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Marrone v. Green

March 10, 2009


The opinion of the court was delivered by: Schiller, J.


Plaintiffs Stephen Marrone and Francis Marrone bring this action against Defendants John D. Green, Sheriff of Philadelphia County; Linebarger, Goggan, Blair & Sampson, LLP ("Linebarger"); and Bernard Houston, based on Plaintiffs' failure to acquire certain property at a Sheriff's sale. Currently before the Court is Defendant Linebarger's motion to dismiss Plaintiffs' negligence claim. For the following reasons, Linebarger's motion is granted and it is dismissed as a Defendant in this case.


Francis Marrone, the developer of a multi-unit residential apartment building located at 1302-1312 West Cumberland Street in Philadelphia, sought to provide street level parking for the building's residents. (Compl. ¶¶ 3-4.) On Francis's behalf, Stephen Marrone purchased, for that purpose, lots located at 1303, 1305, 1307, 1309 and 1313 West Letterly Street. (Id. ¶ 4.) The Marrones then sought to purchase the lot at 1301 West Letterly Street "[t]o complete the necessary parking facility." (Id. ¶ 5.) However, because delinquent real estate taxes were owed to U.S. Bank, N.A. ("U.S. Bank") a Sheriff's sale was required to allow for purchase of that property.*fn1 (Def.'s Mem. of Law in Supp of Def.'s Mot. to Dismiss at 2 [hereinafter "Def.'s Mem."].)

Accordingly, Stephen paid $1,000.00 to Linebarger, U.S. Bank's Servicing Agent and legal counsel, to schedule a Sheriff's tax lien sale of the property.*fn2 (Id. ¶ 6; Def.'s Mem. at 2; Pls.' Mem. of Law in Opp'n to Mot. to Dismiss [hereinafter "Pls.' Mem."] at 3.) Stephen signed Linebarger's "Bidder/Depositor form for sending a property to Tax Lien Sheriff's Sale" ("bidder/depositor agreement"), which required him, as an interested buyer, to make a $1,000.00 refundable deposit with Linebarger "to cover a portion of court costs and Sheriff's Sale fees."*fn3 (Def.'s Mot. Ex. B [Bidder/Depositor Form]; see also Compl. ¶ 29.) Additionally, Stephen initialed the clause that explained the circumstances under which the deposit would be refunded. (Bidder/Depositor Form.) That clause permitted a refund if "the interested bidder is successful in his/her bid at Tax Lien Sheriff's Sale, upon our receipt of the Tax Lien Sheriff's Sale funds from the Sheriff's Office" or "if the interested bidder bids unsuccessfully at the sale AND the winning bidder settles with the Philadelphia Sheriff's Office." (Id.)

The Sheriff's sale took place on November 19, 2008 at 1:00 p.m. (Compl. ¶ 5.) Cecilia Marrone, the wife of one of the Plaintiffs (the Complaint does not specify which one) and their agent at the sale, was the only bidder and bid $5,500.00 for the property. (Id. ¶¶ 6-7, 20(a).) Per the published terms of the sale, Cecilia was required to deposit with the Sheriff ten percent of the bid price, however, when she went to do so, she realized that she was $40.00 short. (Id. ¶ 8; Compl. Ex. A [Judicial/Foreclosure Sale Conditions of Sheriff Sale] & Ex. B [Tax Sale Conditions of Sheriff's Sale].) Within ten minutes Cecilia managed to borrow the remaining $40.00 from other individuals at the sale and tendered the total required to the cashier. (Compl. ¶ 8.) Nevertheless, Sheriff Green "disqualified" Cecilia, apparently because of her initial failure to tender the full ten percent of the purchase price, and placed the property up for bid a second time. (Id. ¶ 9; see id. ¶ 18.) At the second auction, the property was sold to Defendant Bernard Houston for $7,500.00. (Id. ¶ 10.)

Plaintiffs initiated this action against the Sheriff, Linebarger and Houston in an effort to recover the property and for damages. Plaintiffs assert claims against Sheriff Green, pursuant to 42 U.S.C. § 1983, for violation of their due process rights and a claim against Houston for rescission. The only claim against Linebarger is for negligence. Plaintiffs contend that Linebarger, as Plaintiffs' agent, was obligated to inform the Sheriff of Plaintiffs' $1,000.00 deposit to Linebarger so that the money could be applied to satisfy the ten-percent deposit at the sale. Accordingly, Plaintiffs assert that Linebarger "negligently failed to inform Sheriff Green's representative that Plaintiffs were required to deposit One Thousand Dollars ($1,000.00) as a good faith payment on account and that Plaintiffs had satisfied the 10% requirement." (Compl. ¶ 33.) Linebarger counters that this claim fails because Linebarger owed no duty to Plaintiffs to intercede at the Sheriff's sale.


A court reviewing a motion to dismiss, pursuant to Rule 12(b)(6), should accept the complaint's allegations as true, read those allegations in the light most favorable to the plaintiff, and determine whether a reasonable reading indicates that relief may be warranted. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). Although the federal rules impose no probability requirement at the pleading stage, a plaintiff must present "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2007); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). Simply reciting the elements will not suffice. Phillips, 515 F.3d at 231. Furthermore, a court need not accept "unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." Baraka v. McGreevy, 481 F.3d 187, 195 (3d Cir. 2007) (internal quotations and citation omitted).

When faced with a motion to dismiss for failure to state a claim, courts may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). "A document forms the basis of a claim if the document is integral to or explicitly relied upon in the complaint." Id. (internal quotations omitted).


To succeed on a negligence claim, a plaintiff must prove four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant's breach of duty and the plaintiff's injury; and (4) actual injury. Cooper v. Frankford Health Sys., Inc., 960 A.2d 134, 140 n.2 (Pa. Super. Ct. 2008); see also R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005). Plaintiffs allege that they can establish Linebarger's duty to intercede at the Sheriff's auction based on Linebarger's status as Plaintiff's agent.

An agency relationship "results from (1) the manifestation of consent of one person to another that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other to so act." In re D.L.H., - A.2d - , 2009 WL 311841, at *7 (Pa. Super. Ct. Feb. 10, 2009). In Pennsylvania, such a relationship "arises whenever a person authorizes another expressly or by implication to act as his agent." Garbish v. Malvern Fed. Savs. and Loan Ass'n, 517 A.2d 547, 553 (Pa. Super. Ct. 1986).

The allegations in the Complaint do not establish an agency relationship between Linebarger and Plaintiffs since there is no allegation that Plaintiffs exerted any control over Linebarger. However, even accepting Plaintiffs' legal conclusion that Linebarger was Plaintiffs' agent, as alleged in the Complaint, Plaintiff has admitted that the scope of that agency was limited to scheduling a Sheriff's sale for 1301 West Letterly Street, which Linebarger undisputably did. (Compl. ΒΆ 30 (Linebarger "became an agent of the Plaintiffs for the limited purpose of scheduling a Sheriff Sale of 1301 West Letterly Street") (emphasis added).) If Linebarger was only authorized to schedule the Sheriff's sale on Plaintiffs' behalf, ...

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