NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 15-1723

________________

JAMES S. DEHART;

JUDY DEHART,

Appellants

v.

HOMEQ SERVICING CORPORATION, f/k/a TMS Mortgage Inc., 

d/b/a The Money Store; WACHOVIA BANK OF DELAWARE, NATIONAL 

ASSOCIATION d/b/a and/ or f/k/a HomeQ Servicing Corporation; 

MILSTEAD & ASSOCIATES, LLC.; MICHAEL J. MILSTEAD; 

CHRISOVALANTE P. FLIAKOS; GREG WILKINS a/k/a Greg Wilkinson; 

PINA S. WERTZBERGER; CORINA M. CONNORS; 

WELLS FARGO BANK NA, a/k/a Wells Fargo Home Mortgage a/k/a Wells Fargo

WELLS FARGO BANK, NA, a/k/a Wells Fargo Home Mortgage

a/k/a Wells Fargo,

 Third Party Plaintiff 

v.

BARCLAYS BANK PLC,

 Third Party Defendant

________________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D. C. Civil Action No. 5-11-cv-00416)

District Judge: Honorable Mitchell S. Goldberg

________________

Submitted under Third Circuit LAR 34.1(a)

on April 29, 2016
2

Before: MCKEE**, Chief Judge, JORDAN and ROTH, Circuit Judges

(Opinion filed: February 8, 2017)

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OPINION*

________________

ROTH, Circuit Judge

James and Judy DeHart appeal orders of the District Court resolving an action 

against HomEq Servicing Corp., Wachovia Bank of Delaware, N.A., Milstead & 

Associates, LLC, and former and present employees of Milstead & Associates, LLC, as 

well as third party defendant Barclays Bank PLC. The action alleged the failure to 

acknowledge their timely mortgage payments and the improper sheriff sale of their home. 

We will affirm. 

I. Background 

Because we write for parties familiar with the facts, we set forth only those facts 

pertinent to the resolution of this appeal. In 1999, the DeHarts obtained a home loan 

from Parkway Mortgage, Inc., secured by a mortgage on the property. Parkway 

Mortgage subsequently assigned its interests in the mortgage to non-parties which in turn 

 

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

constitute binding precedent.

** The Honorable Theodore A. McKee was Chief Judge at the time this appeal was 

submitted. Judge McKee completed his term as Chief Judge on September 30, 2016. 
3

assigned their interests. For the purpose of resolving this appeal, Wachovia Bank owned 

the mortgage note until Wachovia’s merger with Wells Fargo, which became the owner 

of the note, and HomEq was the servicer. The mortgage requires, in addition to monthly 

payment of principal and interest, additional payments for, among other things, taxes and 

insurance. About a year after obtaining the loan, the DeHarts stopped sending mortgage 

payments for a few months because they did not receive monthly statements. 

Subsequently, the DeHarts received a notice that their loan was in default and that 

foreclosure proceedings would be initiated if the default was not cured. In 2001, HomEq 

filed a foreclosure complaint against the DeHarts in the Court of Common Pleas in 

Northampton County, Pennsylvania. Because the DeHarts never responded to the 

complaint, a default judgment was entered against them, and a sheriff sale of the property 

was scheduled. The DeHarts averted the sale by filing a voluntary Chapter 13 

bankruptcy petition, which triggered an automatic stay of the foreclosure proceeding. 

After the Bankruptcy Court dismissed the petition, HomEq sought to execute the 

foreclosure. To avoid the sheriff sale, the DeHarts paid nearly $28,000 to reinstate their 

loan. Following reinstatement, the DeHarts again missed several mortgage payments, 

and received another notice of intent to foreclose. In 2004, HomEq filed another

foreclosure complaint, to which the DeHarts again failed to respond. As a result, another 

default judgment was entered. The DeHarts then filed another Chapter 13 bankruptcy 

petition, which was dismissed after the DeHarts paid to reinstate the loan. 
4

Subsequently, Wachovia Bank sold certain assets of HomEq to Barclays Bank.1 

Shortly thereafter, the DeHarts’ monthly payment was returned with a notice that the loan 

was delinquent, and that the payment was insufficient to bring the account current. The 

DeHarts made no further payment. 

In 2007, HomEq filed a request for a writ of execution in the Court of Common 

Pleas to schedule a sheriff sale of the DeHart’s home, based on the 2004 default 

judgment, which had not been formally vacated. The DeHarts did not file a response. 

Instead, they contacted HomEq’s counsel at Milstead & Associates, who informed them 

that HomEq intended to proceed with the sale. The DeHarts then moved to reopen the 

bankruptcy proceeding; the motion was denied. Their home was sold at the sale. 

The DeHarts petitioned the Court of Common Pleas to set aside the sheriff sale, 

and HomEq, after reviewing documents regarding the loan, consented to the petition. 

The DeHarts then filed a suit in the Court of Common Pleas against Wachovia, HomEq, 

Milstead & Associates, Barclays Bank, and other individual defendants. Defendants 

removed the action to the District Court for the Eastern District of Pennsylvania.2 The 

complaint alleges breach of contract; breach of the implied duty of good faith and fair 

dealing; violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection 

Law (UTPCPL)3and the Fair Credit Extension Uniformity Act4; violation of the federal 

 

1 Wachovia Bank of Delaware, N.A., owned HomEq Servicing Corporation from 2001 to 

October 31, 2006. In 2010, Wachovia merged with Wells Fargo Bank, N.A. Wells 

Fargo is the successor corporation by merger. 

2 28 U.S.C. §§ 1332, 1441(a). The District Court exercised supplemental jurisdiction 

over state law claims pursuant to 28 U.S.C. § 1367(a). 

3 73 Pa. Stat. and Cons. Stat. Ann. § 201-1 et seq. (est 2016).
5

Truth in Lending Law5; intentional infliction of emotional distress; and civil conspiracy. 

The District Court granted defendants’ motions to dismiss and for judgment on the 

pleadings, dismissing all claims other than breach of contract and intentional infliction of 

emotional distress. The District Court then granted summary judgment for defendants on 

the remaining claims other than on the breach of contract claim as to Wells Fargo. In 

summary judgment, the District Court ruled in favor of the DeHarts on the breach of 

contract claim, determining that they could recover damages for attorney’s fees incurred 

to set aside the inappropriate sale. The District Court then held a hearing to establish 

damages and awarded $9,000. 

The DeHarts appealed, challenging (1) the dismissal of the UTPCPL claim; (2) 

orders limiting recovery for the breach of contract claim; (3) the dismissal of the claim of 

intentional infliction of emotional distress; (4) rulings regarding discovery; and (5) other 

orders which the DeHarts identified but did not discuss in their brief.6 

II. Dismissal of Claim under UTPCPL

The DeHarts argue that the District Court erred in dismissing the UTPCPL claim 

under Federal Rule of Civil Procedure 12(b)(6) because the District Court misapplied 

Pennsylvania law. We exercise plenary review over the dismissal of a claim under Rule 

12(b)(6).

7

 

 

4 § 2270.1 et seq.

5 15 U.S.C. § 1601 et seq.; id. § 1666(a-d). 

6 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 

7 Lafferty v. St. Riel, 495 F.3d 72, 76 n.5 (3d Cir. 2007).
6

The DeHarts pleaded a violation of UTPCPL’s catchall provision, which prohibits 

“[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of 

confusion or of misunderstanding.”

8

 The Pennsylvania Supreme Court requires plaintiffs 

who seek to establish a claim under this provision to prove the elements of common law 

fraud, among which is justifiable reliance.9 Because the second amended complaint does 

not plead facts showing or giving rise to an inference that the DeHarts were actually 

induced to perform any detrimental activity by the allegedly deceptive acts, the District 

Court dismissed the claim.10 The DeHarts cite a 2012 opinion of a Pennsylvania Superior 

Court holding that a claim alleging a violation of the catchall provision no longer

required proof of common law fraud.

11

 However, the Pennsylvania Supreme Court has 

not adopted this position, and at any rate, the DeHarts have not shown “ascertainable 

loss” as required to establish a claim under UTPCPL.12 Therefore, the District Court did 

not err in dismissing the UTPCPL claim. 

III. Dismissal of Claim of Breach of the Implied Covenant of Good Faith and Fair 

Dealing

The DeHarts argue that the District Court erred in entering judgment on the 

pleadings for the claim of breach of contract based on the breach of the implied covenant 

 

8 73 P.S. §§ 201-2(4)(xxi), 201-3. 

9 Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438-39 (Pa. 2004); Hunt v. U.S. 

Tobacco Co., 538 F.3d 217, 221 (3d Cir. 2008) (noting that the Pennsylvania Supreme 

Court has “categorically and repeatedly” stated that a private plaintiff pursuing a 

UTPCPL claim must prove justifiable reliance and it has not recognized any exceptions 

to that requirement).

10 Hunt, 538 F.3d at 227. 

11 Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 155-56 (Pa. 

Super. Ct. 2012). 

12 See Grimes v. Enter. Leasing Co. of Phila., LLC, 105 A.3d 1188, 1192 n.3 (Pa. 2014).
7

of good faith and fair dealing, and in denying punitive damages in connection with this 

claim. We exercise plenary review over a motion for judgment on the pleadings.13 We 

construe all facts and inferences in the light most favorable to the non-moving party, and 

review de novo questions of legal interpretation.14 Under Pennsylvania law, a claim for 

breach of the implied covenant of good faith and fair dealing requires, among other 

things, a showing of bad faith.15 Although the amended complaint alleges defendants 

sold the DeHarts’ home while the DeHarts were not behind on their payments and denied 

them their right to defend the status of their mortgage payments, this conduct falls short 

of bad faith.16 Therefore, the District Court properly dismissed the claim. In addition, 

although the DeHarts challenge the denial of punitive damages, under Pennsylvania law, 

punitive damages are not recoverable in a breach of contract claim.17 Therefore, the 

District Court also properly denied the request for punitive damages. 

IV. Request for Attorney’s Fees 

The DeHarts argue the District Court erred in issuing two rulings that limited their 

recovery of attorney’s fees. First, on a motion to dismiss pursuant to Rule 12(b)(6), the 

District Court dismissed the DeHarts’ request, in connection with the claim for breach of 

 

13 Revell v. Port Auth. of New York, N.J., 598 F.3d 128, 134 (3d Cir. 2010).

14 Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005); Turbe v. Gov’t of the 

V.I., 938 F.2d 427, 428 (3d Cir. 1991).

15 See Wolfe v. Allstate Prop. & Cas. Ins. Co., 790 F.3d 487, 497 (3d Cir. 2015) 

(discussing the common law bad faith action).

16 See Haugh v. Allstate Ins. Co., 322 F.3d 227, 236-38 (3d Cir. 2003) (citing Birth 

Center v. St. Paul Cos., Inc., 787 A.2d 376, 389 (Pa. 2001)); Cowden v. Aetna Cas. and 

Sur. Co., 134 A.2d 223, 229 (Pa. 1957); Kaplan v. Cablevision of PA, Inc., 671 A.2d 716, 

722 (Pa. Super. Ct. 1996). 

17 Nicholas v. Pa. State Univ., 227 F.3d 133, 147 (3d Cir. 2000).
8

contract, for recovery of attorney’s fees “for the present litigation.” We exercise plenary 

review over a dismissal pursuant to Rule 12(b)(6).18 A demand for damages, including 

attorneys’ fees, may be stricken when the damages are not legally recoverable in the 

cause of action.19 Under Pennsylvania law, “there can be no recovery of attorneys’ fees 

from an adverse party, absent an express statutory authorization, a clear agreement by the 

parties or some other established exception.”20 The DeHarts have not pointed to any 

basis that permits recovery. Therefore, the District Court properly dismissed the request. 

Next, the District Court, in granting partial summary judgment, concluded that the 

DeHarts may recover attorney’s fees incurred to set aside the sheriff sale, but not fees 

incurred for other purposes. The DeHarts argue that they should be able to recover 

attorney’s fees incurred “for all or a majority of [this] action,” and specifically fees 

incurred to petition the Bankruptcy Court to re-open their proceeding because it was done 

to show that defendants had been given proof of payments and information concerning 

the earlier bankruptcy proceedings. We review de novo the grant of summary 

judgment.21 A grant of summary judgment is proper where the moving party has 

established that there is no genuine dispute of any material fact and the movant is entitled 

to judgment as a matter of law.22 Where a party breaches the contract without any legal 

justification, the non-breaching party is entitled to recover, unless the contract provided 

 

18 Atkinson v. LaFayette Coll., 460 F.3d 447, 451 (3d Cir. 2006). 

19 Huddock v. Donegal Mut. Ins. Co., 264 A.2d 668, 671 n.2 (Pa. 1970).

20 Merlino v. Del. Cnty., 728 A.2d 949, 951 (Pa. 1999); Fidelity-Phila. Trust Co. v. Phila. 

Transp. Co., 173 A.2d 109, 113-14 (Pa. 1961) (addressing attorney’s fees associated with 

a breach of contract action). 

21 Burton v. Teleflex, Inc., 707 F.3d 417, 424-25 (3d Cir. 2013). 

22 Id.
9

otherwise, those damages that can be proved with reasonable certainty (1) that would 

naturally and ordinarily result from the breach, or (2) were reasonably foreseeable and 

within the contemplation of the parties at the time they made the contract.

23 The DeHarts 

have not shown that attorney’s fees incurred to reopen a bankruptcy proceeding would be

a natural result of the breach or that it was reasonably foreseeable that the mortgagees, 

faced with an inappropriate sheriff sale, would seek to re-open bankruptcy proceedings.

24

 

Therefore, the District Court properly denied recovery for attorney’s fees incurred in 

connection with the bankruptcy matter. 

IV. Claim of Intentional Infliction of Emotional Distress 

The DeHarts argue the District Court erred in granting summary judgment on the 

claim of intentional infliction of emotional distress in favor of Milstead & Associates and 

their former and current employees. A claim for intentional infliction of emotional 

distress requires four elements: “(1) the conduct must be extreme and outrageous; (2) the 

conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the 

distress must be severe.”25 The DeHarts do not argue that they failed to prove the 

elements, but that “the requirement that plaintiffs must provide an expert opinion to prove 

their IIED claims is too strict and ignores the clear and outrageous conduct of the 

defendant.” However, the Pennsylvania Supreme Court has stated that “the requirement 

 

23 Ferrer v. Trs. of Univ. of Pa., 825 A.2d 591, 610 (Pa. 2002) (citing Taylor v. Kaufhold, 

84 A.2d 347, 351 (Pa. 1951)).

24 See Helpin v. Trs. of Univ. of Pa., 10 A.3d 267, 269 (Pa. 2010) (citing Ferrer v. Trs. of 

the Univ. of Pa., 825 A.2d 591, 610 (2002)).

25 Bruffett v. Warner Commc'ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982) (citing Chuy v. 

Phila. Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979)).
10

of some objective proof of severe emotional distress will not present an unsurmountable 

obstacle to recovery. Those truly damaged should have little difficulty in procuring 

reliable testimony as to the nature and extent of their injuries.”26 Therefore, the District 

Court properly granted summary judgment on this claim. 

IV. Orders regarding Discovery 

The DeHarts argue that the District Court erred in issuing three rulings that (1) 

limit scope and number of items in interrogatories; (2) limit the period of discovery; and 

(3) grant a motion to compel and order sanctions. We review a district court’s 

management of discovery for abuse of discretion.27 We will not upset a district court’s 

conduct of discovery procedures absent a showing that the court’s action made it 

impossible to obtain crucial evidence.28 

The District Court struck the DeHarts’ first set of interrogatories, which exceeded 

the number permitted under Federal Rule of Civil Procedure 33 and sought irrelevant 

information. The District Court provided time to serve new interrogatories, and thus did 

not render it impossible for the DeHarts to obtain evidence. Therefore, the District Court 

did not abuse its discretion. 

Similarly, the District Court, in response to the DeHarts’ request for a 60-day 

extension for discovery, granted a 53-day extension. To show that a district court’s 

ruling made obtaining crucial evidence impossible, plaintiffs must demonstrate that more 

 

26 Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 995 (Pa. 1987). 

27 Gallas v. Supreme Court of Pa., 211 F.3d 760, 778 (3d Cir. 2000). 

28 In re Fine Paper Antitrust Litig., 685 F.2d 810, 818 (3d Cir.1982) (internal quotation 

marks omitted). 
11

diligent discovery was impossible.29 The DeHarts did not take discovery until nearly the 

end of this period and did not request a further extension. Therefore, DeHarts fail to 

make this showing. The District Court did not abuse its discretion. 

Finally, the District Court granted Wells Fargo’s motion to compel answers to 

interrogatories and production of documents, and awarded $500 under Federal Rule of 

Civil Procedure 37(a)(5)(A). The District Court found the DeHarts’ answers and 

responses to requests incomplete or unresponsive, and the answers were not properly 

signed or endorsed. As required by Federal Rule of Civil Procedure 37(a)(5), upon 

granting a motion to compel, the court must order payment of the movant’s reasonable 

expenses incurred in making the motion, unless certain conditions apply, such as 

substantial justification for the failure to respond.30 Although the DeHarts argue that 

their failure was justified because defendants filed discovery requests while the motion to 

dismiss on the pleadings was pending, thereby imposing a significant burden on them, 

this explanation does not support a conclusion of substantial justification. Therefore, the 

District Court properly ordered sanctions. 

 V. Orders Listed for Appeal but not Argued

Finally, the DeHarts list a number of District Court orders in their “concise 

summary of the case” but do not address these rulings in their appellate brief. Under 

Federal Rule of Appellate Procedure 28(a) and Third Circuit Local Appellate Rule 

28.1(a), appellants are required to set forth the issues raised on appeal and present an 

 

29 Id. 

30 Fed. R. Civ. P. 37(a)(5)(A); Grider v. Keystone Health Plan Cent., 580 F.3d 119, 140 

n.23 (3d Cir. 2009). 
12

argument in support of those issues in their opening brief.31 It is well-settled that if an 

appellant fails to comply with these requirements on a particular issue, the appellant 

normally has abandoned and waived that issue on appeal and it need not be addressed by 

the court of appeals.32

VI. Conclusion 

For the foregoing reasons, we will affirm the orders of the District Court. 

 

31 Simmons v. City of Phila., 947 F.2d 1042, 1065 (3d Cir. 1991) (“absent extraordinary 

circumstances, briefs must contain statements of all issues presented for appeal, together 

with supporting arguments and citations”), cert. denied, 503 U.S. 985 (1992).

32 Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993); Inst. for Scientific Info., Inc. v. 

Gordon & Breach, Sci. Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir. 1991).