MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
It is respectfully recommended that defendant Grant Thornton's motion to dismiss pursuant to Rule 12(b)(6) (Docket #410) be granted with respect to the complaint filed by HMC, and granted with respect to the intervenor-plaintiffs' claims for professional malpractice and negligent misrepresentation, but denied with respect to the intervenor-plaintiffs' claim sounding in contract.
This court has already described this case as a "complex multi-party lawsuit containing manifold claims and counterclaims between and among the parties, arising out of the alleged mismanagement of defendant Housing Mortgage Corporation by its former principals and former operating officers. The allegations of mismanagement are in the nature of claims of intentional conduct, viz., theft, conversion, forgery, fraud." (Docket #406). The case has acquired an added dimension with the filing complaints by HMC and the intervenor-plaintiffs
on September 30, 1993, adding a new party to the lawsuit, Grant Thornton. Defendant Grant Thornton is an accounting firm which, for the years 1989-1991, was hired by HMC to audit HMC's financial statements. HMC and the intervenor-plaintiffs allege that Grant Thornton failed to perform its duties in conformity with professional standards. The claims asserted are framed as professional negligence and breach of contract. Grant Thornton has responded to its inclusion in this litigation vigorously, and has filed a motion to dismiss pursuant to Rule 12(b)(6) (Docket #410), a motion to dismiss pursuant to Rule 12(b)(1) (Docket #412), a motion to drop it as a party for misjoinder under Rule 21, or for severance (Docket #414), and a motion to vacate earlier orders of this court authorizing the receiver to liquidate HMC's assets, and seeking to have this court terminate the appointment of the receiver (Docket #416). Presently before the court is Grant Thornton's Rule 12(b)(6) motion. The other motions will be dealt with in separate reports.
"In reviewing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party." Stobaugh v. Wallace, 757 F. Supp. 653, 656 (W.D.Pa. 1990), citing Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985). A motion to dismiss pursuant to Rule 12(b)(6) cannot be granted unless the court is satisfied "that no relief could be granted under any set of facts that could be proved consistent with the allegation." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). The issue is not whether the plaintiff will prevail at the end, but whether he should be entitled to offer evidence to support his claim. Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).
RELIANCE UPON THE AUDIT REPORTS
The complaint filed by HMC contains allegations that Grant Thornton was negligent in preparing audits for HMC for the years 1989, 1990 and 1991. Grant Thornton asserts that HMC, through the allegations in its complaint, and through admissions on file, has conceded that its principals and officers were involved in a massive scheme of fraud during this time period, and that HMC, through these actors, knew that the audit reports were not accurate, and hence did not rely upon them. In other words, the knowledge that the audit report was unreliable due to the fraud ought to be imputed to HMC. Grant Thornton asserts, therefore, that HMC has not pleaded facts which would support a finding of proximate causation with respect to any of HMC's injuries, since no reliance upon the audit reports can be shown as a matter of law.
Grant Thornton relies upon FDIC v. Ernst & Young, 967 F.2d 166, 170 (5th Cir. 1992), where the FDIC, as assignee of failed investment corporation, sued the failed corporation's accountant for professional negligence. The sole owner of the corporation, however, had engaged in fraud. The court imputed the knowledge of the sole owner of the corporation to the corporation itself, and determined that, based upon this knowledge of fraud, the corporation had never relied upon the accuracy of the audit reports, and that the FDIC could not establish proximate causation. In making this determination, the court noted that proximate causation was an element of professional negligence under Texas law, and required a finding that the "act or omission was a substantial factor in bringing about the injury and without which no injury would have occurred." Id., at 170. Hence, if no one relied upon the audit, then it could not have been a substantial factor in bringing about the harm. Id. Pennsylvania also requires a showing that the alleged negligence of an accountant was a "substantial factor" in bringing about the harm caused. See, Robert Wooler Co. v. Fidelity Bank, 330 Pa. Super. 523, 479 A.2d 1027, 1033 (1984) (an accountant who breaches its duty to exercise the care and skill customarily exercised by an accountant may be made to respond in damages if its negligence was a substantial factor in bringing about the harm). Thus, if Grant Thornton can establish, based upon the pleadings and admissions on file, that HMC did not rely upon the audits in conducting its affairs, then it will be entitled to dismissal of HMC's claims for negligence.
This court has already ruled that HMC has admitted by default all of the requests for admission served by PNC Bank Kentucky. Grant Thornton asserts that these admissions, along with the facts pleaded by HMC, establish conclusively that HMC's owners and top management were all involved in a scheme to defraud HMC's creditors, and that, therefore, no one at HMC relied upon Grant Thornton's audit reports. HMC has both pleaded and admitted that its two former owners, Ioannis Avradinis and Amarjit Singh Bhalla, were intimately involved in a massive scheme of fraud which resulted in the diversion of funds from escrow accounts held by HMC, and in the misuse of millions of dollars of loan monies extended to HMC by creditors. HMC has also pleaded and admitted the intimate involvement of HMC's top management, defendants Rendulic, Hancock and Hanna, in the scheme to defraud HMC's creditors and clients. In this case, HMC and the intervenor-plaintiffs allege that Grant Thornton failed to recognize or report many of the acts of fraud, or acts which were designed to conceal that fraud, which occurred prior to or during Grant Thornton's preparation of audit reports for HMC's 1989, 1990 and 1991 financial statements. Thus, for all relevant purposes, the factual situation is identical to that presented in FDIC v. Ernst & Young. The only real difference between the two cases is that in Ernst & Young the corporation was dominated by a single person who was involved in fraud. Here, the fraud was committed by dual owners, with the participation of HMC's three top officers.
HMC asserts, nonetheless, that the knowledge of fraud should not be imputed to it. Indeed, it must be kept in mind that the court in Ernst & Young was applying a Texas state rule for imputation of knowledge to a corporation, and that the court recognized the limited application of its decision:
Moreover, we are not holding that an auditor is never liable to a corporation when a corporation's employee or agent acts fraudulently on the corporation's behalf. We limit our holding narrowly to the facts of this case under Texas law-i.e. the FDIC, as assignee of a corporation with a dominating sole owner, sues an auditor for negligently performing an audit upon which neither the owner nor the corporation relied.
967 F.2d at 172. HMC cites to Askanase v. Fatjo, 828 F. Supp. 461 (S.D.Tex. 1993), a case involving a lawsuit by the trustee in bankruptcy of a corporation against the corporation's auditors alleging professional negligence. The auditor moved to dismiss on the basis of the statute of limitations. The trustee argued that the negligence was not discovered until a date falling within the statutory period. The auditor asserted that certain of the officers and directors of the corporation had become aware of the alleged deficiencies in the audit more than two years prior to the filing of the lawsuit, and sought to have this knowledge imputed to the corporation itself. The court stated that an agent's knowledge is not imputed to his principal if he acts entirely for his own purposes, but that knowledge would be imputed where he acts jointly in his own interests and that of the corporation. Id., at 470-71. The court distinguished Ernst & Young on the basis that in Ernst & Young there was no question that the sole shareholder and owner acted on the corporation's behalf as well as his own, since he so dominated the corporation's actions. In Askanase, however, a fact question existed concerning whether the individual officers and directors who were aware of the improper conduct were acting only in their own interests, or were acting at least in part to benefit the corporation. Hence, the knowledge of those officers and directors could not be imputed to the corporation as a matter of law, and the motion to dismiss was denied. Thus, the question of imputation of knowledge of particular facts, under the test set forth in the Fifth Circuit, depends upon the interests that an agent is pursuing in the transaction in question.
Most enlightening is a case cited by HMC, Comeau v. Rupp, 810 F. Supp. 1127 (D.Kan. 1992). In that case, which involved multiple parties and claims, the FDIC, as successor in interest of a failed savings and loan, sued Terry and C. F. Rupp, the former majority owners, president and directors of the Rooks County Savings and Loan Association ("RCSA" or "Association"), alleging that the Rupps had engaged in improper lending practices, which resulted in the insolvency of the Association. The FDIC also sued the Association's former accountants for professional negligence in certifying the Association's 1984 and 1985 financial statements in light of certain high-risk participation loans.
In addressing the accountant's motion for summary judgment, the court refused to impute the knowledge and conduct of the Rupps to the FDIC because it found that a question of fact existed concerning whether the Rupps had acted only for their personal gain, or for the purpose of benefiting the Association. Id. at 1141. The court also held that, even if the Rupps had acted at least in part for the benefit of the Association, it would not impute the Rupps' knowledge or conduct to the FDIC due to the fact that the FDIC not in the same position as the bank itself or a normal successor in interest. Compare FDIC v. O'Melveny & Myers, 969 F.2d 744 (4th Cir. 1992) (equitable considerations of receivership by FDIC and interests of third parties prevents application of equitable defense normally available against bank itself).
HMC relies upon Comeau to distinguish the instant situation from that presented in Ernst & Young. The Comeau court addressed Ernst & Young, however, in a footnote:
Although the Accountants' position finds some support in Ernst & Young, that case presented facts significantly different from those before this court. Unlike the owner in Ernst & Young, the Rupps were not the sole shareholders of RCSA. The significance of this distinction was discussed in Supreme Petroleum, Inc. v. Briggs, 199 Kan. 669, 433 P.2d 373 (1967). In Briggs, the court recognized the exception to respondeat superior when the agent acts adversely to the principals' interest. Id. at 675, 433 P.2d at 378. However, the court relied upon an 'exception to the exception,' which nonetheless imputes the agent's wrongful acts to the principal when the agent is the sole actor or representative of the principal. Id. at 676, 433 P.2d at 378 (quoting 3 Am.Jur.2d Agency § 284, at 647). In such a case, the sole agent may be considered the alter ego of the principal. Id. Thus, because the agent in Ernst & Young was the association's sole owner, as well as its chairman; chief operating officer; and chief executive officer - among other positions - the agent so dominated the association that it was proper to consider his acts as the association's acts. 967 F.2d at 172 (expressly limiting holding to narrow facts of a 'dominating sole owner'). By contrast, the Rupps owned only 70% of RSCA, and their involvement in RSCA, although considerable, does not lend itself as easily to the characterization of 'dominating.'
810 F. Supp. at 1141 n.5. As Grant Thornton points out, the explanation in this footnote illustrates that the instant case is most similar to the Ernst & Young case. Here, Avradinis and Bhalla were the sole owners of HMC, and in every relevant sense "dominated" HMC's affairs. I see no relevant distinction between the Ernst & Young case and this case. In Ernst & Young, a single person who engaged in fraud dominated the corporation. Here, two persons who dominated the corporation were engaged in fraud. Thus, if there is an "exception to the exception" in Pennsylvania, as there is in Kansas and Texas, then the knowledge of Avradinis and Bhalla must be imputed to HMC.
The most authoritative statement of Pennsylvania law that I have encountered with respect to imputation is set forth in Todd v. Skelly, 384 Pa. 423, 120 A.2d 906 (1956). In that case, Skelly was on the board of directors of a bank for which he appraised a piece of property which plaintiff intended to purchase. It was alleged that Skelly, while appraising the property, became aware of plaintiff's plans to seek a change in zoning for the property and to erect a supermarket thereon, and on the strength of that knowledge, outbid plaintiff for the land. Plaintiff filed suit against the bank in trespass based upon Skelly's actions. The court, in determining that Skelly's actions could not be imputed to the bank, stated the rule of imputation as follows:
Where an agent acts in his own interest which is antagonistic to that of his principal, or commits fraud for his own benefit in a matter which is beyond the scope of his actual or apparent authority or employment, the principal who has received no benefit therefrom will not be liable for the agent's tortious act.