Simon v. Wiessmann

301 F. App'x 107
Court of Appeals for the Third Circuit·Decided December 5, 2008·No. 07-3880·Unpublished·Cited by 8 cases

Opinion

AMENDED OPINION OF THE COURT

MICHEL, Chief Circuit Judge.

Richard D. Simon, Vera Pomerantz, Ronald J. Smolow, and others of the putative class (collectively “Simon”) are claimants of previously unclaimed property taken into the custody of the Commonwealth of Pennsylvania, pursuant to the Disposition of Abandoned and Unclaimed Proper *109 ty Act (“DAUPA”), codified at 72 P.S. § 1301.1 et seq. We must determine whether certain DAUPA provisions, relieving the State from having to pay interest earned on unclaimed property, impose a taking for which just compensation must be paid, pursuant to the Fifth and Fourteenth Amendments of the U.S. Constitution. We also decide if the district court properly admitted expert testimony relating to an analysis of whether Mr. Smolow, a claimant of the unclaimed property, suffered a “net loss” while that property was in the possession of the Commonwealth.

I.

As stated in his complaint and stipulated by the parties, Smolow was the rightful owner of 300 shares of common stock in Parker Drilling Company (the “Parker Stock”). In July 2002, pursuant to 72 P.S. § 1301.2, the stocks were presumed abandoned and transferred to the Commonwealth from Parker’s agent, Wells Fargo. After receipt, the Commonwealth liquidated the 300 shares in February 2003, pursuant to 72 P.S. § 1301.17(e). The per share sale price was $2.01. In August 2003, Smolow learned of the confiscation of his stock and filed a claim for his property, which the Commonwealth processed, paying him $586.47 in January 2004. The Commonwealth refused to pay Smolow any of the interest earned by the Commonwealth on the proceeds of the stock sale, which Smolow estimated as about $30.

On May 3, 2004, Smolow filed a class action against then Treasurer of the Commonwealth of Pennsylvania Barbara Hafer (herein “the Commonwealth”). In his amended complaint filed May 10, 2004, Smolow alleged, among other things, that the state had failed to pay him interest earned on his property, then in the custody of the state, pursuant to DAUPA. Smolow asserted that, based on this failure to pay interest, DAUPA violates the Takings Clause of the Fifth Amendment.

After each side retained experts to analyze the costs associated with administering the program, and specifically the costs of processing Smolow’s claim, both parties filed motions for summary judgment. 1 Smolow also moved in limine to exclude portions of the report and testimony of the Commonwealth’s expert, John S. Stoner. On June 25, 2007, in an interlocutory order, the district court denied Smolow’s motion in limine. The court granted summary judgment in favor of the Commonwealth, but only as to Smolow and not against the entire class, because Smolow could not prove a net loss for his taking claim.

The court then permitted plaintiffs’ counsel to file a second amended complaint, which substituted Simon and Pomerantz as lead plaintiffs. Simon and Pomerantz alleged a net loss but did not specifically calculate the damages. The Commonwealth again moved for summary judgment on the basis that “whether or not the interest earned on plaintiffs’ property exceeded the cost of handling their property and processing their claims, plaintiffs have not suffered a taking without just compensation.” The district court agreed and granted summary judgment to the Commonwealth on August 27, 2007.

*110 II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We also have jurisdiction to review the interlocutory order pursuant to the “merger rule.” In re Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir.1996) (“Under the ‘merger rule,’ prior interlocutory orders merge with the final judgment in a case, and the interlocutory orders (to the extent that they affect the final judgment) may be reviewed on appeal from the final order.”). We apply de novo review to a grant of summary judgment. Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.1993).

Pursuant to the Takings Clause of the Fifth Amendment, no state shall take “private property for public use, without just compensation.” U.S. Const. amend. V; see also Chicago Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (applying the Fifth Amendment to the States under the Fourteenth Amendment). To assert a valid takings claim under the Fifth Amendment, a plaintiff must have a property interest that is constitutionally protected. See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1198 (9th Cir.1998). A claim that a state has taken, without just compensation, interest accruing on monetary property held by a state is analyzed as a per se taking. See Brown v. Legal Found, of Wash., 538 U.S. 216, 233-35, 123 S. Ct. 1406, 155 L.Ed.2d 376 (2003).

Here, Simon and the other plaintiffs claim that the Commonwealth must pay interest generated from their property, which the Commonwealth took into its custody pursuant to DAUPA. We first point out that the parties do not dispute that the statute at issue, as correctly construed, does not require the payment of interest. This issue was decided by the Commonwealth Court and not appealed by Smolow. See Smolow v. Hafer, 867 A.2d 767, 776 (Pa.Commw.Ct.2005), aff'd, 959 A.2d 298 (Pa.2008). The DAUPA issue before us is only whether the Commonwealth effected a taking when it refused to pay interest earned on the cash being held for the property owners until they reclaimed their property.

No one can reasonably question a state’s power to escheat personal property under appropriate circumstances. “As a broad principle of jurisprudence rather than as a result of the evolution of legal rules, it is clear that a state, subject to constitutional limitations, may use its legislative power to dispose of property within its reach, belonging to unknown persons.” Standard Oil Co. v. New Jersey, 341 U.S. 428, 436, 71 S.Ct. 822, 95 L.Ed. 1078 (1951).

Free access — add to your briefcase to read the full text and ask questions with AI

Simon v. Wiessmann, 301 F. App'x 107 (3d Cir. 2008).

301 F. App'x 107 (Simon v. Wiessmann) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Narrigan v. Goldberg
D. Massachusetts, 2025
DILLOW v. GARRITY
E.D. Pennsylvania, 2024
Light v. Davis
D. Delaware, 2023
SALVATO v. WALSH
D. New Jersey, 2022
Hall v. State
908 N.W.2d 345 (Supreme Court of Minnesota, 2018)
Temple-Inland, Inc. v. Cook
82 F. Supp. 3d 539 (D. Delaware, 2015)