The first, to what extent a judgment rendered in Marra, Jr.'s absence might prejudice him or others, weighs in favor of inclusion. As discussed above, the pending state litigation might well be influenced by any title determination made here, even if it would not bind Marra, Jr. through fact preclusion. Vasser, 93 F.R.D. at 150; see also Fortuin v. Milhorat, 683 F. Supp. 1, 3-4 (D.D.C. 1988) (quieting title). Moreover, as the advisory notes point out, it is not only the absentee who must be considered. Marra would be bound by any determination of this court, and so collateral estoppel can only work to his detriment in any pending litigation. Fed. R. Civ. P. 19 notes on amended rule; see also Bonar, Inc. v. Schottland, 631 F. Supp. 990, 1000 (E.D. Pa. 1986). For both reasons, this factor points toward joinder.
The second factor considers whether the prejudice might be lessened or avoided by shaping the judgment or relief appropriately. This would be difficult. The harm here lies, not in the relief, but in the elements of the causes of action themselves. This court can thus do nothing itself to avoid prejudice. The only way to bring Marra, Jr. into the action would be if Burgdorf were to do so by defensive interpleader, as suggested in the advisory committee notes to the amended rule. Burgdorf might wish to; it is possible that Marra, Jr. lied to Morgan, thus setting up Marra, Jr. as a possible third-party defendant. Burgdorf has shown no signs of seeking to implead Marra, Jr., though, and this court cannot compel Burgdorf to implead him. The unfavorable result of the first factor therefore cannot be mitigated by either this court or Marra.
Factor three asks whether a judgment in Marra, Jr.'s absence will be adequate. This court agrees with Marra that it will. The relief sought is only money damages, and the complaint makes no equitable claims that would either give Marra an unenforceable judgment or Burgdorf an unmeetable penalty. Again, Burgdorf could have impleaded Marra, Jr. if it had worried about incurring liabilities that should properly go to Marra, Jr.; since it did not, it would be wholly liable. This factor thus supports Marra, Jr.'s dispensability.
The final factor asks whether the plaintiff will have an adequate forum if this action is dismissed. This interest would count greatly if no such forum were available. Provident Tradesmens Bank, 390 U.S. at 109. However, Pennsylvania courts are admirably equipped to resolve disputes over title and claims construing Pennsylvania tort law and statutory law; indeed, since Erie, state courts are by definition superior in resolving state law issues. See, e.g., Steel Valley Auth., 809 F.2d at 1015; Bonar, 631 F. Supp. at 1000. State court adjudication is especially appropriate when a question of the law of real property is before the court, as such questions are fundamental concerns of state courts, not federal courts. See. e.g., Steel Valley Auth., 809 F.2d at 1015; Burger King Corp. v. American Nat'l Bank & Trust Co., 119 F.R.D. 672, 680 (N.D. Ill. 1988); Fortuin, 683 F. Supp. at 4 (state court "perhaps a superior forum"); Republic Realty Mortgage Corp. v. Eagson Corp., 68 F.R.D. 218, 222 (E.D. Pa. 1975). Furthermore, it is possible that these claims could be filed as amendments to actions pending against Marra, Jr., which would increase the efficiency of the legal process. In general, it is best to adjudicate whole disputes whenever possible. Provident Tradesmens Bank, 390 U.S. at 111. This factor thus does not block joinder, and even encourages it slightly.
In sum, then, two factors weigh strongly in favor of joinder, one weighs against, and one, the fourth, is neutral or slightly for. The balance is clearly for joinder, and this court so decides. As a result, Marra, Jr. is joined as an indispensable party to all claims save that in paragraph twenty-two in Count III, and all those claims must be dismissed because of incomplete diversity.
B. Failure to State a Claim
Under Fed.R.Civ.P. 12(b)(6), "the applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of facts in support of his claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).
Given the result under Rule 12(b)(7), there is little need to discuss counts I, II, and most of III under this heading. Nevertheless, for the sake of completeness and, in part, as alternative support for its dismissal, this court will consider Burgdorf's motion for each of the counts. Most pertinently here, this court finds that Count III should be dismissed under Rule 12(b)(6) because the statute on which it is based does not allow a private cause of action. Counts I and II are deficient as pled, but amendment could enable them to survive dismissal. Normally, this court would permit amendment before dismissal; since the counts are fatally infirm otherwise, however, that would be unnecessary here. Since Rule 15(a) allows amendment as a matter of right, though, Marra may do so, consistent with the law of the case.
As discussed earlier, Marra claims that Burgdorf committed fraud and negligent misrepresentation. Complaint, para. 16. These claims are infirm because Marra is not the proper party to raise them. They must therefore be dismissed under Rule 12(b)(6).
To maintain an action of fraud or deceit, one needs to be able to prove, among other things, that the defendant intended that the plaintiff act upon the misrepresentation and that the defendant justifiably did so. New York State Elec. & Gas Corp., 564 A.2d at 927; Woodward, 378 Pa. Super. at 124, 548 A.2d at 307; Restatement (Second) of Torts § 525 (1977). This standard would, if Marra's allegations are true, support a claim against Burgdorf by the nameless purchaser of the property. It might also support a claim by Burgdorf against Marra, Jr., should there be damages flowing from the misrepresentation. However, Marra's factual predicate does not show how any statement of Morgan was either directed toward Marra or relied upon by Marra. Certainly Morgan could not misrepresent the state of title to Marra in a way that would induce justifiable reliance. At most -- and this is purely speculative -- Morgan might have stated that he would not list the properties. Such a representation could induce reliance. But Marra nowhere pleads that he was prejudiced by such reliance, and so even this claim would have to be dismissed. Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976).
The same problems beset Marra's claim for negligent misrepresentation. Here, too, one of the elements is justifiable reliance upon the misrepresentation. Woodward, 378 Pa. Super. at 125, 548 A.2d at 308; Restatement (Second) of Torts § 552 (1977). The analysis above applies here. He has not laid out any statement of Morgan upon which he justifiably relied. Moreover, since Marra has not pled injury caused by reliance, save in the most conclusory way, he has not carried his pleading burden and thus cannot maintain, on the basis of this complaint, a cause of action for negligent misrepresentation.
This lack of particularity is especially troublesome because Fed.R.Civ.P. 9(b) requires that "the circumstances constituting fraud or mistake shall be stated with particularity." Even under this Circuit's generous pleading rules, it is necessary to plead in enough detail to put the defendant on notice of the precise misconduct with which it is charged. Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984); Philadelphia TMC, Inc. v. AT & T Information Sys., Inc., 651 F. Supp. 169, 174 (E.D. Pa. 1986). Marra has not done this, because he pleads only that there was some misrepresentation pertaining to title. There is no clue given as to context, and none as to what, if any, statement was made to Marra. Such pleading cannot support a cause of action. For either reason, then, Count I is dismissed for failure to state a claim upon which relief may be granted.
2. Pennsylvania Unfair Trade Practices and Consumer Protection Law
In paragraphs seventeen through nineteen of his complaint, Marra pleads that Burgdorf violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.Stat. Ann. §§ 201-1 to 209-6 (Purdon 1971 & Supp. 1989), when it allowed Morgan to list for sale properties belonging to Marra, thus creating a likelihood of confusion or misunderstanding. Such a claim is recognized in the statute. 73 Pa.Stat. Ann. §§ 201-2(4) (iii), 201-3 (Purdon Supp. 1989).
Moreover, the sale of real property may fall within the scope of the statute. Gabriel v. O'Hara, 368 Pa. Super. 383, 534 A.2d 488 (1987) (sale of residential property); see also In re Andrews, 78 Bankr. 78, 81-83 (Bankr. E.D. Pa. 1987) (residential mortgage loan transaction included); Commonwealth ex rel. Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974) (leasing of residential real estate included).
However, the statutory provision for a private cause of action does not grant Marra standing, at least as he has pled his case. Section 201-9.2(a) states that
any person who leases or purchases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by . . . this act, may bring a private action . . .
73 Pa.Stat. Ann. § 201-9.2(a) (Purdon Supp. 1989). The private cause of action is hence limited to lessors or purchasers whose lease or purchase is tainted by unfair trade practices. It is not clear from the pleadings whether Marra originally bought the properties in question "for personal, family or household" use, a requirement under the statute. See Wright v. North Am. Life Assurance Co., 372 Pa. Super. 272, 280, 539 A.2d 434, 438 (1988); see also Advanta Leasing Corp. v. New England Wholesale Seafood, Inc., No. 88-7741, slip op. at 9 (E.D. Pa. June 7, 1989); American Standard Life and Accident Ins. Co. v. U.R.L., Inc., 701 F. Supp. 527, 538 (M.D. Pa. 1988); Waldo v. North Am. Van Lines, Inc., 669 F. Supp. 722, 727 (W.D. Pa. 1987).
The complaint alleges that blank notarized deeds were kept in Marra's office "to permit the orderly transaction of business and the conveyance of properties sold[,] which average several sales each month." Complaint, para. 6. It also alleges that the plaintiff is engaged "in the purchase, sale, rental and development of real property." Complaint, para. 4. These allegations indicate strongly that Marra dealt in real estate as a business and that the property in question here was purchased as part of that enterprise. Were that so, this claim would properly be dismissed under Rule 12(b)(6). In any event, since Marra failed to plead that the properties in question were intended for personal, family, or household use, this court could dismiss this action because the pleading was inadequate.
3. Pennsylvania Real Estate Licensing and Registration Act
Count III of Marra's complaint invokes several clauses of section 455.604 of RELA. The allegations that Morgan, Burgdorf's agent, made "substantial misrepresentations as to the ownership of property" would fall under section 455.604(a)(1). Morgan's alleged "false promise of a character likely to influence, p[e]rsuade or induce another person to enter into a contract or agreement when it could not or did not intend or was not able to keep such promise" essentially recites section 455.604(a)(2). If Morgan pursued "a continued and flagrant course of misrepresentation or made up false promises through a salesperson," he would violate section 455.604(a)(3). The claim of "misleading and untruthful advertising" recites section 455.604(a)(4). If, as alleged, Morgan placed "a 'For Sale' sign on a property without the written consent of the owner or his authorized agent," his actions would be covered by section 455.604 (a)(8). Complaint, para. 21. Marra also alleges that Burgdorf failed "to exercise adequate supervision over the activities of their licensed salespersons or associated brokers[,] namely Art Morgan," which falls under section 455.604(a)(16). Complaint, para. 22. This last is the only claim that survives Rule 12(b)(7) analysis.
a. Explicit Cause of Action
These claims may be true. However, the statute under which they are made does not permit a private cause of action. Section 455.604(a), which prohibits the types of actions alleged above, merely grants the State Real Estate Commission the authority to investigate complaints, hold hearings, and impose penalties. It does not set out the basis for private relief; instead, it provides for citizen complaints to the State Real Estate Commission.
See also 1 Pa. Legis. J. -- Sen. 669 (July 2, 1979) (statement of Sen. Schaefer) (sponsor states that bill adds "new flexibility in penalties that the commission can issue") (emphasis added); Comment, Pennsylvania Real Estate Licensing Act of 1980, 54 Temp. L.Q. 806, 815 (commission enforces statute). Even the penalties outlined in the statute only allow fines of up to $ 1,000, rather than the "amount in excess of $ 50,000" demanded by the plaintiff. 63 Pa. Stat. Ann. §§ 455.305,.604(a) (Purdon Supp. 1989); Complaint, para. 23.
This is not the only section of RELA that compels this conclusion. Section 455.305, which is the default provision for civil penalties, provides that "the commission. . . may levy a civil penalty of up to $ 1,000 . . . only after affording the accused party the opportunity for a hearing . . ". 63 Pa.Stat. Ann. § 455.305 (Purdon 1989) (emphasis added). This provision does not encompass a private civil remedy; in its stress upon hearings, it makes clear that the civil wrongs set out by the statute are to be redressed by administrative proceedings alone. The administration and enforcement section of RELA also rests enforcement in the commission. It reads, in part:
The commission shall have the power . . . to administer and enforce the laws of the Commonwealth relating to: (1) Those activities involving real estate for which licensing is required under this act and to instruct and require its agents to bring prosecutions for unauthorized and unlawful practice . . .
63 Pa.Stat. Ann. § 455.406 (Purdon Supp. 1989). While this does not explicitly deny citizens a right of action, it certainly does not contemplate one. The plainest reading is again to vest the commission with the sole powers of enforcement.
The plaintiff cites no provisions of the statute that undercut this conclusion. Marra points to section 455.302, entitled "Civil suits," as the basis for citizen enforcement. The section does not support this interpretation. It states, in pertinent part, that
no action or suit shall be instituted, nor recovery be had, in any court of this Commonwealth by any person for compensation for
any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act by a person other than a licensed broker . . . unless such person was duly licensed and registered hereunder as broker . . . at the time of offering to perform such act or service . . .