In this case, plaintiffs have alleged that the conspiracy took place between 1991 and 1995. In some cases plaintiffs have even given the specific month and year of the alleged actions. Furthermore, plaintiffs have alleged that the object of the conspiracy was to defraud them of assets, specifically the MRI equipment and partnership funds. Plaintiffs have also alleged that defendants took various actions in furtherance of their scheme, including sending them statements to lull them into believing that the equipment was being rented by the partnership under the lease-purchase provision, and misappropriating partnership funds. Plaintiffs have even alleged that Defendant Zegeye misappropriated funds on behalf of Defendant Karoly; thus implying that there was agreement among the parties and knowledge that their conduct was wrong. Bartle, 871 F.2d at 367.
Defendants next argue that Count Seven should be dismissed because plaintiffs have not alleged facts which could show willful, malicious, intentional or outrageous conduct, and that count eight should be dismissed because the defendants do not have control over the management of the partnership and so cannot make an accounting.
Allegations of willful, malicious, intentional or outrageous conduct are for the jury to decide. See generally, Gares v. Willingboro Township, 90 F.3d 720, 732-733 (3d. Cir. 1996); Coyne v. Allstate Ins. Co., 771 F. Supp. 673, 679 (E.D. Pa. 1991). Since this is a motion to dismiss, and we are constrained to view the pleadings in the light most favorable to plaintiff, we will not dismiss this count of the complaint at such an early stage. Plaintiffs have alleged enough facts that could be viewed by a jury to constitute such conduct.
With regard to their claim that they are not subject to an action for an accounting, defendants have failed to cite any law in support of their argument. Nevertheless, we note that Pennsylvania has codified the Revised Uniform Limited Partnership Act ("RULPA"). Section 8562 of RULPA provides that a partnership interest may be assigned in whole or in part and such an assignment does not dissolve the limited partnership. 15 Pa. Cons. Stat. Ann § 8562(a). This section further provides that a partner ceases to be a partner and to have any rights or powers of a partner once his partnership interest has been assigned. Id. The Lehigh Valley partnership agreement also permits the assignment of limited partners as long as certain formalities are followed, including the giving of notice to the general partner.
Since Defendants Karoly and Angstadt have assigned their interest to Defendant Zegeye, according to section 8562(a) they no longer have the powers of a partner, including the ability to be subject to an accounting. This count is therefore dismissed at to these two defendants.
In light of the discussion above, the defendants' motions to dismiss plaintiffs' complaint is denied in part and granted in part. The second and third counts of the complaint are dismissed. The eighth count of the complaint is dismissed as to Defendants Karoly and Angstadt. An appropriate Order follows.
AND NOW, this 233rd day of October, 1996, upon consideration of the Motions of Defendants to Dismiss the Complaint for Failure to State a Claim upon which Relief may be Granted, and responses thereto, the Motions are resolved as follows:
(a) The second and third counts of the complaint are dismissed. Plaintiff has thirty days to amend them to allege violations of the Racketeer Influenced and Corrupt Organizations Act.
(b) The eighth count of the complaint is dismissed as to Defendants Karoly and Angstadt.
BY THE COURT:
J. Curtis Joyner, J.