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.
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