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Robert Fenton, As Trustee of v. Neil Balick

November 2, 2011

ROBERT FENTON, AS TRUSTEE OF THE FENTON FAMILY TRUST
v.
NEIL BALICK, D.D.S.



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

MEMORANDUM

This is a state law action for conversion and replevin regarding the ownership of an Andy Warhol painting. Defendant has filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is denied.

I. FACTS

The Complaint alleges the following facts. Robert Fenton ("Robert") is the trustee of the Fenton Family Trust ("the Trust"), which was created by Robert and his late wife Joyce Balick Fenton, also known as "Shaindy" Fenton. (Compl. ¶¶ 1,5.) Defendant Neil Balick is Shaindy Fenton's brother. (Id. ¶8.)

The subject of this suit is a portrait of Shaindy painted by Andy Warhol. (Id. ¶ 6.) Shaindy was a renowned art dealer who had an international reputation and was friends with Warhol. (Id.) Shaindy commissioned Warhol to paint three portraits of her between 1978 and 1983, which are referred to as the "Blue Portrait," the "Red Portrait," and the "Pink Portrait." (Id.) Shaindy died in January 1984, and, pursuant to the terms of her will, her rights to the three Warhol paintings were transferred to the Trust. (Id. ¶ 7.) In or around December 1984, Robert Fenton sent the Blue Portrait, which has an appraised value of more than $350,000, to Defendant Neil Balick. (Id. ¶¶ 8,9.) Robert "intended that Dr. Balick would enjoy the portrait of his sister until such time as the Fenton Trust requested its return. [Robert] did not, and never intended to, give or transfer title to the Blue Portrait to Dr. Balick." (Id. ¶ 9.) Robert was not authorized to make a distribution of trust assets to Balick and never told Balick he could own or keep the Blue Portrait permanently. (Id.) On June 15, 2011, the Trust wrote to Balick and demanded return of the Blue Portrait. (Id. ¶ 9.) Balick refused. (Id.)

Plaintiff filed suit in this Court on August 9, 2011, asserting claims for replevin and conversion, and requesting a declaratory judgment. Plaintiff seeks the return of the Blue Portrait, damages for Defendant's wrongful possession, and a declaration that the Trust is the true owner of the Blue Portrait and that Defendant must return the portrait immediately. Defendant filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that: 1) Plaintiff has failed to state a claim for replevin upon which relief can be granted; 2) Plaintiff has failed to state a claim for conversion upon which relief can be granted; 3) the statute of limitations bars all of Plaintiff's claims; and 4) the doctrine of laches bars all of Plaintiff's claims.

II. Legal Standard

When considering a motion to dismiss pursuant to Rule 12(b)(6), we "consider only the complaint, exhibits attached to the complaint, [and] matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), which gives the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). In the end, we will dismiss a complaint if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004)).

III. Discussion

A. Replevin "Replevin is an action at law to recover the possession of personal property and to recover damages incurred as a result of the defendant's illegal detention of plaintiff's property." Transport Int'l Pool, Inc. v. United Transport Carriers, Civ. A. No. 02-8163, 2003 WL 1918973, at *3 (E.D. Pa. Apr. 21, 2003). "To prevail in a replevin action, 'the plaintiff must show not only title, but also the exclusive right of immediate possession of the property in question.'" Susquehanna Commercial Fin., Inc. v. French, Civ. A. No. 10-7481, 2011 WL 1743503, at *4 (E.D. Pa. May 5, 2011) (quoting Ford Motor Credit Co. v. Caiazzo, 564 A.2d 931, 933 (Pa. Super. Ct. 1989)). Plaintiff "must show good title and right to possession as against the defendant, but is not required to set up such title or right as against the whole world." Ford Motor Credit, 564 A.2d at 933 (citing Gensbigler v. Shawley, Inc., 60 A.2d 360, 362 (Pa. 1948)). Defendant argues that the Complaint fails to state a claim for replevin upon which relief can be granted because the Complaint does not allege any facts that, if true, would establish that the Trust owns the Blue Portrait.

The Complaint alleges that Shaindy transferred title to the Blue Portrait to the Trust, which has not relinquished title to that portrait to Defendant. (Compl. ¶¶ 7-8.) The Complaint further alleges that Robert Fenton could not legally transfer title to the Blue Portrait to Defendant. (Id. ¶ 8.) Taking the allegations of the Complaint as true, we find that the Complaint alleges that Plaintiff has title to the Blue Portrait. Drawing all reasonable inferences in favor of Plaintiff, we further find that the Complaint alleges that the Trust retained the right to the return of the Blue Portrait. (Id. ¶ 8.) We conclude, accordingly, that the Complaint states a plausible claim for replevin under Pennsylvania law upon which relief can be granted. See Susquehanna Commercial Fin., Inc., 2011 WL 1743503, at *4.

B. Conversion

"[U]nder Pennsylvania law, conversion is the 'deprivation of another's right of property, or use or possession of a chattel, or other interference therewith, without the owner's consent and without legal justification.'" Universal Premium Acceptance Corp. v. York Bank & Trust Co., 69 F.3d 695, 704 (3d Cir. 1995) (quoting Cenna v. United States, 402 F.2d 168, 170 (3d Cir. 1968)). See also Epstein v. Saul Ewing, LLP, 7 A.3d 303, 314 (Pa. Super. Ct. 2010). A conversion can occur in several ways: 1) acquiring possession of property with the intent to assert a right to it adverse to the owner; 2) transferring the property and therefore depriving the owner of control; 3) unreasonably withholding possession of the property from the one who has the right to it; and 4) misusing or seriously damaging the property in defiance of the owner's rights. Fort Washington Res., Inc. v. Tannen, 846 F. Supp. 354, 361 (E.D. Pa. 1994) (citing Norriton E. Realty Corp. v. Central Penn Nat'l Bank, 254 A.2d 637, 638 (Pa. 1969)). "Where one lawfully comes into possession of a chattel, a conversion occurs if a demand for the chattel is made by the rightful owner and the other party refuses to deliver." Prudential Ins. Co. of America v. Stella, 994 F. Supp. 318, 323 (E.D. Pa. 1998) (dealing with a termination of an employee and the continued possession of confidential documents which ...


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