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Taylor v. Messmer

February 9, 2010

CAROLE L. TAYLOR, PLAINTIFF,
v.
MARGARET MESSMER, PATRICIA O'KANE, ANTHONY J. FLATI AND RICHARD A. FLATI, CO-EXECUTORS OF THE ESTATE OF THERESA FLATI, AND NEGLEY PARK HOMEOWNERS ASSOCIATION COUNCIL, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court is the MOTION TO DISMISS AMENDED COMPLAINT, with brief in support, filed by Defendant Negley Park Homeowners Association Council and the MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT, with brief in support, filed by Defendants Margaret Messmer, Patricia O'Kane and Theresa Flati. Plaintiff has filed briefs in opposition to the motions*fn1 and the matter is now ripe for disposition. For the following reasons, the Motions will be granted and the Amended Complaint will be dismissed in its entirety.

BACKGROUND

The history between these parties is lengthy and tumultuous. As will be discussed infra, Plaintiff has previously filed claims / complaints against Margaret Messmer and the Negley Park Homeowners Association Council, through its officers, Margaret Messmer, Patricia O'Kane, and Theresa Flati, with the City of Pittsburgh Commission on Human Relations (H-07-004), the U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity(HUD Case No. 03-07-0476-8), the Allegheny County Health Department, and the Court of Common Pleas of Allegheny County, Pennsylvania (Civil Division, GD No. 05-11900).

Negley Park Condominium is a four-unit condominium building established in November 1978 under the Unit Property Act, 68 P.S. §§ 700.101-700.805. It is located on North Negley Avenue in Pittsburgh, Allegheny County, Pennsylvania and commonly known as "Negley Park." The rights, duties, obligations and operation of Negley Park are set forth in certain written documents, including the Code of Regulations of Negley Park (the "Code"), which is filed with the Recorder of Deeds of Allegheny County, Pennsylvania. Pursuant to the Code, the business and operation of Negley Park are conducted by The Negley Park Homeowners Association Council ("Council"), which consists of three natural persons holding the offices of President, Vice President, and Secretary-Treasurer.

At all times relevant to this litigation, Council consisted of three individuals who own units located at 1402, 1404, and 1408 North Negley Avenue. Margaret Messmer, an individually named defendant, owns the unit located at 1402 North Negley Avenue and is the Vice President of Council; Patricia O'Kane, an individually named defendant, owns the unit located at 1404 North Negley Avenue and is the Secretary-Treasurer of Council; and Theresa Flati, an individually named defendant, owned the unit located at 1408 North Negley Avenue and was President of Council.*fn2

Plaintiff, Carole L. Taylor, purchased the unit located at 1406 North Negley Avenue in April 2003. Almost immediately after she purchased the unit, Plaintiff began to make complaints about Council "discriminating" against her and began to lodge complaints which involved maintenance issues involving the condominium and the operation / administration of Council. For example, on September 19, 2003, only five months after Plaintiff purchased her unit, she sent the following letter to Council:

Dear Council:

Recently, I closed on the unit 1406. I have requested a copy of the 2003 budget, and to date, I have never received it. I have been excluded from the council meetings, so that I have no voice. I have paid condo fees through December 2003.

If these issues are not addressed satisfactorily in the next 30 days, you leave me no choice, but to seek legal remedy. Common elements are also still unresolved. A tree is still sitting directly in front of the window, and this was brought to the president of the council's attention, but to no avail. The attorney for the council must know that I am 25 percent owner, and my interest must also be addressed.

Sincerely, Dr. Carole L. Taylor cc: Council's atty (See Complaint, Exhibit 6(a)).

An event occurred in early 2005, which escalated Plaintiff's complaints against Council and its members. Distilled to its essence, Plaintiff believes that she was discriminated against in her attempt to buy the Messmer unit, a claim which was soundly rejected by the Court of Common Pleas of Allegheny County. The following is a brief chronology of the various complaints that Plaintiff has filed against Council and its members.

a. The Proposed Sale of the Messmer Unit and the State Court Action

On April 3, 2005, Margaret Messmer ("Messmer") entered into a contract to sell her unit to Marija Dunn ("Dunn") for a sales price of $83,000 and the buyer's covenant to take the Messmer unit "as-is."

The plain language of the Code conveys to Council only a right of first refusal on the sale of any condominium unit at Negley Park:

Any owner who wishes to sell, lease, or rent his unit shall, at least thirty (30) days prior to accepting any offer to sell, lease, or rent, give to Council written notice of the terms of such offer, which notice shall specify the name and address of the offeror. If, within said thirty (30) day period, time being of the essence, Council or its nominee submits to the owner an identical or more favorable offer to sell, lease, or rent, the selling owner must accept the offer of said Council in preference to the original offer described in the notice.

Code, at Article IX, section 6 (emphasis added). Plaintiff is not a member of Council nor has she ever been Council's nominee.

Messmer gave Council timely notice of her intent to sell her unit to Dunn. On May 15, 2005, Council convened a special meeting to vote on whether it would exercise its right of first refusal under the code. Council chose not to exercise its right of first refusal. Plaintiff attended the May 15, 2005, special meeting and notified Council and Messmer that she would match the Dunn offer. However, because Plaintiff was not "the Council or its nominee," Council did not acknowledge Plaintiff's offer. Memorandum Opinion of the Honorable Ronald W. Folino at 2. The closing on the sale of the Messmer unit was scheduled for June 1, 2005.

The sale of the Messmer unit did not take place as scheduled, however, because on May 20, 2005, Plaintiff filed a Complaint and Preliminary Injunction in the Court of Common Pleas of Allegheny County (the "State Action"),*fn3 which effectively prevented the sale. In Count I, (Taylor v. Messmer), Plaintiff claimed a right, as a unit owner, to make a matching offer and sought an injunction restraining Messmer from selling "to anyone other than Plaintiff pursuant to the terms of Plaintiff's matching offer." In Count II, (Taylor v. Negley Park Homeowners Association), Plaintiff requested that the Court dissolve Council and the condominium entity. In particular, Plaintiff claimed that Council repeatedly had failed to discharge its duties to her, inter alia, by

* failing to hold annual meetings;

* failing to conduct biennial elections;

* failing to provide operating statements and an annual budget; and

* failing to repair roof leak and defects, repair or replace sidewalk and other concrete, repair and/or augment exterior lighting, abate large and/or overgrown trees, repair termite damage, repair or replace safety railings, repair plumbing vent stacks and/or drains, and repair or repaint the garage.

On the same date, Plaintiff also filed a Praecipe to index the State Action as a lis pendens against the Messmer unit. See Docket Report of the State Action.

The two counts of Plaintiff's State Action claims were severed on November 22, 2005. Plaintiff's case against Council proceeded to a non-jury trial on September 6, 2006. Despite Plaintiff's many claims that Council had failed to maintain Negley Park and operate its business properly, and that it acted with discriminatory intent and motives, the Common Pleas Court found that Council's only breaches of duty to Plaintiff were the failures to hold an annual meeting and election and to provide copies of the operating statement and budget. All of Plaintiff's other claims against Council, including her discrimination claims and her request for dissolution, were dismissed. See September 11, 2006 Order of Court.

Plaintiff appealed the decision of the Common Pleas Court on her claims against Council to the Pennsylvania Superior Court, which affirmed the trial court's decision in its entirety. Plaintiff then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied. She then moved for reconsideration of the order denying her petition for review by the Pennsylvania Supreme Court, which also was denied. Plaintiff subsequently petitioned the United States Supreme Court for a writ of certiorari, which was denied. Plaintiff then petitioned the United States Supreme Court to reconsider or rehear her Petition for Writ of Certiorari, which was likewise denied.

Meanwhile, in December 2005, "in an effort to remove the cloud on the title to her unit, and to resolve the lawsuit filed against her by Carole L. Taylor," Messmer agreed to sell her unit to Plaintiff on the matching terms that Messmer had in her agreement with Dunn. However, Plaintiff then refused to purchase the Messmer unit on the same material terms; specifically, Plaintiff stated that she would never buy a property "as is." See Findings of Fact, Non-Jury Verdict, at ¶ 18.

Messmer filed a four-count counterclaim against Plaintiff claiming: Count I - Attorneys Fees for Filing a Frivolous Action; Count II - Dilatory, Obdurate and Vexatious Litigation Conduct; Count III - Slander of Title (by filing a lis pendens without right, privilege or justification) and Count IV - Tortious Interference With Contract (by interfering with Messmer's agreement with Dunn). Judge Folino found that Plaintiff's actions in bringing the lawsuit against Messmer were without any proper basis and as a result Messmer had incurred substantial damages. The judge assessed damages against Plaintiff in the amount of $148,923.70 and sanctioned Plaintiff's counsel in the amount of $20,000. See Non-Jury Verdict, dated February 1, 2008.

Plaintiff appealed the verdict to the Pennsylvania Superior Court. On September 1, 2009, the Superior Court affirmed the verdict in its entirety.

b. Discrimination Claims Made to the City of Pittsburgh, Commission on Human Relations and the U.S. Department of Housing and Urban Development

Plaintiff first contacted the City of Pittsburgh, Commission on Human Relations ("Pittsburgh Commission"), on June 21, 2005. In her letter, she raised with the Pittsburgh Commission the same claims and issues that she had raised with the Court of Common Pleas in the State Action, i.e., alleged discrimination in the sale of the Messmer unit and discriminatory operation of Negley Park byCouncil with respect to voting and elections, abatement of trees and bushes, repair of concrete, curbs, steps, walkways and roof, and improvement of lighting conditions.

On May 10, 2007, Plaintiff filed a formal complaint with the Pittsburgh Commission. On or about the same day, she also filed a Housing Discrimination Complaint with the U.S. Department of Housing and Urban Development ("HUD"). Pursuant to 42 U.S.C. § 3610(f), Plaintiff's HUD Complaint was consolidated with the Pittsburgh Commission proceedings.

On July 31, 2007, the Pittsburgh Commission held a hearing. Plaintiff was represented by legal counsel throughout the proceeding. On November 5, 2007, the Commission dismissed Plaintiff's housing discrimination claims for lack of probable cause. Thereafter, Plaintiff requested reconsideration of the Commission's finding of a lack of probable cause. An evidentiary hearing was held on January 25, 2008. On May 5, 2008, the Compliance Review Section of the Commission voted to affirm the Commission's prior decision to dismiss the housing discrimination action for lack of probable cause. Plaintiff did not appeal the Commission's decision to the Court of Common Pleas.

c. Complaints Made To The Allegheny County Health Department

Around the same time that Plaintiff filed her State Court complaint and lis pendens actions, she also began to complain to the Allegheny County Health Department about alleged deficiencies at Negley Park. For example, in May 2005, she reported that the "1. The concrete steps are cracked, broken and in need of ...


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