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McClure Enterprises, Inc. v. Fellerman

May 15, 2007

MCCLURE ENTERPRISES, INC., PLAINTIFF
v.
GREGORY E. FELLERMAN, NEW GENERATION COAL, INC.; ESTATE OF JOSEPH L. NOWAKOWSKI; KENNETH ("KENNY") NOWAKOWSKI, IN HIS INDIVIDUAL CAPACITY AND UNDER POWER OF ATTORNEY FOR JOSEPH L. NOWAKOWSKI; GEORGE : ("NIPPER") NOWAKOWSKI; ROBERT J. ("BOBBY") KULICK; ROBACHELE, INC.; BALCHUNE ENVIRONMENTAL TESTING SYNDICATE; WILLIAM BALCHUNE, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court for disposition are motions to dismiss filed by the various defendants in this action asserting civil liability under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68. The motions have been briefed, and they are ripe for disposition.

Background

Plaintiff McClure Enterprises, Inc. (hereinafter "plaintiff" or "McClure") is a licensed and permitted coal operator that has been active in the coal business since 1971. (Complaint, Doc. 1, (hereinafter "Compl."), ¶ 18). Plaintiff's principal place of business is in Lackawanna County, Pennsylvania. (Compl. ¶ 1). McClure is a party to several contracts to provide coal to co-generation plants in Northeastern, Pennsylvania, that use coal to generate electricity.

In June 2002, Plaintiff entered into a lease of mineral rights on 156 acres of land owned by Defendant Joseph Nowakowski. The location is known as the Colliery at No. 9. (Compl. ¶¶ 18, 21). The lease allowed plaintiff to remove all merchantable and workable coal and refuse from the Colliery at No. 9 in exchange for the payment of royalties to Defendant Joseph Nowakowski. (Compl. ¶¶ 21-21).

Plaintiff then secured from the Pennsylvania Department of Environmental Protection an exploratory permit and later a surface mining permit to engage in mining activities. (Compl. ¶ 30). Plaintiff also expended "considerable sums of money" to outfit the mining operations. (Id.). As a result of its efforts, in December 2003, plaintiff began delivering coal refuse from the location to its co-generation customers and continued to do so until March 11, 2005 during which time it paid more than $130,490.06 in royalties and advances against future royalties to Defendant Joe Nowakowski. (Compl. ¶¶ 34-36).

Plaintiff asserts that in late September or early October 2004, an enterprise was formed to obtain plaintiff's operations at Collier at No. 9. (Compl. ¶¶ 38-39, 43, 45). Defendant Robert J. "Bobby" Kulick, Defendant William Balchune, and Defendant Kenneth "Kenny" Nowakowski first approached the Nowakowskis about taking Colliery No. 9. (Compl. ¶ 38). The Nowakowskis balked when they were first approached. (Id.).

Defendant commenced using coercion and duress in order to obtain Joe Nowakowski's cooperation. (Compl. ¶ 39). Once they had Joe Nowakoski's cooperation, Defendant Kulick, through his company Robachele, began removing surface material from the property. (Compl. ¶ 44). The Balchune Defendants began removing coal refuse from the location to test its quality. (Id.).

The Nowakowskis' role in the enterprise was to physically drive plaintiff off the site. In order to complete this goal, they engaged in physical intimidation, harassment and disruption of plaintiff's operations. (Compl. ¶ 46). In addition, the Nowakowskis, Kulick and Balchune secured Gregory E. Fellerman's participation in the enterprise. (Compl. ¶ 51). Fellerman is an attorney in private practice and an assistant district attorney with the Luzerne County District Attorney's Office. (Compl. ¶ 2). Plaintiff asserts that Fellerman used his official capacity as an assistant district attorney to aid the enterprise. (Compl. ¶ 52). In spring 2005, Fellerman created Defendant New Generation to step in and take over plaintiff's mining permit. (Compl. ¶ 53). Fellerman also allegedly threatened to press criminal charges against Joseph Nowakowski if he did not cooperate. (Compl. ¶ 55).

Defendants have, according to the complaint, completely blocked plaintiff's physical access to the location under continued threats to plaintiff and its employees.

Based upon these facts, plaintiff instituted the instant law suit. The complaint raises the following five counts: 1) Count I, Civil RICO, against all defendants; 2) Count II, breach of mineral lease and royalty agreement, against the Estate of Joseph L. Nowakowski; 3) Count III, tortious interference with contractual and economic advantage, against all defendants; 4) Count IV, tortious interference with contractual and economic advantage, against Defendants Fellerman, New Generation, Kenny Nowakowski, "Nipper" Nowakowski, Bobby Kulick, Robachelle, Inc., the Balchune Defendants and Does 1 through 20; 5) conversion, against all defendants.

After service of the complaint four separate motions to dismiss were filed. The parties filing the motions were Balchune Environmental Testing and William Balchune; Gregory E. Fellerman and New Generation Coal, Inc.; Robert J. Kulick and Robachele, Inc.; and Kenneth "Kenny" Nowakowski, George "Nipper" Nowakowski and the Estate ...


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