Chinniah v. East Pennsboro Township

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GNANA M. CHINNIAH and : Civil No. 1:15-CV-02240

SUGANTHINI CHINNIAH, :

:

Plaintiffs, :

:

v. : Judge Jennifer P. Wilson

:

EAST PENNSBORO TOWNSHIP, et :

al., :

:

Defendants. : Magistrate Judge Karoline Mehalchick

MEMORANDUM

Before the court is the report and recommendation of United States

Magistrate Judge Karoline Mehalchick recommending that Defendants’ motions to

dismiss be granted as to Plaintiffs’ claims for defamation, civil conspiracy, and

intentional interference with legal rights and relations, and denied as to Plaintiffs’

claims for breach of contract and request for punitive damages. (Doc. 142.) For

the reasons that follow, the court declines to adopt the recommendation to deny

Defendant’s motion to dismiss Plaintiffs’ punitive damages claim, but adopts the

remaining portions of the recommendation as modified.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Neither party objected to the facts or procedural history stated in the report

and recommendation. Because the court gives “reasoned consideration” to these

uncontested portions of the report and recommendation, the court will only restate

the factual background and procedural history necessary for clarity in this opinion.

E.E.O.C. v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting

Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)). Plaintiffs, Gnana and

Suganthini Chinniah (“the Chinniahs”), who are self-represented, initiated this

action in November 2015 against the following individuals and entities: East

Pennsboro Township, Pennsylvania; Township Building Inspector and Code

Enforcement Officer Jeffrey S. Shultz; Township Health and Code Enforcement

Officer Karen Dunkle; former Township Commissioner and current Cumberland

County, Pennsylvania Commissioner James Herzler; Current Township

commissioner John Kuntzelman; attorney Christopher Underhill and Underhill’s

firm, the Law Offices of Hartman Underhill & Brubaker (collectively, the

“Underhill Defendants”); attorneys Joshua Autry and Jeffrey Conrad, along with

their firm, the Law Offices of Clymer Musser & Conrad (collectively, the “Clymer

Conrad Defendants”); the Cumberland County Tax Claim Bureau; and the

Cumberland County Housing and Redevelopment Authorities.1 (Doc. 1.) This

initial complaint was subject to four motions to dismiss, Docs. 22, 36, 40, 43, all of

1 The only defendants at issue in the report and recommendation, and accordingly in this

memorandum, are the Clymer Conrad Defendants and the Underhill Defendants.

which were granted on September 30, 2016 with leave for the Chinniahs to amend

their complaint.2 (Docs. 71, 78.)

The Chinniahs filed an amended complaint on October 31, 2016. (Doc. 92.)

This amended complaint was met with four renewed motions to dismiss. (Docs.

94, 96, 97, 99.) These motions were granted, and the Chinniahs’ case was

dismissed with prejudice.3 (Docs. 118, 126.) The Chinniahs appealed this

decision to the United States Court of Appeals for the Third Circuit, which

affirmed in part, vacated in part, and remanded the case for the court to consider

the Chinniahs’ state law claims. (Doc. 132.) After affording all parties the

opportunity for supplemental briefing on the remaining state law claims, Judge

Mehalchick issued a report and recommendation on April 13, 2020, limited to the

issues presented for the court’s supplemental jurisdiction.4 (Doc. 142.)

In the report and recommendation, Judge Mehalchick recommends that the

Clymer Conrad Defendants’ motion to dismiss be granted as to the Chinniahs’

claims for defamation, civil conspiracy, and intentional interference with legal

2 Judge Mehalchick issued a report and recommendation suggesting this result on August 10,

2016, which was adopted in full by United States District Court Judge Yvette Kane on

September 30, 2016. (Docs. 71, 78.)

3 Judge Mehalchick issued a report and recommendation on the Chinniahs’ amended complaint,

which was adopted in full by Judge Kane on September 29, 2017. (Docs. 118, 126.) Because

Judge Mehalchick recommended dismissal of the Chinniahs’ federal claims, she did not address

their remaining state law claims. (Doc. 142, p. 3.)

4 No party opted to file supplemental briefs on the pending motions to dismiss.

rights and relations. (Doc. 142, p. 22.)5 In contrast, Judge Mehalchick

recommends that the motions be denied as to the Chinniahs’ claims for breach of

contract and punitive damages. (Id. at 22−23.) Judge Mehalchick further

recommends that the Chinniahs be given 30 days to file a certificate of merit in

support of their legal malpractice claim, and 30 days leave to file an amended

complaint as to their claims for civil conspiracy and intentional interference with

legal rights and relations as a single, stand-alone document without reliance on

prior filings. (Id.) Finally, Judge Mehalchick recommends that the Underhill

Defendants’ motion to dismiss be denied for failure to brief, and therefore contest,

the Chinniahs’ civil conspiracy claim either in their motion to dismiss or in the

supplemental briefing permitted by the court. (Id. at 3.)

On April 13, 2019, the Underhill Defendants objected to the

recommendations relating to the Chinniahs’ civil conspiracy claim. (Doc. 143.)

On April 27, 2020, the Autry Defendants objected to the recommendations

regarding the Chinniahs’ breach of contract and punitive damages claims. (Doc.

144.) On the same day, the Chinniahs objected to the recommendations with

respect to their civil conspiracy, interference with legal relations, and defamation

claims. (Doc. 145.) The Autry Defendants and the Chinniahs timely filed briefs in

opposition. (Docs. 147, 148.)

5 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

STANDARDS OF REVIEW

A. Review of Magistrate Judge’s Report and Recommendation

When a party objects to a magistrate judge’s report and recommendation, the

district court is required to conduct a de novo review of the contested portions of

the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);

Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may

accept, reject, or modify the magistrate judge’s report and recommendation in

whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive

further evidence or recommit the matter to the magistrate judge with further

instructions. Id. “Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge, and the court may rely on

the recommendations of the magistrate judge to the extent it deems proper.”

Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)). For the uncontested portions of

the report and recommendation, the court affords “reasoned consideration” before

adopting it as the decision of this court. City of Long Branch, 866 F.3d at 100

(quoting Henderson, 812 F.2d at 878).

B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678−79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

DISCUSSION

A. The Uncontested Portions of the Report and Recommendation are

Adopted.

The parties do not object to the following opinions and recommendations by

Judge Mehalchick. Judge Mehalchick recommends that the Clymer Conrad

Defendants’ motion to dismiss be granted as to the Chinniahs’ claim for legal

malpractice, based on her conclusion that this claim is not barred by collateral

estoppel, but that the Chinniahs’ failure to satisfy the certificate of merit

requirement precludes this claim from moving forward in this litigation. (Doc.

142, pp. 7−14.) Specifically, Judge Mehalchick found that collateral estoppel does

not bar the Chinniahs’ legal malpractice claim because, while the essence of this

claim was litigated before in 2008, it was analyzed under a different standard of

review and burden of persuasion than the present claim before the court. In other

words: “there are stark differences between how the Chinniahs’ claim was resolved

in the 2008 case and how it would be resolved in this case vis-à-vis the procedures

utilized . . . and the burdens of persuasion.” (Id. at 8.) Thus, the Chinniahs’ claim

for legal malpractice is not barred by collateral estoppel. (Id.)

However, Judge Mehalchick found that the Chinniahs brought their claim

for legal malpractice under a tort theory for professional negligence. (Id. at 12.)

Therefore, under Pennsylvania law, the Chinniahs were required to submit a

certificate of merit, which was conspicuously absent from any of their filings, and

they had not relied upon any exceptions to the requirement. (Id. at 14.) Due to the

absence of a certificate of merit, Judge Mehalchick granted the Clymer Conrad

Defendants’ motion to dismiss without prejudice to the Chinniahs filing a

certificate of merit within 30 days in support of their legal malpractice claim. (Id.)

After giving “reasoned consideration” to the uncontested portions of the

report and recommendation, the court finds that Judge Mehalchick’s analysis is

well-reasoned and fully supported by the record and applicable law. See City of

Long Branch, 866 F.3d at 99 (quoting Henderson, 812 F.2d at 878). Thus, the

court will adopt these portions of the report and recommendation in full.6

B. The Court Adopts the Recommendation Granting the Motion to

Dismiss the Chinniahs’ Claim for Defamation.

In the Clymer Conrad Defendants’ motion to dismiss, they argued that the

Chinniahs’ defamation claim should be dismissed because Pennsylvania’s one-year

statute of limitations has run on this claim. (Doc. 100, p. 11.) In response, the

Chinniahs merely restated their claim for defamation, noting that this claim was

grounded upon Defendant Conrad’s “false report to the Lancaster Police that

Plaintiff Gnana Chinniah was engaged in criminal activity[.]” (Doc. 104, p. 13.)

In the report and recommendation, Judge Mehalchick opined:

Pennsylvania law requires that defamation claims be commenced

within one year. 42 Pa. C.S. § 5523(1). The conduct at issue occurred

on October 2, 2014, (Doc. 92, ¶ 26), and Plaintiffs commenced action

on November 23, 2015. (Doc. 1). Therefore, Plaintiffs’ claim of

defamation fails to comply with Pennsylvania’s statute of limitations

and the Court recommends Defendant be GRANTED dismissal on this

claim and this claim be DISMISSED WITH PREJUDICE.

6 The court notes that the Chinniahs allege that they are “now seeking the services of a licensed

professional to prepare a certificate of merit[,]” but that they “request and reserve the right to

seek additional time in which to do so.” (Doc. 145, p. 2.) To the extent that the Chinniahs may

wish to seek an extension of the 30 days in which they have to file a certificate of merit, they

must file an appropriate and timely motion with the court. The court notes that such a motion, if

filed, will be carefully scrutinized in light of the fact that the Chinniahs have been on notice that

a certificate of merit is required in this case since April 13, 2020, when the report and

recommendation was filed. Moreover, the Chinniahs have noted that they are actively working

to satisfy the certificate of merit requirement. (See id.) Given that some eight months have

passed with no certificate of merit filed to date, the court observes that some showing of cause

will be required to justify an extension of time beyond the 30 days provided if one is requested.

(Doc. 142, p. 16.) The Chinniahs object to this conclusion, arguing that the Conrad

Defendants were “on [n]otice of the pending filing of their Complaint” and that the

statute of limitations should not apply—an argument not raised before Judge

Mehalchick. (Doc. 145, p. 8.) The Conrad Defendants respond that the Chinniahs

failed to cite any authority under Pennsylvania law that provides for a “notice

exception to the statute of limitations[,]” and that “such an exception could

swallow the rule.” (Doc. 147, p. 2.)

Pennsylvania law is clear that “[t]he statute of limitations for defamation is

one year.” Gallucci v. Phillips & Jacobs, 614 A.2d 284, 287 (Pa. Super. Ct. 1992)

(citing 42 PA. CONS. STAT. ANN. § 5523(1)). Pennsylvania courts have held that

“an individual asserting a cause of action [for defamation] is required to . . .

institute suit within the applicable statute of limitations.” Id. (quoting Hunsicker v.

Connor, 465 A.2d 24, 26 (1983)). While there is at least one equitable exception

to this one-year limitations period, the Chinniahs have not alleged that it is

applicable, and the court has found no authority to support a “notice” exception to

toll the period of limitations.7 Rather, the Chinniahs had a duty to “initiate suit

7 The so-called discovery rule equitably tolls the statute of limitations and provides that: “the

statute of limitations does not begin to run ‘until the plaintiff has discovered his injury, or, in the

exercise of reasonable diligence, should have discovered his injury.’” Gallucci, 614 A.2d at 288

(quoting Corbett v. Weisband, 551 A.2d 1059, 1068 (1988)). This rule is applicable where there

is an “inability of the injured, despite the exercise of due diligence, to know of the injury or its

cause.” Id. (quoting Pocono International Raceway v. Pocono Produce, 468 A.2d 468, 471

(1983) (emphasis in original)). The Chinniahs have not alleged that they were unaware of their

injury or that they were unable to discover their injury until the statute of limitations ran.

within the applicable statute of limitations[,]” which they have failed to do in this

case. Gallucci, 614 A.2d at 287.

Moreover, the court notes that the report and recommendation process does

not entitle the Chinniahs to a second bite of the apple when they failed to raise and

develop arguments before the magistrate judge. Dowell v. Bayview Loan Servs.

LLC, No. 16-cv-2026, 2017 WL 4230924, at *2 n.1 (M.D. Pa. Sept. 25, 2017)

(declining to address arguments not raised before the magistrate judge).

Nonetheless, following de novo review, the court agrees with Judge Mehalchick’s

conclusion, and adopts this portion of the report and recommendation over the

Chinniahs’ objection.

C. The Court Adopts the Recommendation Granting the Clymer

Conrad Defendants’ Motion to Dismiss the Chinniahs’ Claim for

Civil Conspiracy.

The Clymer Conrad Defendants argued in their motion to dismiss that the

Chinniahs’ civil conspiracy claim fails because the amended complaint merely

contains conclusory allegations, rather than “specific factual allegations of an

alleged combination, agreement, or understanding among all, or between any, of

the Defendants.” (Doc. 100, pp. 12−13.) In response, the Chinniahs argued that

Instead, they merely claim that the statute of limitations should not apply to them because they

told Defendants to anticipate a lawsuit in which defamation was alleged. This “notice” does not

remove the obligation to comply with the statute of limitations and their failure to follow it will

result in dismissal of this claim.

the continuous contact between the Defendants sufficiently stated a civil

conspiracy claim. (Doc. 104, p. 9.)

Judge Mehalchick subsequently opined that:

Plaintiffs fail to successfully state a claim of conspiracy because there

are no factual allegations which, if true, would show a combination or

agreement between Autry and Underhill. Plaintiffs “believe and aver

that [Clymer Conrad Defendants] had a long-standing business and

political relationship with [the law firm] in which Defendant Underhill

was a principal.” (Doc. 92, ¶ 22). Additionally, “Plaintiffs believe that

[Defendant] Autry colluded with Defendant Christopher Underhill by

not producing several crucial trial exhibits and requiring the attendance

of . . . witnesses.” (Doc. 92, ¶ 23). Both of these allegations, the only

allegations which could plausibly give rise to a conspiracy, are

conclusory and include no facts which if true would support the

existence of a conspiracy. See Morrow v. Balaski, 719 F.3d at 165

(explaining that the court is not compelled to accept “unsupported

conclusions and unwarranted inferences, or a legal conclusion couched

as a factual allegation”). There is no submission of a conversation,

meeting, or any other mode of combination or agreement. (Doc. 92,

¶ 23). In fact, Plaintiff only alleges that Defendant Autry took action

by failing to produce trial exhibits and witnesses. (Doc. 92, ¶ 23).

Besides the conclusory statement, “Autry colluded with [Underhill],”

there are no facts averred which would signal an agreement or

combination. (Doc. 92, ¶ 23).

(Doc. 142, pp. 17–18.) The Chinniahs object to this portion of the report and

recommendation, but merely restate their claim without pointing to additional

allegations in their complaint which would give rise to a claim for civil conspiracy.

(Doc. 145, pp. 2–7.)

To establish a prima facie case of civil conspiracy under Pennsylvania law, a

plaintiff must show: “(1) a combination of two or more persons acting with a

common purpose to do an unlawful act or to do a lawful act by unlawful means or

for an unlawful purpose; (2) an overt act done in pursuance of the common

purpose; and (3) actual legal damage.” Goodwin v. Moyer, 549 F. Supp. 2d 621,

628 (M.D. Pa. 2006) (quoting Levin v. Upper Makefield Twp., 90 F. App’x 653,

667 (3d Cir. 2004)). “Proof of malice, i.e., an intent to injure, is essential in proof

of a conspiracy.” Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa.

1979). While a conspiracy may be alleged and proven through circumstantial

evidence, such evidence must be “full, clear and satisfactory.” Deitrick v. Costa,

No. 4:06-cv-1556, 2014 U.S. Dist. LEXIS 183445, at *34 (M.D. Pa. Oct. 16, 2014)

(quoting Blank & Gottschall Co. v. First Nat’l Bank of Sunbury, 50 A.2d 218, 220

(Pa. 1947)). As courts have explained:

The mere fact that several parties happened to exercise independent

rights around the same time . . . does not constitute actionable civil

conspiracy. Mere suspicion or the possibility of guilty connection is

not sufficient, nor proof of acts which are equally consistent with

innocence. Conscious parallelism does not suffice to establish civil

conspiracy.

Deitrick, 2014 U.S. Dist. LEXIS 183445, at *34 (citations and quotation marks

omitted); Thompson Coal Co., 412 A.2d at 473 (“The mere fact that two or more

persons, each with the right to do a thing, happen to do that thing at the same time

is not by itself an actionable conspiracy.”).

In this case, the Chinniahs have merely alleged their belief that the Clymer

Conrad Defendants “had a long-standing business and political relationship with

[the law firm] in which Defendant Underhill was a principal” and that Defendant

Autry “colluded with Defendant Christopher Underhill by not producing several

crucial trial exhibits and requiring the attendance of . . . witnesses.” (Doc. 92,

¶¶ 22−23). These allegations merely indicate the Chinniahs’ suspicion regarding

these Defendants. There is no evidence that these parties acted with a common

purpose to harm the Chinniahs or that these parties ever performed an overt act in

furtherance of the alleged conspiracy. Moreover, the purported phone log, which

the Chinniahs attach to their objections to the report and recommendation, merely

indicates that the Defendants were in contact with each other regarding the

Chinniahs’ ongoing lawsuit, which is an ordinary and necessary part of litigation.

(Doc. 145, pp. 11−12.) As has been explained, “[t]he mere fact that two or more

persons, each with the right to do a thing, happen to do that thing at the same time

is not by itself an actionable conspiracy.” Thompson Coal Co., 412 A.2d at 473.

Quite simply, the Chinniahs fail to establish a prima facie case claim for civil

conspiracy. Accordingly, the court agrees with Judge Mehalchick’s conclusion,

and adopts this portion of the report and recommendation over the Chinniahs’

objection.

D. The Court Adopts the Recommendation Granting the Motion to

Dismiss the Chinniahs’ Claim for Intentional Interference with Legal

Rights and Relations.

In their motion to dismiss, the Clymer Conrad Defendants argued that the

Chinniahs’ claim for intentional interference with legal rights and relations fail

because the claim “is so deficiently pled that the Clymer Conrad Defendants

cannot even be sure that it is, in fact, a claim for relief of some kind.” (Doc. 100,

pp. 10−11.) However, Defendants noted that to the extent that the Chinniahs

attempted to assert a constitutional violation, they bring claims under 42 U.S.C.

§ 1983. (Id.) In response, the Chinniahs clarified that this claim is “for the

interference with the Plaintiffs’ legal rights and [relations] arising out of their

occupation and business.” (Doc. 104, p. 14.)

Judge Mehalchick subsequently opined that:

Plaintiffs fail to allege the existence of a contractual or prospective

contractual relationship between them and a third party, nor to do they

allege Defendants’ actions were intended to harm a relationship

between them and a third party. (Doc. 92, ¶ 92). Their allegation is

merely that Defendants would not return their legal files and attempted

to have them arrested. (Doc. 92, ¶ 92). These actions, if true, could

show an intent to harm Plaintiffs’ business in general, however the

Complaint is lacking averments that there was a business relationship

between the Plaintiffs and a third party which Defendants intended to

harm.

(Doc. 142, p. 19.) The Chinniahs object to this portion of the report and

recommendation, but merely restate their claim without pointing to additional

allegations in their complaint which would demonstrate a business relationship

between themselves and a third party that Defendants allegedly attempted to harm.

(Doc. 145, pp. 2–3.) Despite this objection, the Chinniahs appear to agree with

Judge Mehalchick’s classification of their claim as a cause of action for tortious

interference with prospective and existing contractual relations. (Id.)

Under Pennsylvania law, to set forth a claim for tortious interference with

contractual relations, a plaintiff must allege that the defendant, “without a privilege

to do so, induce[d] or otherwise purposely cause[d] a third person not to (a)

perform a contract with another, or (b) enter into or continue a business relation

with another.” Thompson Coal Co., 412 A.2d at 470 (quoting Restatement of

Torts, § 766 (1939)). Similarly, to set forth a claim for tortious interference with

prospective contractual relations, a plaintiff must allege: “(1) a prospective

contractual relation; (2) the purpose or intent to harm the plaintiff by preventing

the relation from occurring; (3) the absence of privilege or justification on the part

of the defendant; and (4) the occasioning of actual damage resulting from the

defendant’s conduct.” Id. at 471 (quoting Glenn v. Point Park College, 272 A.2d

895, 898 (Pa. 1971)).

Regardless of which theory the Chinniahs attempt to pursue, they have not

alleged sufficient facts to support it. In fact, the amended complaint is devoid of

any facts which would demonstrate a contractual or potential contractual

relationship with a third party that the Defendants interfered with. Rather, as Judge

Mehalchick found, the Chinniahs’ allegation “is merely that Defendants would not

return their legal files and attempted to have them arrested.” (Doc. 142, p. 19.)

These allegations are insufficient to maintain a claim for either tortious

interference with contractual relations or prospective contractual relations.

Therefore, the court agrees with Judge Mehalchick’s conclusion, and adopts this

portion of the report and recommendation over the Chinniahs’ objection.

E. The Court Adopts the Recommendation Denying the Motion to

Dismiss the Chinniahs’ Claim for Breach of Contract as Modified.

In the report and recommendation, Judge Mehalchick recommended that the

Defendants’ motion to dismiss should be denied as to the Chinniahs’ claim for

breach of contract. Specifically, she determined that:

Plaintiffs allege that Defendant Autry “willfully inflated his invoices

contrary to the terms of the retainer agreement that he signed with the

Plaintiffs in 2013.” (Doc. 92, ¶ 24). Specifically, Plaintiffs submit that

Defendant Autry “changed the terms of the Plaintiffs’ prior agreement

from strict contingency basis, when he took the case . . . and required

them to proceed through trial under a strictly hourly fee agreement,

thereby removing his incentive to maximize the recovery . . .” (Doc.

92, ¶ 21). This allegation satisfies the requirements necessary to state

a claim of breach of contract.

(Doc. 142, p. 15.) The Clymer Conrad Defendants object to this conclusion,

arguing that the amended complaint does not contain any allegations regarding the

specific terms of the contract that the Chinniahs assert were violated, allegations

that these terms were breached, or what damages the Chinniahs are allegedly

owed. (Doc. 146, pp. 3−5.) In addition, the Clymer Conrad Defendants claim that

the essence of the breach of contract claim seeks to hold them liable based on

another law firm’s contract with the Chinniahs, i.e., a contingency fee, rather than

the hourly fee that the Clymer Conrad Defendants used. (Id. at 4.) The Chinniahs

respond that the amended complaint indicates that the agreement with Defendant

Autry was “unilaterally changed under duress and coercion.”8 (Doc. 148, p. 1.)

Pennsylvania law requires that a plaintiff pursuing a claim for breach of

contract prove: “(1) the existence of a contract, including its essential terms; (2) a

breach of a duty imposed by the contract; and (3) resulting damages.” Lackner v.

Glosser, 892 A.2d 21, 30 (Pa. Super. Ct. 2006); see McShea v. City of

Philadelphia, 995 A.2d 334, 340 (Pa. 2010). In this case, it is clear from the face

of the amended complaint that “Defendant Autry changed [l]aw firms from Boyle

Litigation to Clymer Musser & Conrad.” (Doc. 92, ¶ 18.) The court gathers that

the Chinniahs were represented by Defendant Autry during the early stages of

litigation and during trial. (See id. ¶¶ 18−19.) However, in November 2012, at a

pretrial conference, the Chinniahs were proceeding as self-represented litigants.

(Id. at ¶ 19.) Thus, it is reasonable to infer that there was a clear break in

Defendant Autry’s representation of the Chinniahs at some point between the early

8 The court notes that the Chinniahs’ amended complaint does not allege claims for duress or

coercion, and does not plead facts to support the notion that the Chinniahs were forced to enter

into a new contract with Defendant Autry and his new law firm. Rather, it appears that Judge

Kane suggested that the Chinniahs retain new counsel for their trial, and that the Chinniahs chose

to enter a new contract with Defendant Autry. (Doc. 92, ¶¶ 19, 21.)

stages of the 2008 litigation to the trial of the case in 2013, possibly precipitated by

Defendant Autry’s relocation to a new law firm. (Id. ¶¶ 18−20.) The Chinniahs go

on to aver that “Defendant Autry changed the terms of the Plaintiffs’ prior

agreement from strict contingency basis, when he took the case . . . referred by

Judge Kane . . . in November 2012, and required them to proceed through trial

under a strict hourly fee agreement, thereby removing his incentive to maximize

the recovery, and incentivizing him to maximize the hours he spent on the case.”

(Id. ¶ 21.) In addition, the Chinniahs assert that “Defendant Autry also willfully

inflated his invoices contrary to the terms of the retainer agreement that he signed

with the Plaintiffs in 2013.” (Id. ¶ 24.)

The court agrees with the Clymer Conrad Defendants that the Chinniahs

entered into a new agreement, whereby payment would be assessed on an hourly

fee basis. Therefore, to the extent that the Chinniahs assert that the Clymer Conrad

Defendants should be bound by the Boyle Litigation’s retainer agreement because

Defendant Autry happened to work at both law firms during the course of their

2008 litigation, this argument is foreclosed by the facts alleged in the amended

complaint. It is clear that the Chinniahs were self-represented litigants at some

point during the litigation process. (Id. ¶ 19.) Thus, it is also clear that there was a

defined break in representation, regardless of the fact that the same attorney

happened to represent the Chinniahs on both sides of that break. (Id. ¶¶ 18−21.)

The Chinniahs were free to retain a different attorney on a contingency fee basis,

or to retain Defendant Autry under the new retainer agreement with an hourly fee

assessment. However, it is clear that the Chinniahs are attempting to retroactively

bind the Clymer Conrad Defendants to the Boyle Litigation’s retainer agreement.

Thus, to the extent alleged, the Chinniahs’ claim for breach of contract based on a

theory that the Clymer Conrad Defendants were obligated to take the Chinniahs’

case on a contingency fee basis will be dismissed.

In contrast, viewing the amended complaint in the light most favorable to the

Chinniahs, and recognizing the procedural posture of this case, the court finds that

they have asserted a colorable claim for breach of the 2013 contract formed with

the Clymer Conrad Defendants. The court makes these findings in an abundance

of caution, noting that the Chinniahs will need to identify the specific term or terms

of the 2013 agreement that prevented Defendant Autry from inflating his invoices.

Moreover, the Chinniahs will need to prove that Defendant Autry breached these

terms. At best, the amended complaint is scant with respect to these allegations.

However, if the Chinniahs’ allegation that “Defendant Autry also willfully inflated

his invoices contrary to the terms of the retainer agreement that he signed with the

Plaintiffs in 2013” is true, then the Chinniahs may succeed on a claim for breach of

contract. Therefore, the court agrees with Judge Mehalchick’s conclusion, and

adopts this portion of the report and recommendation as modified over the

objection of the Clymer Conrad Defendants.

F. The Court Declines to Adopt the Recommendation Denying the

Motion to Dismiss the Chinniahs’ Claim for Punitive Damages.

In the Clymer Conrad Defendants’ motion to dismiss, they argued that

punitive damages are inappropriate in this case because their actions have not risen

to the high level of “outrageous and egregious” conduct that is required for a

punitive damages award. (Doc. 100, pp. 13−14.) The Chinniahs responded that

“[p]unitive damages are generally available in a civil rights case,” and that the

Defendants’ conduct was clearly oppressive and deserving of a punitive damages

award. (Doc. 104, p. 15.) Specifically, the Chinniahs suggest that punitive

damages are particularly appropriate, given the Defendants’ attempt to have the

Chinniahs arrested for attempting to retrieve their legal files. (Id.) In the report

and recommendation, Judge Mehalchick opined:

Defendants’ alleged actions giving rise to the legal malpractice claim

could satisfy the standard necessary to award punitive damages.

Plaintiffs’ allegations that Defendants failed to present important

exhibits and witnesses at trial, failed to inform them of a potential

conflict of interest, failed to return to them their legal file, and failed to

file post-trial motions or timely appeal a district court order, could be

found to qualify as outrageous conduct. (Doc. 92, ¶¶ 23−26). Further,

Plaintiffs allege that Defendants’ actions were performed with ill

motive, satisfying the state of mind requirement for punitive damages.

(Doc. 92, ¶ 25); see Theise v. Carroll, 2011 WL 1584448, at *3 (M.D.

Pa. 2011) (applying Pennsylvania law) (determining that dismissal of

punitive damages was not warranted when defendants allegedly filed a

frivolous complaint, failed to file important documents, and took

unauthorized action intentionally, fraudulently, and/or recklessly). At

this juncture, Plaintiffs’ allegation that Defendants’ conduct was

“intentional mistreatment and abuse of the Plaintiffs” is sufficient to

allow the request for punitive damages to avoid dismissal. Pa. R. Civ.

P. 1019(b) (“Malice, intent, knowledge, and other conditions of mind

may be averred generally.”).

(Doc. 142, p. 16.) The Clymer Conrad Defendants object to this conclusion,

noting that the only remaining claim is for breach of contract, and arguing that

punitive damages are unavailable for breach of contract claims as a matter of law.

(Doc. 146, p. 5.) The Chinniahs respond that Judge Mehalchick’s report and

recommendation should control since a jury could find the Defendants’ conduct

“outrageous, and taken intentionally to undermine the Plaintiffs’ rights.” (Doc.

148, p. 2.)

It is well established that Pennsylvania law prohibits recovery of punitive

damages for breach of contract claims. Kinnel v. Mid-Atlantic Mausoleums, Inc.,

850 F.2d 958, 968 (3d Cir. 1988) (“[U]nder Pennsylvania law[,] a breach of

contract cannot result in punitive damages.”); Bruno v. Bozzuto’s, Inc., 850 F.

Supp. 2d 462, 469 (M.D. Pa. 2012); Ash v. Cont’l Ins. Co., 932 A.2d 877, 881 (Pa.

2007); Baker v. Pa. Nat’l Mut. Casualty Ins. Co., 536 A.2d 1357, 1361 (Pa. Super.

Ct. 1987). Since a breach of contract claim is all that presently remains in this

case, the motion to dismiss the punitive damages claim will be granted. The

Chinniahs will be afforded leave to amend their complaint to include this claim in

the event that the Chinniahs also include claims for legal malpractice accompanied

by a certificate of merit as permitted in the report and recommendation.

G. The Court Adopts the Recommendation Denying the Underhill

Defendants’ Motion to Dismiss the Chinniahs’ Claim for Civil

Conspiracy.

In their motion to dismiss, the Underhill Defendants focused their argument

and legal discussion on the Chinniahs’ civil conspiracy claim under federal law,

specifically, 42 U.S.C. § 1985 and the intracorporate conspiracy doctrine. (Doc.

94; Doc. 95, pp. 6−11.) When given the opportunity to supplement their initial

briefing, the Underhill Defendants chose not to avail themselves of this option,

choosing instead to rely on the briefing already submitted to the court. As a result,

in the report and recommendation, Judge Mehalchick denied the Underhill

Defendants’ motion to dismiss, noting that:

The Underhill Defendants did not brief Plaintiffs’ state law claim in

their motion to dismiss, (Doc. 95), and did not respond to the Court’s

order filed May 1, 2019, to supplementally brief remaining state law

claims. (Doc. 138). Therefore Plaintiffs’ state law claim against them

is not subject to dismissal. See Chambers v. Chesapeake Appalachia,

L.L.C., 359 F. Supp. 3d 268, 274 (M.D. Pa. 2019) (Noting that the party

moving to dismiss for failure to state a claim bears the burden of

establishing that a plaintiff’s complaint fails to state a claim).

(Doc. 142, p. 3−4.) The Underhill Defendants object to this conclusion, arguing

that all “[c]ivil conspiracy claims are state law claims[,]” and that the court “need

only determine whether the defendants conspired to violate the law” regardless of

the law or the civil right.9 (Doc. 143, p. 5.) The Underhill Defendants assert that

they have fully briefed the Chinniahs’ civil conspiracy claim, and that therefore,

the court should reach the merits of their motion to dismiss. (Id. at 6.)

Initially, the court notes that the pleadings requirements for civil conspiracy

under Pennsylvania law are not the same as those under federal law. See Goodwin

v. Moyer, 549 F. Supp. 2d 621, 628 (M.D. Pa. 2006). Indeed, the applicable legal

standards are likewise different. See, e.g., Heilimann v. O’Brien, No. 3:14-cv-

1271, 2017 U.S. Dist. LEXIS 31885, at *13 (M.D. Pa. Mar. 7, 2017) (noting that

“a plaintiff must establish both the applicability of section 1983 and the

Pennsylvania state law elements of a civil conspiracy”); Luck v. Asbury, No. 3:12-

cv-877, 2013 U.S. Dist. LEXIS 195898, at *9 (M.D. Pa. Aug. 5, 2013) (noting that

“the elements of a state law conspiracy claim must be met in order to assert a

section 1983 claim”); Sershen v. Cholish, No. 3:7-cv-1011, 2007 U.S. Dist. LEXIS

79627, at *50−54 (M.D. Pa. Oct. 26, 2007) (separately discussing and setting forth

different standards for civil conspiracy claims under section 1983 and

9 In support of this proposition, the Underhill Defendants only cite to one case from within the

Third Circuit, a 1996 case from the Eastern District of Pennsylvania that did not specifically

discuss civil conspiracy claims under 42 U.S.C. § 1983 or § 1985—the statutes relied upon by

the Chinniahs. See In re Orthopedic Bone Screw Prods. Liab. Litig., 939 F. Supp. 398, 401−02

(E.D. Pa. 1996). Rather, the Orthopedic Bone Screw court noted that “Congress has specifically

empowered certain civil plaintiffs with the ability to sue in federal court based on conspiracy. Id.

at 401 (citing 15 U.S.C. § 1 (The Sherman Act); and 42 U.S.C. § 1985 (Civil Rights Act)). Thus,

the blanket assertion that “[c]ivil conspiracy is a state law claim” is not wholly accurate.

Moreover, the Underhill Defendants devoted their brief specifically to the Chinniahs’ federal

civil conspiracy claim under 42 U.S.C. § 1985, rather than the standard under Pennsylvania law.

Pennsylvania law); Goodwin, 549 F. Supp. 2d at 628 (“The pleading requirements

for civil conspiracy under Pennsylvania law are not as stringent as those for a

§ 1983 conspiracy claim.”).

More fundamentally, the court notes that the Underhill Defendants did not

raise this argument in the supplemental briefing process provided by Judge

Mehalchick. As we have explained, the report and recommendation process does

not entitle parties to a second bite of the apple when they fail to raise and develop

arguments before the magistrate judge. Dowell, 2017 WL 4230924, at *2 n.1

(declining to address arguments not raised before the magistrate judge). Therefore,

the court agrees with Judge Mehalchick’s conclusion, and adopts this portion of the

report and recommendation.

CONCLUSION

For the reasons stated herein, the court declines to adopt Judge Mehalchick’s

recommendations regarding Plaintiffs’ punitive damages claim, but adopts the

remaining recommendations as modified. Accordingly, the court will grant

Defendants’ motions to dismiss in part and deny the motions in part. An

appropriate order will issue.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: January 8, 2021