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HomeMy WebLinkAbout00-07439 . I. ~ -1 ~, <'~'<' IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ANTHONY D'ALESSANDRO Plaintiff, ifro C.A. No:7439 C{\l; -v- LEGAL MALPRACTICE IN ASSUMPSIT SPERO T. LAPPAS, ANN E, ARIANO Defandants JURY TRIAL DEMANDED / VERIFIED COMPLAINT IN ASSUMPSIT - LEGAL MALPRACTICE Filed of behalf of: Anthony D'Alessandro Plaintiff/Petitioner Filed in Propria Persona Counsel of Record, for this party: Anthony D'Alessandro 1111 Altamont Boulevard Frackville, PA 17931 DOC# DU3699 Dated: {)(!:;fDPijrz. I~.. ~ ,~ ,~'"' l. 'i I ~ . ~ < ~~"'~'. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ANTHONY D'ALESSANDRO Plaintiff C.A. No.: -V- LEGAL MALPRACTICE IN ASSUMPSIT SPERO T. LAPP AS , ANN. E.. ARIANO Defendants JURY TRIAL DEMANDED / NOTICE TO DEFEND You are being sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses and objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without further notice for any money claimed in the complaint or for any claims or relief requested by the plaintiff. You may lose money or pnorerty or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CAN NOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse 1 Courthouse Square, Carlis~e, PA 17013 ~~ :.....-. L,,_ , ''- 1'''!' 1lJii!i&.:i\' IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ANTHONY O'ALESSANDRO Pl ai ntiff C.A. No. tJ&-7'13t ~ <J~ -V- LEGAL MALPRACTICE IN ASSUMPSIT SPERO 1. LAPP AS , 1\NN l!:, 1\RI1\NOD Defendant s JURY TRIAL DEMANDED / PLAINTIFF'S OBJECTION TO DEMURRER AND NOW COMES, plaintiff, Anthony D'Alessandro, in objection to defendant's assertion of summary judgment on any preliminary grounds for dismissal of this civil action consistent with Bailey v. Tucker, 621 A2d 108, (pa. 1993). All pleadings set forth in plaintiff's Verified Complaint must be admitted as true wnereupon a defense claim that the complaint does nut set forth a cause of action or a claim upon which relief can be granted, must fail. See Cost v. Cost, 677 A2d 1250, (PaSuper 1996). "Where doubt exists it should be resolved in favor of overruling demurrer ..." Id. at 1252-53. Plaintiff is exercising reasonable diligence in that plaintiff's sentencing hearing occured in Oct. ,l8', 1998 and under "discovery rule" the tolling of Statuatory time limits may start when the injured party knew or should have known of the injury. See Harsco v. Herkan, et al., 961 F.Supp 104, 106-07 (M.D. Pa. 1997). In a criminal case the time of harm was the date of sentencing, Bailey supra at 115-15. Plaintiff's criminal case for which he is suing defendant was terminated by the untimely entering of a plea agreement coerced by the defendant, as such, the harm begain on the date of the agreement being entered. Per 42 Pa.C.S.A. ~ 5525 the applicable limitation period for an action in assumpsit is four years. Additionally, for an action';fl negligence, per Pa.C.S.A. ~ 5524, the applicable limitation period is two years from the date of harm which is the termination of the attorney-client relationship. See Bailey supra at 116. WREREFORE plaintiff avers that any defense motions in and held in abeyance, along with this civil action, as the hi~ right to amend this civil action if need be. demurrer be set plaintiff seeks aside to reserve Dated: Ot::mP-ElZ J 3 J /Jf)(X) Anthon D'Alessandro, DU3699 1111 Altamont Boulevard Frackville, PA 17931 '--'-1 ""- - ' '~'. , '1/ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ANTHONY D'ALESSANDRO Plaintiff C.A. No.: -v- LEGAL MALPRACTICE IN ASSUMPSIT SPERO T. LAPPAS, ','ANN E. ARIANO Defendants JURY TRIAL DEMANDED / PLAINTIFF'S OBJECTION TO ANY R.CIV.P. 240(j) RULING This legal malpractice in assumpsit complaint is premised on claims which when proven will establish that relief is due. There are factual assertions herein that provide incontroveribly that the defendant has breached the attorney-client agreement ren~ering the defendant liable, as the defendant agreed to provide best efforts yet he failed and refused to due so, e~acting among other deprivations, fraud, breacD of implied contract and negligence. Defe~dant is liable for monies owed plaintiff for such dperivations. The claims for which thep\aintiff seeks redress and recompense are not claims of legal ineffectiveness by way of criminal negligence, but in assumpsit which for attorney malpractice in a criminal matter proceeds along lines of all established contract claims and does not require determination by appellate court of ineffective assistance of counsel nor does client need to prove innocence. See Bailey v. Tucker, 612 A2d 108, 1993. Further, the precedent case that R.Civ.P. ~ 240(j) is premised on is intended to prohibit allegedly frivolous complaints "where it lacks an arguable basis either in law or in fact" and "claims whose factual contentions are clearly baseless." See Neitzke v. Williams, 109 S.Ct. 2827, 1989. It is averred that prudent review of the arguments contained herein are based on law and fact, are clearly not "frivolous" and it would constitute a gross abuse of discretion and an intentional obstruction of justice which no civilized society is yet willing to tolerate, +0 \'\illd\'f dis\l.1itS. WHEREFORE, plaintiff avers that the issues contained herein rise above any claims of frivolity and when taken in thier totality present arguable basis for which relief is due. Dated: ('){>;mPEt2.. /3) fJMO Anthon D'Alessandro, DU 3699 1111 Altamont Boulevard Frackville+ PA 17931 "'~ ,~,-~~<.",~ ~ii~!;",;!i~~;;"'-""--'-"'~i,."";?,!!:;:!&ii>Uffi.i;,;j;J~iilriI;W%:,,,,,,,,,j,~~.;';i';';;""I<4e.iN;',,:~icli>~'.a.,~.,"i,i~!J~~llllJ ~... "" 'dlllldlW~~lI!Ibol@;l~~~ ' .'tiI IIdIiililfi IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ANTHONY D'ALESSANDRO Pl ai ntiff C.A. No.: -v- .~~." .,,~~ "'-_1'., ,.~,~,~_.",~.,~"~.=,_,,,~",,,,'. ~. ~_ ',~ . "-- ~~ .- , ~- i I _ ~'". '. I -'t:,.:,I, IN THE .COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ANTHONY D'ALESSANDRO Plaintiff C.A. No. -v- LEGAL MALPRACTICE IN ASSUMPSIT SPERO 1. LAPPAS, ll-NN, E. ARIANO Defendants JURY TRIAL DEMANDED / VERIFICATION I, Anthony D'Alessandro, do hereby verify that the statements contained herein are made subject to the penalties of Pa.C.S.A. Title 42 ~ 4904 relating to unSWCfR falsifications to authorities. Dated:~.r~PBe )3,2~ , ~~~ Antho y D'Alessandro, DU 3699 1111 Altamont Boulevard Frackville, PA 17931 , ~ - ,.,',: ^~~, ~ ' J;: IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ANTHONY D'ALESSANDRO Plaintiff " C.A. No.: 0-0, 1'f.69 Cw::e.,~ J -v- OJ LEGAL MALPRACTICE IN ASSUMPSIT SPERO T. LAPP AS , J\,!'l!'l E. ARIANO Defendants JURY TRIAL DEMANDED / VERIFIED COMPLAINT IN ASSUMPSIT - LEGAL MALPRACTICE NEGLIGENCE PLaintiff, Anthony D'Alessandro, an imprisoned citizen, brings this action in propria persona, in good faith, and alleges he is the victim of civil legal malpractice in assumpsit, and has bt~~subjected to constructive fr~d for which the defendant is legally liable. STATEMENT OF JURISDICTION 1. The jurisdiction of this court is invoked pursuant to Article I, S 11, which provides in pertinent part: "All courts shall be open: and every man for an injury done to him in his lands, goods, persons or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay." 2. The Court of Common Pleas of Cumberland County further has jurisdiction pursuant to 42 Pa.C.S.A. S 912 & 913 et. seq. 3. The venue of this court is based on 42 Pa.R.Ci~.P. Wuje-1006(A) "... an action against an individual may be brought in and only in the county in which .., the cause of action arose or wh~re' a transaction or occurance to place out of which the cause of action arose..." This case involves negligent, reckless and wilfull misconduct through the actions and i nacti ons of the .-defendant desi gned to i nj ure. defraud and depri ve p 1 a inti ff of monies and property. As such damages in excess of $~5,OOO.OO are sought in compensation. Plaintiff also seeks in excess of .~,OOO.OO in punitive damages and for the defendant to pay the costs of these proceedings. I '-~I~if. I~ " ,_. w - _,-",..",,,_~~s,,,__,,,,,-,_,,,,,"-.l- .~ T 1.j! . ~: STATEMENT OF THE PARTIES 4. Plaintiff, Anthony D'Alessandro, is a citizen who is currently imprisoned at the state prison at Frackville, Pennsylvania. 5. Defendant, Ann E. Ariano, is an attorney, currently employed as an associate with the law firm of Spero T. Lappas, 205 State Street, Harrisburg, PA 17101. Defendant was plaintiff's attorney of record from May 15, 1998 up and through the proceedings held on Ocotber 28, 1998 involving plaintiff's criminal case of Commonwealth v. D'Alessandro, 98-0573 Criminal, Cumberland County. 6. Defendant, Spero T. Lappas, is an attorney, currently self employed, who operates the Law Offices of Spero T. Lappas, 205 State Street, HArrisburg, PA 17101. The services of defendant Lappas' firm were procured during the month of September 1997 to represent the plaintiff up and through all proceedings of trial involving plaintiff's criminal case of Commonwealth v. D'Alessandro, 98-0573 criminal, Cumberland County, which terminated on October 28, 1998. 7. The defendants are sued in thier individual and thier official capacities. STATEMENT OF THE CASE 8. This is a civil malpractice negligence in assumpsit complaint; a law suit against eounsels of record during the dates indicated above, and the contracted for services of the LAw Offices of Spero T. Lappas, defendants Ann Ariana and Spero Lappas, seeking compensatory damages from the defendants for thier legal malpractice negligence in assumpsit, breach of implied contract and constructive fraud, which trespassed upon plaintiff's constitutional right to due course of law, and access to the courts; thereby yeilding jurisdiction to plaintiff's person and subject matter in the criminal 6QSe of 98-0573 in Cumberland County, Pennsylvania, Court of Common Pleas where defendants Ann Ariano and Spero Lappas through thier fraudulent and negligent actions and inactions secured a coerced plea of guilty and the improper abrogation of property and monies belonging to plaintiff contrary to law and the contractual obligations of the defendants; gravely injuring plaintiff with undue imprisonment in a state prison and but for the defendant's reckless and wanton disregard for plaintiff's interests, plaintiff would not have suffered such a term of imprisonment nor the loss of his property for which the defendants were expressly employed to prevent and for which they have refused to remedy and or prevent. ~ 'S'< ',"""""<......"-'t_,_,~"<1jr'".-.'"""""..1<jI1;SiW""'""~_I~...~""""""""-""t.....",..,.._ ~m' ........-L ~- jgji!;;j ,~ 'CiiJ!!~,iMs;ii PROCEDURAL HISTORY 9. On Dr abDut August 28, 1997, plaintiff was entrapped by the Cumberland County drug task force utilizing one Jeff Varner who was encouraged to conspire to purchase a quantity of drugs in exchange for light treatment on DUr charges. The plaintiff naively obtained for Varner a certain small quantity of a controlled substance sought by the drug task force. Through the use of an illegal wire tap the informant Jeff Varner allegedly contacted the plaintiff's girlfriend Sherry Ehrisman to establish a "buy" through some nebulous "code" heretofore never to be explained in any police records, of some quantity Df drugs. Subsequently, Mr. Varner through the unsupervised assistance and directiDn of the drug task force allegedly secured some drugs at the home of the plaintiff. The next day, the pDlice Dbtained an Dver-zealDusly impermissable search warrant, whereby the plaintiff willingly cooperated and provided the police known fixed quantities of the controlled substance being held in his hDme fDr Mr. Varner. ThrDugh the nefariDus and unbridled illegalities Df the pDlice, thier records were fabricated to falsely aCCDunt for some unknown quantity Df narcDtics in the plaintiff's auto~Dbile fDr the sDle purpDse Df depriving plaintiff Df same for nD legitimate reason. Plaintiff was not arrested and his girlfriend Sherry Ehrisman was present duri ng the search,l>lttn_lI$.the ~ Or" ~ pl ai ntiff' scar. Assi stant District attorney Michael SchwDyer was alsD present. Det. Mark Bradley had ascertained frDm the plaintiff that the autDmDbile was paid in full, thus Dstensibly "ripe fDr the picking," and threatened to "drag" the car away if plaintiff did nDt willingly turn it over tD the detective after the search was over. 10. ON Dr abDut5eptember 5, 1997 plantiff met with the defendant Lappas tD secure his representatiDn in the expected criminal litigatiDn Df the instances mentiDned supra. Pl ain1iff deta il ed hi s knDwl edge Df the instances as he had experi enced them, particularly the invidiDuS lawlessness of the drug authDrities involving the theft Df his car, his petty cash taken and Dther personal property remDved. Plaintiff further detailed the inaccuracies and falsities encDuntered in the pDlice actiDns initiated against him tD date. Defendant Lappas adamantly pDntificated that in nD uncertain terms was plaintiff's car nDr persDnal prDperty legally seized and that thDse would certainly be returnable tD the plaintiff. Defedant Lappas discussed a retainer fDr his services. plaintiff assented that his intentiDn was tD prDceed tD trial, challenging the deficiencies of the state's case, thier blatant illegalities cOrQbined with plaintiff's priDr gDod recDrd and his gDDd character, while nDt contesting the pDssessiDn of the narcDtics surrendered so as tD achieve a lenient sentence based Dn restDrative sanctions such as hDuse arrest, DUt patient drug therapy Dr prDbation and Dr work release. Defendant Lappas at first entertained a plea arrangement with the plaintiff tD garner the best plea pDssible and fDr the return of the plaintiff's illegally Dbtained prDperty, defendant Lappas qUDted a retainer Df $1,500.00 against his J ~ = ~ " ~L ll!II:lIiJ!> ""~-. ,~ ...........~; hourly fee of $115.00. Plaintiff disagreed, seeking a trial whereby defendant Lappas agreed, indicating a high probability of sucess before a jury and quoted a retainer of $10,000.00 for such services at the same hourly rate. Plaintiff agreed to the retainer for services and tendered an initial payment of $1 ,500.00 by check to obtain the services through to trial of the Law Offices of Spero Lappas. Such se~rvices were to include representation at all pre-trial proceedings, full trial preparation and trial advocacy as well as the adamant pursuit of the plaintiff's property illegally obtained by the police. 11. On or about Dec. 5, 1997 plaintiff tendered a check in the amount of $2,500.00 to the defendants towards the retainer agreement, bringing the balance paid to date to $4,000.00. 12. On February 2, 1998 the plaintiff was formerly charged with the alleged crimes involving the controlled substances. 13. On Feb. 5, 1998 defendant Lappas expressly directed plaintiff to execute a waiver of the preliminary hearing, saying "it is not important." 14. On February 6, 1998 the plaintiff was in attendance for a preliminary arraignment on the charges and bail was set at $15,000.00, whereby plaintiff posted the five percent option on bail and was released on his own recognizance. 15. On or about March 20, 1998 plaintiff fulfilled his retainer obligation to the defendants by tendering another check in the amount a+ $6,000.00 paying his retainer in full. 16. On May 12, 1998 Senior district attorney Travis Gery posted an Inventive and belated notice of intercepted communications that even facially is a gross fabrication as well as posting a notice of mandatory sentence with the court. 17. On May 15, 1998 defendant Ariano filed a praecipe for appearance for the plaintiff as counsel bfrecord. 18. On May 15, 1998 plaintiff was arraigned while accompanied by defendant Ariano. Through conversation with the defendant, plaintiff found that the express contractual agreement to obtain the rightful possession of his proerty that was illegally taken by the police was being subverted by the defendant's. If ~" .... ~ ~ 0" I "~ 1.- ihl,...tt[ili.1~Jlii't,'%~::'(;- 19. On or about May 20th, 1998, defendant Lappas called the plaintiff to meet him at his office to discuss his case. While there, Lappas indicated rather obiquely that he was reviewing the forfeiture petition from the district attorney's office, and in review has decided that should the plaintiff wish to have his proPtfty returned, it was going to cost an additional $4,000.00 beyond the already agreed to price, that to date was paid in full. Lappas claimed that the return of his proerty was "negotiable" and "independant" of plaintiff's case, and claimed it was not a 'specific' issue agreed upon previously. PLaintiff naively assented to this underhanded manipulation of his rel~nce of defendant's legal representation and began negotiation in and above the already agreed upon and paid retainer for which negligable services had yet to be rendered. Defendant Lappas demanded,an additional $4,000.00 retainer to merel y assert the ill ega 1 forfei ture of p 1 a inti ff I S property. Pl a i ntiff argued hi s dwindling funds and asserted his ability to only come up with an additional $2,000.00, which defendant greedily agreed to and for which the plaintiff tendered a check for. 20. On June 15, 1998 defendant Lappas filed requisite pre-trial motions for discovery, relief, suppression and return of ~~. 21. .On June 17, 1998 pursuant to the filings mentioned supra, the court ordered a hearing held on August 28, 1998. 22. On June 23, 1998 the court ordered the matter of forfeiture of plaintiff's property be held thirty days after sentencing or the finding of not guilty.. 23. ON August 27, 1998 defendant Ariano filed a motion for continuance due to plaintiff's impending hospitalization. 24. On August 28, 1998 pursuant to the filing mentioned in #23 supra, the court approved the continuance to Sept. 28, 1998. 25. On sept. 28, 1998 a pre-trial hearing was conducted, relief requested was denied in part and approved in part. The record is ordered closed. 26. On October 13, 1998 plaintiff arrived at the courthouse for a call of the list with defendant Ariano, trial is scheduled for Oct. 26, 1998. 27. On Oct. 13, 1998 a pre-trial conference occurred with defendant Ariano. 5' ._o=~,""_....=,-"""""......,_=-~""""--""",,,,,." - - ~ ~ MillI1~ .~-"l.",,,,,,,,1 '111--~~ H 1.:>....-1'. '~1''im~ ~'-"Li'J 28. On Oct. 26, 1998 the court denied the contestment of the lack of probable cause yet granted severence of the two charge bill of information. 29. On October 27, 1998 plaintiff was contacted by defendant Lappas who asserted that he "didn't think it would ever get this far, I'll be in the office starting your defense." Lappas called later that day and requested of plaintiff to provide on such incredibly short notice, persons able to testify as to plaintiff's good character. PLaintiff inquired as to the investigation conducted by the defendant who immediately became hostile and evasive. Plaintiff inquired as to the status of his illegally forfeited property whereby defendant stated that that issue would be addressed after they "got through the trial." Plaintiff inquired whether expert testimony was to be introduced to highlight the improper collection and handling of alleged evidence as well as the improper police procedure that went to the heart of plaintiff's case. Lappas claimed that such testimony "wouldn't be needed" because "the errors were so obvious and blatant, that they were self explanatory." Plaintiff inquired about subpoenas being issued for ADA Schwoyer, Jeff Varner and the detectives present during the execution of the search warrant to elicit testimony to challenge thier credibility and thus the legitimacy of the claims made. Defendant Lappas, again became hostile and asserted that they wouldn't have cooperated anyway and that "they always lie." When asked what defendant Lappas' strategy for trial was going to be he stated "I'm working on it." 30. On October 28, 1998 plaintiff arrived at the Cumberland County Courthouse for the conduct of his criminal trial. Defendant Lappas arrived about an hour late as was his custom to date. Plaintiff informed Lappas that Sherry Ehrisman was present and willing to testify yet due to the obscene hour notified, plaintiff was unable to procure any character witnesses on such short notice as everyone was going to be at work. Defendant Lappas then met with the prosecuting attorney Gery. During voir dire defendant Lappas suddenly approached plaintiff ana asked him to consider a plea bargain, indicating that the "stakes have gone up" and that should the district attorney be "forced to try to convict you, he's going to forfeit your house, he's offering 2 1/2 to 5 years and he won't take your house."~The plaintiff was flabbergasted as it was palpably evident the L~ppas never intended to try the case on its merits as the evidence of his being totally unprepared was mounting. Lappas T<!lAforced the threat by stating "they are trading for your house." Plaintiff was now forced to weigh the loss of his home over being tried with totally lackluster counsel, the duress of the situation was extreme to say the least. Plaintiff reali~ing his right to effective counsel to mount a spirited defense was being abrogated through deception and subversion b ,."", _ =_~-_.'~_N~-_" -~",_ ~, . ~~~oo-_'~ ~ ~~.....I ~~ - _..:_..;~_L." _'-' '-""w".~, by and through the actions and inactions of Lappas. Lappas never intended to try this case. PLaintiff reluctantly countered with 1 1/2 to 3 years as long as his house was not involved. District attorney Gery countered with 2 to 5 years as he consulted with Lappas. Plaintiff was informed that the 2-5 was all that was going to be offered. Plaintiff realizing that he has been abandoned by the defendant who was refusing to provide paid for services nor competent advocacy and who never intended to defend the plaintiff in light of the serious deficiencies of the state's case felt he was forced to accept the plea for even if he went to trial at this point, realizing the total abandonment by defendant Lappas, his potential for success at trial was markedly reduced. Plaintiff under great duress assented with great hesitation and trepidation to be coerced into the plea agreement. Once papers were drawn up, plaintiff realized that the illegally sei~ed property that he had specifically contracted with the defendants to retain as rightfully his, was suddenly part of the "deal" to be forfeited to the state without any prior notice. Plaintiff stepped aside with Lappas to ascertain what was going on as plaintiff's property was NOT part of the deal. Lappas then stated "Look, do you want the deal or not? They are going to get everything and your house if you don't agree now." When plaintiff expressed his recollection of monies paid to retain his illegally seized property, Lappas stated that "we can still get that back - later, there are technicalities that I can't bring up,now, don't worry you are going to get your stuff back." With great trepidation the plaintiff against insurmountable duress SIgned the agreement. Later during the plea colloquy, defendant Lappas instructed the plaintiff to just say "yes" to questions posed by the judge and him, ashe stated "you don't want to pi ss off the judge ,he can sti 11 gi ve you a hi gher sentence. " Real izi ng that the plaintiff was still dependant on the defendant to follow through with the return. of his property, the plaintiff reluctantly and stoically answered 'yes' to the questions posed him. Whereupon, plaintiff reluctantlY,agreed to all questions asked, even the underhanded, meanspirited and self serving questionsLappas posed concer.mng his representation. Answering "yes" to tJiese qlJet>fflJn5 made the plaintiff sick to his stomach, but out of fear of reprisal from the judge and the continued duty expected of Lappas's firm, he assented to being held hostage at words. 31. On Nov. 4, 1998 plaintiff turned himself in to the authorities after taking care of his personal affairs. 32. On May 17, 1999 after aprlslng himself of the law and realizing how naive he was, plaintiff sought copies of all documents relating to his case from the defendants. This written request was never responded to. <::t , ~ - " ~ "L.. ...1 . ~ . _~~ . L,~ _.~ 'I~__;' _, A. 33. On June 13, 2000 plaintiff filed a pro-se petition for return of property_ with the court. 34. On June 21, 2000 the court denied plaintiff's motion for return of p~erty erroneously relying on case law completely distinguishable from plaintiff's case. 35. On July 10, 2000 plaintiff petitioned the court for a copy of all documents relating to his case, which was' complied with, for which plaintiff paid $142.00 for. ARGUMENT 36. Due to defendant's sloth and refusal to conduct a prompt investigation of the circumstances of plaintiff's case and defendant's refusal to provide competent advocacy, prejudiced the plaintiff and denied him due course of law. 37. Due to defendant's irresponsible and incompetent conduct a preliminary hearing was never conducted for were it to have been, substantial inference exists that due to the ill egal and outrageous conduct of the i nvestigati ng offi cers, the state's burden to present a prima facie case supported by probable cause would never have been established. The preliminary hearing is a crucial aspect of any ciminal proceeding especially when plaintiff's liberty is in question. To brazenly deny plaintiff this fact finding hearing on supposedly counseled advice is irreconcilable. 38. In light of the clearly illegal conduct of Detective Bradley in collusion with the other detectives to improperly forfeit plaintiff's legally obtained property and in light of the defendant's gouging the plaintiff for an additional $2,000.00 to obtain this illegally garnered property, defendant's failed and refused forever to assert that due process be afforded plaintiff pursuant to the Controlled Substances -. Forfeiture Act, Title 42, Pa.C.S.A. ~~ 6801 & 6802, for were the letter ot the law followed, plaintiff would never have been deprived of his property, as the deprivations enacted are contrary to law. 39. Defendant's refused to exercise common skill or knowledge of attorneys practicing in the field of the law pertaining to plaintiff's case, for had they, the irreconcilable discrepancies regarding the illegal wire tapping, the multiple versions of the affidavi+6 of probable cause, the noticeablt absent affidavits from all persons present during the service of the search warrant (particularly ADA Schwoyer), the falsified inventory sheet that consistent with all police records obtained never documents to amount of controlled substance nor what type was ever collected from the plaintiff's car, the missing laboratory reports that allegedly confirm that the 8 ~_"' ~."".rj'."""'-~_"->""",),,',,"i!dw_Ri!iil!l~"- .'--", ~' h' T' ~_~""'-"'"" .~--I....~ :".-.sll.iililb...~~.'~ '"Ii. .--" j" .".~ti.g,ill' 'j!~ . , materi aT found wasn't just baby powder ,the whereabou.ts of. the. all egedl y seri a 1 i zed bill s used to 'entrap s,6me person, the fact that .!].Q phone ca 11 s i 11 ega 11 y tapped were ever "consentual," the evident lack of a court order to authorize a wire tap and the absolute theft of plaintiff's property con.deT'led by the ADA, the court and the defendants constitutingprosecutorialniisconduct amounting to deprivations of a consti- tutional magnitude. These among other issues consist of actions and inactions by ,- the defe~dantswben taken in thier. totality constitute a constructive breach d-\i centract, ciJnstructive fraud, negligent represent;atief1 and theft by deception, for had the defendant's exercised d~e diligence for which they were paid, the state's case against the plaintiff would neverh,webeen established as they lacked probable cause, and it was the defendant's duty to establish that probable cause never existed due to the illegal conduct of the police. 40. The defendants' sloth, and constructi ve fraud is most evi denced by and through thier actions and inactions prior to and on the day of trial. There exists no evidence that a single person for the def?nse nor theprosetution was. ever interviewed, .investigated, deposed nor subpoena'dto illicit testimony or provide information in support of theplainti ffnor to support a. theoryinconsi stent with the state,' s. No persOns from anytesti ng laboratory were contacted to'Cverify the:'i ndividua l.lei ghts and.,c6mposi ti on of. any of the a II ege8 contro-ll ed substances feund.No persarnwas contacted to refute the obvi ous trangressi onsof pol ice procedur.e and' cha in of evidence i Bsues that would .' refute cl aims ma6e by the pol ice.. No persons were contacted to ch.a Henge. theveraci ty of any of the state's witnesses. No investigations had been made involving any of the state 's,'witness'backgrounds; No persons were contacted. to amp 1 ysupPOl't P lai ntiff' s goDJ}ch'a.racter.', Noi nvestYg~ti ons were ever made to support the motive and intent' to fabricate or falsely impl icate plaintiff by Jeff Varner. No omnibus motions fer di SCGwery wer('J.'ever filed to obta i l) the missi ng records thatwoul d have or might notnavesupperted the state's case .No cha 11 enges were ever made to the blatant perjury,invol vi ng three separate afffdavi ts of probabl e cause nor the.,fal siti es i nvol vi ng the ill:ega 1 Wi re tappi ng. Defendants never spoke wi th, i ntervi ewednor...s,ubj!Jbena 'd Sherri...Ehri .smana pri marywi tness to a 11 events a 11 eged. The total i ty of these depri vati ons enumerated here support the fact that the defendants never intended in any way to provide paid 'for services to .present adefense.tothe allegations levied against the plaintiff. It i~ averl'ed,b~sed on.the forgoing facts,thatthedefen@ants conspired to'defl'al:1~tnepl ai ~ti ff frQ)i1( .the begi ningasi t i si nconcei v~ble that ANY 'practici ng attorneys who were paw for serv.ices to be rendered would,i'JOThave minimally provided " - - -" ' "I,~ on thed:ay"of trial ,those services normally presented by competent Glttorneys practicing in the fie1d. r - -~ II.... -~ M~""" __...>~~"~ ..""",,-I-. ~ ~-.i "' ""'""'-' ~,~, ,;.,. - ~ --.", ~ "'~'"~~ri' , '. 41. The defendants while derelict in thier duties forever refused and failed to exercise any diligence in obtaining the illegally taken property of the plaintiff, viOlating the contract entered into twice and the paid for services to do so twice, defrauding the plaintiff and depriving him of property that is rightfully his constituting theft by deception. SUMMARY 42. The defendants' negligent actions and inaction stated above are contrary to the American Bar Association's standards of conduct and thus the defendants breached the duty and care attorneys must afford thier client. 43. The defendants' negligent and reckless actions and inactions stated above evidence thier refusal to provide competent stewardship nor to exercise ordinary skill and knowledge possessed by the average practicing attorney. 44. But for defendants' professional legal malpractice as stated above plaintiff would not have had his constitutionally protected rights of substantive due process, effective assistance of counsel nor equal protection so p~\pably abrogated. 45. The reckless and negligent actions and inactions stated above by the defendants were the proximate cause for plaintiff to suffer the injury of a protracted imprisonment, the loss of his property and the objective appearance of theft of his monies paid to the defendants. 46. The defendants' performance was so fraught with error that the defendants were not functioning as the 'counsel' guaranteed by the Sixth Amenedment of the UNited States Constitution but as a criminal enterprise intended to defraud and bilk the plaintiff of his hard earned monies. 47. Despite the existence of credible defense strategies, the weakness of the state's case, the apparent prosecutorial and police misconduct and other issues presented supra, the defendants' actions and inactions fell outside the wide range of professionally competent standards of assistance compared to reasonable attorney standards. 48. The defendants' refusal to investigate issues presented them, refusal to interview nor investigate witnesses and utter failure to exert common skill or knowledge evidences defendants' gross incompetence in violation of reasonable attorney standards. to I~ ~_~n_""""""",~~~,.~ ___~.~~ .~ .--..<i..,.,J.~~-- ~~"~~~L I r--:il-~ 0."'" )''''''''-2L~fA'i[!fI.:LYli ,. . 49. As a result of the defendants' legal malpractice, plaintiff has been and may continue to be deprived of the society, companionship and consortium of his family and associates. 50. As a result on the defendants' constructive fraud plaintiff has suffered the loss of thousands of dollars paid to the defendants for services they did not render presenting the objective appearance of theft by deception. 51. As a result of the defendants' fraudulent practices, plaintiff's contractual agreement for services to be rendered as paid, plaintiff's right to due process of law was abrogated as it is averred that the defendants' never possessed a cognizable defense strategy, 52. As a result of the defendant's fraudulent practices, plaintiff has been deprived of prOferty and money rightfully his. 53. But for defendants' breach of duty, breach of contract and culpable negligence planitiff's professional reputation and bus\ness standing would not be so irreparably harmed. 54. But for defendants' professional legal malpractice as stated above, plaintiff would not have suffered the loss of his property and monies, nor arguably, the extent of imprisonment endured, if at all. 55. The defendant's disregard and failure to apply American Bar Association standards of conduct, care and duty as stated above viol ated p 1 a i ntiff I s constituti ona 11 y protected right to due course of law; thereby injuring plaintiff by securing his loss of liberty, property, monies and fees paid, contrary to the contract entered into with the defendants. RELIEF SOUGHT 56. Plantiff seeks compensatory damages in excess of $35,000.00 (thirty five thousand dollars). 57. Plaintiff seeks punitive damages in excess of $125,000.00 (One hundred twenty-five thousand dollars). 58. Plaintiff seeks all reasonable interests accrued on his monies lost and paid to date. !I "dlill.lI!!I JIilI!U- ,'I,llli ~ . ~~l "i"~~-'''''''''''I,,,,*~'''''~-'''';>w(<~>fuiJJ',,,,,,,,"I'',",,,~ - '", , --"~w.ilai~lli:,t,;\,w",!~~,i";'- .' ,~ 59. Platntfff seeks to have the defendant!s pay the costs incurred in bringing this action. 60. Plantiff seeks a trial by jury on all matters triable by a jury. WHEREFORE, plaintiff, Anthony D'Alessandro, respectfully requests this Honorable Court to grant this and such other relief deemed appropriate under law. Respectfully Submitted, ~~~ Anthon D' Alessandro . 1111 Altamont Boulevard Frackville, PA 17931 . l' I y to b 'b)-e :;;toYl Q.; 'Dr.. Q.Q ,\ ~\ f' ~C{\ Ie) 1 ~ P \.- N l:h. '1 (}) (} yJ'-P"- 0 IJr 5 I".L IN 11... ~~ifiljt4:l'tl.iilt@ii,M,;Hi~)g",,,;;i0U';,._h,j" .,," "-;:-,:,e" .M" ",,;,~)~,,-'''';~,-(-''_i ,~,:c,r'"",~,~r.4';~'r..;NdI~[,;;~~_1&'1lW1fil!c.'ifr:Jlr_~tlitil ~ j-' ". ~ ~ o p ~ ....D ("">. ~ ~ .-- ,~ \-::: ~ Cd eI 3 TO ~ S o ~ ~ Li'> U ~ ~ - ~ti>'I"I~~,*,~~;"tW<<tts@>.J~,w.d~~M;~-!I!!ti1!. ~ ~t -r7 t5' :!l ~ "'\_~ ! t~ --<. -- i ,_~ ,~~ 'H~ ~ IlllllIII,1:!' .I' ~ ., C) c:) ~) "---:) ~, ~~; .J. I!, t:'- --:;;:-~ j.] "'< >.::.1 ., -,-- ~~.:L ~_. .1 . " "I ~.:;;:;, SHERIFF'S RETURN - OUT OF COUNTY , CASE NO: 2000-07439 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND D'ALESSANDRO ANTHONY D VS LAPPAS SPERO T ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: LAPPAS SPERO T but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On November 6th, 2000 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Pocketing Out of County Surcharge PEP. DAUPHIN CO 18.00 9.00 10.00 31. 50 .00 68.50 11/06/2000 ANTHONY D'ALESSANDRO ~ .,.-- _ --.-7 So ans,"::>!; . .~. .' . ~~_/C_- R. homas Kline Sheriff of Cumberland County Sworn and subscribed to before me ,,~ o day of 7L"'''JJ..~4,. J this ,11rlrtJ A.D. ~H {1 )n~Pt,,~ ~ Prothonotary 'ai'''''' """-". "'"".~ "~ , , ~, i_ ~ i: ,I: SHERIFF'S RETURN - OUT OF COUNTY , CASE NO: 2000-07439 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND D'ALESSANDRO ANTHONY D VS LAPPAS SPERO T ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: ARIANO ANN E but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On November 6th, 2000 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County surcharge 6.00 .00 10.00 .00 .00 16.00 11/06/2000 ANTHONY D'ALESSANDRO ~r~ So a~swe :. ,,' _ .~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~~ day of f1..o~ :2rrW A.D. ~O I1Ad)f/~ ~7{ prothonotar ~'- - 0"'- - ...... L-.~,I ,-I .. ~ . ~~.'i'~:,-, , @ffire of flyc ~4criff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Ralph G. McAllister Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 171 0 I ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania D'ALESSANDRO ANTHONY vs County of Dan ph in LAPPAS SPERO T & ANN E. ARIANO Sheriff's Return No. 2449-T - -2000 OTHER COUNTY NO. 00-7439 AND NOW: October 31, 2000 at 12:23PM served the within VERIFIED COMPLAINT IN ASSUMPSITW/NOTICE upon LAPPAS SPERO T & ANN E. ARIANO by personally handing to SPERO & ANN ARIANO EACH 1 COPY 2 true attested copy(ies) of the original VERIFIED COMPLAINT IN ASSUMPSITW/NOTICE and making known to him/her the contents thereof at 205 STATE ST. HARRISBURG, PA 00000-0000 (\ . "m~~lf)tiAMta) So Answers, Jf~ Sheriff of Dauphin County, Pa. By ~~l;v Deputy Sheriff Sworn and subscribed to before me this 31ST day of OCTOBER, 2000 Sheriff's Costs: $31.50 PD 10/26/2000 RCPT NO 142663 HOPKINS , . I ' " ~ . U' . m In The Court of Common Pleas of Cumberland County, Pennsylvania Anthony D'Allesandro VS. Spero T. Lappas, et. al. 'Serve: 'Spero T. Lappas No. 20-7439 Civil Now, 10/23(00 , 20 V4' , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .vt"..dt. . . r~~~t:~~ Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 ,at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA . 20 '- COSTS SERVICE MILEAGE AFFIDA VIr $ Swom and subscribed before me this _ day of $ - - -~ ..J _I L', '_, ,'~", H ~;' _ _, - ,,~~, In The Court of Common Pleas of Cumberland County, Pennsylvania Anthony D'Allessandro VS. . Spero T. Lappas, et. al. Serve: Ann E. Ariana No. 20-7439 Civil Now, 10/23/00 ,20 0 ~ , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to exe.cute this Writ, this deputation being made at the request and risk of the Plaintiff.. ."./:.dI! ". . . ~~~~~t Sheriff of Curnberland County, PA Affidavit of Service Now, , 20_, at o'clock M. served the within upon at by handing to a copy ofthe original and made lmown to the contents thereof. So answers, Sheriff of County, PA 20 '- COSTS SERV1CE MILEAGE AFFIDAV1T $ SWDrn and subscribed before me this day of $ ~~~-Blil<:;:,];"'ti"""'_b!",.l;',';j._""A'-,"""',""''''''JJ-i!;l'''''~b''M~'';'"'1o"~,i,~_i"",;->,~~""3mM,-,-",,,~~~'~~~~lIl'~__~iIIlI!iiil:'lllll!liill'..LjLJt-"~ &!b!J e''''- ,'= .~ 'b 'b ~ _~C" "',~'="'.,..' ...".,.,,<,"" ,~_ '~--" ~","n-,. ~0~""';<-"_' ",~ ~ ~~" ;'~""'-", 1. .,'-;=M7~ ,~ '>>_',,~ I :!',,'-' , ?,."., ~ ' -,. ,~ ,.. "~, ',. ., ,^ . -" Dd'JI (2.:D ~ ~ ~ @ ! ^~ >~"'- , , - ~~ .' .] -- < , ~ '~;. . The Law Offices of SPERO T. LAPPAS 205 State Street Post Office Box 808 Harrisburg, Pennsylvania 17108-0808 (717) 238-4286 By: SPERO T. LAPPAS, Esquire Pa. Supreme Court identification no. 25745 ATTORNEY FOR THE PMINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ANTHONY D'ALLESSANDRO Plaintiff : : Civil NO. 00-7439 v. : : SPERO T. LAPP AS , ANN ARIANO, Defendants : : : PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT RESPECTFULLY SU1JMITTED, The Of SPERO T. LAPPAS By: o T PPAS, squire Supreme Ct. ID no. 25745 205 State Street P.O. Box 808 HarriSburg, PA 17108-0808 (717) 238-4286 ATTORNEYS FOR THE DEFENDANTS November 16, 2000 The Law Offices of SPERO T. LAPP AS Page 1 ,.,,~- --"I ~ I - =~-" L h h.._~,~;1 I. MOTION TO DISMISS AND/OR STRIKE COMPLAINT FOR LEGAL INSUFFICIENCY 1. All other paragraphs of these Preliminary Objections are hereby incorporated into this Motion by reference thereto. 2. The Complaint is legally insufficient in that inter alia it fails to allege that the Plaintiff was/is innocent of the crimes charged as required by Bail~y v. Tucker, ___ Pa. ___, 621 A.2d 108 (1993) and related cases. a. In fact, the Plaintiff seems to acknowledge throughout the Complaint that he was at all relevant times guilty of the crimes charged and was properly convicted of those crimes by his own guilty plea and admission of guilt. b. The Plaintiff acknowledges that .he pleaded guilty to the crimes charged and the records of this court indicate that his plea was entered intelligently, voluntarily, and knowingly and without duress, threats, promises or other improper influence. 3. WHEREFORE, the Plaintiff's Complaint should be stricken and/or dismissed with prejudice. II. MOTION TO DISMISS AND/OR STRIKE COMPLAINT FOR FACTUAL INSUFFICIENCY . 1. All other paragraphs of these Preliminary Objections are hereby incorporated into this Motion by reference thereto. 2. Furthermore, the complaint lacks necessary specificity The Law Offices of SPERO T. LAPPAS Page 2 ., ~E; inter alia in the following regards: a. Paragraph 9 does not indicate: why the wiretap was unlawful, why the s~arch warrant was impermissible or "over zealous", what illegalities the police engaged in, how the police fabricated records. b. Paragraph 10 does not indicate: why the police activities were "invidious [ly] lawless"; how the seizure of his car amounts to "theft". c. Paragraph 16 does not indicate why the Commonwealth's notices constitute "gross fabrication". d. Paragraph 18 does not indicate how the defendants allegedly subverted the Plaintiff's interests. e. Paragraph 30 does not indicate in what way he was deprived of a defense to the criminal charges. f. Paragraph 36 does not indicate in what way he was deprived of a defense to the criminal charges. g. Paragraph 37 does not indicate in what way he was deprived of a defense to the criminal charges. h. Paragraph 38 does not indicate in what way the police conduct was unlawful. i . The various paragraphs of the Complaint do not indicate in what way the electronic surveillance was unlawful. j . The various paragraphs of the Complaint do not The Law Offices of SPERO T. LAPPAS Page 3 - " , I , " ,',"," ' ';.,,'~, indicate in what way the defendants' handling of this case harmed the Plaintiff, especially in light of the fact that he was guil ty of the crimes charged, has admitted his guilt, and pleaded guilty pursuant to a negotiated guilty plea. 3. WHEREFORE, the Plaintiff's Complaint should be stricken and/or dismissed with prejudice. III. MOTION TO DISMISS AND/OR STRIKE COMPLAINT FOR FAILURE OF COMPLAINT TO CONFORM TO LAW OR RULE OF COURT 1. All other paragraphs of these Preliminary Objections are hereby incorporated into this Motion by reference thereto. 2. The Plaintiff's Complaint at various places improperly attempts to frame a cause of action in "assumpsit", then "negligence", then "legal Malpractice" in violation of the Pennsylvania Rules of Civil Procedure. 3. The Complaint fails to comply with Pa.R.C.P 1019 which requires allegations to be stated in a "concise and sununary form". 4. The Plaintiff's prayer for relief violates Pa.R.C.P. 1021. 5. The Complaint contains additional improper pleading inter ~ at paragraph 4. 6. The Complaint contains general averments of fraud. 7. WHEREFORE, the Plaintiff's Complaint should be stricken and/or dismissed with prejudice. The Law Offices of SPERO T. LAPP AS Page 4 - . ~~'~ L ,~ ~' ~ '~;..-,~,' IV. MOTION TO DISMISS AND/OR STRIKE COMPLAINT FOR INCLUSION OF SCANDALOUS OR IMPERTINENT MATTER 1. All other paragraphs of these Preliminary Objections are hereby incorporated into this Motion by reference thereto. 2. The Plaintiff's Complaint contains scandalous and impertinent material throughout its "pleading". 3. WHEREFORE, the Plaintiff's Complaint should be stricken and/or dismissed with prejudice. RESPECTFULLY SUBMITTED, T. LAPP AS By: PERO T. LAPPAS, Esquire P . reme Ct. ID no. 25745 205 State Street P.O. Box 808 Harrisburg, PA 17108-0808 (717) 238-4286 The Law Offices of SPERO T. LAPP AS Page 5 " ","",," . , '''-''' i;"" The Law Offices of SPERO T. LAPPAS 205 State Street Post Office Box 808 Harrisburg, Pennsylvania 17108-0808 (717) 238-4286 CERTIFICATE OF SERVICE I hereby certify that on this date I served a true copy of the attached document upon the person (8) named below by mailing a copy addressed as follows, postage pre-paid, deposited into the U. S. Mail at Harrisburg, Pa. ANTHONY V' ALLASANDRO INSTITUTIONAL NUMBER VU-3699 SCI-FRACKVILLE 1111 ALTAMONT BLVD. FRACKVILLE, PA. 17931 RESPECTFULLY Th TTTED , of SPERO T. LAPPAS By: o T LAPPAS, Esquire Supreme Ct. IV no. 25745 205 State Street P.O. Box 808 Harrisburg, PA 17108-0808 (717) 238-4286 ATTORNEYS FOR THE PLAINTIFFS November 17, 2000 Law Offices of SPERO T. LAPPAS ~iiiilll"~_',*"''$fIl/4L,ij~"~"\l''''''f~!'w.~''(!;M'~~'';;;''*,''I!i':'&..;lt;.j.;:a1kl,,N;>""t.\~1iH~9--_(~&' c '_.~__ .~ i~Il:alllil1 lIlr'~iiiM.tl"!~-J{ - '--""- c.") o - ,,- ::i o c ~. "Ot" p'1f\':: Z~:; 6S),:.~ r3c:; !~?, )7 c:~ '7 :2 \i.' () ;1 ~_t .. .-\ ,,'~l_ll ',"1' ';:-:'; l.~?~_ ,_",~ ~~A LJ S '::0. -<. 4~O ~'.'''' .- C' ? 1'10 r , ' " ".. , l' .'j~_l (.. " IN THE COURT OF COMMON PLEAS, CUMBERlAND COUNlY, PENNSYLVANIA ANTHONYD'ALESSANDRO Plaintiff, civil no. OD - )'-/3 q -y.. SPERO LAPPAS, ANN ARIANO Defendants I DEClARATION IN OPPOSITION TO DEFENDANTS PRELIMINARY OBJECTIONS I MOTION TO DISMISS 10 TIlE 1I0NORABLEJUDGES OF SAID COURTS: NOW COMES, plaintiff, Anthony D' Alessandro In the above captioned m~r, maldngthls declaration In opposition tlI tile defendant's prellmlnalY objections I motion tlI dismiss on my legal malpraellce in assumpsit complaint agalnstthe defendants and in support of the following: 1. Defendant's first claim the complaint Is "legally Insufficient' claiming' IUails tlI allegethatthe plaintiff was/Is Innocent of the crimes Charged' and purportedly relies on Bailev v. Tucker, 621 A2d 108, 1993. Plainlills complaint is based in assumpsit Prudent review of ~ reveals "this cause of aellon proceeds along the lines of all established contract claims. It does not require a detennlnation by an appellate court oflneffective assistance of counsel nor does the client need tlI prove innocence. III at 115. As such, defendant's first claim has no basis, In fact, nor law and must fail. 2. Defendant's second claim alleges" it would be unreasonable and ove~y burdensome tlI require petltionertll prove his case entirely at this stage of the complaint The complainant Is not required tlI prove the case beyond a reasonable doubt where disapproval Is based on a legal assessment of the complaint'. Cove v. JUlY, 636 A2d 164, 1993. Although dlsUngulshable, plaintiff avers a relaUonable paradigm of fact. AddllionallyplalnUff avers that all pleadings set faith In plalDUlfs verified complaint must be admitted as true, whereupon a defense claim of "facluallnsufllclency" must fall, as the defense issues complained of are averred true, whereby, under the Rules of Civil Procedure, these contested issues must be resolved by a JulY. Fulther, the collateral issues complained of which are IndirecUy gennane to plallltiffs suit in assumpsit reflect direelly on the defendants intenUonal legal malpractice. Thier complaints now are construed to be direct acquiescence to the claims made against them. The courts have found that "client's complaint against attomey for intenUonallegal malpractice states a claim for relief under Pennsylvania law." Bauaen v. lIanis, 553 F.Supp. 235, 1982. Therefore, defendant's claims of "facluallnsufficlency " are meriUess at this stage of the proceedings as they fail to provide with speclflclty, how such a claim direcUy affects plaintiff's entitlement to the recovery sought in light of the overwhelming evidence that the defendant's do not contest The defendant's second claim must fail. 3. Defendant's third claim alleges "failure of complainant to confonn to law or rule of court.' It is IncontroverUble that lay drafted pleadings are enDUed to liberal construction. The plaintiff Is notlegally sophlsUcated, yet in light of any minor procedural errors and notwithstanding the complained of Issues asserted, plaintiff clearly has presented meritable Issues for which relief is due. As such, defendant's claims must faUln the Interest of jusUce and judicial economy. 111 ~" " - "' 0-' ~'= . .~- -<-c ~ -'"' {'.. ... Further, defendants make nebulous accusations In regards to the complaint being In "assumsit, then negligence, then legal malpraCUce." The defendant's allegations are ludicrous, the courts have found that "to apply negligence principles to a cause of aCUon which sounds In tort Is surely not a revoluUonaJy concept" Haus v. Gray, 612 F.Supp 608 (E.D. Pa 1983). As such defendant's Issues are reduCUo ad absuRlum, a lIIOOkelY. AddlUonally, "when client sues attomey for legal malpracUce on assumpsit theoJy, theoJy Is that breach of contnlct occurred when attorney failed to follow specific instrucUon of client". Rogers v. Williams, 616 A2d 1031, 1992. Plaintiff avers such and further asserts the defendant's construCUve fraud, all of which is acUonable In Pennsylvania pursuant to the restatement OtTorts-Q) Defendant's claim mustfall. 4. Defendant's fourth claim alleges "inclusion of scandalous orlmperUnent matter." Plaintiff asserts that his avennenlS are no less evil than tile defendant's acUons and InacUons which present the objecllve appearance of fraud and in a certain light, the claim of theft by deception can easily be made out The defendant's scandalous, Insolent and arrogant detachment exhibited, renders any claims against the plaintiff's pleadings Innocuous. Defendant's claim Is rneritless and akin to one in denial. Merely because the defendants are burdened by a zealots poverty of judgment does not entiUe them to deference. 5. The defendant's are not entitled to dismissal nor summaJy jUdgment because there are genuine Issues of material fact to be resolved. Defendants do not challenge substantial Issues of fact, that on their face entiUes plaintiff to relief as a matter of fact and law. 6. The forgoing factual allegations create genuine Issues of material fact and wlll, when proven, entiUe plalnUII to judgment as explained above. VERIFICATION I, the undersigned, swear under penalty of perjuJythattheforgolng Is true and accurate to the best of my knowledge, Information and belief. Dated: I</~~D ~f)M~ Antho D' Alessandro 14 Cobblestone Drive Carlisle, PA 17013 (.\) "Elements of tort aCUon are the existence of a legal dutyftowlng from the defendant to the plaintiff, Yreach of that duty, and injuJy as a proximate result of the breach of legal duty.' Yosuf v. U.S., 642 F.Supp. 415, 1986. Plaintiff averred such with speclftClly In his pleadings, merely because the defendant's ftnd sueb distasteful, does not reduce in anyway their culpable negligence which resulted In the legal malpracUce exacted againsttlle plaintiff. -I ''<ii' . - '0 . ~"" ~ 1 ':if '" PROOF OF SERVICE I, Anthony D' Alessandro, the undersigned, do swear and afftrm that a true copy of the "Declaration In Opposition To Defendant's Preliminary Objections I Motion To Dismiss" has been forwarded via first class mail to the persons indicated below on the indicated date. The Law Office Of Spero T. Lappas 205 State Street Harrisburg, PA 17101 Prothonotary's Office Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Dated: It/a,tftIJ ~~))u~ Anth D' Alessandro 14 Cobblestone Drive Carlisle, PA 17013 lli!:iIilI~4iffiill!~lli!illI.i:t;;jiB@itiE!.ilitil;"~M.~;dj;!jl'i,it0'!i!1I@l:f;Sti-i,,"i~,hl""':-"1ii~.,iFF~;'JdJ" ,,~;;,;~i>.f.,'i-t.~in1!._1 > ~ " ,-=., .~~", " c) I~O -;j >- 1-- --'" ,~<..-: ':.:1:':' ~:J .,)- 3~ (3 0' C, C:l C~) ,~~ ." ~-~~-~ ~-, ~- -, ^'.~- ~ .' ,,~-- . ~ . ___~. .~<. n. -""";~. ""lill>.~jjfi",h...d.' ,,',~ , - ... ....'"t ,':' '! 1 :1 1 I ; il I I I II ,I ..": ~ I , , , ~ I ~ I ~ 1&':'; -1t1 ALt3SAN()RO/~N11,btvYj)1 e.//i\..h-tf kMPA~ I \~~D T,e.+/l ~,t~~ In the Court of Common Pleas of Cumberland County, Pennsylvania ').000 No. Civil."-O ~43~ ~E.LPE- 10 EJv1~ f'Pr&A~A~c5- - ~ ~ - ~ ~O\~~R.~ cc..-r1; ~LhtlSf... ~f-(\ II j_ ~P~RAtvLE- orv OEM~t5 t?1> pLAINtiFF jM ~Bo\Jtr f.Am()NIi:/) MATTER- ~ To Prothonotary 19 ~. ~. ~ F;" 1/ J/~ Attorney for Plaintiff !;;D t- I'"J (:"""( ) -t.~ rJ J fl);1 r. (It I( W; (,6-- pfJ r' J ,0 10 nOn , "~Jl!k~i!tI!iifJiifu~.i",i~;W'f"\"'~!:,,.., ';"''''~<!!''-IiI~''_-kl~1i!~~~.r.W!JHb~~'si>'i'U~Ii''.i''fj'IL,.k;'it,''._~J'~c{~~_o,",-M"-"'b:J1,_,~''''',;;'--'M0_'<t~4,,,1ii!\;f'M;.,il:'~i._ll~;F~1~~_~~~~fltW!li.l!'lii;-::lI!-_~""="" 'ff~'~: .!:.....~ -. ;.,~ ~ C'il/' JUI\" ,~.l :",~__:,,,rJ_,_<.'_<"'~n ,"~_,,0__ ,.,..", ,,"",' 0'"",,,' ,.,"" -(- No. Tenn, 19 _ \: q d ' I,) \: i.~ ,~: ,'- VS. PRAECIPE Filed 19 Atty. "'^cr',~-_. _" $ . 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