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AHMED SALVADOR v. MAZZOCONE

June 23, 1987

Ahmed Salvador
v.
Carl Mazzocone, individually and Lewis Kates, Joseph Livesey, Carl Mazzocone, d/b/a Kates, Livesey & Mazzocone, and Bell Savings Bank, Pa. S.A. et al.



The opinion of the court was delivered by: NEWCOMER

 NEWCOMER, UNITED STATES DISTRICT JUDGE

 This is a civil RICO action. Presently before the Court is defendant Bell Savings Bank's motion to dismiss the complaint against it pursuant to Fed.R.Civ.P. 12(b)(6). At issue is whether 18 U.S.C. § 1962(c) permits the imposition of respondeat superior liability. I conclude that it does not. Therefore, I will grant Bell's motion to dismiss.

 I. BACKGROUND

 Plaintiff Ahmed Salvador (Salvador) brought this action against various individuals, two law firms, and Bell Savings Bank (Bell). Salvador alleges that Bell's conduct violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et. seq. (RICO) and state law negligence principles.

 The gravaman of Salvador's complaint is that defendant Carl Mazzocone defrauded Salvador out of large amounts of money through a variety of means. The complaint alleges the following facts. Defendant Mazzocone served as Salvador's lawyer in a personal injury lawsuit in which Mazzocone obtained a $ 1,415,000.00 settlement on behalf of Salvador. After obtaining the settlement, Mazzocone began to drain a significant portion of the settlement fund away from Salvador and into Mazzocone's own pockets. One way in which Mazzocone depleted the fund was to take a $ 70,000 check payable to Salvador and open a savings account at Bell with the help of defendant Aristides George Agabides (Agabides). Defendant Agabides served as the branch manager of a Bell bank located at 15th Street and JFK Boulevard in Philadelphia. Mazzocone, with Agabides' assistance, thereafter made eight "structured" cash withdrawals from the Salvador account and pocketed the money.

 II. APPLICABLE LEGAL STANDARD

 In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must accept the allegations of the complaint as true. The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80, 84 (1957) (footnote omitted).

 III. THE RICO CLAIM

 Before discussing Salvador's RICO claim against Bell, it is necessary to examine the structure of the statute. The pertinent terms are defined in § 1961. *fn1" Section 1964 provides a civil remedy for one injured by reason of a § 1962 violation. Section 1962 with its four subsections prohibits a variety of activities. *fn2" Plaintiff proceeds against Bell on the basis of respondeat superior and § 1962(c). I will now briefly set forth the parties' arguments.

 In support of its motion to dismiss, Bell argues that the language of § 1962(c) and the legislative history behind the RICO statute preclude respondeat superior liability under § 1962(c). Defendant also cites to Schofield v. First Commodity Corporation of Boston, 793 F.2d 28 (1st Cir. 1986), and Continental Data Systems, Inc. v. Exxon Corp., 638 F. Supp. 432 (E.D. Pa. 1986), to support its position.

 In opposition to Bell's motion, plaintiff argues that respondeat superior liability is appropriate. In support of this position, plaintiff argues that (1) RICO should be liberally construed to effectuate its remedial purpose; (2) Congress did not show any solicitude for enterprises--be they legitimate or illegitimate--which are vehicles of racketeering activity and; (3) Bell can only be reached through the doctrine of respondeat superior and § 1962(c).

 I disagree with Salvador's arguments. The language of § 1962, the legislative history, and case law demonstrate that the statute does not permit liability predicated on § 1962(c) and ...


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