                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2006

Todaro v. Richman
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4371




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Recommended Citation
"Todaro v. Richman" (2006). 2006 Decisions. Paper 1447.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1447


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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 05-4371


                             FRANK S. TODARO,

                                         Appellant

                                       v.


               ESTELLE RICHMAN, Secretary, Executive Office,
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE;
DANIEL RICHARD, Director, PA STATE COLLECTIONS & DISBURSEMENT UNIT
  and BUREAU OF CHILD SUPPORT ENFORCEMENT, a Commonwealth Agency;
  LYNN F. SHEFFER, Comptroller, PUBLIC HEALTH AND HUMAN SERVICES, a
 Commonwealth Agency; PATRICK QUINN, Administrator, ALLEGHENY COUNTY
           FAMILY DIVISION; MARY ANN BACH, Hearing Officer,
  ALLEGHENY COUNTY FAMILY COURT DIVISION; DONALD JERICH, IV-D
            Solicitor, ALLEGHENY COUNTY LAW DEPARTMENT
                  _______________________________________

                 On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                            (D.C. Civ. No. 05-cv-00274)
                 District Judge: Honorable Thomas M. Hardiman
                 _______________________________________

                  Submitted Under Third Circuit L.A.R. 34.1(a)
                              MARCH 13, 2006

     Before:   SLOVITER, SMITH AND VAN ANTWERPEN, Circuit Judges.

                             (Filed: March 13, 2006)
                                         OPINION


PER CURIAM

       Appellant Frank Todaro filed a complaint under the Racketeer Influenced Corrupt

Organization Act (RICO) civil enforcement provision, 18 U.S.C. § 1964(c), against the

directors of Pennsylvania’s Department of Public Welfare, State Collections &

Disbursement Unit and Bureau of Child Support Enforcement, and Public Health and

Human Services, as well as three employees of the Court of Common Pleas of Allegheny

County. He alleges that the Appellees, working jointly as part of the Commonwealth’s

agencies dealing with child welfare, are leaders of an enterprise that seeks to extort

money through overcharging child-support debtors by committing mail, wire, and

financial institution fraud in violation of §§ 1961(1)(B), 1962(c). Specifically, Todaro

claims that the Appellees used the mail, courts, and other means to create and conceal

fraudulent earning totals, which were then used to compute an improperly high level of

child-support payments. He seeks monetary damages from each Appellee in his or her

individual capacity. The District Court dismissed the complaint for failure to state a

claim among numerous other reasons. For the reasons that follow, we will affirm.1




  1
     We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise de novo
review. See Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 559 (3d Cir. 2002).

                                              2
         To establish a RICO violation, Todaro must allege “(1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity [or the collection of unlawful

debt].” Lum .v Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004). Because Todaro relies

on fraudulent conduct to form the basis of the RICO violations, under Federal Rule of

Civil Procedure 9(b), the violation must be pled with particularity. Id. Todaro failed to

do so.

         We have held that to satisfy Rule 9(b), plaintiffs must allege the “precise

misconduct” with which the defendants are charged. Id. at 224. “Plaintiffs also must

allege who made a misrepresentation to whom and the general content of the

misrepresentation.” Id. Todaro expends significant time citing cases which exhibit

conduct establishing patterns of fraudulent activities, but does not set forth precisely the

alleged fraudulent conduct engaged in by the Appellees. He does allege that Family

Court Hearing Officer Mary Ann Bach falsified Todaro’s income, but while this might

constitute fraudulent conduct, Todaro does not allege to whom or when this specific

information was mailed or transmitted. Further, as alleged, the activity cannot constitute

a pattern. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238-39 (1989) (requiring a

minimum of two predicate acts). It is simply unclear, beyond the more general

allegations of system wide inadequacies, what specific actions the Appellees took or

authorized which could constitute fraudulent behavior.

         For the foregoing reasons, we will affirm the District Court’s order dismissing the

complaint for failure to state a claim.

                                               3
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