United States District Court, M.D. Pennsylvania
DAVID D. PALMER, Plaintiff,
JANET M. MAHON, et al., Defendants.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. United States Magistrate Judge
a pro se diversity action where the plaintiff, David
D. Palmer, asserts that the defendants converted his
property, received by inheritance upon the death of his late
father, to their own use. Before us is the defendants'
motion to dismiss for lack of subject matter jurisdiction.
(Doc. 18). For the reasons stated herein, it is recommended
that the motion be granted in part, and denied in part.
plaintiff, David D. Palmer (“David”), commenced
this action with the filing of a pro se complaint on
August 24, 2017. (Doc. 1). The named defendants are
David's sister, Janet M. Mahon (“Janet”), and
her husband, George Mahon (“George”). In his
complaint, David asserts claims for breach of fiduciary duty,
negligence, conversion, fraud, deceit, breach of contract,
and replevin in connection with his alleged entitlement to an
inheritance under the will of his late father, Charles W.
Palmer (“Charles”), who died testate on January
23, 1985. David bases jurisdiction upon diversity of
citizenship, as he is an inmate at the Richland Correctional
Institution in Mansfield, Ohio, and the defendants are
residents of Coudersport, Pennsylvania, and the amount in
controversy exceeds $75, 000.
on the complaint, the exhibits attached thereto, and publicly
available state court records,  we have ascertained the following
factual background for this action:
passed away on January 23, 1985. At the time of his death,
Charles had resided in Sweden Township, located in Potter
County, Pennsylvania, along with his wife, Dorothy Palmer
(“Dorothy”). He appears to have left behind three
adult children: David, Janet, and Kermit Palmer
(“Kermit”). Charles also left behind a will,
which explicitly disinherited Kermit and otherwise bequeathed a
life estate in a house and acreage and a
business-Palmer's Radiator Shop-to his wife, Dorothy,
with the remainder interest bequeathed to David and Janet in
equal shares, per stirpes.
January 25, 1985, the will was probated, and letters
testamentary were granted to Citizens Trust Company
(“Citizens”) and Janet, who had been named as
co-executors under the will. On April 22, 1985, the two
co-executors and the three beneficiaries-Dorothy, David, and
Janet in her personal capacity-entered into a family
settlement agreement to expedite settlement of the
estate. The agreement provided that the parties to
it agreed that the net estate be distributed according to an
attached “First and Final Account and Schedule of
Distribution” without the necessity of filing a formal
accounting with the court. The agreement provided an explicit
release from liability against Citizens, against Janet as
co-executor, and against the estate itself. The agreement
included an acknowledgement by the parties that they had
received all assets to which they were entitled under
Charles's will. Finally, the agreement provided that
Citizens would resign as co-executor to reduce future
executor fees it would otherwise charge to administer the
estate, leaving Janet as the sole, uncompensated executor of
the will with respect to the final distribution of assets
under the agreement.
subsequently filed a petition to set aside the family
settlement agreement, claiming fraud. After multiple
hearings, the trial court entered an order on June 16, 1986,
setting aside the family settlement agreement. Janet and
David filed exceptions to the order, which were denied on
January 27, 1987. Janet and David appealed to the Superior
Court of Pennsylvania, which reversed the trial court's
order vacating the family settlement agreement. In re
Estate of Palmer, 536 A.2d 832 (Pa. Super. Ct. 1987)
(table decision). No further appeals were taken; the estate
assets were presumably distributed in accordance with the
family settlement agreement after the appellate court's
order became final.
wife of Charles and mother of Janet and David, passed away in
April 19, 1995, David was indicted in Ohio for various
offenses of child sexual abuse involving a single victim. On
June 16, 1995, a superseding indictment was filed, alleging
offenses against a second victim as well. On April 29, 1996,
pursuant to a negotiated plea agreement, David entered a
no-contest plea to two counts of rape of a person under
thirteen years of age in exchange for dismissal of the
remaining fifteen charges. The Ohio trial court found David
guilty and sentenced him to an aggregate term of fourteen to
fifty years in prison. David's conviction and sentence
were subsequently affirmed on appeal, as was his designation
as a sexual predator. State v. Palmer, No. 16017,
1997 WL 452010 (Ohio Ct. App. July 25, 1997); State v.
Palmer, No. 18259, 2001 WL 256303 (Ohio Ct. App. Mar.
17, 1996, while he was incarcerated in Ohio, David executed a
general power of attorney in favor of his sister, Janet.
David allegedly mailed the power of attorney to Janet on July
1, 1996, together with a handwritten cover letter in which he
attempted to limit the scope of the power of attorney to a
specified series of transactions involving the withdrawal of
retirement funds from a retirement plan sponsored by his
former employer and the deposit of these same funds into a
Coudersport bank for David's later use.
September 14, 1998, Janet and George acquired the property
previously held by Kermit through a tax upset sale. A Tax
Claim Bureau Deed conveying the property was recorded on
December 31, 1998.
1, 2006, Janet and George executed a deed conveying the two
adjacent parcels owned by Janet and David (taken under their
father's will upon termination of their mother's life
estate) and by Janet and George (acquired in the 1998 tax
upset sale) to Janet and George. Janet executed the deed on
behalf of David as his attorney-in-fact pursuant to the May
17, 1996, general power of ...