heirs, executors, personal representatives,
administrators, general partners, limited partners, shareholders,
agents, directors, officers, employees, attorneys, insurers,
predecessors, successors, affiliates, divisions, subsidiaries, and
assigns, and all persons, partnerships, corporations and other entities
who might be claimed to be jointly and severally liable with them . . .
of and from all, and all manner of, claims actions and causes of action,
suits, debts, damages, costs, expenses, compensation, dues, accounts,
bonds, covenants, contracts, agreements, judgments, claims and demands
whatsoever whether arising in law or equity, in contract or tort,
including but not limited to, all claims set forth or which could have
been set forth arising from or with respect to. . . Susan Winters v.
Philadelphia Newspapers, Inc., et al., [and several newspaper columns] .
. ., which she ever had, now has, or which her heirs, executors,
administrators, attorneys, successors or assigns, or any of them, or any
other person or entity claiming by, through or under he, hereafter can,
shall or may have, for, or by reason of any cause, matter or thing
whatsoever, whether known or unknown against Releases from the beginning
of the world to the date of these presents. The Releasing Parties agree
not to sue the Releasees at any time in the future on any of the claims
released in this paragraph.
Currently before the Court are two Motions to Dismiss, one filed by
defendants the Plan, Kutrip, PNI, Dechert and Clarke, and a second filed
by Frangipanni. Accordingly, the Court now turns to defendants' Motions.
A. Legal Standard
When evaluating a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court must accept each allegation in a well
pleaded complaint as true. See Albright v. Oliver, 510 U.S. 266, 268
(1994). Additionally, a Motion to Dismiss should only be granted if the
Court finds that no proven set of facts would entitle the plaintiff to
recovery under the filed pleadings. See Conley v. Gibson, 355 U.S. 41,
It is also firmly established that in reviewing a Federal Rule of Civil
Procedure 12(b)(6) motion, the Court must draw all reasonable inferences
in the plaintiff's favor. See Schrob v. Catterson, 948 F.2d 1402, 1405
(3rd Cir. 1991).
B. Release of Claims Under the Agreement
Under Pennsylvania law, a release that bars unknown claims will be
enforced, even if a party claims that it was unaware of the matter at the
time the release was executed. See, e.g., Bickings v. Bethlehem Lukens
Plate, 82 F. Supp.2d 402, 409 (E.D.Pa. 2000).
The plaintiff first asserts that the agreement covers only the privacy
action, and that this case does not concern that action. However, upon a
review of plaintiff's Complaint, the Court disagrees. Plaintiff's release
states expressly that it covers "claims set forth or which could have
been set forth or arising from or with respect to" the privacy action.
Further, that release covered claims "known or unknown." Counts two,
four, five and six all concern allegations of defendants' fraudulent
conduct during the settlement of the privacy action. However, under the
terms of the agreement, plaintiff has waived these claims because
although unknown, plaintiff could have made a claim
for fraud during the
privacy suit. Moreover, plaintiff's contention that defendants' committed
fraudulent acts to facilitate a settlement in the privacy action only
demonstrates that the fraudulent conduct arose from the privacy action.
Thus, according to the agreement, plaintiff's claim of fraud has been
Plaintiff also contends that the agreement does not cover the Plan or
Dechert. However, the agreement sweeps broadly, and expressly covers not
only PNI's attorneys, but also any "persons, partnerships, corporations,
and other entities who might be claimed to be jointly and severally
liable with" PNI. This language covers the Plan and Dechert, as Dechert
represented PNI in the privacy action, and the Plan is at least an entity
within the meaning of the agreement.
Plaintiff also argues that the agreement was procured by fraud, and
that plaintiff did not believe the agreement would cover claims
associated with the 401k plan when she signed it. In Pennsylvania, the
parol evidence rule bars claims of fraud in the inducement and only allows
claims of fraud in the execution.
See Dayhoff, Inc. v. H.J. Heinz, Co., 86 F.3d 1287, 1300 (3d Cir.
1996). Thus, a party may not assert that it was induced to enter a
contract by fraudulent misrepresentation. See Coram U.S. Healthcare
Corp. v. Aetna U.S. Healthcare Inc., 94 F. Supp.2d 589, 592 (E.D.Pa.
1999). Further, the agreement states that "this agreement constitutes the
entire Agreement between the Parties." Here, plaintiff's argument that
she was fraudulently induced into signing the agreement is barred by the
parol evidence rule, and the Court cannot consider it.
In addition, plaintiff has waived her claim of fraud. When a release is
procured by fraud, a party may either (1) disaffirm the release and offer
to return the consideration; or (2) affirm the voidable contract and
waive the fraud. See, e.g.,
Nocito v. Lanuitti, 167 A.2d 262, 263. Failure to tender back the
consideration after discovery of the alleged fraud constitutes an
affirmance of the contract. See id. In this case, plaintiff does not
contend that she has offered to return the consideration supporting the
C. Whether the Divorce Judgment is a QDRO
Defendants the Plan, Kutrip, PNI, Dechert and Clarke also move to
dismiss plaintiff's ERISA's claims, counts one and two of plaintiff's
Complaint.*fn1 In count one, plaintiff asks the Court to declare the
January 7, 1999 Divorce Decree a Qualified Domestic Relations Order
("QDRO") within the meaning of 29 U.S.C. § 1056.*fn2
29 U.S.C. § 1056(d)(3)(c) provides:
A domestic relations order meets the requirements of this
subparagraph only if such order clearly specifies —
(i) the name and the last known mailing address (if
any) of the participant
and the name and mailing
address of each alternate payee covered by the order,
(ii) the amount or percentage of the participant's
benefits to be paid by the plan to each such alternate
payee, or the manner in which such amount or
percentage is to be determined,
(iii) the number of payments or period to which such order
(iv) each plan to which such order applies.
The defendants argue that the Divorce Judgment here is not a QDRO
because it: 1) does not set forth Patel's or Plaintiff's address; 2) does
not set forth the amount of or percentage of Patel's benefits to be paid
to plaintiff; 3) does not specify the number of payments or time period
during which it applies. Plaintiff does not dispute that the Divorce
Judgment fails to set forth plaintiff's or Patel's address.
While the Third Circuit has not decided whether a domestic relations
order must set forth the above quoted specifications, it has recognized
that "Congress has required QDRO's to be quite specific in order to
convey ERISA benefits." Samaroo v. Samaroo, 193 F.3d 185, 187 n. 2 (3d
Cir. 1999). Moreover, this Court cannot ignore the strong language in
29 U.S.C. § 1056(d)(3)(c) that a domestic relations order qualifies
under the statute "only if such order clearly specifies" the required
specifications. In the face of this language, the Court finds that the
Divorce Judgment cannot be a QDRO, and will dismiss count one of
C. Subject Matter Jurisdiction
As this Court will order the dismissal of plaintiff's federal claims
under ERISA, this case is no longer proper under 28 U.S.C. § 1331,
the basis of jurisdiction plaintiff relies upon in his Amended
Complaint. Thus, the remaining defendants shall be ordered to brief
whether or not this Court should retain supplemental jurisdiction over
plaintiff's state law claims before this Court resolves defendant
Frangipanni's Motion to Dismiss.