NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3291

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KAREN SARPOLIS, individually and as administratrix

Of the Estate of Angela Anastacia Miller,

Appellant

v.

ALLAN TERESHKO; HEATHER TERESHKO; POST & SCHELL, P.C.;

PENNSYLVANIA PROFESSIONAL JOIN LIABILITY 

UNDERWRITING ASSOCIATION;

UNIVERSITY OF PENNSYLVANIA COMMUNITY HEALTH NETWORK;

COMMUNITY HEALTH SYSTEMS, INC.; CHOP NEWBORN CARE;

LIVE MESSAGE AMERICA, INC.; CHESTNUT HILL HEALTHCARE

MEDICAL ASSOCIATES

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Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-13-cv-005521)

District Judge: Honorable Petrese B. Tucker

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Submitted Under Third Circuit LAR 34.1(a)

November 19, 2015

Before: AMBRO, HARDIMAN, and NYGAARD, Circuit Judges

(Filed: January 7, 2016)
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OPINION*

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AMBRO, Circuit Judge

Appellant Karen Sarpolis appeals the dismissal with prejudice of her state-law 

civil conspiracy and fraud claims. She contends that the District Court erred in 

exercising supplemental jurisdiction over those claims rather than remanding them to 

state court. Sarpolis also contends that the District Court erred in dismissing her civil 

conspiracy claim because the element of malice was adequately pleaded. For the reasons 

stated below, we affirm the District Court.1

I. Background

This case stems from a prior medical malpractice action that Sarpolis started in 

state court. In 2005, she filed a complaint in the Philadelphia Court of Common Pleas 

alleging that her daughter died as a result of medical malpractice at Chestnut Hill 

Hospital. In December 2008 and January 2009, certain pretrial motions in the case were 

assigned to Judge Allan Tereshko, who ordered the parties to attend a settlement 

conference. After the conference, on January 23, 2009, Judge Tereshko entered an order 

stating that, as the Court had been informed that the parties had reached a settlement, the 

case would no longer be listed for trial save that any party could request that it be 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367, and we 

have jurisdiction pursuant to 28 U.S.C. § 1291.
3

returned to the trial list by written motion. Although Sarpolis was represented by counsel 

in the malpractice action, no such motion was filed.

Proceeding pro se, Sarpolis began this action in 2013 by filing a complaint against 

Judge Tereshko in the Philadelphia Court of Common Pleas. In an amended complaint, 

Sarpolis claimed that Judge Tereshko was part of a wide-ranging conspiracy to defraud 

her and devalue her malpractice claim, and also named all of the Appellees as defendants, 

including the University of Pennsylvania Community Health Network, Community 

Health Systems, Inc., and Post & Schell, P.C.2 Although the basis of her claims is not 

altogether clear, Sarpolis appears to make two central allegations: first, that the 

University of Pennsylvania and Community Health Systems conspired to avoid liability 

for malpractice claims in their acquisition of Chestnut Hill Hospital, and did so by 

“tampering with evidence, witnesses and judges in the pending [malpractice] cases.” 

Am. Compl. at ¶ 18. Second, “[b]efore Defendant Allan Tereshko ... perform[ed] any 

judicial acts, he conspired with Post and Schell, [the Pennsylvania Professional Liability 

Joint Underwriting Association], and his wife Heather Tereshko to have the case 

transferred to his jurisdiction with the intent to obstruct justice and assist in carrying out 

the [d]efenses’ objectives for disposition of the case.” Id. at ¶ 45 (emphasis in original). 

Specifically, Judge Tereshko allegedly failed to disclose that his wife was employed by 

Post & Schell and to recuse himself on that basis, pressured Sarpolis to accept a low 

 

2 Sarpolis’ claims against the remaining Appellees are no longer at issue, as by 

order dated June 29, 2015, we granted motions to affirm the District Court’s dismissal of 

all claims against the Pennsylvania Professional Liability Joint Underwriting Association, 

Heather Tereshko, and the Children’s Hospital of Philadelphia Newborn Care. 
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settlement offer, and made the false promise that the case could be easily reinstated if the 

settlement were not finalized.3 Sarpolis does not deny that she accepted a tentative 

settlement in the malpractice action, but she alleges that the settlement never became 

final because opposing counsel from Post & Schell insisted on unreasonable settlement 

terms.

Based on these allegations, the amended complaint alleged one count of civil 

conspiracy and three counts for violation of the Racketeer Influenced and Corrupt 

Organizations Act, 18 U.S.C. § 1961, et seq. (“RICO”). The defendants removed the 

case to the Eastern District of Pennsylvania and filed motions to dismiss. In 

Pennsylvania, a civil conspiracy claim requires allegations sufficient to state an 

independent cause of action underlying the conspiracy, see McKeeman v. Corestates 

Bank, N.A., 751 A.2d 655, 660 (Pa. Super. Ct. 2000), and the District Court liberally 

construed the amended complaint to allege fraud and fraudulent inducement as the 

objects of the conspiracy (although the latter claim was first raised in Sarpolis’ briefing). 

The Court analyzed the fraud claims in conjunction with the civil conspiracy claim and 

determined that it should be dismissed for four reasons: 

(1) [Sarpolis’] underlying claim of fraud is barred by the applicable statute 

of limitations;

(2) [She] is not entitled to the equitable remedy of statutory tolling because 

[she] did not exercise due diligence in bringing this action;

(3) to the extent [she] seeks to assert a claim for fraud in the inducement in 

entering the settlement agreement, [the District Court] is not the proper 

forum for [her] to bring such a claim; and

 

3 While these allegations arise from judicial acts by Judge Tereshko, the parties do 

not raise the issue of judicial immunity, and because we affirm the dismissal of all claims 

on other grounds, it is not necessary for us to address it.
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(4) [She] has not, and cannot, allege that [the] [d]efendants’ sole motivation 

was to cause her harm.

J.A. at 35A. The District Court dismissed all of Sarpolis’ claims, including her federal 

RICO claims, but did not explain its decision to exercise supplemental jurisdiction over 

the state-law civil conspiracy and fraud claims.

Sarpolis then moved for reconsideration and requested remand of her state-law 

claims for the first time. Without waiting for the District Court to decide her motion for 

reconsideration, however, she filed a notice of appeal. One day after that was filed, the 

District Court summarily denied the motion for reconsideration. Sarpolis later retained 

counsel who represents her in this appeal.

II. Discussion

We begin by addressing Sarpolis’ argument that the District Court erred in 

exercising supplemental jurisdiction over her civil conspiracy and fraud claims. Federal 

courts may exercise supplemental jurisdiction over claims that share “a common nucleus 

of operative fact” with claims over which the district court has original jurisdiction. 

Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991) (quoting United Mine 

Workers v. Gibbs, 383 U.S. 715, 725 (1966)). 28 U.S.C. § 1367(c)(3) confers discretion 

on federal district courts to decline to exercise supplemental jurisdiction if “the district 

court has dismissed all claims over which it has original jurisdiction.” When exercising 

this discretion, a district court should not retain supplemental jurisdiction over any 

remaining state-law claims “unless considerations of judicial economy, convenience, and 

fairness to the parties provide an affirmative justification for doing so.” Hedges v. 
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Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citation omitted). We review a district court’s 

decision to exercise supplemental jurisdiction for abuse of discretion. De Ascensio v. 

Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir. 2003).

At the outset, Appellees contend that Sarpolis waived the issue of supplemental 

jurisdiction by failing to raise it until she moved for reconsideration. Although they are 

unable to cite any case from this Circuit to the effect that issues raised for the first time 

on reconsideration are waived, Appellees argue that we should nonetheless find waiver 

based on the well-settled rule that reconsideration is improper when a party should have 

raised an argument earlier. See, e.g., United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 

2010). This rule applies only to the merits of a motion for reconsideration, however, and 

does not determine whether an issue is waived on appeal.

Seizing on Sarpolis’ failure to comply with Federal Rule of Appellate Procedure 

4(a)(4)(B)(ii) by filing an amended notice of appeal after the District Court denied 

reconsideration, Post & Schell makes two further arguments that the issue of 

supplemental jurisdiction was waived. First, the firm contends that Sarpolis’ failure to 

file an amended notice of appeal deprives us of jurisdiction over the District Court’s 

order denying reconsideration. Whether an issue has been waived on appeal is a distinct 

inquiry from our jurisdiction to review a particular order, however, and Post & Schell 

cites no authority showing that failure to file an amended notice of appeal waives any 

claims first raised on reconsideration. 

Second, relying on Carrascosa v. McGuire, 520 F.3d 249 (3d Cir. 2008), Post & 

Schell argues that Sarpolis’ failure to file an amended notice of appeal deprives us of 
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jurisdiction to review any arguments first raised on reconsideration. Although in 

Carrascosa the appellant failed to file an amended notice of appeal and the Court stated 

that we “d[id] not have jurisdiction to review any arguments raised for the first time in 

Carrascosa’s Motion for Reconsideration,” id. at 254, this statement simply set out the 

limits of our jurisdiction in a case where the appellant sought to challenge both the denial 

of reconsideration and the underlying order. In this case, however, Sarpolis challenges 

only the District Court’s exercise of supplemental jurisdiction in the order dismissing her 

claims. As we are mindful that she was proceeding pro se in the District Court, we thus 

decline to treat as waived the issue of supplemental jurisdiction.

As for that issue, Sarpolis’ primary argument is that the District Court erred in 

exercising supplemental jurisdiction and dismissing her claims without addressing the 

merits of her claims for fraudulent misrepresentation and fraud in the inducement. 

Although Sarpolis asserts that the District Court should have ruled on a claim that the 

University of Pennsylvania and Community Health Services fraudulently misrepresented 

the funds available to pay malpractice claims against Chestnut Hill Hospital, the amended 

complaint does not list any counts of fraudulent misrepresentation. The Court liberally 

construed the amended complaint to state claims of fraud and fraud in the inducement as 

objects of the conspiracy, and held that the fraud claim was time-barred. Sarpolis does 

not explain how her purported claim of fraudulent misrepresentation is different from the 
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general claim of fraud decided by the District Court, and hence we see no error in the 

lack of a separate ruling on fraudulent misrepresentation.4

Sarpolis also contends that the District Court erred in exercising supplemental 

jurisdiction over a claim that she was fraudulently induced to accept the settlement 

agreement and withdraw her malpractice claim. The Court dismissed the fraudulent 

inducement claim because it was not the proper forum to hear the claim, as only the 

Philadelphia Court of Common Pleas could grant Sarpolis relief from a settlement 

reached in that Court. Although this reasoning does not explain why the District Court 

chose to exercise supplemental jurisdiction, as Sarpolis had not yet raised the issue, the 

Court was not required to give a supplemental jurisdiction analysis before dismissing the 

fraudulent inducement claim. See Acri v. Varian Assocs., 114 F.3d 999, 1000 (9th Cir. 

1997). 

An affirmative justification for exercising supplemental jurisdiction, however, is 

apparent in the District Court’s analysis of the statute-of-limitations defense to Sarpolis’ 

closely related civil conspiracy claim. The Court reasoned that Sarpolis had failed to 

state a claim for civil conspiracy because the underlying tort of fraud was time-barred. 

The Pennsylvania statute of limitations for fraud is two years, 42 Pa. Cons. Stat. Ann. § 

 

4 To the extent that Sarpolis contends in a footnote that the District Court’s ruling 

on conspiracy to commit fraud is irrelevant to the fraudulent misrepresentation claim 

because “[she] did not allege that [the University of Pennsylvania] conspired with [Judge] 

Tereshko,” see Reply to Brief for Appellee the University of Pennsylvania at 3 n.1, the 

amended complaint establishes that this is not the case. See Am. Compl. at ¶ 58 (alleging 

that the University of Pennsylvania and Community Health Systems “conspired” to avoid 

malpractice liability through fraud, and did so “[w]ith the assistance of all other 

defendants”).
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5524(7), and although the existence of a conspiracy tolls the statute of limitations, see 

Baker v. Rangos, 324 A.2d 498, 510 (Pa. Super. Ct. 1974), Judge Tereshko’s January 

2009 order was the last alleged act of the conspiracy. Similarly, no act of fraudulent 

inducement is alleged to have occurred after the January 2009 order, and the statute of 

limitations therefore expired two years before Sarpolis filed this case in 2013. 

On appeal, Sarpolis argues that the statute of limitations should be tolled because 

the alleged insistence of Post & Schell attorneys on unreasonable terms renders the 

fraudulent inducement claim a continuing tort. This argument fails because the 

continuing tort doctrine is not applicable to claims of ongoing harm from a completed 

tort. See Dellape v. Murray, 651 A.2d 638, 640 (Pa. Commw. Ct. 1994). To the extent 

that Sarpolis alleges that opposing counsel insisted on unreasonable settlement terms 

after she had agreed to settle and to withdraw her malpractice claim, their insistence is 

not part of any fraudulent inducement to accept the settlement and withdraw her claim 

but rather an ongoing harm to Sarpolis in the form of withholding the promised benefits 

of the settlement. The continuing tort doctrine is therefore not in play. Because the 

District Court already had before it the statute-of-limitations issue, remand would merely 

have wasted judicial resources by requiring the defendants to make substantially the same 

arguments in state court. The interest of judicial economy thus justified the District 

Court’s retaining jurisdiction over the fraudulent inducement claim. See Blakely v. 

United States, 276 F.3d 853, 863 (6th Cir. 2002).

Sarpolis’ remaining arguments on the issue of supplemental jurisdiction are 

unpersuasive. Although Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988), 
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counsels remand when the statute of limitations prevents a plaintiff from re-filing in state 

court, the case does not support remand of Sarpolis’ state-law claims because they were 

untimely when filed. The grant of discretion in 28 U.S.C. § 1367(c)(1) to remand claims 

that “raise[] a novel or complex issue of State law” also does not support remand because 

Sarpolis’ claims do not raise such an issue. Finally, it is simply not the case that most 

courts accept that the proper course is to remand whenever all federal claims are 

dismissed. We therefore conclude that the District Court did not abuse its discretion in 

exercising supplemental jurisdiction.

Sarpolis also claims that the District Court erred in dismissing her civil conspiracy 

claim because the element of malice was adequately pleaded. We exercise plenary 

review of the District Court’s decision to grant a motion to dismiss. Connelly v. Steel 

Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). “Proof of malice is an essential part 

of a cause of action for conspiracy,” Goldstein v. Philip Morris, Inc., 854 A.2d 585, 590 

(Pa. Super. Ct. 2004), and malice requires that the conspirators act with the sole purpose 

of injuring the plaintiff. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 

1979). Even had Sarpolis sufficiently pleaded that Appellees had the sole purpose of 

injuring her, she failed to state a civil conspiracy claim because, as the District Court 

held, the underlying claim of fraud is time-barred. See Pelagatti v. Cohen, 536 A.2d 

1337, 1342 (Pa. Super. Ct. 1987) (holding that civil conspiracy claim requires availability 

of an independent cause of action for the acts alleged). 

* * * * *
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The District Court therefore did not err in dismissing Sarpolis’ civil conspiracy 

claim, and it also did not err in exercising supplemental jurisdiction. Thus, we affirm its 

judgment.5

 

5 As we affirm on other grounds, it is not necessary for us to address Post & 

Schell’s argument that Sarpolis’ claims are barred by Pennsylvania’s absolute privilege 

against liability for libelous or defamatory statements made in the course of judicial 

proceedings.