The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Presently before the Court is Motion of Third-Party Merrill
Lynch Defendants to Dismiss Counts IV, V, and VI of Third-Party
Complaint. (Doc. 276.) I will grant the motion to dismiss in its
entirety. I will dismiss the claim of contribution brought by
ASCO Financial Group, Donald Williamson, Maria Williamson, Joseph
Perfilio, and Michael Joyce (hereinafter ASCO et al.) against
Merrill Lynch & Co., Inc, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, the Bender Crisci Sennett & Hudacek Group, Raymond
L. Crisci, Rodney F. Sennett, Stephen L. Hudacek, Peter M.
Butera, William H. Bender, and Cary T. Crisci (hereinafter
Merrill Lynch et al.) because ASCO et al. and Merrill Lynch
et al. are not joint tortfeasors as a matter of law. I will
also dismiss the claim of indemnification brought by ASCO et
al. against Merrill Lynch et al. because ASCO et al. failed to claim the existence of a relationship between ASCO et
al. and Merrill Lynch et al. that creates a right of indemnity
between the parties. Finally, I will dismiss the claim of
intentional interference with contractual relations*fn1
brought by ASCO et al. against Merrill Lynch et al. because
it is procedurally barred following dismissal of the contribution
and indemnification claims.
The present action focuses on the events leading up to and
surrounding the investment contracts made by the Luzerne County
Retirement Board (hereinafter the Board) and Board members during
the period of 1988 to 2002. Luzerne County maintains a pension
plan for employees (hereinafter the Plan) which is administered
by the Board. In March 1988 the Board retained ASCO Financial
Group, Inc. (hereinafter ASCO) as an investment advisor to the
Plan. During the course of the relationship with ASCO, various
Board members approved contracts to invest the Plan's money. The
Board members allegedly involved are Thomas A. Makowski, Thomas
P. Pizano, Frank Crossin, and Joseph Jones.*fn2 In 1999, the
Plan contracted with ASCO to administer the daily operations of
the Plan. In September 2002 the Board dissolved its relationship
with ASCO. Plaintiffs allege that various Board members engaged
in a pay-to-play scheme in which contracts to invest or manage pension plan assets were
awarded in exchange for campaign contributions to various Board
members' reelection campaigns.
On October 9, 2003, Plaintiffs filed a ninety-eight page
Complaint raising eight claims against twenty-six Defendants.
Nearly all of the original Defendants filed motions to dismiss.
(Docs. 46, 91, 93, 95, 96, 98, 100, 104, and 108.) I granted the
motions in part and denied the motions in part. (Doc. 181.) Since
then, several parties have settled their disputes. At the present
time, the remaining claims include: beach of fiduciary duty
(Defendants Makowski, Pizano, Crossin, Jones, ASCO, and Donald
Williamson); RICO violations for conducting and participating in
an enterprise by engaging in a pattern of racketeering activity
(Defendants Makowski et al., ASCO, Donald Williamson, Maria
Williamson, et al.); conspiring to commit RICO violations (all
Defendants); violating the Investment Advisors Act (Defendants
Donald Williamson and ASCO); and unjust enrichment (Defendants
ASCO, Donald Williamson, et al.). Defendants then filed answers
which included counterclaims, cross-claims, and affirmative
defenses. The Board member defendants filed third-party claims
against Michael Morreale for breach of fiduciary duties,
indemnity, and contribution. (Doc. 206.) ASCO et al. filed
third-party claims against Merrill Lynch et al. for
contribution (count IV), indemnification (count V), and
intentional interference with contractual relations (count
VI).*fn3 (Doc. 212.) The current motion requests that the
Court dismiss all claims against Merrill Lynch et al. (Doc. 276.) The motion is ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
for the dismissal of a complaint, in whole or in part, for
failure to state a claim upon which relief can be granted.
Dismissal is appropriate only if, accepting all factual
allegations in the complaint as true and "drawing all reasonable
inferences in the plaintiff's favor, no relief could be granted
under any set of facts consistent with the allegations in the
complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
In deciding a motion to dismiss, the Court should consider the
allegations in the complaint, exhibits attached to the complaint
and matters of public record. See Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The Court may also consider "undisputedly authentic" documents
where the plaintiff's claims are based on the documents and the
defendant has attached a copy of the document to the motion to
dismiss. Id. The Court need not assume that the plaintiff can
prove facts that were not alleged in the complaint, see City of
Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir.
1998), nor credit a complaint's "bald assertions" or "legal
conclusions." Morse v. Lower Marion Sch. Dist., 132 F.3d 902,
906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the Court's role is
limited to determining whether the plaintiff is entitled to offer
evidence in support of the claims. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). The Court does not consider whether the
plaintiff will ultimately prevail. See id. In order to survive
a motion to dismiss, the plaintiff must set forth information
from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant
bears the burden of establishing that the plaintiff's complaint
fails to state a claim upon which relief can be granted. See
Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
ASCO et al. seek contribution from Merrill Lynch et al.
They contend that Merrill Lynch et al. are partly responsible
for the harm to the Plan for which ASCO et al. may be found
liable. Merrill Lynch et al. argue that any damage to the Plan
they are allegedly responsible for cannot be attributed to ASCO
et al. because ASCO et al. and Merrill Lynch et al. cannot
be found to be joint tortfeasors. I agree with Merrill Lynch et
"[A] right to contribution arises only among joint
tortfeasors." Foulke v. Dugan, 212 F.R.D. 265, 270 (E.D. Pa.
2002) (citing Kemper Nat'l P & C Cos v. Smith, 615 A.2d 372,
380 (Pa.Super.Ct. 1992). Pennsylvania's Uniform Contribution
Among Tortfeasors Act states that joint tortfeasors are "two or
more persons jointly or severally liable in tort for the same
injury to persons or property, whether or not judgment has been
recovered against all or some of them." 42 PA. CONS. STAT. § 8322
(2004). "[T]wo actors are joint tortfeasors if their conduct
`causes a single harm which cannot be apportioned . . . even
though [the actors] may have acted independently.'" Rabatin v.
Columbus Lines, Inc., 790 F.2d 22, 25 (3d Cir. 1986) ...