In some states you can -and Pennsylvania is one of those States. There are various "causes of actions" that you can use to sue the opposing party's attorney-which will defeat their defense of protection - "absolute privity" or "immunity.'' Although you may also have to file a Motion for Change of Venue to avoid the massive prejudice you will face as a pro se litigant trying to defeat the county bar association. I will also be posting an example of that type of Motion.
In Pennsylvania, attorneys like to claim that the "Rules of Conduct" are unenforceable and not actionable at law to sue the opposing lawyer. However, these defenses are generally (if you get an honest judge) not applicable to actions such as abuse of process and fraud - which is the main basis for these types of claim-which fall under "TORT" law. "Abuse of Process" is different that suing an attorney for malpractice. The opposing lawyer, cannot be sued for malpractice because they must have a contract with you to be sued under this theory. Below is an example of a complaint against an opposing attorney in Montgomery County, PA. Therefore, the citations are geared toward Pennsylvania Supreme and Appellate Court laws.
MONTGOMERY COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS
Miss Smith
123 County Rd
Montgomery County, PA
Plaintiff,
vs.
Randee Jones, Esq., and
Individually
1 Maine Ave.,
Montgomery County, PA
Defendant
|
Complaint in Civil Action
No. 2011-xxxxx
|
Plaintiff Smith’s Amended Complaint for Abuse of Process, Fraud, Tortious Interference with Contractual Relations and Intentional Infliction of Emotional Distress of Defendant Randee Jones
In response to Defendant’s Preliminary Objections, Plaintiff Smith hereby files this Amended Complaint pursuant to Pa. R.C.P. No. 1028(c)(1) Preliminary Objections, which allows that “a party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.”
Background
1. Plaintiff Smith (“Plaintiff”) resides in Montgomery County, PA
2. Plaintiff filed for divorce from her husband, in June 4, 2007, citing indignities due to the consistent use of illegal drugs by the husband throughout the couples 20 year marriage.
3. Plaintiff has three children with Husband who were ages 13, 16 and 18 at the time of the commencement of the divorce action. The couples 18 year old is mentally-handicapped. All three children reside with the Plaintiff.
4. Plaintiff was a full time mother for over 15 years and unemployed in June 2007, but gained employment in March 2008, approximately 10 months after filing for divorce. However, her salary was considerably compromised due to her years of sacrificing a career to care for her children.
5. On June 29, 2007 Randee Jones, Esq. (“Defendant”) entered her appearance to represent Husband. Husband was the self-employed owner of a check cashing business, which is a joint marital asset.
6. At the time of the filing for divorce by Plaintiff in June 2007, the couple’s marital assets were $100,000 in escrow from the sale of a vacation property, $150,000 in equity in the primary residence, a check cashing business valued at $155,000 at time of separation, and approximately $100,000 in personal cash invested into the business. The total value of the marital estate was approximately $500,000.
7. At the time of the filing of this Complaint against Defendant of September 2011, due to the malicious misconduct of the Defendant, the Plaintiff’s home is now in default, there is a judgment against Plaintiff in the amount of $92,000 through embezzlement of the business, the escrow account from the sale of the vacation property is gone ($50,000 from legal fees), the couples marital debts are still unpaid and now in default, Plaintiff’s credit is destroyed and resulted in the couples daughter being unable to get a college loan. (She had to leave school and has a $14,000 tuition debt in default).
8. In addition, the check cashing business which is a marital asset, has been fraudulently transferred to another party by Husband, in collusion with the Defendant.
9. Plaintiff and her children had their water and electricity turned off multiple times as tens of thousands of dollars were under Defendant’s control in the escrow account, causing extreme distress on the family.
10. What was a relatively simple divorce, was intentionally expanded by the Defendant and is still ongoing into its fifth year. Defendant’s failed to cooperate with Plaintiff’s counsel regarding discovery and was complicit in the dissipation of the marital assets. The total value of the marital estate is now zero and the Plaintiff has over $100,000 in debt due to actions of the Defendant.
11. Plaintiff alleges in this complaint that the Defendant used the legal process to cause economic harm in violation of the Domestic Relations statute.
12. Defendant is bound by, but failed to adhere to, the following legal statute in all Pennsylvania Divorce Actions:
Title 23 Pa.C.S.A. Domestic Relations; Part IV. Divorce
§ 3102. Legislative findings and intent
(a) Policy.--The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to:
(a) Policy.--The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
First Cause of Action – Abuse of Process and Tortious Interference with Contractual Relations
13. Plaintiff hereby incorporates paragraphs 1 through 12 of this Amended Complaint
as through more fully set forth herein at length.
14. On or about November 2008, Defendant’s client stopped paying child support. Defendant admitted, in the presence of both Plaintiff and her attorney, that she had told her client to stop paying support and to violate the court order.
15. Defendant was fully aware that Plaintiff was dependant upon support funds to pay the mortgage on the marital property. This caused Plaintiff’s mortgage to go into default, which was the malicious intent of the Defendant.
16. Defendant was conspiring with her client to force Plaintiff from the primary residence. Defendant continually harassed Plaintiff through emails and petitions trying to force the sale of her home.
17. Defendant was fully aware the couples youngest son is still in high school, and there are no affordable rentals in the exclusive school district.
18. Plaintiff was offered to apply for a mortgage modification by her mortgage company, which was intended to lower the monthly payment. However, Plaintiff was told by the mortgage company that she needed her husbands signature to obtain the modification.
19. There would have been no economic harm to Defendant’s client and it would have served to preserve the equity in the marital property. Plaintiff’s counsel filed numerous petitions regarding this matter to compel Husband to cooperate with modification of the mortgage.
20. Defendant met with Plaintiff’s attorney in a court conference and claimed she was going to advise her client to cooperate with the modification to preserve the equity in the home until Equitable Distribution. However, as had continually been Defendant’s strategy, this was to game the system and create delays. As usual, once they left the courthouse, Defendant never cooperated, and admitted she was in control of whether her client would sign. She spoke with the paralegal of the attorney who wrote “She is considering the mortgage modification (and seems likely to agree). However, she would like to see the paperwork with all of the numbers, etc. before she will advise Husband regarding whether to sign.(Exhibit A)
21. Defendant induced her client not to sign and interfered with the binding contract with the couples debt to the mortgage company. Through abuse of the judicial process, she forced the home into default by both instructing her client to stop paying support and to not sign the mortgage modification.
22. The Pennsylvania Supreme Court cited in Section 766 of the Restatement (Second) provides that “One who intentionally and improperly interferes with the performance of a contract between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.” General Refractories Co. v. Fireman's Fund Ins. Co., 2002 U.S. Dist. LEXIS 25324 (E.D. Pa., Feb. 28, 2002) .
23. Plaintiff had already in fact, had the marital home for sale. But due to economic conditions the home did not sell, even though the price was reduced twice. In fact, she had both the primary residence and the vacation properties for sale simultaneously from January 2008 to July 2008, which she alone renovated, and kept the properties presentable. At no time did Husband assist in the preparation or maintenance of the homes for the market.
24. Because of the extreme stress and physical exertion to ready two properties, Plaintiff dislocated her back and had to be admitted for emergency surgery in July 2008. She missed two weeks of work and lost a week of pay.
25. Plaintiff’s efforts successfully resulted in the sale of the couples vacation property in July 2008. She obtained a net profit of $100,000, which she immediately cooperated in the funding of an escrow account, with her attorney and the Defendant as signatories.
26. The Defendant and Plaintiff’s attorney each received $7500 as retainers from Plaintiff’s efforts in selling the vacation property. However, after Plaintiff’s complete cooperation, Defendant refused to agree to the release funds to pay the joint marital debts to preserve the perfect credit of the couple.
27. It stands to reason that Defendant would have advised her client to sign the modification to preserve the over $150,000 that was in equity in the primary residence- UNLESS the Defendant already knew that her client had created a debt that would give him the cash and created a judgment against the wife.
28. In fact, unknown to Plaintiff in July 2008, when she cooperated with the escrow account, Husband had stolen $92,000 from a money order trust in the couples business in March 2008, of which Plaintiff was unaware that she had remained a guarantor on.
29. Plaintiff learned in October 2008, that Husband offered the money order company the primary residence in restitution for the missing trust funds.
30. Plaintiff was able to obtain a modification after many months, however the principal on the mortgage was increase by approximately $40,000 in arrearages that accumulated due to non-cooperation of Defendant’s client. Therefore, the payment was not reduced.
31. On or about April of 2011, Husband again stopped paying support, and the home again went into default. Husband had stated he did everything as his lawyer told him to do. And again, they are refusing to cooperate with mortgage modification. The home is now $70,000 in arrearage and has no more equity.
32. Abuse of process as cited in General Refractories Co. v. Fireman's Fund Ins. Co., 2002 U.S. Dist. LEXIS 25324 (E.D. Pa., Feb. 28, 2002) case of the Pennsylvania Superior court is as follows: In re Larsen, 532Pa. 326, 616 A.2d 529 (1992): the improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. ..There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the assurance [sic] of the process itself, which constitutes the tort.
33. Plaintiff filed by herself and through her attorney, petitions for payment of bills and to preserve the marital residence. In response, Defendant file the multitude of frivolous petitions, requesting advance of legal fees not yet incurred and demanding sale of the marital residence to intimidate the Plaintiff. Not one time did Defendant file with the court to further the divorce process, but only to impede it and cause economic harm to Plaintiff and her children.
34. “The Pennsylvania courts have also found that the filing of motions or petitions in order to harass the opposing party is abuse of process.” See Shiner v. Moriarty, 706 A.2d 1228, 1236-37 (Pa. Super. Ct. 1998).
35. Defendant admitted in the presence of Plaintiff and her attorney, that her client was in “in no hurry” to get divorced because he was getting free health insurance from Plaintiff’s job, which was worth more than he was paying in support. Defendant therefore, admitted her actions were to intentionally delay the judicial process and cause as much economic harm as possible to Plaintiff.
Wherefore, Plaintiff claims and demands judgment against Defendant, in favor of Plaintiff in the amount of $70,000 for arrearages caused by the Defendant’s tortious interference, and $50,000 for Plaintiff to repair her credit, and $250,000 to compensate for loss of income, and pain and suffering for the injury suffered to her back due to Defendant trying to force the sale of the Plaintiff’s home.
Second Cause of Action - Abuse of Process and Tortious Interference with Contractual Relations and Prospective Personal Enrichment
36. Plaintiff hereby incorporates paragraphs 1 through 35 of this Amended Complaint
as through more fully set forth herein at length.
37. Defendant verbally agreed with Plaintiff’s counsel, to pay off the couples outstanding bills if the proceeds of approximately $100,000 from the sale of a vacation property would be deposited into a joint escrow account. Therefore, Plaintiff successfully marketed and sold the home and cooperated with the settlement.
38. Instead, Defendant used her power as an escrow agent to refuse the satisfaction of joint marital debt, to intentionally ruin Plaintiff’s credit and stop mortgage payments- as is evidenced in the email to Defendant from Plaintiff’s counsel: “The Home Depot and Macy’s bill are legitimate marital debts that should be paid from the escrow account. It will help Plaintiff clear up her credit (Husband’s). That’s as important as anything in this case. You worry that Plaintiff will repair her credit ...” (Exhibit B)
39. These debts are still outstanding after five years. The actions by Defendant had no purpose other than to cause economic harm and emotional distress to Plaintiff. Plaintiff’s counsel filed multiple petitions, met with Defendant at conferences, where each time Defendant agreed to cooperate. This was only to game the system and delay the case, as once she left court Defendant never cooperated with Plaintiff’s counsel. This resulted in excessive legal fees for Plaintiff totally $35,000 in six months.
40. Plaintiff’s first attorney entered his appearance in November 2007. He withdrew in January 2008, because of the conduct of the Defendant and her refusal to both respond to communications and cooperate with discovery and settlement offers. In his last email he stated to Plaintiff “you deal with Husband, I can’t get anywhere with her.”(Exhibit C)
41. Plaintiff’s attorney, complained multiple times to Defendant of her conduct. Eventually, she had to withdraw because her law firm could no longer extend Plaintiff credit from excessive legal fees created by Defendant. She had complained to Defendant multiple times that she was not operating in the best interests of the couple. After waiting five months for Defendant to answer discovery requests Plaintiff’s attorney wrote:“I have gotten you every piece of paper you have asked from me. I have made Plaintiff jump through hoops to get all kinds of documentation to support the mortgage issues, taxes, utilities, mountain property, etc. I feel like I ask valid questions, ask for legitimate documents, and I don’t get anything from you. I have valid discovery out to you and I don’t have one document from you.” (Exhibit B)
42. Six motions to compel and four motions for sanctions had to be filed at the expense of Plaintiff. Each request for discovery was instead responded to with unfounded objections and frivolous responses for items that were already accessible to her client. Defendant faxed over a half dozen unsubstantiated requests for continuances, and imaginary consolidations.
43. The Pennsylvania Superior court holds that “Defense counsel is not allowed to justify failure to produce documents by blaming an uncooperative client. Federal Rule of Civil Procedure 26(g) defines counsel's duty in responding to discovery requests: The lawyer must make "a reasonable effort to assure that the client has provided all the information and documents responsive to the discovery demand." General Refractories Co. v. Fireman's Fund Ins. Co., 2002 U.S. Dist. LEXIS 25324 (E.D. Pa., Feb. 28, 2002) .
44. Defendant was given $3000 upon petition for a business valuation in October 2009. After delaying the divorce for over four years through various devices of abuses of process, she came to the Equitable distribution hearing in July 2011, claiming she did not know she needed a business valuation. It is now October 2011 , and Defendant still has not filed a business valuation for Husband.
45. Plaintiff was subsequently refused representation by multiple attorneys when they were informed that the Defendant was the opposing attorney due to her negative reputation.
Wherefore, Plaintiff claims and demands judgment against Defendant, in favor of Plaintiff in the amount of $35,000 for excessive legal fees from the abuse of process used by Defendant to delay the case and cause economic harm to Plaintiff.
Third Cause of Action – Abuse of Process and Fraud
46. Plaintiff hereby incorporates paragraphs 1 through 45 of this Amended Complaint
47. as through more fully set forth herein at length.
48. Fraud consists of anything calculated to deceive, whether by single act or combination, or by suppression of truth, or a suggestion of what is false, either by direct falsehood or by innuendo, by speech or sentence, word of mouth, or look or gesture, and may be made up by any artifice by which a person is deceived to his disadvantage. Summ. Pa. Jur. 2d Torts § 16:1 (1991).
49. The continued series of devious actions by Defendant had no other purpose than delay payment to Plaintiff and to complicate the case, causing continued accumulation of interest on her debt and default arrearages on the mortgage.
50. In January 2009, Plaintiff’s attorney withdrew her appearance after Plaintiff owed outstanding legal fees and was not able to continue to pay her. Plaintiff entered her appearance Pro Se. Plaintiff’s attorney’s name was removed as escrow agent on the escrow account, and Plaintiff’s name was entered as a co-signatory.
51. Plaintiff petitioned for counsel fees from the escrow account to pay the outstanding bill to Plaintiff’s attorney for $25,000, and for a business valuation to be completed as directed by the Equitable Distribution Master. A short list proceeding was scheduled by Judge Blow Hard for March 11, 2009 on this matter.
52. On March 4, one week before the scheduled March 11th proceeding the Defendant faxed a letter to Judge. Defendant falsely claimed that the matter had already been consolidated previously for a two day hearing which in truth had neither been requested nor scheduled. This matter had never been consolidated as was later confirmed by the Judge. Defendant had attempted to confuse the Judge to delay Plaintiff from receiving the remaining funds from the escrow account and to preserve them for herself. (Exhibit D)
53. Plaintiff’s petition for counsel fees was therefore rescheduled for May 4, 2009. In another attempt to delay the proceeding, the Defendant again faxed a letter on April 29th, this time claiming that her fax of March 4th which claimed the matter of counsel fees was to be consolidated- had been accepted and that the scheduled May 4th shortlist should never have been scheduled. (Exhibit E)
54. Plaintiff faxed a letter to the Judge the following day (April 30th), in response to the fax of the Defendant’s- to clarify that the opposing counsel was again attempting to confuse the Judge and delay an award of counsel fees.
55. The night before the scheduled hearing, which was the evening of Sunday May 3rd, Plaintiff received an email from the Defendant claiming that she had been in a car accident and wrote that “the doctor told her to stay home and take medicine” and that she would not be attending the short list proceeding the following morning. (Exhibit F)
56. In spite of this claim, Plaintiff took time off of work, in a severe rainstorm and proceeded to drive to the courthouse. Three months had passed since the filing of the initial petition for counsel fees, during which time Plaintiff remained unrepresented.
57. En route to the court, Plaintiff received a call on her cell phone that the Judge had received and agreed with Plaintiff’s fax of April 30th–and the hearing was still being conducted. Plaintiff informed the court about the email of a car accident from the Defendant, however, they had heard nothing and instructed Plaintiff to continue to the courthouse.
58. Plaintiff arrived at the court, and Judge and Plaintiff waited for Defendant. Judge’s law clerk then entered the court and presented the Judge with a fax from the Defendant, claiming she was in a car accident the day before and would not be attending. (Exhibit F)
59. Judge adjourned, stating that he would take sanctions if the Defendant did not present a doctor’s note and requested Plaintiff followed up with verifying the validity of the Defendant’s actions. The matter was ordered rescheduled, delaying the matter several more months.
60. On May 5th, Plaintiff called Defendant’s office and spoke with Defendant’s secretary requesting a note from a doctor, hospital and police reports to verify her absence. Plaintiff also requested these items via email and U.S. Mail. Defendant ignored all requests of Plaintiff. Defendant has never produced a doctors note excusing her from the proceeding on May 4th.
61. Defendant was aware that Plaintiff needed the business valuation to get through equitable distribution. She was also aware Husband had all of the marital funds in his check cashing business, and that Plaintiff had no funds for an attorney.
62. On July 28, 2009, Plaintiff again filed an emergency petition for counsel fees at the suggestion of Judge, hoping to pay her $25,000 outstanding legal fees, and obtain money for a business valuation. The Judge granted a hearing through a phone conference with the Defendant and Plaintiff scheduled for August 3rd.
63. The Judge stated via the phone conference with the Defendant, he intended to grant the Plaintiff counsel fees and $4,000 for business valuation, upon completion of another conference call with Plaintiff’s attorney, the Defendant and Plaintiff . Plaintiff’s attorney sent a bill as requested by the Judge that Plaintiff owed over $25,000 in legal fees,
64. On August 5th, a conference call was held between Judge, Plaintiff’s attorney, Plaintiff, and the Defendant at which point Judge asked Plaintiff’s attorney to send proposed orders. The Defendant was verbally ordered to issue check for Dewey, Cheatum and How, LLC in the amount of $15,000 and for Ira Jones, CPA (no relation to Defendant) in the amount of $4000, from the escrow account and send to Plaintiff for co-signing. Defendant failed to deliver the checks.
65. At this time there was only approximately $40,000 remaining of the original $100,000 in the escrow account, which apparently was a concern for the Defendant as it pertained to her acquiring more money for herself.
66. On or about August 5th, the Defendant faxed a letter to Judge stating no award of counsel fees should have been made because she was opposed to it and there had been no hearings on the matter, when in fact, it was the Defendant herself that had three times delayed the hearings on the matter for over six months. Plaintiff had first petitioned for counsel fees in March 2009 and it was now August. Defendant continued to refuse to cooperate with the release of funds. (Exhibit G)
67. On September 8, 2009, Judge signed two orders to compel the dispersement of the funds from the escrow account to the Plaintiff, who was a co-signatory.
68. On September 14th, Defendant filed an emergency petition for an advance of legal fees not yet incurred, and fees for a business valuation for her client.
69. Petition was deemed not an emergency by Judge on September 23rd to be scheduled in due course.
70. On or about September 16th, Defendant falsely and fraudulently sent to Plaintiff via U.S. Mail, two checks dated September 14th for co-signing. Defendant intentionally altered to be rejected by the bank, with the intention to delay dispersement of funds.
71. Plaintiff at the time these checks were received, and at the time the Plaintiff signed and returned them to Defendant for her signature (as she had sent them unsigned), Plaintiff believe these to be true and correct negotiable instruments from Allegiance Bank.
72. On September 25, Plaintiff received a letter from Plaintiff’s attorney, with a copy of the check and a letter from the bank of Dewey, Cheatum and Howe, LLC that the routing number on the check was defective and could not be cashed. (Exhibit H)
73. On or about September 26th, the Plaintiff received a call from IraJones that his check had also been rejected by the bank for the same reason as above. In conversation with Mr.Jones, who is a CPA and certified business valuator, and is very familiar with the banking industry, advised the Plaintiff that the Defendant had most likely printed the checks herself.
74. Upon further investigation, Plaintiff found that this type of check was not from Allegiance Bank, and was from a computer program allowing one to print out and design their own checks, including manipulation of the routing and account number. Plaintiff had her own set of checks for comparison which had been mailed to her by Allegiance Bank. (Exhibit I ).
75. On October 8th, Defendant filed another vexatious petition for reconsideration of the order to stop release funds of to Plaintiff- as these funds for Plaintiff.
76. Defendant’s fraudulent issuance of the checks in effect delayed dispersement of funds to allow Defendant time to file several petitions to attempt to stop Plaintiff from the award of funds. Judge scheduled a hearing for October 27th for this petition.
77. At the Short List Conference, October 27th, 2009, on Page 9 of the transcript, Line 5 to 16 Defendant stated:
5“What ended up happening, You
6 Honor, is when Allegiance bank printed those checks,
7 they did not -- something happened with the printer and
8 the tracking number didn't come off correctly. So both
9 checks bounced and I had to go back to Allegiance bank
10 and they apologized and they issued new checks with the
11 right tracking number. I sent one to Mrs. Smith and
12 it's been cashed by Dewey, Cheatum & Howe and I just got the one
13 back to the accounting firm on behalf of Mrs. Smith
14 for $4,000. I signed the bottom and I sent that off.
15 So I didn't you know, it's not my fault that
16 Allegiance bank did this.”
78. “It is unnecessary that the person defrauded be the one who was specifically intended by the maker of the misrepresentation to rely thereon, so long as that person’s reliance was reasonably foreseeable”. Woodward v. Dietrich, 378 Pa. Super. 111, 548 A.2d 301 (1988).
79. The elements of fraud under Pennsylvania law are “(1) a material factual misrepresentation; (2) made with knowledge or belief of its falsity; (3) with the intention that the other party rely thereon; (4) resulting in justifiable reliance to that party to his detriment.” Agathos v. Starlite Motel, 60 F.3d 143, 147 (3d Cir. 1995); see also Moser v. DeSetta, 589 A.2d 679, 682 (Pa. 1991); Mellon v. Barre-National Drug Co., 636 A.2d 187, 189 (Pa. Super. 1993). Fraud can consist of “anything calculated to deceive, whether by single act or combination or by suppression of truth or suggestion of what is false.” Moser, 589 A.2d at 682; see also Cottman Transmission Systems, Inc. v. Melody , 869 F. Supp. 1180, 1186 n.10 (E.D. Pa. 1994).
80. In a 1989 case, Nasco, Inc. v. Calcasieu Television & Radio, 124 F.R.D. 120 (W.D. La.), a federal district judge suspended two lawyers and disbarred another for "illegal and fraudulent schemes and conspiracies" designed to slow a case in court for the benefit of their client.
81. It is more than evident from the series of previous attempts to stop dispersement of funds by Defendant , that Defendant printed the checks out herself, and intentionally altered them so that the checks would be rejected. In doing so, Defendant sent those checks in the mail. She therefore committed forgery - the process of making, adapting, or imitating objects, statistics, or documents with the intent to deceive- a fraudulent act in violation of the following statutes:
18 Pa. Cons. Stat. § 4105 § 4105. Bad checks.
(a) Offense defined.--
(1) A person commits an offense if he issues or passes a
check or similar sight order for the payment of money,
knowing that it will not be honored by the drawee.
and,
(ii) payment was refused by the drawee for lack of
funds, upon presentation within 30 days after issue, and
the issuer failed to make good within ten days after
receiving notice of that refusal.
U.S. Code - TITLE 18-CHAPTER 63
MAIL FRAUD AND OTHER FRAUD OFFENSES § 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or artifice to defraud…for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, shall be fined under this title or imprisoned not more than 20 years, or both.
CRIMES AND CRIMINAL PROCEDURE § 1344. Bank fraud
Whoever knowingly executes, or attempts to execute, a scheme or artifice—
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
82. Defendant refused to reissue the checks to Plaintiff’s attorneys and CPA within the amount of time given in Statute.
83. Plaintiff filed a motion for sanctions, however Judge’s decided it was “water under the bridge” and failed to do take into consideration the damage done to the Plaintiff. (Possibly because his Wife died the week before the hearing).
84. Plaintiff believe Judges’ actions were an abuse of discretion. Among other cumulative affects, additional legal bills were accumulated from Defendant’s actions of eight months due to the firm of Plaintiff’s attorney being involved after she had withdrawn her appearance.
85. Plaintiff filed an appeal, however, the issue was quashed by Superior Court with no decision, because there was no final order issued from the lower court. The issue was therefore quashed but never litigated on the merits of the claims, and therefore does not bar Plaintiff from seeking justice and damages.
86. For res judicata to apply, “the issue or issues must have been actually litigated and determined by a valid and final judgment.” County of Berks ex rel. Baldwin v. Pennsylvania Labor Relations Board, 544 Pa. 541, 549, 678 A.2d 355, 359 (1996) (citing Philadelphia Marine Trade Association v . International Longshoremen ’s Association , 453 Pa. 43, 308 A.2d 98 (1973))
Fourth Cause of Action – Fraud Upon the Court
87. Plaintiff hereby incorporates paragraphs 1 through 86 of this Amended Complaint
as through more fully set forth herein at length.
88. Defendant falsely communicated to Plaintiff’s attorney, Plaintiff’s attorney, that she had documentation to show that the money order trust funds were spent on the couples expenses over the course of the previous two years, pre-separation. No such documentation has ever been produced over the course of five years. .
89. Plaintiff in July 2008, when she cooperated with the escrow account, had not known that Husband had stolen $92,000 from a money order trust in the couples business. This resulted in a judgment against the business, the husband and Plaintiff.
90. Plaintiff’s attorney continued to attempt to get discovery via the following email five months after requests: “ I can’t help but think that Husband has something to hide when I don’t get one piece of paper from you. You tell me the business is worth nothing, and a tax return is all I have to look at. I know that Husband didn’t get into trouble with Moneygram until March 2008, after separation, you tell me there is a paper trail to show otherwise. Based on what I understand of the way moneygrams are processed, it is hard for me to imagine such a paper trial. I have nothing to look at to confirm it. (Exhibit B)
91. On Jul 27, 2011 a hearing was held before a new Judge regarding Support Exceptions to the Support Masters Order. During this hearing Plaintiff acting Pro Se, was able to question Husband regarding the funds that he apparently embezzled. Under interrogation, the Husband was manipulated into admitting there was a new name to the business, University Checkers Inc.
92. The Defendant falsely stated on the record, that her client was still operating the business, which is a check cashing service. During the hearing, the Defendant stated that the business was to be taken over by this other company, sometime in November 2011.
93. Defendant’s actions are clearly indicative of assisting her client to conceal a fraudulent conveyance of the business. She further stated on the recorded, that it (sale of the business) had not yet occurred, but it stands to reason that she had full and previous knowledge of this conspiracy. Defendant was leading the witness with respect to the status of the business during cross examination at the hearing. Plaintiff objected and it was sustained. (Transcript to be obtained).
94. On July 28, 2011, the Plaintiff used this information to research the name of the new company revealed at the hearing, on the Pennsylvania Bureau of Corporations website. In doing so, Plaintiff discovered that infect, a company called Sheister, LLC had already incorporated in May 2010 at the address of the marital business at 451 N. 4th St.
95. Defendant further supported her clients testimony that not only was the business closed, but that it had no assets -to deceive the court. Defendant presented a diminished earning capacity for Husband to defeat his support obligations. The paycheck presented by the Defendant was from Sheister Inc, although she had also claimed that they did not yet own the business. Therefore, they could not have paid him for working in his own store.
96. Plaintiff filed for an injunction to stop Sheister LLC from operating and removing profits from the business at Checkers Inc, which is the rightful owner of the premises of 451 N. 4th St. This petition is pending.
97. Defendant assisted her client in fraudulently avoiding the payment of the judgment to the money order company, so the debt would remain the responsibility of the guarantor- the Plaintiff,by transferring ownership of corporation without satisfying the debt.
Wherefore, Plaintiff claims and demands judgment against Defendant, in favor of Plaintiff in the amount of $155,000 the value of the business in which she was complicit in the fraudulently conveyance of.
Fifth Cause of Action – Intentional Infliction of Emotional Distress to Plaintiff and her minor child
98. Plaintiff has become physically ill with angina, palpitations, depression and insomnia due to the malicious abuse of process and fraud perpetrated upon the Plaintiff. Plaintiff’s immune system has been compromised from stress and she suffers from constant viruses, headaches, joint pain and chronic bronchial issues.
99. Plaintiff was hospitalized for back surgery, caused by harassment of Defendant. She has lost excessive time from work, is unable to maintain her home and provide for her children as she would like.
100. Plaintiff’s son did not pass the 9th grade and had to attend summer school. He has had to go to psychotherapy and has frequent spells of crying and depression over the electricity and water being shut off multiple times because of the economic damage caused by the Defendant.
101. Plaintiff’s daughter had to leave college because she could not obtain a student loan due to the ruination of her mother’s credit, and she has a $14,000 outstanding debt to University which she is unable to pay.
102. Defendant’s behavior is beyond outrageous and not only unacceptable at any level of society, yet alone an “officer” of the court- but has transgressed civil and criminal law..
103. Pennsylvania Superior Court has established that a party may establish its entire case of abuse of process and infliction of emotional distress on circumstantial evidence citing in Cruz v. Princeton Ins. Co., 972 A.2d 14, 15 n. 1 (Pa.Super.2009) “the filing of the petition and its aftermath are themselves substantial evidence from which a jury, in its exercise of human experience, could discern significant emotional distress. Peugeot Motors of America, Inc. v. Stout, 456 A.2d 1002, 1005 (Pa. Super. 1983)
104. The five years of delay created by Defendant resulted in a disastrous domino effect on both Plaintiff’s and her children’s psychological and physical well-being, and economic security. The result was massive accumulation of interest on outstanding debts, precluding of remedies for the modification of the mortgage of the marital home and other domino effects as is disastrous to divorce litigation.
105. The Pennsylvania Superior court also held that "One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process ." General Refractories Co. v. Fireman's Fund Ins. Co., 2002 U.S. Dist. LEXIS 25324 (E.D. Pa., Feb. 28, 2002) citing Restatement (Second) of Torts § 682; see also Hart, 647 A.2d at 552
106. Pennsylvania has adopted the rule for punitive damages set forth in section 908 of the Restatement (Second) of Torts (1977). Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 129, 464 A.2d 1243, 1263 (1983). Section 908(1) provides that:
“ ‘Punitive damages’ are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct.” Restatement (Second) of Torts § 908 (1977). In addition, comment b to section 908 states that: [p]punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with the reckless indifference to the interest of others. Although a defendant has inflicted no harm, punitive damages may be awarded because of and measured by his intent . . . . Such damages are not given for mere inadvertence . . . .
Wherefore, Plaintiff claims and demands judgment against Defendant for intentional infliction of emotional distress, in favor of Plaintiff in the amount of $250,000 in punitive damages for the intentional outrageous and reckless conduct towards Plaintiff and her children.
Respectfully Submitted,
Mary Smith /s/
Mary Smith
October 17, 2011
