Sarpolis Ex Rel. Estate of Milller v. TereshkoSarpolis Ex Rel. Estate of Milller v. Tereshko
Finally, Alja-Iz‘s complaint also failed to set out a plausible retaliation claim. To advance a prima facie case of retaliation a plaintiff must show that: (1) he engaged in a protected activity; (2) the employer took an adverse employment action after or contemporаneous with the protected activity; and (3) a causal link exists between the employee‘s protected activity and the employer‘s adverse action. See Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir.2001). Here, Alja-Iz pleaded himself out of court, as his complaint alleged that the Board made its decision denying him certification before he purportedly engaged in the protected activity of filing a complaint. See Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 516 (3d Cir.2004) (observing that it is not possible to meet the retaliation standard when the adverse action precedes the protected activity).
Perhaps Alja-Iz could have corrected these pleading deficiencies in an amended complaint, but after the District Court granted him leаve to amend his complaint, he declined to do so and instead stood on his complaint as it was initially written. Because his complaint pleaded no viable claim, this appeal presents us with no substantial question. We will therefore affirm the District Court‘s order dismissing Alja-Iz‘s complaint.
the certifications he sought in the Virgin Islands.
David H. Colvin, Esq., Fox Rothschild, John M. Myers, Esq., Johnathan S. Perkins, Esq., Montgomery, McCracken, Walker & Rhoads, Philadelрhia, PA, Stuart T. O‘Neal, III, Esq., Burns White, West Conshohocken, PA, Ira L. Podheiser,
Before: AMBRO, HARDIMAN, and NYGAARD, Circuit Judges.
OPINION *
*AMBRO, Circuit Judge.
Appellant Karen Sarpolis appeals thе 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 prеtrial 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 рarty could request that it be 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 Tereshkо 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 Pennsylvaniа Professional Liability Joint Underwriting Association], and his wife Heather Tereshko to have the case trans-
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,
(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 extеnt [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
(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, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)).
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
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 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 suрplemental 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 cоmplaint to state claims of fraud and fraud in the inducement as objects of the conspiracy, and held that the fraud
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, аs 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. Sеe 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 Pеnnsylvania statute of limitations for fraud is two years,
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.Cmwlth.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 rаther 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.
Sarpolis’ remaining arguments on the issue of supplemental jurisdiction are unpersuasive. Although Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), 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
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. Phillip 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., 488 Pa. 198, 412 A.2d 466, 472 (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, 370 Pa.Super. 422, 536 A.2d 1337, 1342 (1987) (holding that civil conspiracy claim requires availability of an independent cause of action for the acts alleged).
* * * * * *
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