ALD-050                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 15-2107
                                      ____________

                                 LAWRENCE HIGGINS,
                                                  Appellant

                                             v.

               FRANK BONIN FUNERAL PARLOR; DONNA GEORGE
                     __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 3-14-cv-00581)
                      District Judge: Honorable Robert D. Mariani
                       __________________________________

          Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  November 13, 2015

           Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                           (Opinion filed: November 17, 2015)
                                     ____________

                                       OPINION*
                                      ____________


PER CURIAM

       Lawrence Higgins appeals from an order of the District Court dismissing his

amended complaint with prejudice. For the following reasons, we will summarily affirm.

       Higgins is incarcerated in the State of Texas. His adult son, Jared Higgins, died in

____________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pennsylvania on December 28, 2012, and upon his death, the Frank J. Bonin Funeral

Home of Hazelton, Pennsylvania undertook to make arrangements for disposing of

Jared’s remains. His surviving spouse, Brandy Prast of Tennessee, was contacted by the

Funeral Home and she waived her statutory right to dispose of her husband’s remains in

favor of his biological mother and Higgins’ ex-wife, Donna George, apparently also of

Hazelton, Pennsylvania, who then arranged for cremation on January 3, 2013.

       Higgins filed suit in the United States District Court for the Middle District of

Pennsylvania against the Funeral Home and Ms. George, alleging that the cremation was

in violation of his rights as next of kin and not undertaken in accordance with the

governing Pennsylvania statute, 20 Pa. Cons. Stat. Ann. § 305. Higgins alleged that Jared

and Brandy were “enduringly estranged,” and that Brandy’s waiver was fraudulently

obtained by the conspiring defendants. Higgins appeared to invoke jurisdiction in the

federal courts on the ground that the written waiver executed by Jared’s surviving spouse

had crossed state lines. Higgins demanded money damages.

       The defendants moved separately to dismiss the complaint pursuant to Federal

Rules of Civil Procedure 12(b)(1) and (b)(6). The Magistrate Judge filed a Report and

Recommendation, in which he recommended that the motions be granted. The

Magistrate Judge noted the following deficiencies in the complaint: that the suit could not

proceed under 42 U.S.C. § 1983 because the defendants are private parties and not state

actors; that the complaint failed to state a plausible claim for fraud and conspiracy under

Fed. R. Civ. P. 8(a), 9(b); that § 305 prescribes procedures for the disposition of human

remains but nothing in the statute authorizes a cause of action for damages against funeral

                                             2
directors or family members of the deceased; and that the facts alleged by Higgins did not

describe a violation of § 305(b) and (c) by either of the defendants in any event. The

District Court adopted the recommendation, but allowed Higgins to amend his complaint

upon the completion of a similar lawsuit he had filed in Pennsylvania state court.1

       When that state lawsuit was dismissed, Higgins filed an amended complaint,

which restated and repeated his contention that the cremation of his son’s remains was in

violation of his rights and wishes, not undertaken in accordance with § 305, and based on

a fraudulent waiver by the surviving spouse. He asserted jurisdiction based on diversity

of citizenship, 28 U.S.C. § 1332(a)(1). Higgins specifically alleged that the Funeral

Home and Ms. George knew how to contact him in Texas but instead conspired to obtain

a waiver from Jared’s estranged wife in favor of Ms. George. He observed that he too is

a next of kin, and he stated that he “was excluded because of his ex[-]wife[’]s pure hate

and for no other reason.” In an apparent attempt to state his fraud claim with

particularity, Higgins asserted that the written waiver executed by the surviving spouse

was fraudulent because it was undated and not notarized. Higgins attached a copy of the

Waiver of Rights obtained by the Funeral Home from the surviving spouse to his

amended complaint.

       The Magistrate Judge recommended that the amended complaint be dismissed

with prejudice for failure to state a claim upon which relief may be granted, Fed. R. Civ.

P. 12(b)(6), noting that it did not cure the previously-noted deficiencies. In an order

entered on April 20, 2015, the District Court approved and adopted the Magistrate



1
 Higgins filed a similar lawsuit in the Luzerne County Court of Common Pleas in April,
2013.
                                             3
Judge’s Report and Recommendation and dismissed the amended complaint with

prejudice.

         Higgins appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk

granted him leave to appeal in forma pauperis and advised him that the appeal was

subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary action under

Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and

he has done so. He argues, as he did in the proceedings below, that the Waiver of Rights

is fraudulent because it is undated.

         We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. We

exercise plenary review over Rule 12(b)(6) dismissals. See Weston v. Pennsylvania, 251

F.3d 420, 425 (3d Cir. 2001). Dismissal under Rule 12(b)(6) is proper where the

amended complaint fails to state a claim upon which relief may be granted, such as where

the plaintiff is unable to plead “enough facts to state a claim to relief that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility

standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory allegations are insufficient to

survive a motion to dismiss. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009).

         Although we agree with the Magistrate Judge and the District Court that there is

no private right of action for damages under 20 Pa. Cons. Stat. Ann. § 305 itself,

Pennsylvania recognizes that one who wantonly mistreats or, acting without privilege,

intentionally withholds the body of a decedent, is liable in tort to the member of the

                                               4
decedent’s family who is entitled to dispose of the body. Papieves v. Lawrence, 263

A.2d 118, 120 (Pa. 1970). This cause of action includes the right to recover money

damages for physical harm resulting from mental suffering. Id. As a threshold matter,

we note that Higgins did not allege physical harm. In addition to that pleading

deficiency, we agree with the Magistrate Judge and the District Court that he also cannot

state a plausible tort claim based on his allegation that § 305 was violated because that

statute was not violated. Instead, Higgins forfeited his rights because he failed to comply

with the statute’s procedure for challenging the surviving spouse’s rights.

       Section 305(b) of the Pennsylvania Probate, Estates and Fiduciaries Code provides

that the surviving spouse shall have the sole authority to dispose of a deceased spouse’s

remains, unless there is proof by clear and convincing evidence that the couple are

“enduringly estranged” as follows:

              (b) Disposition of the remains of a deceased spouse. -- Absent an allegation
              of enduring estrangement, incompetence, contrary intent or waiver and
              agreement which is proven by clear and convincing evidence, a surviving
              spouse shall have the sole authority in all matters pertaining to the
              disposition of the remains of the decedent.

20 Pa. Cons. Stat. Ann. § 305(b). Enduring estrangement means “[a] physical and

emotional separation from the deceased at the time of death of the person authorized by

this section to determine the final disposition of the decedent’s remains, which has

existed for a period of time that clearly demonstrates an absence of due affection, trust

and regard for the deceased.” Id. at § 305(e).

       To challenge the surviving spouse’s right, a timely petition must be filed in state

court. The statute provides that “[w]here a petition alleging enduring estrangement … is

made within 48 hours of the death or discovery of the body of the decedent … a court

                                             5
may order that no final disposition of the decedent's remains take place until a final

determination is made on the petition.” Id. at § 305(d).2 Higgins does not allege that he

filed this required petition.

       We note that the statute further provides that “[i]f there is not a surviving spouse

[and] absent an allegation of enduring estrangement …. which is proven by clear and

convincing evidence, the next of kin shall have sole authority in all matters pertaining to

the disposition of the remains of the decedent,” id. at 305(c). Under the governing

statute, that would be the deceased’s parents, including Higgins and Ms. George, see 20

Pa. Cons. Stat. Ann. § 2103. The statute further provides that “[i]f two or more persons

with equal standing as next of kin disagree on disposition of the decedent’s remains, the

authority to dispose shall be determined by the court, with preference given to the person

who had the closest relationship with the deceased,” id. at § 305(d)(2). Unfortunately for

Higgins, these provisions, which might have given him room for argument, only apply if

there is no surviving spouse. We agree with him that Pennsylvania law respects the

rights of the next of kin equally. See Kulp v. Kulp, 920 A.2d 867, 873 (Pa. Super. Ct.

2006) (“[T]he rights and feelings of the next of kin are paramount, where there is no

surviving spouse[. Mother and Father] … stand on equal footing as Son’s next of kin.”).

But the rights of the next of kin are only at issue if (a) there is no surviving spouse, or (b)

a petition alleging enduring estrangement has been filed and proven. In short, Higgins

failed to involve the state courts in a timely fashion in the first instance by filing the



2
  The person filing the petition must then give “[n]otice to each person with equal or
higher precedence than the petitioner to the right to dispose of the decedent’s remains and
to his attorney if known and to the funeral home or other institution where the body is
being held….” Id.
                                              6
required petition under § 305(d) alleging enduring estrangement, and thus he cannot state

a plausible tort claim based on a violation of § 305(c).

       In order to overcome his failure to timely involve the state courts in the matter of

his wishes for a burial, Higgins alleged in his amended complaint that the defendants

engaged in a fraud and conspiracy to deprive him of his rights as next of kin by

negotiating a waiver of rights from the surviving spouse in favor of Ms. George. “In

alleging fraud or mistake, a party must state with particularity the circumstances

constituting fraud or mistake.” Fed. R. Civ. P. 9(b). A plaintiff may satisfy Rule 9(b)’s

particularity requirement by alleging who made a misrepresentation to whom and the

general content of the misrepresentation, or otherwise by “injecting precision and some

measure of substantiation into their allegations of fraud.” Lum v. Bank of America, 361

F.3d 217, 223-24 (3d Cir. 2004) (citation omitted). See also Frederico v. Home Depot,

507 F.3d 188, 200 (3d Cir. 2007) (same).

       Higgins’ allegations of fraud do not satisfy Rule 9(b)’s particularity requirement.

Something more must be alleged to state a plausible claim for fraud than that the written

waiver obtained by the Funeral Home from Jared’s surviving spouse was undated.

Higgins’ claim that Ms. George unlawfully conspired with the Funeral Home to achieve

the right to dispose of their son’s remains is speculative and conclusory. We have

examined the written waiver and nothing on the face of this exhibit to the amended

complaint suggests that the Funeral Home fraudulently obtained the surviving spouse’s

waiver. Moreover, the circumstances do not suggest fraud, given that Ms. George stands

on equal footing with Higgins as Jared’s next of kin, see Kulp, 920 A.2d at 873, and lives

in the area, whereas Higgins is domiciled in a faraway state and his liberty is restricted.

                                              7
The allegations of fraud simply are insufficient to survive a motion to dismiss. See

Fowler, 578 F.3d at 210.

      For the foregoing reasons, we will summarily affirm the order of the District Court

dismissing the amended complaint with prejudice.




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