 2013, and alone in her room for an extended period prior to discovering her death by suicide. (Third-Party Compl., ¶¶58-65, 81-92.) 13 These actions and/or inactions of Karen and Thomas Fitzpatrick constitute a breach of their duty to “exercise reasonable care to protect [AB].” Miller, 455 A.2d at 259. Because their tortious actions and/or inactions were a factual and legal cause of AB’s injuries, Defendants have a viable claim for contribution against them as joint tortfeasors concerning any injuries to AB for which Plaintiffs contend Defendants are liable, any such liability of Defendants being expressly denied. Schlegel, 2007 U.S.Dist.LEXIS 13066, at *9; Garcia, 2009 U.S.Dist.LEXIS 3539, at *9; Nolan, 542 F.Supp.2d at 432. 13 In opposing Defendants’ request to file a Third-Party Complaint against Plaintiffs, Plaintiffs argued that the Court should disregard these well-pleaded factual allegations and instead accept as true what Plaintiffs’ mischaracterized as the “actual facts.” (Doc.229, at 20.) However, this is the antithesis of the proper standard of review, under which the Court “must accept as true all well-pleaded allegations in the third-party complaint and view them in the light most favorable to [the third-party plaintiff].” Derenick, 2016 U.S.Dist.LEXIS 148044, at *6-7. Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 25 of 30 21 Accordingly, because the Third-Party Complaint was timely filed (supra Part A), and because the Third-Party Complaint is plainly not unmeritorious, an argument otherwise waived by Plaintiffs, (supra Part B), the Court must deny Plaintiffs’ Motion to Strike. C. Denying Defendants’ Procedural and Due Process Rights to Pursue Third-Party Claims Authorized by F.R.C.P. 14 in Defense of the Reinstated Claims is Highly Prejudicial to Defendants. Defendants’ substantive and procedural due process rights will be denied to their substantial prejudice if the Court grants Plaintiffs’ Motion. Prejudice is defined as “[d]amage or detriment to one’s legal rights or claims.” Black’s Law Dictionary, 3d Pocket Ed. 2006 (Garner, B.). It is beyond dispute that Defendants have the right to pursue third-party claims against individuals who Defendants contend had a duty to AB, breached that duty, and thereby caused any injuries or damages for which Plaintiffs contend Defendants are liable. Thus, to impede Defendants’ ability to exercise its rights to defend the reinstated claims by bringing third-party claims against those whom Defendants allege are actually responsible, if anyone, on such new theories of liability, is the textbook definition of prejudice. Defendants third-party claims do not merely speak to contribution, but also implicate specific defense strategies to defend against the reinstated claims. Merely observing that Defendants could seek contribution after the case is concluded ignores two critical points, and the true prejudice – the violation of Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 26 of 30 22 Defendants’ substantive and procedural due process rights – that Defendants will suffer if this Court impedes their right to assert third-party claims. First, requiring Defendants to wait to pursue claims for contribution until after the case is concluded merely because the timing of the Court’s reinstatement of claims has created a “procedural tangle,” unfairly punishes Defendants for something they had no part in, and fundamentally denies Defendants’ due process rights, to avail itself of trial strategies and defenses that it would have had but for the Court’s sua sponte December 7, 2018, reinstatement of state tort claims. Second, the denial of the instant pursuit of third-party claims is not simply an issue of timing. Third-party claims potentially impact the admissibility of evidence and testimony, jury instructions, verdict slips, and other critical aspects of defense and trial strategies. Had the reinstated claims never been dismissed, Defendants would have their legally authorized defenses and trial tactics and strategies intact. By denying the right to pursue third-party claims because it is deemed more expedient or more efficient, Defendants are improperly denied their lawful right to implement trial strategies that could impact the outcome of the case, which they would have otherwise had, but for the Court’s sua sponte December 7, 2018, reinstatement of claims. This substantial prejudice was not intended by the Court’s December 7, 2018, ruling. Indeed the Court’s acknowledgement that Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 27 of 30 23 revised case management deadlines were required by virtue of its ruling forecloses any such unintended consequences. V. CONCLUSION For all the foregoing reasons, Defendants respectfully request that the Court deny Plaintiffs’ Motion to Strike, reconsider its previous denial of the Motion to Sever, and grant the relief requested therein. Respectfully submitted, Dated: March 14, 2019 ELLIOTT GREENLEAF, P.C. /s/ Jarad W. Handelman Jarad W. Handelman, Esquire (PA 82629) Kyle M. Elliott, Esquire (PA 306836) Elliott Greenleaf, P.C. 17 N. Second Street, Suite 1420 Harrisburg, PA 17101 717.307.2600 (phone) / 717.307.2060 (fax) 215.977.1000 (phone) / 215.977.1099 (fax) jwh@elliottgreenleaf.com kme@elliottgreenleaf.com Attorneys for Defendants Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 28 of 30 CERTIFICATE OF WORD COUNT I certify that the word count of the foregoing brief as determined by the Microsoft Word software with which it was produced, is 5,296 words. /s/ Jarad W. Handelman Jarad W. Handelman Dated: March 14, 2019 Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 29 of 30 CERTIFICATE OF SERVICE I, Jarad W. Handelman, Esquire, hereby certify that I caused the foregoing Brief to be served via the Court’s ECF system on all counsel, and served a copy via first class U.S. Mail and Email on the following: Karen Fitzpatrick Thomas Fitzpatrick 465 North 4 th Street Newport, PA 17074 karenfitzpatrick413@gmail.com Third-Party Defendants Dated: March 14, 2019 /s/ Jarad W. Handelman Jarad W. Handelman Case 1:16-cv-02145-JEJ-MCC Document 237 Filed 03/14/19 Page 30 of 30