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Kisha Pacheco v. Golden Living Center - Summit and Evelyn Peyatt

February 23, 2011


The opinion of the court was delivered by: Judge Munley


Before the court for disposition is the motion to dismiss the complaint filed by Plaintiff Kisha Pacheco, Administratrix of the Estate of Jo Anne Knight, Deceased. The motion was filed by Defendant Golden Living Center - Summit (hereinafter "Golden Living").*fn1 The motion has been fully briefed and is ripe for disposition.*fn2


Defendant Golden Living operates as a nursing home in Wilkes-Barre, Pennsylvania. (Doc. 1-6, ¶ 4). At the times relevant to the complaint, Defendant Golden Living employed Defendant Peyatt. (Id. ¶ 6). Plaintiff's decedent Jo Anne Knight (hereinafter "Knight") became a resident of Golden Living on June 6, 2008. (Id. ¶ 9). Knight had a bank account with PennStar bank into which was deposited each month two pension checks and Social Security retirement benefits. (Id. ¶ 13). From these funds, payment was made for the premiums of a life insurance policy owned by Knight. (Id. ¶ 16).

Plaintiff Kisha Pacheco, Knight's daughter, was granted power of attorney over Knight in September 2008. (Id. ¶ 10). At some date, Defendant Peyatt or another of Golden Living's employees forged Pacheco's signature on documents that caused Knight's pension checks and social security benefits to be deposited directly into Golden Living's bank account (Id. ¶15).

Knight passed away on July 6, 2009. (Id. ¶ 26). Pacheco sought burial benefits under the life insurance policy, and the insurance company advised her that the policy had lapsed due to non-payment of premiums.

(Id. ¶ 27). Pacheco was unable to obtain insurance benefits to provide a timely burial for her mother. (Id. ¶ 31).

Based upon these facts, plaintiff instituted the instant action. Plaintiff asserts that defendants violated numerous federal and state statutes. Although the complaint is not separated into distinct counts, it appears that plaintiff seeks recovery under (1) the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § § 1961, et seq., (hereinafter "RICO"), (2) the Pennsylvania Survival Act, 42 PA. STAT. CONS. ANN. 8302 and/or the Pennsylvania Wrongful Death Act, 42 PA. STAT. CONS. ANN. 8301, (3) the Unfair Trade Practices and Consumer Protection Law, 73 PA. STAT. 201-9.2 et seq, and under the Pennsylvania common law for (4) intentional interference with contractual relations and (5) infliction of emotional distress. Plaintiff filed the complaint in the Luzerne County Court of Common Pleas and Defendant Golden Living removed it to this court on August 6, 2010. (Doc. 1, Notice of Removal). Subsequently Golden Living filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Peyatt joins in the motion to dismiss. Plaintiff opposes the motion, bringing the case to its present posture.


As this case is brought pursuant to the federal RICO statute, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. 1367.

Standard of review

This case is before the court pursuant to defendants' motion to dismiss for failure to state a claim upon which relief can be granted filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pled "enough facts to state a claim to relief that is plausible on its face," or put another way, "nudged [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of" each necessary element of the claims alleged in the complaint. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35.

In relation to Federal Rule of Civil Procedure 8(a)(2), the complaint need only provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,'" Twombly, 550 U.S. at 555 (citation omitted). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232 (citation omitted). "Rule 8(a)(2) requires a 'showing' rather than a blanket assertion of an entitlement to relief." Id.

The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). To decide a motion to dismiss, a court generally should consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).


Defendant moves for dismissal of the following claims: RICO; violation of 18 U.S.C. 1963(f) and (m); infliction of emotional distress;, interference with contractual relations; violation of the Unfair Trade Practices and Consumer Protection Law; wrongful death and survival action. We will address each separately.


Plaintiff's complaint alleges a RICO cause of action. RICO criminalizes the conducting of an "enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962. A plaintiff must plead the following to assert a proper RICO violation: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir. 2004). The phrase "racketeering activity" is defined in terms of activity that violates other laws, including more than fifty (50) specifically mentioned federal statutes, which forbid, for example, murder-for-hire, extortion, and various kinds of fraud. See 18 U.S.C. 1961(1); Klehr v. A.O. Smith Corp., 521 U.S. 179, 183 (1997).

Although, RICO is generally criminal in nature, it also provides for civil remedies. As to a civil RICO action, "[a]ny person injured in his business or property by reason of a" RICO violation may recover, inter alia, treble damages. 18 U.S.C. § 1964(c). Plaintiff has brought such a RICO civil action.

Defendants raise several issues with regard to plaintiff's RICO cause of action. They argue that plaintiff has not pled properly a RICO "enterprise" and that plaintiff has not alleged a "pattern of racketeering activity." We will address each issue in turn.

A. RICO enterprise allegation

Defendant first argues that plaintiff has failed to allege that an "enterprise" existed for RICO purposes, and that, indeed, such an enterprise cannot be alleged. As set forth above, one of the crucial assertions that a plaintiff in a RICO action must plead is the existence of an "enterprise." Lum, 361 F.3d at 223. RICO defines "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. ยง1961(4) (emphasis added). Thus, ...

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