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Landsman v. Gustin Stone Supply

July 17, 2007


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Defendants' motion to dismiss in part (Doc. 4) the Plaintiff's Complaint (Doc. 1-3), pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants seek to dismiss the Plaintiff's negligence and punitive damages counts. For the reasons set forth below, the Court will grant the motion.

The Court has jurisdiction over this matter pursuant to Title 28 of the United States Code, section 1332 ("diversity of citizenship").


The facts as alleged in the Complaint (Doc. 1-3) are as follows.

Plaintiff is both a resident and an owner of real property located in New York. (Compl. ¶¶ 2,3.) Defendant, Gustin Stone Supply, Inc., is a Pennsylvania corporation with a principal place of business located in the County of Wayne. (Id. ¶ 4.) Defendant Paul R. Gustin is a resident of Pennsylvania, and the principal and controlling person of defendant Gustin Stone Supply, Inc. (Id. ¶ 5). In or about June 2002, Schaefer Enterprises of Deposit, Inc., Schaefer Logging, Inc., Schaefer Timber & Stone, LLC, and Mr. Larry Schaefer (collectively "Schaefer") entered into an agreement with Maria Bacon, owner of real property located immediately to the west of Plaintiff's premises, concerning the removal of stone, for profit, from Bacon's property. (Id. ¶ 6.) At some point after June 2002, and before April 2005, Schaefer entered into an employment arrangement with Michael J. D'Elia concerning removal of the stone from Bacon's property. (Id. ¶ 7.) At the time of this relationship, D'Elia was a convicted felon with a well-known, bad reputation in the area. (Id. ¶ 8.)

There was a free-standing stone wall--approximately 160 feet in length and four feet in height--which was co-owned by Plaintiff and Bacon, and located for many decades on the border of their respective properties. (Id. ¶¶ 9-11.) A 1971 survey of the properties shows the location of the wall on this border. (Id. ¶ 17.) On April 4, 2005, Plaintiff discovered that the stone wall had been removed by Schaefer and D'Elia; D'Elia has said that Schaefer instructed him to remove the wall. (Id. ¶¶ 12-14.) Plaintiff informed Bacon, Schaefer, Gustin, and the New York State Police of his objection to the stone wall removal. (Id. ¶ 15.) Upon investigation of the removal, Kenneth Bacon, husband of Maria Bacon, confirmed in writing that the wall should not have been taken down. (Id. ¶ 16; Doc. 1-3 p. 14)

Schaefer and D'Elia sold the stone wall to Defendants Paul Gustin and Gustin Stone Supply, Inc. (collectively "Gustin"). (Id. ¶ 18.) Plaintiff demanded that Defendants return the stone to the area near where it was taken, but Gustin said that the Plaintiff's stone had been mixed into tons of other stone belonging to Gustin, and therefore refused to return Plaintiff's stone or equivalent stone. (Id. ¶¶ 19-21.)

On January 19, 2007, Plaintiff filed a Complaint in the Court of Common Pleas for the County of Wayne, Pennsylvania. (Doc. 1-3.) The case was removed to this court pursuant to the Petition to Remove filed on February 1, 2007. (Doc. 1.) On February 13, 2007, Defendants filed the present motion to dismiss. (Doc. 4.) This motion is fully briefed and 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 as true all of the facts alleged in the complaint and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

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), cert. denied, 510 U.S. 1042 (1994). 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 ...

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