United States District Court, E.D. Pennsylvania
AUSTIN MCHUGH UNITED STATES DISTRICT JUDGE.
case involves a dispute over the assets of an estate.
Plaintiff Stephen Carroll is an attorney appointed by court
order to serve as the Administrator of the Estate of Leonard
J. Moskowitz. Mr. Carroll was appointed by the Orphans'
Court Division of the Delaware County Court of Common Pleas
because of concerns about transfers of assets both before and
after the death of Mr. Moskowitz. Plaintiff claims that
Defendant Michael Fein abused his authority as the holder of
a Power of Attorney for the late Mr. Moskowitz when he
transferred ownership of certain assets from Mr. Moskowitz to
his mother, Defendant Bernice Fein, and himself. Plaintiff
further contends that both Fein, an attorney, and his mother,
wrongfully converted assets of the estate. The claims raised
here essentially mirror those that were pursued in
Orphans' Court, albeit under different legal theories,
and as discussed in my earlier memorandum, this case to a
large degree, albeit not exclusively, is in in the nature of
a protective action.
matter proceeded, the underlying state case progressed as
well, and ultimately I stayed this action, including the
parties' cross-motions for summary judgment, pending
resolution of the claims in Orphans' Court. After many
years and multiple appeals, that case is now definitively
resolved, In re Estate of Moskowitz, ___Pa.___, 181
A.3d 1080 (2018), with Plaintiff prevailing on every claim. I
continued to hold this matter in suspense to allow the
parties time for settlement discussions. It appears, however,
that negotiations have failed, and I am therefore
reactivating this case to address the pending motions.
Defendants' Motion, they argue that the statute of
limitations has run on the Administrator's conversion
claim and that the existence of an adequate legal remedy
deprives this court of equity jurisdiction. In the
Administrator's Motion, he argues that the judgment
rendered in a parallel state court proceeding entitles him to
summary judgment on the merits based on issue preclusion.
reasons that follow, Defendants' Motion for Summary
Judgment is granted with respect to Plaintiff's claims
for legal damages. As to Plaintiff's equitable claims,
they are now largely moot, but to the extent that they are
not, they are barred because there was an adequate remedy at
law until the statute of limitations expired.
2000, Leonard Moskowitz granted a Power of Attorney (POA) to
lawyer Michael Fein, one of the two defendants in this case.
In January and February 2009, Mr. Fein invoked his POA to
transfer assets to his co-defendant, Bernice Fein, Mr.
Moskowitz's long-time companion and Mr. Fein's
Mr. Fein conveyed a house in Philadelphia from Mr. Moskowitz
to Mr. Moskowitz and Ms. Fein, as joint tenants with right of
survivorship. Mr. Fein also transferred roughly $600, 000 in
securities from an account solely in Mr. Moskowitz's name
to a joint account held by Mr. Moskowitz and Ms. Fein. Some
weeks later, these securities were transferred to a third
account belonging to Mr. and Ms. Fein.
thereafter, in March 2009, Mr. Moskowitz died testate. In his
will, he named Ms. Fein and his friend, Joshua Taylor, as
co-executors. Moskowitz also bequeathed his personal property
to Ms. Fein, and left the balance of the Estate in trust for
her, with his nephew, Joseph Fein, as beneficiary upon Ms.
April 2009, Mr. Taylor petitioned for appointment as sole
executor of the Estate, alleging that Mr. Fein had exercised
his POA unlawfully and that Ms. Fein had a conflict of
interest that prevented her from pursuing the claim. In her
answer to Mr. Taylor's petition, Ms. Fein raised the
issue of Mr. Moskowitz's state of domicile, claiming that
he was a resident of New Jersey when he died and that his
will should therefore be probated there. The parties spent
the next twenty-one months litigating the issue of Mr.
Moskowitz's domicile. In April 2011, the Delaware County
Orphans' Court settled the matter in Mr. Taylor's
favor when it ordered the Delaware County Register of Wills
to probate Mr. Moskowitz's will.
November 2011, more than two-and-a-half years after Mr. Fein
executed the disputed transfers, Mr. Taylor and Ms. Fein
renounced their rights to administer the Estate in favor of a
neutral administrator. Later the same month, the Orphans'
Court appointed Plaintiff Stephen Carroll as Administrator
de Bonis Non Cum Testamento Annexo.
April 2012, responding to a petition from Mr. Carroll, the
Orphans' Court ordered Mr. Fein to file an accounting of
the assets he transferred from Mr. Moskowitz pursuant to his
POA. In August 2012, Carroll sought and obtained a
preliminary injunction enjoining the Feins from dissipating
or transferring the assets identified in Mr. Fein's
initial accounting. While it granted Carroll's
preliminary injunction, the Orphans' Court found that
Fein's initial accounting did not enable the court to
ascertain the precise scope or timing of the disputed asset
transfers. It therefore ordered Fein to submit a more
thorough accounting. This Fein repeatedly failed to do,
thereby prolonging the proceeding by several months.
in October 2013, the court granted partial summary judgment
to Carroll, holding that the transfers had exceeded the scope
of Mr. Fein's POA, and ordering the Feins to return all
assets that Mr. Fein had transferred under the POA.
Feins appealed to the Pennsylvania Superior Court arguing,
among other things, that Carroll's claims were
time-barred by the two-year statute of limitations set forth
in 42 Pa. Cons. Stat. § 5524. The Superior Court
disagreed, holding that “the Estate's action in the
Orphans' Court to recover transferred assets was
equitable in nature, ” and that the statute of
limitations was therefore relevant “only as a frame of
reference to evaluate any purported delay in support of a
claim of laches.” Pl.'s Resp. Br., Ex. A, at 10,
18, ECF No. 34-2.
weighing whether laches applied, the court stressed that Ms.
Fein was to blame for Carroll's delay in bringing the
claim. According to the court, because Ms. Fein was
co-executor of Mr. Moskowitz's estate, her consent was
necessary before the estate could sue for the return of
wrongfully transferred assets. Ms. Fein withheld this
consent, choosing instead to raise the issue of whether Mr.
Moskowitz was domiciled in New Jersey. It was only after the
two-year statute of limitations had run that Ms. Fein
renounced her right to administer the estate, leading to Mr.
Carroll's appointment and his suit on behalf of the
estate. Under these circumstances, the court refused to find
that the Feins would be unduly prejudiced by allowing the
suit to proceed and concluded that any laches defense
therefore failed as a matter of law.
Superior Court issued its opinion on May 8, 2015. On
September 28, Orphans' Court Judge Joseph P. Cronin
issued a decree re-ordering the Feins to return the illegally
transferred Philadelphia property and the securities, which
it valued at $1, 278, 980. Citing the Feins' repeated
instances of noncompliance with court orders, Judge Cronin