1. Defendants moving in Docket Number 8 are: James Bosakowski; Jenkins, Wolf, Rubinate, Hasson & Styliades;

Jenkins, Robinson, Wolf & Rubinate; Liberty Mutual Insurance Company; Liberty Mutual Fire Insurance Company;

Jennifer Scott; Yolanda Wilson; and, Wendell Wilson.

2. Defendants moving in Docket Number 9 are: Andrew Greenberg and The Chartwell Law Offices.

3. Defendants moving in Docket Number 16 are: Sherri L. Dougherty and Weber, Goldstein, Greenberg and

Gallagher, LLP.

4. Defendants moving in Docket Number 20 are: John R. Duda, M.D.; Catherine Glennon; and, Joan Vassallo.

5. Docket Numbers 8, 9, and 20 are virtually identical in content. Docket Number 16 incorporates by reference all

of the arguments made in Docket Number 9. Because all of Defendants’ Motions to Dismiss contain the same

content, references for the remainder of this memorandum will be to Docket Number 8. 

6. The following Defendants have not responded to Plaintiff’s Complaint or Plaintiff’s Amended Complaint: Metro

Mobility; Metro Care, Inc.; Roseann Lertzman; Michael Clark; Ted Fricker; John Eastern Company, Inc.; Joseph

Malone; Casualty Reciprocal Exchange; Hartford Mutual Insurance Company; Anthony Salem; Suburban

Orthopedic Specialists, P.C.; Frontier Insurance Company; and, South Eastern Pennsylvania Transportation

Authority (SEPTA). 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDA SEAWRIGHT, : CIVIL ACTION 

Personal Representative and Administratrix :

of the Estate of Joseph Jackson, : NO. 05-2751

:

Plaintiff, :

:

v. :

:

ANDREW E. GREENBERG, et al., :

:

Defendants. :

MEMORANDUM

BUCKWALTER, S.J. November 1, 2005

Presently before the Court are Defendants’ Motions to Dismiss Plaintiff’s

Amended Complaint (Docket Nos. 8,1 9,2 16,3 and 204),5 and Plaintiff’s Reply (Docket No. 26).6

I. FACTS AND PROCEDURAL HISTORY 

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 1 of 12
7. Plaintiff’s Amended Complaint does not state when Mr. Jackson filed the workers’ compensation claim. Mr.

Jackson filed the personal injury case in the Philadelphia Court of Common Pleas on October 22, 2001. 

8. Plaintiff has also sued Defendant The Chartwell Law Offices, LLP. The Court assumes that Defendant

Greenberg was, at one time, employed by Defendant Weber, Goldstein, Greenberg, and Gallagher, LLP, and is now

employed by The Chartwell Law Offices, LLP. Plaintiff’s Amended Complaint vaguely refers to Defendant

Greenberg as “an attorney who acted individually and as the agent, servant, employee of the defendant, The

Chartwell Law Offices, LLP [and] the defendant Weber, Goldstein, Greenberg and Gallagher, LLP . . . .” 

(Pl.’s Am. Compl. ¶ 77.)

2

Mr. Joseph Jackson was involved in a car accident on November 4, 2000. Mr.

Jackson filed a workers’ compensation claim and a personal injury lawsuit,7 both stemming from

injuries sustained in the car accident. Mr. Jackson died from cancer on October 31, 2001. 

Plaintiff in this case is the representative and administratrix of the estate of Mr. Jackson. After

Mr. Jackson died, Plaintiff was substituted as Mr. Jackson’s personal representative in the

workers’ compensation and personal injury cases. Plaintiff’s counsel in this case, Allen L.

Feingold, also represented Plaintiff in the underlying litigation. 

Defendant Greenberg and Defendant Dougherty, attorneys with Defendant law

firm Weber, Goldstein, Greenberg and Gallagher, LLP,8 opposed Mr. Jackson’s workers’

compensation claim. Plaintiff alleges that Defendants Greenberg and Dougherty “withheld

knowledge and information that was necessary to prove [Mr. Jackson’s] claim,” Pl.’s Am.

Compl. ¶ 63, and made false statements to the workers’ compensation judge. Id. ¶ 107. 

Plaintiff’s counsel wrote a letter to the workers’ compensation judge regarding defense counsel’s

misconduct. Id. ¶ 163. There is disagreement between Plaintiff and Defendants in this case

regarding the outcome of Mr. Jackson’s workers’ compensation claim. Plaintiff claims that Mr.

Jackson did not proceed with the claim due to Defendants’ alleged misconduct, id. ¶ 63, while

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 2 of 12
9. Plaintiff has also sued law firm Jenkins, Robinson, Wolf & Rubinate (Pl.’s Am. Compl. ¶ 82.) The Court

assumes that the name of the firm changed at some point during the litigation. 

3

Defendants claim that Mr. Jackson’s workers’ compensation claim was dismissed and that the

Workers’ Compensation Board of Appeals later affirmed the dismissal. (Def.’s Mot. Dismiss 6.)

Defendant James Bosakowski, an attorney with Defendant law firm Jenkins,

Wolf, Rubinate, Hasson and Styliades,9 represented the defendants in the personal injury action. 

(Pl.’s Am. Compl. ¶¶151-156.) Plaintiff filed a Motion to Compel Full and Complete Answers

to Interrogatories and Request for Production of Documents, which was denied. Id. ¶ 157. The

case was then referred to Chief United States Magistrate Judge James Melinson. Plaintiff wrote

a letter to Judge Melinson alleging improper conduct on the part of Defendant Bosakowski. Id. ¶

166. The case was later transferred to Magistrate Judge Jacob Hart. Judge Hart entered findings

of fact and conclusions of law on February 26, 2003 and awarded Plaintiff $50,202.15. 

Seawright v. Wilson, No. 01-5646, 2003 U.S. Dist. LEXIS 3197 (E.D. Pa. Feb. 27, 2003). 

Plaintiff now brings this suit alleging fraud, misrepresentation, abuse of process,

civil conspiracy, intentional infliction of emotional distress, slander, harassment, and violation of

“acceptable standards for conduct in decedent society” against twenty-seven (27) named

defendants. (Pl.’s Am. Compl. ¶ 264.) The Defendants in the present case include the driver and

owner of the other vehicle involved in the car accident, the owners of the vehicle driven by Mr.

Jackson at the time of the accident, the attorneys who opposed Mr. Jackson’s workers’

compensation claim and the law firms that employed those attorneys, the attorney who opposed

Mr. Jackson’s personal injury claim and the law firm that employed that attorney, the doctors

who examined Mr. Jackson, the medical expert who testified for the defense in the personal

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 3 of 12
4

injury case, and the insurance companies as well as employees of the insurance companies

involved in Mr. Jackson’s workers’ compensation and personal injury cases. 

The above named Defendants filed Motions to Dismiss Plaintiff’s Complaint. 

Plaintiff then filed an Amended Complaint. This Court denied Defendants’ Motions to Dismiss

in light of Plaintiff’s Amended Complaint. By Plaintiff’s own admission, the only difference

between Plaintiff’s Amended Complaint and Plaintiff’s Original Complaint is that the Amended

Complaint does not reference two federal statutes. (Pl.’s Answer Defs.’ Mot. Dismiss 1.) The

above named Defendants then filed Motions to Dismiss Plaintiff’s Amended Complaint, raising

the same issues set forth in their Motions to Dismiss Plaintiff’s (Original) Complaint. 

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) is granted where the plaintiff fails

to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The motion “may be

granted only if, accepting all well-pleaded allegations in the complaint as true, and viewing them

in the light most favorable to plaintiff, plaintiff is not entitled to relief.” Maio v. Aetna, Inc., 221

F.3d 472, 482 (3d Cir. 2000). While the Court must accept all factual allegations in the

complaint as true, it “need not accept as true ‘unsupported conclusions and unwarranted

inferences.’” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000)

(citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)). In a

12(b)(6) motion, the defendant bears the burden of persuading the Court that no claim has been

stated. Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). Courts generally

consider the allegations contained in the complaint, exhibits attached to the complaint, and public

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 4 of 12
10. In the alternative, Defendants argue that: (1) Plaintiff does not have standing to pursue a slander claim on behalf

of Mr. Jackson; (2) Plaintiff’s Amended Complaint violates the heightened pleading standard of Federal Rule of

Civil Procedure 9(b) and therefore the paragraphs alleging fraud should be stricken; (3) the Court should grant a

Motion for a More Definite Statement pursuant to Federal Rule of Civil Procedure 12(e); and, (4) portions of

Plaintiff’s Amended Complaint contain scandalous material and should be stricken pursuant to Federal Rule of Civil

Procedure 12(f). In addition, Defendants Sherri L. Dougherty and Weber, Goldstein, Greenberg, and Gallagher,

LLP, also made a Motion to Strike for failure to attach the pleadings and final decisions, order, and opinions in the

underlying proceedings. Because the Court finds that the statute of limitations has expired on all counts and that the

Plaintiff is collaterally estopped from raising discovery issues from a prior case, the Court does not address

Defendants’ alternative arguments. 

5

records of which the court may take judicial notice. Pension Benefit Guar. Corp. v. White

Consol. Indus., 998 F.2d 1992, 1196 (3d Cir. 1993). 

III. DISCUSSION

Defendants argue that Plaintiff’s Amended Complaint should be dismissed with

prejudice because: (1) Plaintiff is collaterally estopped from making claims relating to discovery

in previous cases and (2) all claims alleged by Plaintiff are barred by the applicable statute of

limitations. On these bases, Defendants argue, neither Plaintiff nor Plaintiff’s counsel are

entitled to attorney’s fees, costs, or punitive damages.10

The Court will first address Defendants’ argument that the claims alleged by

Plaintiff are barred by the applicable statute of limitations. Counts I, II, III, IV, V, VII, VIII, IX,

X, and XII of Plaintiff’s Amended Complaint allege fraud, misrepresentation, abuse of process,

civil conspiracy, intentional infliction of emotional distress, and, as Defendants describe, “what

purports to be a harassment claim.” (Defs.’ Mot. Dismiss 14.) These Counts are subject to 42

Pa. C.S. § 5524, which provides that: 

The following actions and proceedings must be commenced within two years:

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 5 of 12
6

(1) An action for assault, battery, false imprisonment, false arrest, malicious

prosecution or malicious abuse of process. 

(2) An action to recover damages for injuries to the person or for the death of

an individual caused by the wrongful act or neglect or unlawful violence or

negligence of another.

(7) Any other action or proceeding to recover damages for injury to person or

property which is founded on negligent, intentional, or otherwise tortious

conduct or any other action or proceeding sounding in trespass, including

deceit or fraud, except an action or proceeding subject to another limitation

specified in this subchapter.

“The statute of limitations begins to run ‘as soon as the right to institute and

maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of

the statute of limitations.’” Meehan v. Archdiocese of Phila., 870 A.2d 912, 919 (Pa. Super. Ct.

2005) (quoting Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa.

1983)). In the present case, the conduct alleged by Plaintiff occurred during the workers’

compensation case and the personal injury lawsuit. Defendants point out that the last action by

any defendant alleged in Plaintiff’s Amended Complaint occurred on February 20, 2003. (Pl.’s

Am. Compl.¶ 181.) Therefore, to comply with the applicable statute of limitations, Plaintiff must

have filed the complaint no later than February 20, 2005. Plaintiff actually filed the complaint in

state court on May 19, 2005. Thus, the statute of limitations bars Plaintiff from asserting Counts

I, II, III, IV, V, VII, VIII, IX, X, and XII. 

Count VI of Plaintiff’s Amended Complaint alleges slander. The statute of

limitations for a slander action is one year. 42 Pa. C.S. § 5523(1). Defendants point out that the

last communication alleged in Plaintiff’s Amended Complaint occurred on February 20, 2003. 

(Pl.’s Am. Compl.¶ 181.) Therefore, to file a timely action for slander, Plaintiff must have filed

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 6 of 12
11. Additionally, the discovery rule does not save Plaintiff’s Complaint. Plaintiff and Plaintiff’s counsel were

aware of the alleged conduct at the time that it occurred, as evidenced by Plaintiff’s communications with the judges

(continued...)

7

suit no later than February 20, 2004. Again, Plaintiff filed the present action in state court on May

19, 2005, well beyond the necessary deadline.

Plaintiff argues that the doctrine of equitable tolling should apply in the present

case because the Defendant committed fraud. In Pennsylvania, equitable tolling is generally

applied in the following three situations: (1) where the defendant has actively misled the plaintiff

respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has

been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or

her rights mistakenly in the wrong forum. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d

1380, 1387 (3d Cir. 1994). 

None of the three situations where equitable tolling is appropriate are applicable in

this case. First, Defendants did not mislead Plaintiff with regard to Plaintiff’s cause of action in

the present case. The fraud Plaintiff alleges occurred during the underlying workers’

compensation and personal injury cases. Plaintiff and Plaintiff’s counsel complained about the

same tortious conduct alleged in the present case to the judges presiding in the underlying cases at

the time that conduct occurred. (Pl.’s Am. Compl. ¶¶ 163, 152, 166.) Plaintiff does not allege

that Defendants engaged in fraudulent conduct after either case closed. Second, Defendants’

alleged fraud in the underlying litigation has not prevented Plaintiff from asserting her rights in

this case. Again, Plaintiff was aware of Defendants’ alleged fraud at the time that it occurred. 

Finally, Plaintiff did not timely file the present action in another forum. Therefore, Defendants’

alleged fraud in the underlying cases does not warrant the application of equitable tolling.11

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 7 of 12
11. (...continued)

in the underlying actions. 

8

Even if Plaintiff timely brought the present action or if equitable tolling applied,

Plaintiff would be collaterally estopped from asserting claims related to discovery in previous

cases. Collateral estoppel applies where: 

(1) the issue decided in the prior case is identical to the one presented in the

later case; (2) there was a final judgment on the merits; (3) the party against

whom the plea is asserted was a party or in privity with a party in the prior

case; (4) the party or person privy to the party against whom the doctrine is

asserted has a full and fair opportunity to litigate the issue in the prior

proceeding; and, (5) the determination in the prior proceeding was essential

to the judgment. 

Spisak v. Margolis Edelstein, 768 A.2d 874, 877 (Pa. Super. Ct. 2001). Collateral estoppel does

not require “that there be an identity of parties in the two actions in order to invoke the bar.” Id.

(quoting Mellon Bank v. Rafsky, 535 A.2d 1090, 1093 (Pa. Super. Ct. 1987)). Rather,

“[c]ollateral estoppel may be used as either a sword or a shield by a stranger to the prior action if

the party against whom the doctrine is invoked was a party or in privity with a party to the prior

action.” Id.

The application of collateral estoppel is proper where a plaintiff brings an action to

redress discovery disputes from a previous case. For example, in Spisak, the plaintiff brought an

action against the law firm of the attorney who had opposed the plaintiff in a prior case. Plaintiff

alleged that the attorney in the prior case improperly redacted documents produced during

discovery, resulting in a damage award that was smaller than it would have been but for the

attorney’s improper conduct. Id. at 875. The Spisak Court held that the plaintiff was collaterally

estopped from raising discovery matters in later proceedings, stating that:

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 8 of 12
9

The proper context for addressing discovery disputes is in the case in which

they arise, according to the rules of civil procedure and the appellate process.

To sanction the approach taken here, would open the door to a litany of

collateral lawsuits against counsel and their clients based on a litigant’s later

dissatisfaction with the resolution of a discovery matter form a suit long

concluded. 

Id. at 878. 

The present case is closely analogous to Spisak. All of the allegations in Plaintiff’s

Amended Complaint stem from the conduct of persons involved in the underlying workers’

compensation and personal injury actions. However, following Spisak, Plaintiff’s proper remedy

was to appeal the decisions in the previous cases. Like the plaintiff in Spisak, Plaintiff failed to

appeal those decisions, and therefore “has no other party to blame.” Id. at 877. That Defendants

were not parties in the prior action does not prevent them from using collateral estoppel as a

shield in this case. 

Because the Court finds that the statute of limitations has expired on all of

Plaintiff’s Counts and that Plaintiff is collaterally estopped from raising discovery issues from a

prior case, the Court also dismisses Plaintiff’s Count XI for costs and attorney’s fees. 

Additionally, the following Court Order sua sponte dismisses Plaintiff’s Amended Complaint

against all Defendants who have failed to respond to Plaintiff’s Amended Complaint. See Roman

v. Jeffes, 904 F.2d 192, 196 (3d Cir. 1990) (stating that “there are times when a court may sua

sponte raise the issue of the deficiency of a pleading under 12(b)(6) provided that the litigant has

had the opportunity to address the issue either orally or in writing”); Corporate Aviation Concepts,

Inc. v. Multi-Service Aviation Corp., No. 03-3020, 2004 U.S. Dist. LEXIS 17154, at *2 n.1 (E.D.

Pa. Aug. 25, 2004) (sua sponte dismissing a counterclaim where a defendant counterclaimed

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 9 of 12
10

against two plaintiffs, only one plaintiff moved to dismiss the counterclaim, and both

counterclaims involved the same factual allegations, the same parties, and the same legal

theories). 

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss Plaintiff’s Amended

Complaint are granted. An appropriate order follows. 

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 10 of 12
12. Defendants moving in Docket Number 8 are: James Bosakowski; Jenkins, Wolf, Rubinate, Hasson & Styliades;

Jenkins, Robinson, Wolf & Rubinate; Liberty Mutual Insurance Company; Liberty Mutual Fire Insurance Company;

Jennifer Scott; Yolanda Wilson; and Wendell Wilson.

13. Defendants moving in Docket Number 9 are: Andrew Greenberg and The Chartwell Law Offices.

14. Defendants moving in Docket Number 16 are: Sherri L. Dougherty and Weber, Glodstein, Greenberg and

Gallagher, LLP.

15. Defendants moving in Docket Number 20 are: John R. Duda, M.D.; Catherine Glennon; and, Joan Vassallo.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDA SEAWRIGHT, : CIVIL ACTION 

Personal Representative and Administratrix :

of the Estate of Joseph Jackson, : NO. 05-2751

:

Plaintiff, :

:

v. :

:

ANDREW E. GREENBERG, et al., :

:

Defendants. :

ORDER

AND NOW, this 1st day of November, 2005, upon consideration of Defendants’

Motions to Dismiss Plaintiff’s Amended Complaint (Docket Nos. 8,12 9,13 16,14 and 2015), and

Plaintiff’s Reply (Docket No. 26), it is hereby ORDERED that the Defendants’ Motions to

Dismiss Plaintiff’s Amended Complaint are GRANTED. 

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 11 of 12
16. Non-moving Defendants are: Metro Mobility; Metro Care, Inc.; Roseann Lertzman; Michael Clark; Ted

Fricker; John Eastern Company, Inc.; Joseph Malone; Casualty Reciprocal Exchange; Hartford Mutual Insurance

Company; Anthony Salem; Suburban Orthopedic Specialists, P.C.; Frontier Insurance Company; and, South Eastern

Pennsylvania Transportation Authority (SEPTA). 

It is further ORDERED that Plaintiff’s Amended Complaint is DISMISSED

WITH PREJUDICE as to all non-moving Defendants.16 This case is CLOSED. 

BY THE COURT:

_____________________________________

 RONALD L. BUCKWALTER, S.J.

Case 2:05-cv-02751-RB Document 27 Filed 11/02/05 Page 12 of 12