United States District Court, D. Delaware
ALBERT W. UPSHUR and ALBERT W. UPSHUR TRUST, Plaintiffs,
TONYA R. HOSPEDALE and MARGIE D. POLES, Defendants.
W. Upshur, Yeadon, Pennsylvania. Pro Se Plaintiff.
ANDREWS, U.S. DISTRICT JUDGE.
Albert W. Upshur and Albert W. Upshur Trust proceed pro
se. Albert W. Upshur has been granted leave to proceed
in forma pauperis. This action was commenced on
September 27, 2017 and invokes the jurisdiction of this Court
by reason of diversity of citizenship of the parties. (D.I.
2). The Court proceeds to review and screen the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B).
complaint alleges breach of contract and violations of the
Fifth and Ninth Amendments to the United States Constitution.
Plaintiffs allege the Trust entered into a contract
(apparently for the sale/purchase of two vehicles) with
Defendants and that Defendants breached the contract. (D.I. 2
at p.3). The complaint alleges "psychological
injuries" after the Trust "fulfilled our part of
contract" and that Albert W. Upshur "received no
medical treatment." (D.I. 2 at p.4). The complaint
alleges the incidents giving rise to the claim occurred in
Pennsylvania. (Id. at p.3).
Court perceives no basis for jurisdiction. The complaint
alleges violations of the Fifth and Ninth Amendments to the
United States Constitution. However, when bringing a claim
alleging constitutional violations, a plaintiff must allege
that some person has deprived him of a federal right, and
that the person who caused the deprivation acted under color
of state law or federal law. See West v. Atkins, 487
U.S. 42, 48 (1988); Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971).
The complaint does neither. There is no jurisdiction by
reason of a federal question.
addition, while Plaintiffs invoke diversity jurisdiction, the
requirements have not been met. The complaint alleges that
Plaintiffs are citizens of the Commonwealth of Pennsylvania
and Defendants are citizens of the State of Delaware, and it
seeks compensatory damages in the amount of $43, 121.65
(total value of both automobiles plus interest) and punitive
damages in the amount of $38, 000.00 for a total of $81,
121.65. Hence, at first blush it appears the requirements for
diversity jurisdiction have been met. See 28 U.S.C.
§ 1332(a)(1) (for diversity jurisdiction the matter in
controversy must exceed the sum or value of $75, 000,
exclusive of interest and costs and is between citizens of
the actions that give rise to this claim occurred in
Pennsylvania, Pennsylvania law is applied to this breach of
contract claim. Pennsylvania courts have stated, "[t]he
law is clear that punitive damages are not recoverable in an
action for breach of contract." Thorsen v. Iron and
Glass Bank, 476 A.2d 928, 932 (Pa. Super. 1984)
(citations omitted). See also G.J.D. by G.J.D. v.
Johnson, 713 A.2d 1127, 1129 (Pa. 1998) ("Punitive
damages may be imposed for torts that are committed
willfully, maliciously, or so carelessly as to indicate
wanton disregard of the rights of the party injured.")
(citation and internal quotations omitted); DiGregorio v.
Keystone Health Plan East, 840 A.2d 361, 370 (Pa. Super.
2003) ("It is settled law that one cannot recover
punitive damages independently from an underlying cause of
action. . . . Even if the cause of action for breach of
contract had not been resolved, [the a]ppellants could not
recover punitive damages for an action solely sounding in
breach of contract.") (citations omitted). Under
Pennsylvania law, punitive damages are not recoverable in a
breach of contract claim as a matter of law. As a result, the
amount in controversy ($43, 121.65 plus interest for the
total value of both automobile) which does not include the
prayer for punitive damages falls short of the $75, 000
amount in controversy requirement under § 1332(a). The
requisites for diversity jurisdiction have not been met, the
Court lacks subject matter jurisdiction over this matter, and
the action will be dismissed.
addition, the Court notes that there are two named
plaintiffs: Albert W. Upshur and Albert W. Upshur
Trust. They proceed pro se. However, a
trust or other artificial entity cannot represent itself.
See Rowland v. California Men's Colony, 506 U.S.
194, 201-02 (1993) (finding that a pro se trustee may not
represent the trust in federal court because he is not an
attorney and without counsel the trust may not appear in
federal court). Albert W. Upshur commenced this action on his
behalf and on behalf of the trust, however, Albert W. Upshur
is not a lawyer and as a non-lawyer, he may not represent a
a party bringing a lawsuit in federal court, whether by
original process or removal, is obligated to either pay the
applicable fees or seek leave to proceed in forma
pauperis. See 28 U.S.C. §§ 1914, 1915. Albert
W. Upshur sought, and was granted leave to proceed in
forma pauperis (see D.I. 1, 4), but the Albert W. Upshur
Trust may not proceed in forma pauperis in this case
because "only a natural person may qualify for treatment
in forma pauperis under § 1915." Rowland v.
California Men's Colony, Unit II Men's Advisory
Council, 506 U.S. 194, 196 (1993). Therefore, if this
Court had jurisdiction (which it does not) the Trust would be
required to pay the $400 filing fee and retain counsel.
above reasons, the Court will dismiss the complaint for lack
of subject matter jurisdiction. Amendment is futile.
appropriate order will be entered.
 Albert W. Upshur is named as a
plaintiff in paragraph I.A. of the complaint and the Albert
W. Upshur Trust is named as a plaintiff in the ...