INDELICARTO

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THOMAS C. INDELICARTO and )

JACQUELINE M. INDELICARTO, )

) Civil Action No. 2:25-cv-0443

Plaintiffs, )

) Magistrate Judge Patricia L. Dodge

v. )

)

LAUREL POND CONDOMINIUM )

ASSOCIATION, F. CHRISTOPHER )

SPINA, and MICHAEL GEORGE, )

)

Defendants. )

MEMORANDUM OPINION1

Plaintiffs Thomas and Jacqueline Indelicarto (collectively, the “Indelicartos”) bring this

civil action against Defendants Laurel Pond Condominium Association (the “Association”), F.

Christopher Spina (“Spina”), and Michael George (“George”) (collectively “Defendants”). Their

claims arise from damage to two units owned by the Indelicartos in the Laurel Pond Condominium.

Pending before the Court is Defendants’ partial Motion to Dismiss (ECF No. 18). For the

following reasons, the motion will be denied.

I. Procedural History

The Indelicartos filed their Complaint on April 1, 2025. The Complaint alleges breach of

contract claims for water damages (Count I), inferior water pipes (Count II), and structural

deficiencies (Count III) against the Association; breach of fiduciary duties against Spina and

George (Count IV); and trespass against all Defendants (Count V). They also seek declaratory

relief against the Association regarding the control of repair work (Count VI) and right of access

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have

a United States Magistrate Judge conduct proceedings in this case. The undersigned therefore has authority

to decide dispositive motions and enter final judgment.

(VII). See ECF No. 1.

Defendants moved to dismiss only Counts IV and V. (ECF No. 18.) The motion has been

fully briefed (ECF Nos. 20, 25), and is now ready for disposition.

II. Facts Alleged in the Complaint

Laurel Pond Condominium (the “Condominium”) is located in the Nemacolin Woodlands

Resort. It consists of nine buildings, each divided into four units. (Id. ¶¶ 8, 10.) The Condominium

was established by written declaration in September 1983 (the “Declaration”). The Declaration

governs operation of the Association, a Pennsylvania nonprofit corporation formed pursuant to the

Pennsylvania Uniform Condominium Act, 68 Pa. Cons. Stat. §§ 3101-3414 (“PUCA”). (Id. ¶¶ 3,

14-19.) Spina is president of the Association and both he and George are members of the

Association’s executive board of directors. (Id. ¶¶ 3-5.)

The Declaration defines the boundaries of the individual condominium units and assigns

the Association certain responsibilities regarding maintenance of the Condominium’s common

areas. (Id. ¶¶ 16-19.) The Association also adopted Rules and Regulations (the “Rules”) that further

delineate the rights, duties, and obligations of the Association and unit owners. (Id. ¶ 22.) Relevant

here, the Rules contain the following provisions:

The interiors of the units are the property of the Unit Owners and, as such, they are

not to be subjected to unnecessary or inappropriate interference from the

Association except as it may impact the safety, security, or well–being of other Unit

Owners. In cases relating to the repair, maintenance, or construction for which the

Board is responsible, reasonable exercise of entry is an appropriate and irrevocable

right.

(ECF No. 1-3 § C.1.)

By authority of the Board of Directors, the Nemacolin Woodlands Resort Security

shall retain a pass key and/or entrance code for each unit for use in an emergency

or for an entrance directed by the Board of Directors which relates to the safety and

2

well–being of all.

(Id. § D.2.)

In order to minimize damage to their own as well as adjoining units and common

areas, during winter months each unit must be maintained at a minimum

temperature of no less than 55 degrees Fahrenheit. In addition, Unit Owners are

strongly encouraged to take reasonable care related to the safety of their unit’s

individual appliances as well as their heating, electrical and other operating

systems.

(Id. § C.5.)

The Indelicartos purchased two adjoining first and second story condominium units (the

“Units”) in September 2021. (ECF No. ¶ 2.) The Units were primarily used as a vacation property

and were often unoccupied for long periods of time. (Id. ¶ 9.) The Indelicartos always winterized

the Units by shutting off the water and putting antifreeze in the toilets before leaving. (Id. ¶ 31.)

On December 30, 2024, Spina emailed all Condominium unit owners that National Pike

Water Authority (“National Pike”) had informed the Association of a potential underground water

leak. (Id. ¶ 28.) Although the Units were unoccupied, the Indelicartos were not concerned about

leaks because the Units had been winterized in accordance with the Rules. (Id. ¶¶ 30-31.)

The next day, Spina emailed all unit owners that a leak detection company retained by the

Association was on site searching for the leak. (Id. ¶ 32.) The Association hired two contractors,

MountainCreek and KEC, to perform work at the Condominium. MountainCreek was owned and

operated by George’s brother.2 (Id. ¶¶ 42-43.)

On January 7, 2025, George informed unit owners that the leak detection company would

2 According to the Complaint, MountainCreek’s website “states that it provides asphalt sealcoating, road

painting, and line striping services for roads and parking lots. Nothing on the website suggests that

MountainCreek has expertise in the leak detection or the repair/replacement of underground water pipes.”

(Id. ¶ 44.)

3

be back again the next day. He advised that the company would be shutting off water in all the

units while air was run through the water lines to detect the leak’s location. Spina stated that

Nemacolin security would be present during this process and that water would be restored by the

end of the business day. (Id. ¶¶ 33-34.) According to the Complaint, there is no record of

Nemacolin’s security department providing the leak detection company access to the Units on

January 8, 2025. (Id. ¶ 35.)

On January 17, 2025, West Penn Power was called to the Condominium after the owners

of a different unit informed Spina that they had lost power. (Id. ¶¶ 45-46.) West Penn Power

restored power to the other owner’s unit but was unaware that the Indelicartos’ property had also

lost power. (Id. ¶ 47.) Although unknown at the time, MountainCreek and/or KEC had severed

both the waterline and underground electrical lines leading to the Indelicartos’ property sometime

between January 13 and 17, 2025. (Id. ¶ 49.)

Spina emailed unit owners again on January 22, 2025 to advise that National Pike intended

to shut off all water to the Condominium from 9:30 a.m. to 3:30 p.m. on January 23 to fix a water

mainline leak. (Id. ¶ 37.) National Pike has since advised that it did not shut off the Condominium’s

water on January 23. The Complaint therefore alleges that the statements in Spina’s email were

knowingly false. (Id. ¶ 38.)

On January 31, 2025, Spina informed the Indelicartos that the Units had flooded due to a

broken pipe in their second-floor shower. Spina stated that large amounts of water damaged the

Units along with the other unit in the building. He also advised that the Association’s contractor

had entered the Units to shut off the main water valve. (Id. ¶¶ 40-41.)

4

The Indelicartos subsequently learned that plumbing work had been performed inside

neighboring units on January 23 and 24, 2025. (Id. ¶¶ 55-56.) The Indelicartos’ property shows

evidence of similar work. (Id. ¶¶ 57-63.) Additionally, Nemacolin’s security department confirmed

that it provided access to the Units on January 13, 2025. The Association did not notify the

Indelicartos that contractors would be entering the Units on January 13 and it has never explained

what was done inside the Units on that day. (Id. ¶¶ 35-35.) The Complaint therefore alleges that

Spina and George allowed contractors to enter the Units on multiple occasions without notifying

the Indelicartos, obtaining consent, or informing Nemacolin security.

III. Legal Standard

A Rule 12(b)(1) motion to dismiss addresses “the very power [of the court] to hear the

case.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). “As the party

asserting jurisdiction, [the plaintiff] bears the burden of showing that its claims are properly before

the district court.” Dev. Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 158 (3d Cir.

1995). “A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or

factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial challenge is made

without “disputing the facts alleged in the complaint, and it requires the court to ‘consider the

allegations of the complaint as true.’” Id. (quoting Mortensen v. First Fed. Sav. & Laon Ass’n, 549

F.2d 884, 891 (3d Cir. 1977)).

A complaint may also be dismissed, in whole or in part, for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To overcome a 12(b)(6) motion, the

complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

5

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

To decide a Rule 12(b)(6) motion, the court must “accept all factual allegations as true,

construe the complaint in the light most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224,

233 (3d Cir. 2008)). While “accept[ing] all of the complaint’s well-pleaded facts as true,” the court

“may disregard any legal conclusions.” Id. at 210-11. “Though ‘detailed factual allegations’ are

not required, a complaint must do more than simply provide ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action.’” Davis v. Abington Mem’l Hosp., 765

F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). The court will generally consider

only the complaint, exhibits attached thereto, and matters of public record. Schmidt v. Skolas, 770

F.3d 241, 249 (3d Cir. 2014).

In assessing the sufficiency of a complaint, a court must therefore: (1) outline the elements

the plaintiff must plead to state a claim for relief; (2) peel away any conclusory allegations that are

not entitled to the assumption of truth; and (3) look for well-pled factual allegations, assume their

veracity, and determine whether they plausibly give rise to an entitlement to relief. Bistrian v. Levi,

696 F.3d 352, 365 (3d Cir. 2012). This plausibility determination is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 US

at 679.

6

IV. Discussion

A. Applicability of Pennsylvania Law

Because this is a diversity action, the Court applies Pennsylvania law regarding the

substance of the claim. As stated by the Court of Appeals:

In adjudicating a case under state law, we are not free to impose our own view of

what state law should be; rather, we are to apply state law as interpreted by the

state’s highest court in an effort to predict how that court would decide the precise

legal issues before us. Kowalsky v. Long Beach Twp., 72 F.3d 385, 388 (3d Cir.

1995); McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994). In the

absence of guidance from the state’s highest court, we are to consider decisions of

the state’s intermediate appellate courts for assistance in predicting how the state’s

highest court would rule. McKenna, 32 F.3d at 825; Rolick v. Collins Pine Co., 925

F.2d 661, 664 (3d Cir. 1991) (in predicting state law, we cannot disregard the

decision of an intermediate appellate court unless we are convinced that the state’s

highest court would decide otherwise).

Gares v. Willingboro Twp., 90 F.3d 720, 725 (3d Cir. 1996).

If a state supreme court has not addressed the issue, “the federal court must ascertain from

all available data, including the decisional law of the state’s lower courts, restatements of law, law

review commentaries, and decisions from other jurisdictions on the ‘majority’ rule, what the state’s

highest court would decide if faced with the issue.” Gruber v. Owens-Illinois Inc., 899 F.2d 1366,

1369 (3d Cir. 1990) (citation omitted). Thus:

To predict the response which we believe the Pennsylvania Supreme Court would

give to the question before us, we examine: (1) what the Pennsylvania Supreme

Court has said in related areas; (2) the “decisional law” of the Pennsylvania

intermediate courts; (3) federal appeals and district court cases interpreting the state

law; (4) decisions from other jurisdictions that have discussed the issue we face

here.

Id. at 1369-70.

B. Standing to Assert Breach of Fiduciary Claims

Count IV alleges Spina and George breached their fiduciary duties under § 3303(a) of the

7

PUCA. Defendants argue that the Indelicartos lack standing to sue individual board members or

officers because the fiduciary duties under § 3303(a) are owed to the Association, not individual

unit owners. (ECF No. 20 at 7.)

Section 3303(a) provides, in relevant part:

In the performance of their duties, the officers and members of the executive board

shall stand in a fiduciary relation to the association and shall perform their duties,

including duties as members of any committee of the board upon which they may

serve, in good faith in a manner they reasonably believe to be in the best interests

of the association and with such care, including reasonable inquiry, skill and

diligence, as a person of ordinary prudence would use under similar circumstances.

68 Pa. Cons. Stat. § 3303(a).

Defendants cite two related Pennsylvania Commonwealth Court cases to support their

position. See Cooley v. Lofts at 1234 Condo. Ass’n, 2017 WL 894353 (Pa. C.P. Phila. Cty. Mar. 1,

2017), aff’d, 2020 WL 1231394 (Pa. Commw. Ct. Mar. 13, 2020); Dana v. Lofts at 1234 Condo.

Ass’n, 2020 WL 1188460 (Pa. Commw. Ct. Mar. 12, 2020). Interestingly, the Indelicartos rely on

the same cases to support their own position contrary to Defendants’.

In both cases, the Commonwealth Court affirmed a trial court’s dismissal of the plaintiff’s

individual PUCA claims for lack of standing where the plaintiff failed to allege damages unique

to him “that were not derivative of those sustained by the Association as a whole.” Cooley, 2020

WL 1188460, at *8. Explaining the rationale behind its decision, the court stated:

Furthermore, in support of his PUCA cause of action, Mr. Dana did not allege

damages unique to him that were not derivative of those sustained by the

Association as a whole. It is well settled that

under established Pennsylvania law, a shareholder does not have standing

to institute a direct suit for “a harm [that is] peculiar to the corporation and

[that is] only ... indirectly injurious to [the] shareholder.” Reifsnyder v. Pgh.

Outdoor Adver. Co., 405 Pa. 142, 173 A.2d 319, 321 (1961). Rather, such

a claim belongs to, and is an asset of, the corporation.

8

To have standing to sue individually, the shareholder must allege a direct,

personal injury—that is independent of any injury to the corporation—and

the shareholder must be entitled to receive the benefit of any recovery.

Hill v. Ofalt, 85 A.3d 540, 548 (Pa. Super. 2014) (emphasis added).

In Count I of the Fourth Amended Complaint (intentional violations of PUCA)

against Mr. Marrone and Ms. Volla, Mr. Dana averred generally that he was

“adversely affected and damaged” by Mr. Marrone’s and Ms. Volla’s actions,

without specifying how he was individually harmed. Count I merely contains broad

averments regarding Mr. Marrone’s and Ms. Volla’s alleged misappropriation of

Association dues and insurance proceeds and imposition of special assessments on

the Association's members, damages which would have been sustained by the entire

Association. See Kehr Packages, Inc. v. Fidelity Bank, Nat’l Ass’n, 710 A.2d 1169,

1176 (Pa. Super. 1998) (“[W]here the gravamen of a claim is injury to a

corporation, the shareholders of the corporation may not claim injury to themselves

rather than the corporation.”); see also Hill, 85 A.3d at 550 (dismissing a

shareholder’s individual claims against an executive board member, where the

shareholder “never alleged that [the board member] breached a contractual or

fiduciary duty owed to [the shareholder] individually”) (emphasis added).

Therefore, we conclude that the Trial Court properly dismissed Mr. Dana’s PUCA

claims against Mr. Marrone and Ms. Volla, individually, for lack of standing.

Dana, 2020 WL 1188460, at *7-8.

The Commonwealth Court further distinguished Cooley and Dana from another case in

which a plaintiff unit owner brought action against a condominium association and its executive

board for property damage due to the specific language used in the declaration. See Cooley, 2020

WL 1231394, at *7; Dana, 2020 WL 1188460, at *7 (discussing Falini v. Brinton Square Condo.

Ass’n, 676 C.D. 2015 (Pa. Commw. Ct. Feb. 1, 2016)). The court explained:

However, unlike the Declaration in this case, the condominium declaration in Falini

expressly permitted individual tort actions against the executive board members,

stating that “board members can be held personally liable ‘in tort to a unit owner .

. . for the . . . board members’ own willful misconduct or gross negligence in the

performance of their duties.’”

Id. (quoting Falini, 676 C.D. 2015, at *6) (citation modified).

9

Thus, although the Commonwealth Court did indeed find the Cooley and Dana plaintiffs

lacked standing under § 3303(a), it does not appear that the court created a bright line rule barring

unit owners from bringing direct claims for breach of fiduciary duty against individual board

members. Instead, it appears that a future plaintiff could have standing if the declaration expressly

authorizes individual tort action against board members, and the plaintiff alleged a direct, personal

injury separate from any derivative harm to the association.

Here, the Association’s Declaration expressly states that executive board members:

Shall have no personal liability in tort to a Unit Owner or any other person or entity,

direct or imputed, by virtue of acts performed by or for them, except for the

Executive Board members’ own willful misconduct or gross negligence in the

performance of their duties; . . . .

(ECF No. 1-2 § XI.E.) Under Pennsylvania law, a claim for breach of fiduciary duty sounds in

tort. See, e.g., Drain v. Covenant Life Ins. Co., 551 Pa. 570, 572, 712 A.2d 273, 278 (Pa. 1998)

(characterizing breach of fiduciary duty claim as a tort claim); Laurel Rd. Homeowners Ass’n v.

Freas, 191 A.3d 938, 949 (Pa. Commw. Ct. July 26, 2018) (“However, a claim for breach of

fiduciary duty sounds in tort[.]”).

The Indelicartos argue that they “have pled the very facts which the Cooley and Dana

courts concluded would permit unit owners to pursue a breach of fiduciary duty claim.” (ECF No.

25 at 6.) The Complaint alleges specifically that Spina and George breached their fiduciary duties

by: knowingly hiring an inexperienced contractor to perform leak detection; falsely advising unit

owners that the Association’s contractor would be supervised by Nemacolin while performing

work inside the Units; directing the Association’s contractors to work inside the Units when fixing

an external water line without first notifying the Indelicartos and obtaining consent to enter; failing

to notify the Indelicartos that the Units were without power; providing false and misleading

10

information concerning the number of times contractors entered the Units and the reason for

entrance; and providing false information that National Pike was shutting off water to the

Condominium. See ECF No. 1. The Complaint therefore sufficiently alleges willful misconduct

on the parts of Spina and George.

Thus, unlike the plaintiffs in Cooley and Dana, the Indelicartos allege direct, individualized

damage to their units and cite a condominium declaration provision that permits liability for willful

misconduct or gross negligence. These allegations are sufficient to establish standing at this early

stage of litigation. Accordingly, Defendants’ motion will be denied as to Count IV.

C. Trespass

Defendants also seek dismissal of Count V, arguing that the Declaration grants an

irrevocable right of entry, thereby precluding any trespass claim. Under Pennsylvania law, trespass

is defined as “an ‘unprivileged, intentional intrusion upon land in possession of another.’” Boring

v. Google Inc., 362 F. App’x 273, 280 (3d Cir. 2010) (citing Graham Oil Co. v. BP Oil Co., 885

F. Supp. 716, 725 (W.D. Pa. 1994)). Pursuant to Section 158 of the Second Restatement, an

individual who “intentionally enters land in the possession of another or causes a thing or a third

person to do so, remains on the land, or fails to remove a thing which one is under a duty to

remove” is liable for trespass. Restatement (Second) of Torts § 158.

The Indelicartos plausibly allege that Defendants entered the Units without consent and for

an improper purpose on multiple occasions throughout January 2025. Although Defendants argue

that each entry was privileged, the scope and reasonableness of Defendants’ entry rights are fact-

intensive inquiries. Because the Court cannot conclude at this early stage that Defendants’ entry

was privileged as a matter of law, Defendants’ motion will be denied as to Count V.

11

V. Conclusion

For these reasons, Defendants’ Motion to Dismiss (ECF No. 18) is denied as to Counts IV

and V.

An appropriate order will follow.

Dated: March 6, 2026 /s/ Patricia L. Dodge

PATRICIA L. DODGE

United States Magistrate Judge

12