United States District Court, M.D. Pennsylvania
CARLSON MAGISTRATE, Judge
Richard Caputo United States District Judge
before me are the Objections (Doc. 59) of Joseph Pilchesky
(“Pilchesky” or “Plaintiff”) to the
Report and Recommendation (Doc. 58) of Magistrate Judge
Martin C. Carlson. The Magistrate Judge recommends that
motions to dismiss filed by (1) Wells Fargo Bank, N.A. and
Stevens & Lee, P.C. (Doc. 24), (2) Lackawanna County,
Office of the Sheriff of Lackawanna County, and Mark McAndrew
(Doc. 25), and (3) Phelan Hallinan, LLP (Doc. 26) be granted
and Pilchesky's motion for leave to file a further
amended pleading (Doc. 48) be denied. For the reasons
explained below, I will adopt in part and reject in part the
Report and Recommendation, grant the motions to dismiss, and
deny the motion for leave to amend.
facts set forth in Plaintiff's operative pleading, the
Second Amended Complaint, are outlined in the Report and
Recommendation. As alleged by Pilchesky, he and his now
estranged wife Joanne Ricci Pilchesky (“Ricci”),
resided together at 819 Sunset Street, Scranton, Pennsylvania
(the “Property”) from 2000 to 2010. (See
Doc. 23, ¶ 10). Pilchesky continues to reside at the
Property. (See id.). The deed to the Property, as
well as the mortgage, were exclusively in Ricci's name.
(See id. at ¶¶ 9-10).
Pilchesky extensively remodeled the Property, he filed a
$200, 000.00 lien against it on June 5, 2009. (See
id. at ¶ 12). The following May, Ricci abandoned
the marriage and the Property. (See id. at ¶
August 21, 2013, after Ricci defaulted on the mortgage, Wells
Fargo Bank, N.A. (“Wells Fargo”) initiated a
foreclosure action against her in the Court of Common Pleas
of Lackawanna County. (See id. at ¶ 14). A
default judgment was entered against Ricci on November 20,
2013. (See id. at ¶ 15). On May 2, 2014, Wells
Fargo notified all parties in interest, including Pilchesky,
that the Property was going to be exposed to a Sheriff's
Sale on June 10, 2014. (See id. at ¶ 16). On
June 10, 2014, the advertised Sheriff's Sale was
continued without further notice of a new sale date to
Pilchesky. (See id. at ¶ 19).
December 9, 2014, Defendant Mark McAndrew, the Lackawanna
County Sheriff, executed a deed to Wells Fargo after it paid
$968.19 for the Property. (See id. at ¶ 20).
According to the deed, the Property was sold at a
Sheriff's Sale on October 21, 2014. (See id. at
¶ 21). Pilchesky, though, did not learn of the sale
until December 26, 2014, the date he received a letter from
Well's Fargo's legal counsel, Phelan Hallinan, LLP,
advising him that Wells Fargo was the new owner of the
Property. (See id. at ¶ 22). Thereafter, on or
about March 23, 2015, Pilchesky received another letter
stating that Wells Fargo was the owner of the Property as a
result of a foreclosure and judicial sale. (See id.
at ¶ 23). Pilchesky, however, never received notice of a
new sale date after the sale scheduled for June 10, 2014 was
continued. (See id. at ¶ 27).
on the foregoing, Pilchesky commenced this action on December
23, 2016. (See Doc. 1, generally).
Pilchesky's current operative pleading, the Second
Amended Complaint, was filed on February 28, 2017.
(See Doc. 22, generally). Therein, he names
as Defendants Lackawanna County, the Office of County
Sheriff, Mark McAndrew, Wells Fargo, Phelan Hallinan, LLP,
and Stevens and Lee Law Firm. (See id.).
Pilchesky's seven-Count Second Amended Complaint contains
the following causes of action: (1) deprivation of due
process rights in violation of the Fifth and Fourteenth
Amendments against the Office of the Sheriff and McAndrew;
(2) deprivation of due process rights/failure to train and
supervise against the County; (3) denial of equal protection
against the County; (4) conspiracy to deprive Plaintiff of
his due process and equal protection rights in violation of
42 U.S.C. § 1985(3) against the County, McAndrew, Wells
Fargo, Phelan Hallinan, and Stevens and Lee; (5)
fraud/conspiracy to commit fraud in violation of his due
process and equal protection rights against all Defendants;
(6) violation of 42 U.S.C. § 1986 against McAndrew and
the County for failing to prevent the conspiracy to violate
his constitutional rights; and (7) negligence against the
County and McAndrew. (See id.).
all moved to dismiss the Second Amended Complaint.
(See Docs. 24-26, generally). Pilchesky
opposed those motions, (see Docs. 28, 34, 36,
generally), and also filed a motion for leave to
file a Third Amended Complaint. (See Doc. 48,
February 22, 2018, Magistrate Judge Carlson issued the Report
and Recommendation under review. (See Doc. 58,
generally). Therein, the Magistrate Judge recommends
that Defendants' motions to dismiss be granted and
Pilchesky's motion for leave to file a further amended
complaint be denied. (See id. at 39). Specifically,
the Magistrate Judge concludes that Pilchesky is unable to
state viable § 1983 claims against Defendants predicated
on their roles in the state mortgage foreclosure proceedings.
(See id. at 12-16). The Magistrate Judge also finds
that Pilchesky fails to state due process, equal protection,
§ 1985(3), § 1986, and Monell claims.
(See id. at 16-30).
filed timely objections to the Report and Recommendation.
(See Doc. 59, generally). Those objections
have been fully briefed and are now ripe for disposition.