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HomeMy WebLinkAbout02-5402 IN THE COURT OF COMMON PLEAS OF _ ~_~a~-/~z~.~ COUNTY PENNSYLVANIA CIVIL DIVISION Plaintiff CIVIL ACTION C.A. No. 03 ' J 02 JURY TRIAL DEMANDED ~--~ ~-~a~ Responda~ts COMPLAINT IN CIVIL ACTION OF ATTORNEY MALPRACTICE, TRESPASS & ASSUMPSIT NEGLIGENCE BREACH OF FIDUCIARY DUTY, FRAUDULENT REPRESENTATION Comes now ~,~..~//~..~/~ ~ _ pro'se plaintiff in the above captioned matter, with a disability under the American with Disabilities Act of in the State Correctional located at 10745 Route 18 Respondent ~--~x~w~.~ at ./~/, and is currently incarcerated Institution at Albion, Pa.. which is Albion, Pennsylvania 16475-0002. ~C ~-~ , Attorney at Law, and licensed in the Commonwealth of Pennsylvania. Residing on ~-- ~.~-~. This Honorable court appointed the respondent to represent plaintiff ~./~,~: (~.~c¢_~y~ ~F/.~//~C/~/~x~/f before this Honorable court, and the respondent accepted such employment, and assumed a fiduciary duty to provide this plaintiff with effective legal representation. On //~,~D~3 the respondent On ~/~/~-~ the respondent On ~2/tT-C92/this Honorable court At all times relevant hereto, and contrary to the professional Rules of Court. The respondent has failed in his/her legal duties to protect all of this plaintiff's constitutional rights. COUNT 1 - NEGLIGENCE DEFENDANT'S ACTIONS WERE NEGLIGENT Plaintiff incorporates all averments by :reference in paragraphs _~ through ~/. Respondent willfully violated a standard of care owed to plaintiff in misrepresenting his legal interest, without justification. Defendant failed to exercise the legal representation of diligence and care ordinarily practiced and possessed by like attorney's. Defendant negligently failed repeated request to provide legal appeal. to abide by the plaintiff's consultation to file a direct (Page 2) Defendant intentionally and recklessly refused to seek the lawful objectives to the plaintiff through reasonably available means. Defendant failed to seek medical consultation to determine the extent of the plaintiff's disabilities under the American with Disabilities Act of /~ . Defendant with tortuous intent failed to use due care under the circumstances, which were made known to him or should have been made known to him. Defendant had a fiduciary legal duty to protect the plaintiff's constitutional rights under the Pennsylvania Constitution. Defendant refused to protect the plaintiff's 14th Amendment rights to care, custody, and management of his liberty interest. Plaintiff was entitled to proper legal representation and due process notification of his right to appellate procedures. Plaintiff was entitled to due process notification to file expectations /~//~/~/~( and rights under Rule ~/ Absent defendant s negligent representation, he would have prevailed in both the ~7~/ proceedings and post-conviction case. As a direct and proximate result of the defendant's gross and negligent legal representation the plaintiff has been denied access to the Pa. Superior Court on direct appeal and effective assistance of counsel to perfect plaintiff's direct appeal. Defendant's actions did cause intentiona]~ tortuous injury to the plaintiff, which resulted in lifetime pain and suffering. Defendant's reckless and wanton conduct has directly caused the plaintiff to lose his /~//~,~ /~ Plaintiff would have been successful at trial and post-trial appeal if not for the defendant's culpable reckless indifference and possible racial prejudice. Defendant intentionally with gross negligence did abandon the plaintiff and his constitutional rights, where issues of legal merit and evidence beyond a reasonable doubt had existed. (Page 3) Plaintiff avers that when he learned that the defendant had abandoned him without any legal justification, he was seized with great shock to his nervous system that requires medical attention, loss of appetite, loss of sleep, and he will continue to suffer great pain for the rest of his life due to the defendant's reckless abandonment of his legal rights. COUNT II BREACH OF FIDUCIARY DUTY Plaintiff incorporates paragraph / through ~ by reference. Defendant was in full control of plaintiff's ability to secure his direct appeal rights and fraudulently disadvantaged those rights in a tortuous and unconscionable manner. Defendant recklessly with wanton disregard to plaintiff's life, liberty, and pursuit of happiness did fail to provide effective legal representation in violation of the PA. and U.S. Constitution. Defendant owed plaintiff a duty of notification of his loss of appellate rights so he could in a timely manner protect his constitutional rights. Defendant deliberately with gross negligence denied plaintiff access to a court of law to prove his innocence, and be free from cruel and unusual incarceration. Defendant did intentionally prejudice the plaintiff by his lack of legal commitment and dedication to his client's interest. Defendant did not provide the plaintiff with any legal consultation, communications, notification before relinquishing his legal responsibilities. Defendant failed to exercise his best efforts to protect the plaintiff's rights. Defendant owed plaintiff a duty of loyalty consistent with his professional obligation to perform as effective competent counsel. Defendant did know or should have known that his abandonment of the plaintiff's legal rights would cause severe damages to his legal case, and untold prejudice. (Page 4) Defendant did know or should have known that plaintiff is indigent, incarcerated, and disabled. And that withdrawal of counsel without protecting his constitutional rights. Defendant dereliction of his legal duties was the sole and proximate case of plaintiff's loss of his constitutional rights COUNT III FRAUDULENT REPRESENTATION Plaintiff incorporates all averments in ./ through ~ by reference as fully set forth. Defendant did engage in deceit and misrepresentation of his legal responsibilities, by his failure to provide competent legal counsel. Defendant made false and misleading statements to plaintiff that he would in fact file a direct appeal in his criminal and post-conviction cases. Defendant's misrepresentations and deceit led plaintiff to forfeit his appellate rights in return for an illusory direct appeal that never took place. Defendant's statements were false at the time when he made them and were made with knowledge of its falsity or with reckless indifference for the truth. Plaintiff justifiably relied upon defendant's legal experience as factual, which intended to induce and did induce plaintiff to rely on defendant for protection of his legal and constitutional rights. Respondent's statements, that prior counsel was ineffective for not withdrawing guilty plea and filing direct appeal were contradicted by ~ failure to also raise these issues in / any court. Defendant knowingly committed legal malpractice when he did not disclose his errors and chose to cover them up with deceit by his willful abandonment of plaintiff's legal and constitutional rights. Defendant's malicious and fraudulent misrepresentation led to the conviction, incarceration, denial of medical treatment,' And the fair administration of justice demands plaintiff receive monetary, compensatory, and punitive damages for the deceptive and injurious legal malpractice of the defendant. (Page 5) As a result of the defendant's gross and wanton legal incompetence, which led to the loss of health, prolonged incarceration in solitary confinement at labor for years, mental and emotional hardship, which will probably last his entire lifetime and other damages that may be discoverable in a court of law. WHEREFORE, plaintiff ~_~7/~.~--/~,,~.~/~, demands this honorable court enter a judgment in his favor against the defendant %-~/~'~J- /C.~-~-~-~-~-~-~-~-~-~¥~f , in the amount of two hundred and twenty-five thousand dollars ($225,000.°o). (Page 6) VS. D EFENDAN'J." : IN THE COURT OF CC, MHON PLEAS OF CIVIL DIVISION : : No: CERTIFICATE OF SERVICE on this ~O day of and correct copies of ~//~,~g , hereby certify that I have 2001, caused true 0~7" .., the foregoing documents to be made upon the person(s) listed below via "CERTIFIED U.S.' MAIL" return receipt required, in complaince with Pensylvania Rules of civil Procedure, Rule 403. Office of the Prothonotary original & 1 Copy 1 Copy NAME: ADDRESS: McKISSOCK & HOFFMAN, P.C. By: EDWIN A.D. SCHWARTZ, ESQUIRE I.D.: 75902 2040 LINGLESTOWN ROAD SUITE 302 HARRISBURG, PA 17110 (717) 540-3400 ATTORNEYS FOR DEFENDANT JAMES K. JONES, ESQUIRE DAVID L. THOMAS, JAMES K. JONES, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. ~a. 5" VO2.... ~ JURY TRIAL. DEMANDED NOTICE TO: David L. Thomas SCI - Albion 10745 Route 18 Albion, PA 16475-0002 You are hereby notified to file a written response to the enclosed Preliminary Objections within 20 days from service hereof. PRELIMINARY OBJECTIONS OF JAMES K. JONES TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, James K. Jones, Esquire (hereinafter referred to as "Defendant"), by and through his counsel, McKissock & Hoffman, P.C., and hereby files the following Preliminary Objections to Plaintiff's Complaint and as such, avers as follows: 1. On November 7, 2002, Plaintiff filed a document styled as a "Complaint in Civil Action of Attorney Malpractice, Tresspass & Assumpsit Negligence Breach of Fiduciary Duty, Fraudulent Representation" (hereinafter "Plaintiff's Complaint"), with the Cumberland County Prothonotary. A true and correct of Plaintiff's Complaint is appended hereto, marked as Exhibit "A", and specifically incorporated herein by reference. ' I. PRELIMINARY OBJECTION AND MOTION TO STRIKE FOR FAILURE TO EFFECTUATE PROPER SERVICE PURSUANT TO PA.R.C.P. 1028(a)(1). Paragraph 1 is incorporated herein by reference as if more fully set forth. 3. Pursuant to Pa.R.C.P. 400, absent specific exceptions which are inapplicable in this action, original process must be served by the sheriff. 4. To date, Plaintiff has not attempted to have Plaintiff's Complaint forwarded to the Cumberland County Sheriff for service of original process. 5. In excess of thirty (30) days has lapsed since the filing of Plaintiff's Complaint in this matter and yet there has been no effort to forward the same to the Cumberland County Sheriff for proper service. 6. Due to Plaintiff's failure to effectuate proper service of his Complaint within thirty days, Plaintiff's Complaint is deemed to have expired and lapsed. See Witherspoon v. City of Philadelphia, 768 A.2d 1079, 2001 Pa. LEXIS 596 (2001); See_ also Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 75.7 (1986); Sanders v. State Farm Mutual Automobile Ins. Co., 424 Pa. Super. 372, 622 A.2d 968 (Pa. Super. Ct. 1993). 7. Plaintiff's failure to properly serve' or even forward the Complaint to the Sheriff for an attempt at proper service and/or have the Complaint reissued for proper service prior to the expiration of thirty days from its original filing is fatal to Plaintiff's alleged cause of action inasmuch if this Court were to assume the facts as set forth in Plaintiff's Complaint to be true (with such allegations being specifically denied), the StatutE, of Limitations for any claims of / professional negligence would have expired on November 14, 2002. Plaintiff's failure to properly serve and/or have the Complaint reissued and served with 30 days of its filing (in this case prior to December 7, 2002) has resulted in the lapse of the Complaint and due to the expiration of the applicable Statute of Limitation, no further actions may be commenced against Defendant. Witherspoon, supra. WHEREFORE, Defendant, James K. Jones, Esquire, respectfully requests_that this Honorable Court enter judgment in his favor and strike Plaintiff's Complaint for failing to effectuate proper service, and further grant Defendant all such other relief as is proper and just. II. PRELIMINARY OBJECTION AND MOTION TO STRIKE FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA.R.C.P. fully set forth. 1028{a){2). Paragraphs 1 through 7 herainabove are incorporated by reference as if more 9. Pennsylvania Rule of Civil Procedure 1028(a)(2) permits preliminary objections to any pleading that fails to conform to law or rule of Court. 10. Notwithstanding the "fill-in-the-blank" nature of Plaintiff's Complaint, such Complaint is in violation of the Pennsylvania Rules of Civil Procedure inasmuch as: Plaintiff's Complaint does not contain a notice to defendant. See Pa.R.C.P. 1018.1; Plaintiff's Complaint does.not set forth the material facts upon which the alleged cause of action is based, nor does Plaintiff's Complaint set forth it's allegations in a concise format. See Pa.R.C.P. 1019(a); Plaintiff's Complaint does not set forth its averments of fraudulent representation with the requisite specificity. See Pa.R.C.P. 1019(b); Plaintiff's Complaint sets forth a demand of unliquidated relief in a specific sum. See Pa.R.C.P. 1021(b); Plaintiff's Complaint does not set forth its atlegatit)ns in consecutively numbered paragraphs. See Pa.R.C.P. 1022; And f. Plaintiff's Complaint does not contain the requisite verification. See Pa.R.C.P. 1023.1, 1024 and 1029(e). 11. In addition to the multiple violations of the Rules of Civil Procedure as set forth above, Plaintiff's Complaint is vague, ambiguous and unspecific regarding the allegations of negligence asserted against Defendant. 12. For example, Plaintiff's Complaint is replete with references to Plaintiff's membership in a class of citizens protected by the "Americans with Disabilities Act of 1994", however, totally absent from Plaintiff's Complaint are any facts regarding Plaintiff's alleged disability. 13. Furthermore, even a cursory review of Plaintiff's Complaint reveals that despite the apparent template format of Plaintiff Complaint, Plaintiff has not specifically plead any facts unique to his alleged cause of action that would serve to notify Defendant as to the basis of the allegations being asserted by Plaintiff against Defendant. 14. The allegations set forth in Plaintiff's Complaint do not contain the factual specificity required by Pennsylvania law. See Conner v. Alleqheny Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Absent a clear and concise pleading of the specific and relevant facts upon which Plaintiff asserts his claims against Defendant, and without a clear and concise statement of the precise conduct by which Defendant is alleged to incur liability, Defendant cannot provide a knowing and intelligent response to Plaintiff's Complaint and is prejudiced thereby. WHEREFORE, Defendant, James K. Jones, Esquire, respectfully requests that this Honorable Court enter judgment in his favor and strike Plaintiff's Complaint for failing to comply with the Pennsylvania Rules of Civil Procedure and failing to plead with the requisite degree of specificity and to further grant Defendant all such other relief ,as is proper and just. Date:~>~/~j~ BY: Respectfully submitted, McKissock & Hoffman, P.C. Edwin A.D. Schwartz, F~ Supreme Court I.D. No. 75902 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 (717) 540.-3400 Attorneys for Defendant, James K. Jones CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Preliminary Objections to Plaintiff's Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David L. Thomas SCl - Albion 10745 Route 18 Albion, PA 16475-0002 McKissock & Hoffman, P.C. BY: Edwin A.E~ Supreme .Court I.D. No. 75902 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 (717) 540--3400 Attorneys for Defendant, James K. Jones PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) DAVID L. THOMAS, (Plaintiff) VS. JAMES K. JONES, (Defendant) No. 5402 Civil Term 2002 State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant, James K. Jones Identify counsel who will argue case: (a) for plaintiff: David L. Thomas address: SCI - Albion, 10745 Route 18 Albion, PA 16475-0002 (b) for defendant: Edwin A.D. Schwartz, Esquire address: McKissock & Hoffman, 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date:March 26, 2003 Dated :~ ~___~ CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe for Listing Case for Argument upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David L. Thomas SCI - Albion 10745 Route 18 Albion, PA 16475-0002 McKissock & Hoffman, P.C. BY: Edwin A.D. ~re Supreme Court I.D. No. 75902 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, James K. Jones Date: z~' ,,~,~ <~ DAVID L. THOMAS, JAMES K. JONES, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5402 JURY TRIAL DEMANDED DEFENDANT JAMES K. JONES', MOTION TO COMPEL DISCOVERY ANSWERS AND RESPONSES PROPOUNDED UPON PLAINTIFF Defendant, James K. Jones, by and through his attorneys, McKissock and Hoffman, P.C., respectfully requests this Honorable Court to enter an Order Compelling Plaintiff, David L. Thomas, to provide Defendant, James K. Jones, (hereinafter "Defendant") with full and complete Answers and Responses to Defendant Jones' First Set of Interrogatories to Plaintiff and Defendant Jones' First Set of Request for Production of Documents to Plaintiff, and in support thereof avers the following: 1. On January 22, 2003, Defendant Jones serwed Plaintiff with his First Set of Interrogatories and First Set of Request for Production of Documents relative to the above- referenced matter. True and correct copies of Defendant Jones' First Set of Interrogatories and First Set of Request for Production of Documents and the transmittal correspondence dated January 22, 2003, are attached hereto as Exhibit "A" and incorporated herein by reference. 2. In accordance with Pennsylvania Rule of Civil Procedure 4009, Plaintiff's Responses to Defendant Jones' First Set of Interrogatories and First Set of Request for Production of Documents should have been filed on or about February 21,2003. 3. On March 17, 2003, Defendant's counsel's office forwarded a letter to Plaintiff to seek information as to when Defendant could expect Plaintiff's Responses to Defendant Jones' First Set of Interrogatories and First Set of Request for Production o[ Documents. A true and correct copy of Defendant's counsel's March 17, 2003, correspondence to Plaintiff is attached hereto as Exhibit "B" and incorporated herein by reference. 4. On March 26, 2003, Defendant's counsel receiw.~d a letter from Plaintiff advising that "As soon as your client produce [sic] the entire file by which he has or should have had I will gladly answer any and all questions." A true and correct copy of Plaintiff's March 26, 2003, correspondence to Defendant's counsel is attached hereto as Exhibit "C" and incorporated herein by reference. 5. To date, Plaintiff has not served any discovery requests upon Defendant and a such Plaintiff's demand for production as the prerequisite for Plaintiff's compliance with the discovery as served is improper and without merit. 6. Accordingly, pursuant to Pennsylvania Rule of Civil Procedure 4019, Defendant Jones respectfully requests this Honorable Court to enter an Order directing Plaintiff to provide Defendant Jones with full and complete Answers and Responses to Defendant Jones' First set of Interrogatories and First Set of Request for Production of Documents to Plaintiff within twenty (20) days or suffer additional sanctions. 7. Counsel for Defendant Jones states that due to Plaintiff's incarceration no effort has been made to contact Plaintiff via telephone. However, Defendant's Counsel's letter of March 17, 2000, serves as Defendant's effort to resole the instant discovery dispute. WHEREFORE, Defendant, James K. Jones, respectfully requests this Honorable Court enter an Order compelling Plaintiff to provide Defendant with full and complete Answers and Responses to Defendant Jones' First Set of Interrogatories anc~ First Set of Request for Production of Documents to Plaintiff. Respectfully submitted, McKissock & Hoffman, P.C. By: ~uire Attorney I.D. #75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Motion to Compel Defendant Jones' Discovery Answers and Responses Propounded Upon Plaintiff upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of'.same in the United States Mail, first- class postage prepaid, addressed as follows: David L. Thomas #EM0130 SCl - Albion 10745 Route 18 Albion, PA 16475-0002 McKissock & Hoffman, P.C. Edwin A. D. Schw~'l~, Esquire Attorney I.D. #75902 2040 Linglestown Road Suite 302 Harrisburg, PA 1;'110 (717) 540-3400 Attorneys for Defendant, James K. Jones Exhibit "A" DAVID L. THOMAS, Vo JAMES K. JONES, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. O2.-5402 JURY TRIAL DEMANDED DEFENDANT, JAMES K. JONES' FIRST SET OF INTERROGATORIES TO PLAINTIFF~ DAVID L. THOMAS TO: David L. Thomas SCI - Albion 10745 Route 18 Albion, PA 16475-0002 You are required to respond to the attached Interrogatories within the time prescribed by the Pennsylvania Rules of Civil Procedure. These Interrogatories are continuing in character so as to require you to file supplemental responses to the Interrogatories if you obtain further or different information prior to trial. DEFINITIONS I. As used herein, the word "Plaintiff" or "you" refer to David L. Thomas, unless otherwise indicated by syntax, their agents, representativE:, attorneys, prior business entities (if any) and all other persons acting or purporting to act on behalf of Plaintiff. II. All references in these Interrogatories to "document" shall include the plural and shall mean, without limitation unless otherwise indicated, the original and each copy of each and any writing, evidence of indebtedness, memorandu~m, letter, correspondence, telegram, note, minutes, contract, agreement, inter-office communication, bulletin, circular, procedure, pamphlet, photograph, study, notice, summary, invoice, diagram, plan, drawing, diary, record or note of telephone conversation, chart, schedule, entry, pd,nt, representation, record, report and tangible item or thing of written, readable, graphic, audible, or visual material, of any kind or character, whether handwritten, typed, xeroxed, photostated, printed, duplicated, reproduced, recorded, photographed, copied, microfilmed, microcarded, or transcribed by any means, including, without limitation, each interim as well as final draft and each revision which in the possession or subject to the control of you or your present or former agents, employees or representatives, including counsel and including any relate,d corporations. III. Whenever in these Interrogatories there is a~ request to identify a document: state the type of document (e.g., le~er, etc.); set forth its date; identify the signer or sicners and the addressee or addresses; set forth the title, heading or other designation, numerical or otherwise, of the document; identify the person (or, if widely distributed, set forth the organization or classes of persons) to whom the document was sent; and set forth the present or last-known location of the document and of each copy thereof having notations or marking unique to such copy. IV. Whenever in these Interrogatories there is a request to identify any oral communication: ao do state the type of communication (e.g., conversation, telephone call, etc.); state where and when such communication occurred: identify by full name, title and job description, all persons who particiPated in such communication or who observed or heard such communications at the time of their occurrence; setting forth which person effected such communication and which person received the same; identify all documents embodying or in any way relating to such communication, if any; and state the substance of any such communication. V. "Defendant" shall refer to James K. Jones. INSTRUCTIONS I. In answering these Interrogatories, you shall furnish all information available to you at the time of answering, including information in the possession of your agents, and shall supplement your answers in accordance with the Pennsylvania Rules of Civil Procedure. II. If you claim, in your answer to any Interrogatory, that any requested facts, documents or other information are "privileged" and not subject to discovery, you shall so state and, in addition, state every fact supporting your claim that such fact, document or other information is "privileged" and with respect to any document, you shall identify the document by stating the date and subject matter of the document, the name of the person who prepared the document and the name of the person for whom the docu~ment was intended. If requested to provide information regarding contacts, communication, instructions, directories, telephone calls, correspondence, meetings ,or any other interaction between the Plaintiff and Defendants, you must provide (1) the date and time of such interaction; '(2) who initiated the contact or interaction; (3) who was present al: the time; (4) the location of everyone involved in such contact or interaction; and (5) the specific substance of any communication between Plaintiff and Defendants which occurred during such contact or interaction. Please state the following: a) Your full name; INTERROGATORIES b) Date and place of birth; c) Home address (street and mailing if different); d) Occupation; (e) All previous addresses for the last 10 years (street and mailing if different); (f) Social security number, With respect to the Defendant, please provide the following: a) Date you first contacted Defendant for representation regarding the criminal charges; b) Why you contacted Defendant, specifically; c) Had Defendant, or any member of Defendant's law firm represented you in previous legal matters? If so, what was the nature of such representation and when did it occur?. d) Has Defendant, or any member of Defendant's law firm, represented you in subsequent or other legal matters? If so, what was the nature of such representation and when did it occur?. e) Pdor to your first contact with the Defendant for representation regarding the criminal charges, did you have any contact with any member(s) of Defendant's law firm? If so, what was the nature of such contact and when did it occur?. With respect to your first meeting with Defendant ~regarding the criminal charges, please provide the following: a) The names, addresses and telephone numbers for all individuals who were present; b) The nature, substance and context of any discussions that occurred; and c) The terms and conditions relative to the agreement reached at the conclusion of the meeting. State the names, present or last known addresses and telephone numbers of all persons, who have knowledge of any fact(s) conceming the contention and allegations as set forth in your Complaint. o State whether you assert that Defendant made any admissions against interest upon which you intend to rely. (a) When such admission was made; (b) To whom such admission was made or directed: (c) How such admission was issued (verbally or in writing); and (d) The substance (in detail) of such admission. o Identify each person that you expect to call as a~ expert witness at trial in this matter and with regard to each person state the following;, a) The subject matter upon which the expert is expected to testify; b) The substance of facts and opinions to which the expert is expected to testify and a summary of the grounds for such opinion; c) The qualifications upon which each such expert intends to rely in order to qualify as an expert at trial. Identify all tangible evidence in your possession or control relating to this lawsuit. Whether or not such evidence is intended to be introduced at trial. o With respect to your contention regarding negligence as set forth in Count I, please provide all facts, calculations and information which supports this contention. With respect to your contention regarding breach of fiduciary duty as set forth in Count II, please provide all facts, calculations and information which supports this contention. 10. With respect to your contention regarding fraudulent representation as set forth in Count 111, please provide all facts, calculations and inforrnation which supports this contention. 11. If you are alleging any type of physical or psychological injuries as a result of Defendant's alleged negligence please provide the following: a. A description of specific injury; bo The names, addresses and phone number for all healthcare providers who provided any type of care and/or treatment to you as a result of the alleged injury. 10. At anytime, did Defendant ever communicate to you, either verbally or in writing, as to Defendant's opinion regarding the possible receipt of an adverse verdict or sentence regarding the Plaintiff, David L. Thomas' Cdminal Charges. If so, please provide the following: (a) when such communication was made; (b) to whom such communication was made or directed: (c) how such communication was issued (verb.ally or in whting); and (d) the substance (in detail) of such communication. 12. At anytime during the Underlying Action, did Defendant ever communicate to you, either verbally or in writing, regarding possible settlement and/or plea agreement regarding the Cdminal Charges. If so, please provide the following: (a) when such communication was made; (b) to whom such communication was made or directed: (c) how such communication was issued (verbally or in writing); (d) the substance (in detail) of such communication; and (e) the proposed terms of such settlement. 13. At anytime, did you or anyone on your behalf ever communicate (verbally or in writing) your disagreement, dissatisfaction, or displeasure with the representation of your interests by Defendant. If so, please provide the following: (a) when such communication was made; (b) to whom such communication was made or directed: (c) how such communication was issued (verbally or in writing); and (d) the substance (in detail) of such communication. Respectfully submitted, McKissock & Hoffman, P.C. Date:/- z ~.- ~,,.:..~ Edwin A.D. SCh~ Attorney I.D. #75902 2040 Linglestown Road 'Suite 302 Harrisburg, PA !7110 (717) 540-3400 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Defendant's First Set of Interrogatories to Plaintiff upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage, prepaid, addressed as follows: David L. Thomas SCI - Albion 10745 Route 18 Albion, PA 16475-0002 Respectfully submitted, McKissock & IHoffman, P.C. Edwin A.D. Schwa~ Attomey I.D. #75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-34()0 Attomeys for I)efendant, David L. Thomas Date: DAVID L. THOMAS, JAMES K. JONES, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5402 JURY TP, IAL DEMANDED DEFENDANT, JAMES K. JONES' FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF~ DAVID L. THOMAS TO: David L. Thomas SCI - Albion 10745 Route 18 Albion, PA 16475-0002 Pursuant to Pennsylvania Rule of Civil Procedure 4009, Defendant hereby requests that Plaintiff produce and permit Defendant and/or their counsel to inspect and copy, within 30 days after service hereof, at the office of McKISSOCK & HOFFMAN, P.C., 2040 Linglestown Road, Suite 302, Harrisburg, Pennsylvania 17110, the documents requested herein. DEFINITIONS I. As used herein, the word "Plaintiff" refer t.o David L. Thomas unless otherwise indicated by syntax, their agents, representative, attorneys, prior business entities (if any) and all other persons acting or purporting to act on behalf of Pllaintiff. II. All references in this Request for Production of Documents to "document" will include the plural and shall mean, without limitation unless otherwise indicated, the original and each copy of each and any writing, evidence of indebtedness, memorandum, letter, correspondence, telegram, note, minutes, contract, agreement, inter-office communication, bulletin, circular, procedure, pamphlet, photograph, study, notice, summary, invoice, diagram, plan, drawing, diary, record or note of telephone conversation, chart, schedule, entry, print, representation, record, report and tangible item or thing of written, readable, graphic, audible, or visual material, of any kind or character, whether handwritten, typed, xeroxed, photostated, printed, duplicated, reproduced, recorded, photographed, copied, microfilmed, microcarded, or transcribed by any means, including, without limitation, each interim as well as final draft and each revision which in the possession or subject to the control of you or your present or former agents, employees or representatives, including counsel and including any related corporations. III. Whenever in this Request for Production of Documents there is a request to identify a document,: state the type of document (e.g., letter, report memorandum, etc.); set forth its date; Co fo identify the signer or signers and the addressee or addresses; set forth the title, heading or other designation, numerical or otherwise, of the document; identify the person (or, if widely distributed, set forth the organization or classes of persons) to whom the document was sent; and set forth the present or last-known location of the document and of each copy thereof having notations or marking unique to such copy. IV. "Defendant" shall refer to James K. Jones unless otherwise indicated by syntax. INSTRUCTIONS I. In answering these Requests for Production of Documents, you shall fumish all information available to you at the time of answering, including information in the possession of your agents, and shall supplement your answers in accordance with the Pennsylvania Rules of Civil Procedure. II. If you claim, in your answer to these Requests for Production of Documents, that any requested facts, documents or other information are "privileged" and not subject to discovery, you shall so state and, in addition, state every fact supporting your claim that such fact, document or other information is "privileged" and with respect to any document, you shall identify the document by stating the date and subject matter of the document, the name of the person who prepared the document and the name of the, person for whom the document was intended. THE DOCUMENTS REQUESTED ARE AS FOLLOWS: 1. Any and all statements, memoranda or wdtings (signed or unsigned) of any and all witnesses including any and all statements, memoranda, wdtings of the Plaintiff and Defendant. For purposes of this Request for Production, "statement" means a wdtten statement signed or unsigned or stenographic, mechanical, electrical or other recording, or transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it, contemporaneously recorded. 2. Any and all documents containing the names, home and business addresses, and telephone numbers of all individuals contacted as potential witnesses. 3. Any and all documents which, in any way, chronicled or reported on any meeting between Plaintiff and Defendant. 4. Any and all reports, statements, memoranda, or testimony identified in your answers to Interrogatories. 5. The current Curriculum Vitae for each expert identified in your answers to Interrogatories. 6. All documents prepared by each expert identified in your answers to Interrogatories together with all correspondence between ,expert and Plaintiff or Plaintiff's agent, attorney or anyone acting on Plaintiff's behalf. 7. Any and all bills, invoices, canceled checks, credit reports or receipts relating directly or indirectly to those damages described by Plaintiff in their Complaint. All supporting documentation for Plaintiff's claim for damages and/or relief in this 9. Copies of any and all exhibits intended to be used by Plaintiff in the trial of this matter, whether addressing liability, defenses or damages. 10. Any and all documents identified in your Answers to Interrogatories served simultaneously herewith, or hereafter served. Respectfully ,,submitted, McKissock & Hoffman, P.C. Date: Edwin A.D. Schwarf~-/ Attomey I.D. #75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy olr the foregoing Defendant's First Set of Request for Production of Documents to Plaintiff upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: David L. Thomas SCI - Albion 10745 Route 18 Albion, PA 16475-0002 Respectfully submitted, McKissock & Hoffman, P.C. Date: Edwin A.D. Schw~'~/ Attorney I.D. #75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, James K. Jones Exhibit "B" MCKISSOCK & HOFFMAN A PROFESSIONAl+ CORPORATION ATTORNEYS AT LAW 2040 LINGLESTOWN ROAD SUITE 302 HARRISBURG, PA 17110 1700 MARKET STREET SUITE 3000 PHILADLEPHIA, PA 19103 (2{5) 246-2 I00 FAX: (215) 246-2144 ROXANNE WE[J..ER, PARALEGAL Direct Diaz 7171 540-3400 Ext 22 PHONE: (717) 540-3400 FAX: (717) 540-3434 March 17, 2003 16 NORTH FRANKJ..IN STREET SUITE 300 DOYLESTOWN, PA 18~301 FAX: (215) 345-4503 25 CHESTNUT STREET SUITE 108 FAX: (856) 429-0099 David L. Thomas #EM0130 SCI - Albion 10745 Route 18 Albion, PA 16475-0002 EVANS STREET, SUIT8 D P.O. BOX 3086 WEST CHF_.STER, I~A 19381 (61o) ?3s-ssso FAX: (610) 738-9121 Re: David L. Thomas v. James K. Jones CCP- Cumberland County Westport File #: 549817 Our File #: 579-326 Dear Mr. Thomas: Please advise as to the status of your responses to our Interrogatories and Request for Production of Documents which were previously served on or about January 22, 2003. I would appreciate it if you would please advise me as to when we may expect to receive your responses to these discovery requests. I look forward to hearing from you shortly. Very truly yours, Roxanne K. Weller, Paralegal McKissock & Hoffman, P.C. :rkw Exhibit "C" '~v_zd' /.rs CC" DAVID L. THOMAS, JAMES K. JONES, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5402 JURY TRIAL DEMANDED ORDER AND NOW, this ~ "' dayof f'~v~'~ ,2003, it is hereby ORDERED and DECREED that Plaintiff, David L. Thomas, provide Defendant, James K. Jones, with full and complete Answers and Responses to Defendant Jones' First Set of Interrogatories and First Set of Request for Production of Documents.~;,-th,,:,~ t;;~, (20) ~,~:y-$ ,,;' [i~u date o~ ~hi~ C,,~;~r. Rule Returnable ,,2_0 days from service. Jo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLYANIA: David L. Thomas Plaintiff James K. Jones Respondent 02-5402 PLAINTIFF'S RESPONSE TO THE COURTS ORDER TO SHOW CAUSE WHY HE SHOULD NOT ANSWER RESPONDENTS MOTIONS To the Judges of the above said Court: Comes Now,DAVID L. THOMAS,Pro-Se Plaintiff in the above captioned matter,and moves the Honorable Court to look upon Plaintiff's (RESPONSE) with favor and represents the following: 1.) Plaintiff avers that on or about March 22,2000 he was arrested and charged with the crimes for which he stands convicted. 2.) Plaintiff avers that at known time,did the Respondent come to spend time with Plaintiff. 3.) Plaintiff avers that the only thing the Respondent cared about was 9erring the Plaintiff to (PLEAD GUILTY). 1 4.) Plaintiff avers that he recieved a (50) year sentence after Respondent advised him to (PLEAD GUILTY) to the charge/s. 5.) Plaintiff avers that he is unable to provide answers to the (DOCUMENTS IN QUESTION),as the Respondent never provided the Plaintiff with any documents with respect to the instant matter. 6.) Plaintiff avers that the only time ne and the Respondent (CONVERSED),was when this Court appointed the Respondent to the instant matter,for a (BRIEF PERIOD) at the County Jail,and again in the Courtroom- The Respondent never made any notes in reference to the instant matter,nor (RESPOND) to any of my correspondences,after the response informing me that Respondent was taking upon (HIMSELF) to (DISCUSS) this matter with the District Attorney's Office. 7.) Plaintiff avers that he would 91adly provide counsel for the Respondent to provide the Plaintiff with a complete copy of the alleged file that Respondent has or should nave had with respect to his involvement into Plaintiff's criminal matter. 8.) Plaintiff avers that the law informs him of an Attorney not being able to sue an Attorney,he/she cannot be held liable for alleged negligence in representing a client in a criminal proceeding~unless and until a conviction occurs. In the instant matter,the Respondent had an (OBLIGATION) to use (DUE CARE) once this Honorable Court appointed Respondent to Plaintiff's criminal matter. As a result,the Respondent (VIOLATED) the Plaintiff's Constitutional Rights,both of the United States and the Laws of this Commonwealth. See McPEAKE vs. Cannon Esquire,553 A.2d 439 (Pa. Super 1989). 9.) Plaintiff avers that the issue before the Honorable Court is whether or not the Respondent may be liable for his/her 2 actions,that had resulted from the Respondents (NEGLIGENT REPRESENTATION)- More specifically the (QUESTION) is whether or not the Respondent's (DUTY OF REPRESENTATION) extends to (PROTECTING) the Plaintiff. Plaintiff strongly believes that the instant matter currently before the Honorable Court falls deeply within the scope of (FIRST IMPRESSION) in Pennsylvania. Wherefore,for all the above stated reasons,Plaintiff respectfully request the Honorable Court to look upon his response to the Courts Order and forever prays. Dated this ~-/g'~%day of April 2003. Respectfully Submitted, David L. Thomas,Pro-Se 3 CERTIFICATE OF SERVICE I,David L. Thomas,hereby state that I have caused copies of the foregoin9 response to be served on the followin9 person/s indicated,by placin9 same in the United States Mail Repository at S.C.I Albion. In accordance with SMITH vs. PA. BOARD OF PROBATION AND PAROLE,683 A.2d 278 (1996),(POSTAGE PRE-PAID) and addresses as follows: FIRST CLASS MAIL: Cumberland County Courthouse %Mt.Curtis R. Long (Prothonotary) One Courthouse Square Carlisle,Pa 17013 1 ORIGXNAL AND 2 COPIES McKissock & Hoffman 2040 Linglestown Road Harrisburg,Pa 17110-9515 1-COPY Dated this~-/s3o%, day of April 2003. Respectfully Submitted, David L. Thomas,Pro-Se 4 UNSWORN DECLARATZO~ I,David L. Thomas,hereby aver that the facts set forth in the foregoin9 document is true and correct to the best of my knowledge,information and belief,and that any false statements made herein are sub3ect to the penalties of per3ury under the Pennsylvania Crimes Code,18 PA. C.S.A §4904 (RELATING TO UNSWORN FALSIFICATIONS TO AUTHORITIES). Respectfully Submitted, David L. Thomas,Pro-Se 5 DAVID L. THOMAS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA · JAMES K. JONES, DEFENDANT 02-5402 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND NOW, this ~'~" ORDER OF COURT day of May, 2003, the preliminary objection of defendant to strike plaintiff's complaint, IS GRANTED. The complaint, IS STRICKEN. ///~avid L. Thomas, EM-0130, Pro SCI-Albion 10745 Route 18 Albion, PA 16475-0002 se ,/~dwin Schwartz, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 For Defendant By the C~o~../~ Ed 05 '0 :sal DAVID L. THOMAS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JAMES K. JONES, DEFENDANT IN RE: 02-5402 CIVIL TERM PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 1, 2003:-- On November 7, 2002, plaintiff, David L. Thomas filed a pro se civil complaint against James K. Jones, who had been his court-appointed criminal attorney. While the complaint is disjointed, plaintiff's claim is for legal malpractice for which he seeks monetary damages against defendant.~ Plaintiff alleges that on March 22, 2000, defendant was appointed to represent him in a criminal prosecution. Plaintiff entered a plea on November 14, 2000. He is now a sentenced prisoner in a state correctional institution in Pennsylvania. The complaint was never served on defendant by the Sheriff. As of this date, no return of service of any type is entered on the docket, or has the complaint been reissued. On ~ The elements of a claim for legal malpractice are the failure of an attorney to exercise ordinary skill and knowledge, and that such negligence was the proximate cause of damages to the plaintiff. Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998). The statute of limitations for the alleged negligence of court-appointed counsel is two years. Moore v. McComsey, 313 Pa. Super. 264 (1983). 02-5402 CIVIL TERM December 12, 2002, one month and five days after the filing of the complaint, defendant, through counsel, filed, preliminary objections to the complaint. The objections have been briefed and are before us for disposition. One of the preliminary objections is a motion to strike the complaint. Pa. Rule of Civil Procedure 1028(a)(1) provides for a preliminary objection where there has been: lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint. (Emphasis added.) Under Pa. Rule of Civil Procedure 400(a), absent specific exceptions which are not applicable in this action, "original process shall be served within the Commonwealth only by 'the sheriff." Rule 401(a) provides that "Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Rule 401 (b)(1) provides: If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule.., the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon "reissued" in the case of a writ or "reinstated" in the case of a complaint. Rule 401(a)(4) provides that "A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule .... " Citing Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001), defendant maintains the plaintiff's complaint must be stricken. In Lamp v. Heyman, 469 Pa. 465 (1976), a case involving a praecipe for a writ of summons, the Supreme Court of Pennsylvania held that a writ of summon~s tolls a statute of limitations "only if the plaintiff then refrains from a -2- 02-5402 CIVIL TERM course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Lamp does not require an additional affirmative duty to pursue service of process if an initial good faith service attempt is unsuccessful. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589 (1986). In a plurality opinion supported by two justices, the Supreme Court in Witherspoon concluded that for a writ of summons to toll an applicable period of limitations, "the process must be immediately and continually reissued until service is 'made." However two.justices dissented from the lead opinion entirely, and three justices concurred in the result only "based upon the plaintiff's failure to effectuate service upon [defendant] for a period of nine months," and not because the writ of summons was not immediately reissued after its initial expiration. There was no majority in Witherspoon that changed existing Pennsylvania law. In the case sub judice, it is now just short of one half a year since plaintiff filed his complaint. The complaint has never been served or has it ever been reissued. It is clear from the record that plaintiff has not made a good faith effort to serve his complaint against - defendant. Accordingly, the following order is entered? AND NOW, this strike plaintiff's complaint, IS GRANTED. The complaint, IS STRICKEN. ORDER OF COURT day of May, 2003, the preliminary objection of defendant to 2 This resolution makes it unnecessary to consider the other issues raised in defendant's preliminary objections. -3- 02-5402 CIVIL TERM David L. Thomas, EM-0130, Pro se SCI-Albion 10745 Route 18 Albion, PA 16475-0002 Edgar B. Ba~l~.~ Edwin Schwartz, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 For Defendant :sal DAVID L THOMAS JAMES K. JONES NO.#02-5402 APPLICATION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS AND NOW COMES TEE APPELLANT,DAVID L. ~EOMAS,PRO-SE WHO AVERS THE FOLLOWING: 1.) ON NOVEMBER 7,2002 THE APPELLANT FILED A PRO-SE CIVIL COMPLAINT AGAINST JAMBS K. JONES. 2.) ON MAY 1,2003 TEE HONORABLE JUDGE EDGAR B. BAYLEY "GRANTED" TEE DEFENDANT'S PRELIMINARY OBJ]~CTIONS AND "STRICKEN" THE PRO-SE CIVIL COMPLAINT. 3.) TEE APPELLANT HAS NOT BEEN REPRESENTED BY COUNSEL ON THESE MATTERS. 4.) THE APPELLANT IS NOT FINANCIALLY ABLE TO PAY FOR THESE PROCEEDINGS. WHEReFORE,THE ~PPELLANT PRAYS THAT THIS IN FORMA PAUPERIS BE "GRANTED" PURSUANT TO PA.R.A.P RULE §552(d). DATE RES~PECTFULLY SUBMITTED, DAVID L. TROMAS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENN~YLVANIA DAVID L. THOMAS PLAINTIFF CIVIL ACTION,CIVIL TERM NO. #02-5402 JAMES K. JONES DEFENDANT NOTICE OF APPEAL NOTICE IS HEREBY GIVEN THAT THE ABOVE NAMED PLAINTIFF,DAVID L. THOMAS HEREBY APPEALS TO THE SUPERIOR COURT OF PENNSYLVANIA FROM THE "DISMISSAL" OF THE ABOVE CAPTIONED CIVIL MATTER ON THE 1st DAY OF MAY 2003 BEFORE THE HONORABLE EDGAR B. BAYLEY. SEE ATTACHED ORDER: RESI~ECTFULLY SUBMITTED, DAVID L. THOMAS EM-0130 F/A 9 10745 ROUTE 18 ALBION,PA 16475-0002 DAVID L THOMAS JAMES K. JONES NO.~02-5402 CONCISE STATEMENT OF REASONS COMPLAINED OF ON APPEAL PURSUANT TO PA.R.A.P RULE §1925(b); AND IN CONFORMITY WITHIN PA.R.A.P RULE §3520: AND NOW COMES,DAVID L. THOMAS,THE APPELLANT IN THE ABOVE CAPTIONED MATTER WHO RESPECTFULLY REPRESENTS THE FOLLOWING CONCISE STATEMENT OF REASONS TO BE COMPLAINED OF ON APPEAL: 1.) UNDER KITUSKIE v CORBMAN, 714 A.2d 1027 (PA 1998),THAT COURT APPOINTED COUNSEL PERFORMED "NEGLIGENT LEGAL MALPRACTICE",WHICH CAUSED INJURY AND PREJUDICE TOWARDS THE APPELLANT. 2.) THE LOWER COURT ERRED WHEN IT FAILED TO GIVE NOTICE TO THE APPELLANT THE RIGHT TO ~AKE "AMENDMENT" AND "PROPER" SERVICE OF THE COMPLAINT. DUE TO THE FACT THAT THE APPELLANT IS INCARCERATED,HE DID IN FACT SERVE ATTORNEY JONES ON 10/30/2002 BY LEGAL POSTAGE PAID SERVICE IN COMPLIANCE WITH THE DEPARTMENT OF CORRECTIONS REGULATIONS. SEE NIKWEI v ROSS SCHOOL OF AVIATION,INC,822 F.2d 939 (lOth CIE 1987);MONTALBANO v EASCO HAND TOOLS INC,766 F.2d 737 (2nd CIE 1985). 3.) THE APPELLANT DECLARES THAT ILLEGAL MEANS AND UNPROFESSIONAL CONDUCT WAS USED IN HIS CRIMINAL COURT CASE,UNDER A.B.A STATUTE RULES AND STANDARDS FOR THE DEFENSE FUNCTION (PART ¥I),DISPOSITION WITHOUT TRIAL STANDARD 4-6.1 (B) AND DEFENSE FUNCTION STANDARD 4-4.1,DUTY TO INVESTIGAT~I. RE~:PECTFULLY SUBMITTED, DAVID L. THOMAS David L. Thom.~s ~M--0130 F/A 9 10745 Route 18 Albion,Pennsylvania 16475 Curtis R. Long Cumberland County Prothonotary's Office One Courthouse Square Carlisle,Pa 17013 Re: Thomas vs. Jones Civil Action ~02-5402 Dear Mr.Long: I have recieved your correspondence returning my Notice of Appeal. I mailed the Notice of Appeal on May 30,2003 from a State Correctional Institution located at Albion,Pennsylvania. Please review my inmate accounts balance and it clearly shows that $1.52 was withdrawn from my account on May 30,2003. The deadline for my Appeal was to be 6/O1/03,this was a Sunday! Therefore,I am enclosing a copy of Comm vs. Jones,700 A.2d 423 (PA. 1997) to show that my Notice of Appeal was filed on Ma~ 30,2003,pursuant to the MAILBOX RULe,pursuant RULE §903 subsection number #14. Please file this Notice of Appeal pursuant to Rule §903 and Comm vs. Jones. I would greatly appreciate your cooperation inregards to this very important matter. Date: 6/11/03 Respectfully Yours, David L. Thomas PYS510 Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry 2002-05402 THOMAS DAVID L (rs) JONES JAMES K Reference No..: Filed ........ : 11/07/2002 Case TV~e ..... : COMPLAINT Time ......... : 9:20 Ju~gmeh~ ....... 00 Execution Date 0/00/0000 Judge Assigned: Jury Trial .... Disposed Desc.: Disposed Date. 0/00/0000 ............ Case Comments ............. Higher Crt 1.: Higher Crt 2.: General Index Attorney Info THOMAS DAVID L PLAINTIFF NO ADDRESS PROVIDED JONES JAMES K DEFENDANT SCHWARTZ EDWIN A D 7 IRVINE ROW CARLISLE PA 17013 3019 * Date Entries . ............. FIRST ENTRY .............. 11/07/2002 COMPLAINT EDWIN A D SCHWARTZ ESQ FOR DEFT 2/25/2003 PP ECIPE FOR LZSTING CASE FOR PRELIMINARY OBJECTION -8 - DEFT JAMES K JONES - BY BY EDWIN A D SCHWARTZ ESQ RESPONSES UPON PLFF - BY EDWIN A D SCHWARTZ ESQ 4/04/2003 ........................................... u~ u~ow X. Au~E WHY HE SHOULD NOT PROVIDE DEFT ~AMES K JONES WITH FULL AND COMPLETE ANSWERS AND RESPONSE TO DEFT JOHNES FIRST SET OF INTERROGATORIES AND FIRST SET FOR REQUEST FOR PROCUTION OF DOCUMENTS - RULE RETURNABLE 20 DAYS FROM SERVICE - BY THE COURT KEVIN A HESS J COPIES MAILED 4/23/2003 pLA~T~T~-~$~-~$-~fi~-6$[.,~-${~i~{-~6-~$fi-6~0~-~-~ ...... SHOULD NOT ANSWER RESPONDENTS MOTIONS BY DAVID L THOMAS PRO SE 5/01/2003 ~ N~D O~R_~_~OURT - DATED 5/1/03 - IN RE PR~£~ O - ~ ~Sm±MINARY OBJECTION OF DEFT TO STRIKE PLFF'S COMPLAINT IS GRANTED THE COMPLAINT IS STRICKEN - BY THE COURT EDGAR B BAYLEY J COPIES MAILED .............. LAST ENTRY .............. * End of Case Information TRUE COPY' FROM RECORD In Testimony whereof, I here unto set my h~n~ and the seel of s~Jd Court at. Carlisle, Pa. ~...,..,..~ .............. ~. ................................. Prothonotary DAVID L. THOMAS, PLAINTIFF JAMES K. JONES, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5402 CIVIl, TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY~J. AND NOW, this ORDER OF COURT ~'~" day of May, 2003, the preliminary objection of defendant to strike plaintiff's complaint, IS GRANTED. The complaint, IS STRICKEN, David L. Thomas, EM-01'30, Pro se SCI-Albion 10745 Route 18 Albion, PA 16475-0002 By the Court, Edgar B. Bayley,~.~ Edwin Schwartz, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 For Defendant :sal DAVID L. THOMAS, PLAINTIFF Vo JAMES K. JONES, DEFENDANT · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 02-5402 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY~ J. OPINION AND ORDER OF COURT Bayley, J., May 1, 2003:-- On November 7, 2002, plaintiff, David L. Thomas filed a pro se civil complaint against James K. Jones, who had been his court-appointed criminal attorney. While the complaint is disjointed, plaintiff's claim is for legal malpractice for which he seeks monetary damages against defendantJ Plaintiff alleges that on March 22, 2000, defendant was appointed to represent him in a criminal prosecution. Plaintiff entered a plea on November 14, 2000. He is now a sentenced prisoner in a state correctional institutien in Pennsylvania. The complaint was never served on defendant by the Sheriff. As of this date, no return of service of any type is entered on the docket, or has th(; complaint been reissued. On ~ The elements of a claim for legal malpractice are the failure of an attorney to exercise ordinary skill and knowledge, and that such negligence was the proximate cause of damages to the plaintiff. Kituskie v. Corbman, 714 A·2d 1027 (Pa. 1998). The statute of limitations for the alleged negligence of court-appointed counsel is two years. Moore v. McComsey, 313 Pa. Super. 264 (1983). 02-5402 CIVIL TERM December 12, 2002, one month and five days after the filing of the complaint, defendant, through counsel, filed'preliminary objections to the complaint. The objections have been bdefed and are before us for disposition. One of the preliminary objections is a motion to strike the complaint. Pa. Rule of Civil Procedure 1028(a)(1) provides for a preliminary objection where there has been: lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint. (Emphasis added.) Under Pa. Rule of Civil Procedure 400(a), absent specific exceptions which are not applicable in this action, "original process shall be served within the Commonwealth only by · the sheriff." Rule 401(a) provides that "Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Rule 401 (b)(1) provides: If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule.., the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon "reissued" in the case of a writ or "reinstated" in the case of a complaint. Rule 401(a)(4) provides that "A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule .... " Citing Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001), defendant maintains the plaintiff's complaint must be stricken. In Lamp v. Heyman, 469 Pa. 465 (1976), a case involving a praecipe for a writ of summons, the Supreme Court of Pennsylvania held that a writ of summon~ tolls a statute of limitations "only if the plaintiff then refrains from a -2- 02-5402 CIVIL TERM course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Lamp does not require an additional affirmative duty to pursue service of process if an initial good faith service attempt is unsuccessful. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589 (1986). In a plurality opinion supported by two justices, the Supreme Court in Withempoon concluded that for a writ of summons to toll an applicable period of limitations, "the process must be immediately and continually reissued until service is 'made." However two.justices dissented from the lead opinion entirely, and three justices concurred in the result only "based upon the plaintiff's failure to effectuate service upon [defendant] for a period of nine months," and not because the writ of summons was not immediately reissued after its initial expiration. There was no majority in Withempoon that changed existing Pennsylvania law. In the case sub judice, it is now just short of one half a year since plaintiff filed his complaint. The complaint has never been served or has it ever been reissued. It is clear from the record that plaintiff has not made a good ~aith effort to serve his complaint against defendant. Accordingly, the following order is entered? ORDER OF COURT AND NOW, this ~'~g"' day of May, 2003, the preliminary objection of defendant to strike plaintiff's complaint, IS GRANTED. The complaint, IS STRICKEN. 2 This resolution makes it unnecessary to consider the other issues raised in defendant's preliminary objections, -3- 02-5402 CIVIL TERM David L. Thomas, EM-0130, Pro se SCI-Albion 10745 Route 18 Albion, PA 16475-0002 By the Court, g r B. Ba~le~, j. Edwin Schwartz, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 For Defendant :sal -4- INMATE ACCOLENTS SYST~ 5~A30!A2 INQUIRY - T[gANSACT IONS INMATE NUMBER NAME, LAST FIRST MI EM0130 THOMAS DAV I ID L BATCH DATE TRANSACTION/TRANSACTION SUB TRANSACTION NUMBER YEAR MO DAY CODE DESCRIPTION AMOUNT 7292 2003-05-30 37 POSTAGE 00 1.52 7314 2003-06-02 31 OUTSIDE PURCHASES 00 MIKES BETTER SHOES 36.99 7340 2003-06-04 13 PERSONAL GIFT FROM 00 ARTER, NANCY F827922 20.00 7340 2003-06-04 13 PERSONAL GIFT FROM 00 ARTER, NANCY F827930 40.00 7358 2003-06-05 10 MAINTENANCE PAYROLL 00 4/27-5/31/03 PAY GROUP 4 23.10 8156 2003-06-05 32 ALB COMMISSARY 00 FOR 6/05/2003 44.94 MORE TRANSACTIONS? (Y/N) Fi LOGOFF, F2 SYS MAST MENU, F3 ACCT MENU NEW BALANCE 40.63 3.64 23.64 63.64 86.74 41.80 ("3 DAVID L. THOMAS, ' IN THE COURT Of COMMON PLEAS Of PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA JAMES K. JONES, RESPONDENT · 02-5402 CIVIL TERM ORDER OF COURT AND NOW, this ~q day of June, 2003, IT IS ORDERED that petitioner, David L. Thomas, may proceed on his direct appeal to the Superior Court of Pennsylvania from the order of court dated May 1,2003, striking his complaint, in forma pauperis. · ,,'David L. Thomas, EM-0130, Pro se 10745 Rt. 18 Albion, PA 16475-0002 ~Edwin Schwartz, Esquire For Respondent :sal Edgar B. Bayley~. DAVID L. THOMAS, PETITIONER · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA JAMES K. JONES, RESPONDENT · 02-5402 CIVIL TERM AND NOW, this ORDER OF COURT Iq day of June, 2003, IT IS ORDERED that petitioner, David L. Thomas, may proceed on his direct appeal to the Superior Court of Pennsylvania from the order of court dated May 1, 2003, striking his complaint, in forma pauperis. · --David L. Thomas, EM-0130, Pro se 10745 Rt. 18 Albion, PA 16475-0002 u. Edwin Schwartz, Esquire For Respondent :sal Edgar B. Bayley~l. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JUN 1 § 2003 DAVID L. THOMAS PLAINTIFF CIVIL ACTION,CIVIL TERM NO. #02-5402 vs. JAMES K. JONES DEFENDANT NOTICE OF APPEAL NOTICE IS HEREBY GIVEN THAT THE ABOVE NAMED PLAINTIFF,DAVID L. THOMAS HEREBy APPEALS TO THE SUPERIOR COURT OF PENNSYLVANIA FROM THE "DISMISSAL- OF THE ABOVE CAPTIONED CIVIL MATTER ON THE 1st DAY OF MAY 2003 BEPORE THE HONORABLE EDGAR B. BAYLEYo SEE ATTACHED ORDER: RESPECTFULLY SUBMITTED, DAVID L. THOMAS EM-0~L30 F/A 9 10745 ROUTE 18 ALBION,PA 16475-0002 DAVID L THOMAS JAMES K. JONES NO-~02-5402 CONCISE STATEMENT OF EEASONS COMPLAINED OF ON APPEAL PURSUANT TO PA.R.A.P RULE §1925(b); AND IN CONFORMITY WITHIN PA.R.A.P RULE §3520: AND NOW COMES,DAVID L. THOMAS,THE APPELLANT IN TEE ABOVE CAPTIONED MATTER WHO RESPECTFULLY REPRESENTS THE FOLLOWING CONCISE STATEMENT OF REASONS TO BE COMPLAINED OF ON APPEAL: 1.) UNDER KITUSKIE v CORBMAN, 714 A.2d 1027 (PA 1998),THAT COURT APPOINTED COUNSEL PERFORMED "NEGLIGENT LEGAL MALPRACTICE",WHICH CAUSED INJURY AND PREJUDICE TOWARDS THE APPELLANT. 2.) THE LOWER COURT ERRED WHEN IT FAILED TO GIVE NOTICE TO THE APPELLANT THE RIGHT TO MAKE "AMENDMENT" AND "PROPER" SERVICE OF TNE COMPLAINT. DUE TO TNE FACT THAT THE APPELLANT IS INCARCERATED,HE DID IN FACT SERVE ATTORNEY JONES ON 10/30/2002 BY LEGAL POSTAGE PAID SERVICE IN COMPLIANCE WITH THE DEPARTMENT OF CORRECTIONS REGULATIONS. SEE NIKWEI V ROSS SCHOOL OF A¥IATION,INC,822 F.2d 939 (10th CIR 1987);MONTALBANO v EASCO HAND TOOLs INC,?66 F.2d 737 (2nd CIR 1985). 3.) THE APPELLANT DECLARES TNA~ ILLEGAL MEANS AND UNPROFHsSIONAL CONDUCT WAS USED IN HIS CRIMINAL COURT CASE,UNDER A.B.A STATUTE RULES AND STANDARDS FOR THE DEFENSE FUNCTION (PART VI),DISPOSITION WITHOUT TRIAL STANDARD 4-6.1 (B) AND DEFENSH FUNCTION STANDARD 4-4.1,DUTY TO INVESTIGATe. RESPECTFULLY SUBMITTED, DAVID L. THOMAS David L. Thomas EM-O130 F/A 9 10745 Route 18 Albion,Pennsylvania 16475 Curtis R. Long Cumberland County Prothonotary,s Office One Courthouse Square Carlisle,Pa 17013 Re: Thomas vs. Jones Civil Action #02-5402 Dear Mr.Long: I have recieved your correspondence returning my Notice of Appeal. I mailed the Notice of Appeal on Mar 30,2003 from a State Correctional Institution located at Albion,Pennsylvania. Please review my inmate accounts balance and it clearly shows that $1.52 was withdrawn from my account on May 30,2003. The deadline for my Appeal was to be 6/O1/03,this was a Sunday! Therefore,I am enclosing a copy of Comm vs. Jones,700 A.2d 423 (PA. 1997) to show that my Notice of Appeal was filed on May 30,2003,pursuant to the MAILBOX RULE,pursuant RULE §903 subsection number #14. Please file this Notice of Appeal pursuant to Rule §903 and Comm vs. Jones. I would greatly appreciate your cooperation inregards to this very important matter. Date: 6/11/03 Respectfully Yours, David L. Thomas ,2002-05402 THOMAS DAVID L (rs) JONES JAMEs K Reference No..: Case Type ..... : COMPLAINT Judgmenu ...... 00 Judge Assigned: ' Disposed Desc.: PYSS10 Cumberland County ~o~notary,s Office Civil Case q y Filed ........ : Time ......... : Execution Date Page 1 11/07/2002 9'20 o/oo/o8oo o/oo/oooo Jury Trial .... ............ Case Comments ............. Disposed Date. Higher Crt 1.: Higher Crt 2.: General Index Attorney Info THOMAS DAVID L NO ADDRESS PROVIDED PLAINTIFF JONES JAMES K 7 IRVINE ROW DEFENDANT SCHWARTZ EDWIN A D CARLISLE PA 17013 3019 11/07/2002 60~P~A~N~ ........ FIRST ENTRY .............. 12/12/2002 ........................................... PRELIMINARY OBJECTIONS OF JAMES K JONES TO EDWIN A D SCHWARTZ ESQ FOR DEFT 2/25/2003 ............................................... PP~AECIPE FOR LISTING CASE FOR ARGUMENT - PRELiM~-~3~-~- DEFT JAMES K JONES - BY BY EDWIN A D SCHWARTZ ESQ 4/02/2003 DEFENDANT JAMES K JONES' MOTION TO COMPEL DISCOVERY AN~ RESPONSES UPON PLFF - BY EDWIN A D SCHWARTZ ESQ 4/04/2003 ................ DEFT SHOW XAUSE WHY HE SHOULD N pp CREED THAT PLFF OT -~OVIDE DEFT JAMES K JONES WITH FULL AND COMPLETE ANSWERS AND RESPONSE TO DEFT JOHNES FIRST SET OF INTERROGATORIES AND FIRST SET FOR REQUEST FOR PROCUTION OF DOCUMENTS - RULE RETURNABLE 20 DAYS FROM SERVICE - BY THE COURT KEVIN A HESS J COPIES MAILED 4/23/2003 ..................................... --__ PLAINTIFF'S RESPONSE TO THE COURTS ~?~ ~?~--A~-~_~?~_~?~ONS '- BY DAVID L THOMAS PRO SE 5/01/2003 OPINIO~ AND ORDER OF COURT - DATED-~7['}~[---~ ..................... OBJECTIONS - THE PRELIMINARY OB3m~m¢k~x~ ~a~ ~ PRELIMINARY COMPLAINT IS GRANTED THE COMPLAINT IS STRICKEN BY THE COURT ~=**u*' u~ ~T TO STRIKE PLFF'S EDGAR B BAYLEY J COPIES - _ _ MAILED ............ LAST ENTRY .............. * End of Case Information *************************************** ****************************************** . TRUE COPY FROM RECORD I~ Testimony whereof, I here unto set my hand and the seal of said Court at.Carlisle, Pa. ' Prothonotary DAVID L. THOMAS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA .JAMES K. JONES, DEFENDANT : 02-5402 CIVIL TERM IN RE: PRELIMINA._RY OBJECTION.S OF DEFEND_ANT TO PLAINTIFF'S COMPLAINT ,BEFORE BAYLEY~J. ORDER OF COURT AND NOW, this ~1L' day of May, 2003, the preliminary objection of defendant to strike plaintiff's complaint, IS GRANTED. The complaint, IS STRICKEN. David L. Thomas, EM-01'30, Pro se SCI-Albion 10745 Route 18 Albion, PA 16475-0002 By the Court,__. Edgar B. Bayley,~.~ Edwin Schwartz, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 For Defendant :sal DAVID L. THOMAS, PLAINTIFF · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : JAMES k. JONES, DEFENDANT · 02-5402 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO ~LAINTIFF'S COMPLAINT _BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 1, 2003:-- On November 7, 2002, plaintiff, David L. Thomas filed a pro se civil complaint against James K. Jones, who had been his court-appointed criminal attorney. While the complaint is disjointed, plaintiff's claim is for legal malpractice for which he seeks monetary damages against defendant., Plaintiff alleges that on March 22, 2000, defendant was appointed to represent him in a criminal prosecution. Plaintiff entered a plea on November 14, 2000. He is now a sentenced prisoner in a state correctional institution in Pennsylvania. The complaint was never served on defendant by llhe Sheriff. As of this date, no return of service of any type is entered on the docket, or has the complaint been reissued. On ' The elements of a claim for legal malpractice are the failure of an attorney to exercise ordinary skill and knowledge, and that such negligence was the proximate cause of damages to the plaintiff. Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998). The statute of limitations for the alleged negligence of court-appointed counsel is two years. Moore v. McComsey, 313 Pa. Super. 264 (1983). 02-5402 CIVIL TERM December 12, 2002, one month and five days after the filing of the complaint, defendant, 'through counsel, filed, preliminary objections to the complaint. The objections have been briefed and are before us for disposition. One of the preliminary objections is a motion to :strike the complaint. Pa. Rule of Civil Procedure 1028(a)(1) provides for a preliminary objection where there has been: lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or Improper form or service of a writ of summons or a complaint. (Emphasis added.) Under Pa. Rule of Civil Procedure 400(a), absent specific exceptions which are not applicable in this action, "original process shall be served within the Commonwealth only by ' the sheriff." Rule 401(a) provides that "Original process shall be served within the Commonwealth within, thirty days after the issuance of the writ or the filing of the complaint." Rule 401(b)(1) provides: If service within the .Commonwealth is not made within the time prescribed by subdivision (a) of this rule.., the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon "reissued" in the case of a writ or "reinstated" in the case of a complaint. Rule 401(a)(4) provides that ;'A reissued, reinstated or substituted writ or complaint shall be served within the a. pplicable time prescribed by subdivision (a) of this rule .... " Citing Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001), defendant maintains the plaintiff's complaint must be stricken. In Lamp v. Heyman, 469 Pa. 465 (1976), a case involving a praecipe for a writ of summons, the Su~preme Court of Pennsylvania held that a writ of summon~ tolls a statute of limitations "only if the plaintiff then refrains from a -2- 02-5402 CIVIL TERM course of conduct which serves to stall in its tracks the legal machinery he has just set in motion." Lamp does not require an additional affirmative duty to pursue service of process if an initial good faith service attempt is unsuccessful. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589 (1986). In a plurality opinion supported by two justices, the Supreme Court in Witherspoon concluded that for a writ of summons to toll an applicable period of limitations, "the process must be immediately and continually reissued until service is 'made." However two.justices dissented from the lead opinion entirely, and three justices concurred in the result only "based upon the plaintiff's failure to effectuate service upon [defendant] for a period of nine months," and not because the writ of summons was not immediately reissued after its initial expiration. There was no majority in Withempoon that changed existing Pennsylvania law. In the case sub judice, it is now just short of one half a year since plaintiff filed his complaint. The complaint has never been served or has it ever been reissued. It is clear from the record that plaintiff has not made a good t~aith effort to serve his complaint against defendant. Accordingly, the following order is entered? ORDER OF COURT. AND NOW, this ~'~' day of May, 2003, the pre minary objection of defendant to strike plaintiff's complaint, IS GRANTED. The complaint, IS STRICKEN. 2 This resolution makes it unnecessary to consider the other issues raised in defendant's preliminary objections. -3- 02-5402 CIVIL TERM David L. Thomas, EM-0130, Pro se SC!-Albion 10746 Route 18 Albion, PA 16475-0002 Edwin Schwartz, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 For Defendant ;sal By the ;ourt E ~' IZ'~, I..,, ~' dgar 14. Ba~ -4- INMATE ACCOUATTS SYSTEM MA30!A2 INQUIRY TB3kNSACT liONS INMATE NUMBER NAME, LAST EM0130 THOMAS FIRST DAVID MI L BATCH DATE TRANSACTION/TRANSACTION SUB NUMBER YEAR MO DAY CODE DESCRIPTION 7292 2003-05-30 37 POSTAGE 00 7314 2003-06-02 31 OUTSIDE PURCHASES 00 MIKES BETTER SHOES 7340 2003-06-04 13 PERSONAL GIFT FROM 00 ARTER, NANCY F827922 7340 2003-06-04 13 PERSONAL GIFT FROM 00 ARTER, NANCY F827930 7358 2003-06-05 10 MAINTENANCE PAYROLL 00 4/27-5/31/03 PAY GROUP 4 8156 2003-06-05 32 ALB COMMISSARY 00 FOR 6/05/2003 TRANSACTION NEW AMOUNT BALANCE 1.52 40.63 36.99 3.64 20.00 23.64 40.00 63.64 23.10 86.74 44.94 41.80 MORE TRANSACTIONS? (Y/N) F1 LOGOFF, F2 SYS MAST MENU, F3 ACCT MENU '].S70043/03 NON-PRECEDENTTAL DECZSI'ON - SEE SUPER'rOR COURT I'.O.P,65,37 DAVID L. THOMAS, Appellant ]AMES K, ]ONES, VS. Appellee IN THE SUPERIOR COURT OF PEN NSYLVANIA No. 1045 MDA 2003 Appeal from the Order entered May 4, 2003 In the Court of Common Pleas of Cumberland County Civil, No. 02-5402 BEFORE: MEMORANDUM: Appellant, HUDOCK, FORD ELLIOTT, and KELLY, FILED: April 30, 2004 David L. Thomas, appeals from the Cumberland County Court of Common Pleas order that sustained the preliminary objections of Appellee, ]ames K. ]ones, to personal jurisdiction. We affirm. The relevant facts and procedural history of this case, gleaned from the certified record, are as follows. On November 14, 2000, Appellant entered a counseled guilty plea to robbery charges. Appellee was Appellant's court-appointed counsel. Appellant is currently incarcerated under the terms of that plea agreement. On November 7, 2002, Appellant filed a pro se complaint against Appellee seeking monetary compensation for Appellee's alleged legal malpractice stemming from Appellant's guilty plea. This complaint was not served on Appellee. On December :12, 2002, one month and five days after ,3.S70043/03 the filing of the complaint, Appellee filed preliminary objections to Appellant's complaint alleging, inter alia, Appellant had failed to comply with the Pennsylvania Rules of Civil Procedure in serving the complaint.~ On May 2003, the trial court judge issued an opinion and order sustaining Appellant's preliminary objection and striking Appellant's pleading because Appellant had not properly served Appellee with the complaint. This appeal followed. Appellant raises the following issues for our review: WHETHER THE [TRIAL] COURT ERRED, WHEN IT FAILED TO GIVE NOTICE TO THE APPELLANT OF THE RIGHT TO MAKE "AMENDMENT" AND "PROPER" SERVICE OF THE COMPLAINT. DUE TO THE FACT THAT THE APPELLANT IS INCARCERATED, HE DID IN FACT SERVE THE APPELLEE AND THE CLERK OF COURTS[?] WHETHER COURT APPOINTED COUNSEL PERFORMED "NEGLIGENT LEGAL MALPRACTICE," WHICH CAUSED IN]URY AND PREJUDICE TOWARDS THE APPELLANT[?] WHETHER THERE WAS ILLEGAL MEANS AND UNPROFESSIONAL CONDUCT USED IN APPELLANT'S CRIMINAL COURT CASE, UNDER A.B.A. STATUTE RULES AND STANDARDS FOR THE DEFENSE FUNCTION (PART VI) DISPOSITION WITHOUT TRIAL STANDARD 4-6-.:1(B) AND DEFENSE FUNCTION STANDARD 4-4.:[, DUTY TO INVESTIGATE[?] (Appellant's Brief at 5).2 Although the record is unclear, it seems Appellee received Appellant's complaint via first class mail. ~ Appellant's issues have been reordered for ease of disposition. a copy of ,].S70043/03 Appellant claims as a pro se litigant he did not know the Pennsylvania Rules of Civil Procedure requirements for serving a complaint. Appellant contends Appellee received a true and correct copy of the complaint by first class mail. Thus, Appellant concludes Appellee has been served with the complaint in a satisfactory manner. We cannot agree. As a prefatory matter, although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Strawn v, $trawn, 664 A.2d :~29 (Pa. Super. 1995). Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of Court. Sones v, Ruden$[ein, 585 A.2d 520, 522 (Pa.Super. :[991), appeal denied, 529 Pa. 634, 600 A.2d 954 (1991). "When we review an appeal from the grant of preliminary objections we examine the allegations of the complaint to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. We will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion." Cheskiewicz v. Aventis Pasteur~ Znc., __A.2d ,2004 PA Super 40 (filed Feb 23, 2004). Preliminary objections are governed by the Pennsylvania Rules of Civil Procedure, Rule 1028, which reads: Rule 1028. Preliminary Objections (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: -3- .].S70043/03 lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint; Pa.R.C.P. 1028(a)(1) (emphasis added). Rule 400. Person to Make Service (a) Except as provided in subdivisions (b) and (c) and in Rules 400.:[ and :[930.4, original process shall be served within the Commonwealth only by the sheriff. (b) In addition to service by the sheriff, original process may be served also by a competent adult in the following actions: equity, partition, prevent waste, and declaratory judgment when declaratory relief is the only relief sought. Pa.R.C.P. 400(a), (b) (emphasis added). Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Sharp v. Valley Forge Medical Ctr. and Heart Hosp., .[nc., 422 Pa. 124, 221 A.2d 185 (1966). Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Cintas Corp. v. Lee's Cleaning Services, Znc., 549 Pa. 84, 91, 700 A.2d 915, 917-918 (1997) (some internal citation omitted). "Regardless of whether the action is commenced by writ of summons or where, as here, the action is commenced by a complaint, service of process is essential to commencing the action. Proper service is a prerequisite to a court acquiring -4- · ].S70043/03 personal jurisdiction over a defendant." Ramsay v. Pierre, 822 A.2d 85, 89 (Pa.Super. 2003). Rule 401. Time for Service. Reissuance, Reinstatement and Substitution of Original Process. Copies for Service (a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint. Note: See Rule 404 for the time for service outside the Commonwealth. (b)(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon "reissued" in the case of a writ or "reinstated" in the case of a complaint· (2) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint. (3) A substituted writ may be issued or a substituted complaint filed upon praecipe stating that the former writ or complaint has been lost or destroyed. (4) A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement or substitution. Pa.R.C.P. 401(a),(b)(1),(2),(3),(4) (emphasis added). However, Given the importance of service of original process in completing the progression of events by which an action is -5- · ].S70043/03 commenced, we deem it necessary that where that progression "straddles the line" of the limitation period the process must be served within the time allowed by the Rules of Civil Procedure or, if service cannot be made, the process must be immediately and continually reissued until service is made.3 Although Pa.R.C.P. 401(b)(2) states that "Iai writ may be reissued or a complaint reinstated at any time and any number of times" (emphasis added), this cannot be construed to permit the reissuance of a writ or reinstatement of a complaint to "revive" an action as to which the limitation period has expired. 3 We note that Pa.R.C.P. 430(a) provides: "If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made." Subsection (b)(1) details the requirements and form for service by publication· The availability of alternative methods of service as provided in the rules assures that the vigilant plaintiff need not be consigned to an endless cycle of reissuing and attempting personal service. Witherspoon v. City of Philadelphia, 564 Pa. 388, 397-398, 768 A.2d 1079, 1084 (2001) (plurality opinion) (some emphasis added, some in original), Lamp v. Heyman, [469 Pa. 465, 366 A.2d 882 (1976)], changed the prior practice of automatically tolling the statute of limitations after praecipe for writ of summons for the same period of time within which the original action could be brought, by imposing the additional requirement that plaintiffs refrain from a course of conduct which serves to stall in its tracks the legal machinery [they have] just set in motion. -6- *].S70043/03 Farinacci v. Beaver County Xndus. Development Authority, 510 Pa. 589, 593, 511 A.2d 757, 759 (:1986) (some internal citation and punctuation omitted). The statute of limitations for an allegation of negligence of court- appointed counsel is two years. Moore v. McComsey, 459 A.2d 841 (Pa. Super. 1983). The plaintiff's conduct does not need to be "such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp~ [supra] will apply. Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out may be sufficient to bring the rule in Lamp, [supra] to bear." Rosenberg v. Nicholson, 597 A.2d 145, 148 (Pa. Super. 1991), appeal denied, 530 Pa. 633, 606 A.2d 903 (:1992) (some internal citations and quotation marks omitted). instantly, Appellant had two years from the entry of his guilty plea to file a complaint alleging Appellee's negligent representation. See Moore, Appellant entered the guilty plea on November 14, 2000 and filed supra. his pro se complaint on November 7, 2002, seven days prior to the expiration of the applicable statute of limitations. Appellant then had thirty (30) days, or until December 7, 2002, to properly serve Appellee via the Cumberland County Sheriff, but took no actions to do so. See Pa.R.C.P. 400, 401. Appellant failed to praecipe to revive his complaint after the thirty -7- J.S70043/03 day service period ended? Appellee filed preliminary objections to Appellant's complaint over thirty days after the complaint had been filed, alleging the fatal defect of Appellant's improper service of the complaint. Id. See Cintas Corp., supra; Ramse¥~ supra. Contrary to Appellant's argument, there is no exception to the rules governing service of original process that permits inmates at correctional facilities to effectuate service of process by mail. See Pa.R.C.P. 400. Thus, we determine the trial court did not abuse its discretion by granting Appellee's preliminary objections? See Cintas Corp., supra. Accordingly, we affirm the trial court order striking Appellant's complaint. Order affirmed. · JUDGE FORD ELLTO'I-f CONCURRED IN THE RESULT. Ju/fl~ent Enter ~(gd~) Pr ~c~honotapy ('--- L Date: APR 3 0 2004 3 Even if Appellant had attempted to revive his complaint, the attempt would have failed due to the expiration of the statute of limitations in the underlying complaint on November 14, 2002. See Witherspoon, supra. 4 Our disposition on this issue renders it unnecessary to consider Appellant's other issues. -8-