HomeMy WebLinkAbout03-1878IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY~ PENNSYLVANIA
RODNEY MILLER,
plaintiff
VS.
LAWRENCE G. FRANK,
defendant
Q3- I 72
::"NOTI,CE'
You have been sued in court. If you wish to defend against
the~:~'i-~s set forth against you 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 or
objections to the claims set forth against you. You are warned that
if you fail to do so the case may proceed without you and a judgement
may be entered against you by the court without further notice for
any money claimed in the complaint of for any other claim or relief
requested by the plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET ONE.
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
(717) 240-6250
The Plaintiff avers the following;
l) The~plaintiff is Rodney J. Miller of U.S.P. Allenwood,
P.O. Box 3000, White Deer, PA 17887.
2) The defendant is Lawrence G. Frank of 2023 North Second
Street, Warrisburg, PA 17102.
3) The defendant g~vised the plaintiff in his profes§ional
capacity as an attorney in regards to bankruptcy. This
at the Cumberland County Pris6o, Carlisle, PA, on or about
JUne or July of 2000.
4) The plaintiff at the initial meeting with the defendant
stated that bis main prerogative was to retain his two
properties.
5) The defendant advised the plaintiff that in a chapter 7
bankruptcy, sometimes creditors as banks are not concerned
with a 10 or 20 thousand dollar debt, as it wasn't alot
of money to them and if the values of the two properties
were pro3ected downward they may d~cline to pursue the debt
accounts. That creditors could be paid a percentage of what
was owed to them out of proceeds from plaintiff's sale of
vehicles, equipment and cash on hand.
(2)
6) The defendant quoted a price of 1100 and some odd dollars
for a chapter 7 bankruptcy complete, this at the initial
meeting.
7) The plaintiff's daughter fowarded two checks totaling $1200,
this on or about June-July of 2000.
8) At a second meeting, the defendant~had the plaintiff sign
numerous papers~i~n..regard to a bankruptcy, none off, which
were ever given or copies given to the plaintiff.
9) The defendant was given an accurate assessment value of
all this plaintiff's assets in the first two meetings.
10) The procedure of bankruptcy condoned and filed by the
defendant in itself was a detriment to the plaintiff and
his properties.
11) The chapter 7 of bankruptcy filed by the defendant was not
of the type that would enable the plaintiff to retain his
real property in lieu of all the facts and figures accessed
by the defendant.
12) The defendant had knowledge of the plaintiff's properties
being rented to be able to keep the property liabilities
paid, this at the time of the bankruptcy filing.
13) The defendant had knowledge of the plaintiff
mortgages to current, or uP-to-date at the
the notice of bankruptcy'
paying hiS
time he filed
defendant had
knowledge of the
filing paperwork for
plaintiff by U.S.
plaintiff's criminal
the return
The
attorney, R. Mark Thomas
of $19,000 that waS stolen from the
government agents in March of 20Q0.
15) On or about August of 2000 the defendant was
meeting that the plaintiff was having with his criminal
attorney, R. Mark ThomaS and the defendant upon noticing
a copy of what aPPeare~ to be a government check asked Mr.
"Is that , that check?" Then said: "I get excited
Thomas:
when I see a check."
2000 the plaintiff
present at a
16) In or aboUt the first week or'September'
asked the defendant via the telephone of the possibility
of negotiating with the several banks the plaintiff owed
monieS to. The defendant stated: "there were too many of
,,
them to do that.
The defendant filed a notice of intent to file bankr'
on or about September 20, 2000, this in regard to '
plaintiff, without notifying plaintiff beforehan6
(4)
18) The defendant advised the plaintiff to apply surplus monies
to the plaintiff's mortgage accounts.
19) At no time did the defendant send to the plaintiff copy of
the forms and schedules or any of the paperwork filed with
the court on behalf of the plaintiff's bankruptcy.
20) The record.of number of creditors'rand thus indebtedness
~ paperwork
submitted to tble~court, via bankruptcy schedules,~.~,
etcetra by the defendant was inflated and not correct.
21) The plaintiff had no obligation to several of the creditors
listed on the paperwork filed by the defendant on behalf
of the plaintiff.
22) ~n October 5, 2000 the defendant filed a motion with the
court for an extension of time to file schedules.
23) The defendant on more than one occasion called my daughter
requesting additional monies for the chapter 7 bankruptcy
without consulting the plaintiff, this on or about October
1st, 2000.
24) In October of 2000 the defendant requested another $1000
for the chapter 7 bankruptcy, via the telephone, and stated;
this was running into more time than anticipated.
(.5)
25) When the plaintiff asked the defendant how long a time
period to complete the chapter 7 bankruptcy, the defendant
replied;about three months.
26) The plaintiff reminded the defendant of his original quote
of 1100 and some odd dollars for a chapter 7 bankruptcy
complete, and offered to pay another $500.
27) The defendant ~Cepted the $500 payment offer wit~ the
exception of any additional paperwork to be filed on plaintiff's
behalf would be additional cost, the plaintiff agreed.
28) The defendant, upon accepting the $500 payment offer, told
the plaintiff, he was a losing proposition for him.
29) The defendant sent a fee agreement to the effect of statement
made in #27 averment above. The plaintiff signed the agreement
and returned it to the defendant.
30) The defendant never sent a copy of the fee agreement spoken
of in #29 above, and the defendant was without copier access,
due to incarceration.
31) On February 9, 2001 the court granted a discharge in the
plaintiff's bankruptcy case pursuant to section 727 of title
ll United States Code.
(6)
32) On January 29, 2001 the attorney for the trustee requested
information in regard to plaintiff's assets, tenants etc.
33) In the first week of March 2001 the plaintiff's daughter
fowarded some of this information to the defendant.
34) As of March 29, 2001 the attorney o~'~the trustee,.in a letter
f ~
to the defendant stated she had n~t
~ yet received the
information th~t~had been sent to the defendant b~ the
plaintiff's daughter at the beginning of the month.
35) In a letter from the trustee's attorney to the defendant
she stated: Additionally, I want to make sure that you are
aware your client is requesting that documents also be sent
to him.
36) On March 16, 2001 the plaintiff sent letters to the defendant,
trustee and attorney for the trustee in regard to information
and requests regarding his case. Specifically, the plaintiff
asked them to send information and requests firsthand or
simultaneous, to the plaintiff.
37) The defendant petitioned the court to withdraw as plaintiff's
counsel, on or about April 13, 2001.
(7)
38) On or about April 16, 2001 the plaintiff sent a letter to
the defendant in response to his motion to withdraw from
the case. In this .letter he questioned the defendant as to
their signed contract/fee agreement and the fact of he to
represent me through the bankruptcy proceedings. The plaintiff
also requested a response from the defendant to show evidence
contrary to the contract, etc.
'39) No response wam.~fQrthcoming from the defendant ir~egardless
of the plaintiff's request to show cause why, in regard to
their contract/fee agreement.
40) On or about May 8, 2001 the trustee filed with the court,
in regard to the plaintiff's bankruptcy case a notice to
change the case from a no asset case to a asset chapter 7
case. Also the notice requested to send appropriate notice
to creditors to file proof of claims.
41) On or about May 12, 2001 the defendant sent to the plaintiff
some blank proof of claim forms.
42) On or about May 15, 2001 a phone conference was held in
regard to the defendant's motion to withdra~ as counsel.
Present for the phone conference were the plaintiff, the
the defendant, and Judge Woodside.
(8)
43) Ouriog the pbo,e coofereoce with Judge Woodside concerning
the defendant's petition to withdraw as counsel, the
defendant remained relatively mum and the judge stated:
There is no more for Mr. Frank to do in the bankruptcy ~s
all the creditors have been "discharged". I, the plaintiff
replied: I didn't know.
44) The defendant had a duty to speak as to the statu{/standing
of the plaintiff's ongoing bankruptcy case. ~
45) The defendant chose not to speak at the phone conference to
withdraw per his own convenience.
46) The defendant at the time of the phone conference to withdraw,
knew that in the foreseeable future the trustee would more
than likely be requesting a liquidation of the plaintiff's
properties.
47) The defendant at no time apprised the plaintiff of the coming
liquidation of his property assets.
48) The defendant spoke with an attorney Iblum from Gettysburg,
an attorney Hazlett from Mechanicsburg, and An attorney
Sheppard from Gettysburg about the plaintiff's case, this
between the months of August and November of 2001.
(9)
49) The defendant bad mouthed or defamed the plaintiff on atleast
three separate Occasions when a potential new attorney that
was sought by the plaintiff called the defendant in regard
to the plaintiff's bankruptcy case, this on or about t ~h~e
months of August, September and October of 2001.
50) The defendant thrOugh being apprised by the plaintiff of
the modestly stated value of his properties and other assets
such as eh~cles and other motorized equipment, l~.ndscape
equipment, as well as all outstanding debt, knew the plain-
tiff's net asset well exceeded the approximate $17,000
exemption allowed in a chapter 7 bankruptcy.
51) The defendant disregarded the plaintiff's intention of re-
taining his real properties by not filing a re-organizational
chapter'13 bankruptcy.
52) The defendant filed a chapter 7 bankruptcy, incurring the
plaintiff undue expense, awhile also causing a liquidation
of the plaintiff's home and other assets.
53) The plaintiff gave the defendant information figures on debt
owed to unsecured creditors that was accurate, though the
entities and total of these unsecured creditors filed by
the defendant to the court amounted to a large discrepancy.
(10)
54) In the summary of schedules filed by the defendant, line F,
Creditors Holding Unsecured Non- Priority Claims-il8,352.97
is false and overstated by in excess of $70,000.
55) The defendant at no time advised the plaintiff that by
filing bankruptcy and specifically a chapter 7, he was
relinquishing all rights, ownership-a~d control of his
proper ties .~ ~
56) The defendant knew that the plaintiff had enough available
assets to make his mortgage payments current and the ability
to easily keep payments and liabilities, on the properties
met, through renting of the properties.
57) The defendant never informed the plaintiff that non-secured
creditors could not force the plaintiff to sell his properties.
58) The defendant never informed'~the plaintiff that he would
have to pay the opposing attorney for the trustee, as well
as the trustee and others elected by the trustee~ or that
they were representing the plaintiff's creditors and working
against the plaintiff.
59) The defendant filed a motion to waive the debtor's appear-
ence at a 341 meeting via the telephone, without consulting
the plaintiff, this on or about December 7, 2000.
The plaintiff entered into contract with the defendant 'for the
purpose of being able to retain his two properties, awhile ridding
of all other debt not related to the properties. This was the
plaintiffs' prerogative and he informed the defendant, "Larry~Frank"
of his desire at their first meeting on or about June or July of
2000.
Mr. Frank was given an accurate accounting of the facts and
figures as to the standing, in regard to'assets, debts,and rental
income etcetra. .~ ~ ~
The defendant advised and persuaded the plaintiff to file under
chapter 7 bankruptcy proceeding, awhile mis-stating the values of
both of the properties downward. The defendant advised the plaintiff
if he were to make it appear as if the plaintiff did not have more
than about $17,000'~in asset the trustee may not bother to investigate
and this would enable the plaintiff to rid of other unsecured credit-
ors awhile keeping the secured mortgage creditors paid in good
standing. Additionally, and unbeknownest to the plaintiff the defen-
dant reported to the court bogus debt accounts said to be owed by
the plaintiff.
Mr. Frank requested between $1000 and $1200 to do the chapter 7
complete. I had my daughter foward a total of $1200 to Mr. Frank.
A couple of months later, two to three mohths, Mr Frank requested
another $1000, this after he had filed the petition in bankruptcy
in September of 2000. I questioned him about the original quote
he gave me, he then agreed to $500 additional. Mr. Frank, although
did not seem content with this agreement and stated I was a "losing
proposition" to him.
(12)
In March of 2001 the defendant became disenchanted with me
because of a scriptural'quote I made at the closing of a correspon-
dence to the bevy of attorneys ( atorney for the trustee, trustee,
and the defendant) this as I was discontent with their bickering
and lack of keeping me informed in a timely manner. Being such the
defendant petitioned the court to resign as my counsel, I objected.
The court set a phone conference hearing in~egard to the defendant's
request and this was had on May 16, 20014 During the phone conference
thee defendant did not~ad~ise the court or myself as to t~he status
standing of my bankruptcy case. 3udge Woodside stated that all my
creditors had been discharged and that there was nothing more for
Mr. Frank to do. Mr. Frank replied in agreement to this statement.
I responded with"i didn't know". With this language applied by the
court and the defendant's abbreviated agreement to it, the scenario
given me by the defendant in advising and instructing me to file a
chapter 7 to rid of unsecured creditors awhile retaining my property,
this plaintiff was purposely misled and deceived by the defendant.
At the May 16th phone conference, the defendant knowing of
the impending sale of the plaintiff's properties as evidenced by
the him sending to the plaintiff blank proof of claim forms, in
regard to the~notiCe'by, the. trustee,s change to asset Ca~e dated
May 9th 2001, setting a claims bar date 6f May 10,2001.
At this time. the plaintiff filed a proof of claim for $600
owed on a fine with the D.O.3. from the claim forms the defendant
sent him. At this May 16th phone Conference the defendant had the
upmost duty to his client, the plaintiff, to speak, to inform him
of the upcoming events, sales or intended sales of his properties.
This plaintiff did not' become awarelof the situation of his
properties to be sold until August 9th 2001. In fact the plaintiff
was under the false impression that his bankruptcy case was near
Completion and Creditors other than his two mortgages (which ~ad
been kept current) were to be paid out of the $19,000 that was
f°warded to the trustee in April£May of 2001.
After leacning of the trustee's action in trying to sell my
properties, in w~ich she sent a realto~agent not yet approved by
the court to persuade my current tenants to move as the,,~property
was going to be sold. I had my daughter and also. my criminal attorn-
ey, R. Mark Thomas try to obtain another attorney. Atleast three
attorneys were contacted and after speaking with the defendant,
Mr. Frank about my case they all declined to accept the case, al-
though all seemed interested at first contact.
In conclusion then the defendant ill advised and then also
later deceived the plaintiff. Initially portraying a scenario of
chapter 7 bankruptcy to be a possible quick fix solution to rid of
debt accounts awhile the petitioner retains ownership of his real
properties. The fact that the defendant had knowledge of there
being equity far and above the $17,000 exemption limit in the plain-
tiff's two properties, and knew in all likelihOod the trustee would
be posturing to sell the properties, and later hid this fact and
deceived the plaintiff makes him liable to the plaintiff for his
past actions and obligation t° him. This as these turn of events
were unknown to the plaintiff, but abundantly clear to the defendant.
Because of the defendant's disinformation and failure to inform
the plaintiff of all the ramifications of bankruptcy along with his
-malevolent behavior toward the plaintiff in the act of defaming
him to other potential legal counsel which were needed to stop
the actions of the trustee of evicting the plaintiff's tenants.
This action which rendered the possibility of a successful re-
organizational chapter of bankruptcy impossible. This plaintiff
suffered $95,000 in expenses to his estate, as well as $30,000
loss of value of the property and an additi~6'nal $20,000 loss of
materials left on property in the form~f bulk mulches.
All of this was ¢o.mpletely avoidable as an actual '.~ankruptcy
sale was uncalled for as well as the procedure of bankruptcy in
of itself was not warranted and was an actual detriment to the
~plaintiff. This was abundantly clear as the plaintiff had much
more asset then debt, approximately $100~000, the plaintiff's fruit
of nearly thirty years labor.
All of the foregoing actions caused this plaintiff much anguish,
anxiety and physical pain due to lack of sleep over the period from
August 9th 2001 to present. Therefore this plaintiff asks for a
consideration settlement aWard in the amount of $350,000.
Rodney Miller, 10059-067
UPS Allenwood-3B
P.O. Box 2000
White Deer, PA 17887
· Ri ler, pro se
(15)
RODNEY MILLER,
Plaintiff
LAWRENCE G. FRANK,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO: 03-1878
CIVIL ACTION - LAW
NOTICE TO PLEAD
YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer and New
Matter to Plaintiff's Complaint of Defendant, Lawrence G. Frank within twenty (20) days from service
hereof or a judgment may be entered against you.
Peters & Wasilefski
Date:
By:
William J. Peters, Esquire
Attorney ID #52670
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
Attorney for Defendant,
Lawrence G. Frank
RODNEY MILLER,
Plaintiff
LAWRENCE G. FRANK,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO: 03-1878
CIVIL ACTION - LAW
ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT
OF DEFENDANT, LAWRENCE G. FRANK
AND NOW, comes Defendant, Lawrence G. Frank ("Defendant") by and through his attorneys,
Peters & Wasilefski and William J. Peters, Esquire and files the following Answer and New Matter to
PlaintifFs Complaint as follows:
1. Admitted upon information and belief.
2. Admitted.
3. Admitted in part and denied in part. It is denied that the Defendant first advised the
Plaintiff in his capacity as an attorney with regard to Bankruptcy in June or July of 2000, to the contrary
Defendant first met with Rodney Miller ("Plaintiff") on or about May 12, 2000 to advise the Plaintiff on
Bankruptcy proceedings.
4. Denied. It is denied that at the initial meeting between Plaintiff and Defendant that the
parties only discussed the Plaintiff's wish to retain his two properties, to the contrary at that time the
Plaintiff was advised by the Defendant that to retain the properties the Plaintiff would be required to make
payments over a period of years equal to the non-exempt value of the assets.
5. Denied. The allegations of the Plaintiff contained in paragraph 5 of his Complaint are
denied as stated, to the contrary the Defendant and Plaintiff discussed the effects of both a Chapter 7 and a
Chapter 13 filing in Bankruptcy on the Plaintiff's property. The wdues of the Plaintiff's two properties
were not projected downward but were values agreed upon betweent the Plaintiff and the Defendant after
considerable discussion. The Plaintiff was advised by the Defendant at the initial meeting between the
parties that the value of properties listed on Schedules A and B is an issue in every Bankruptcy filing. The
remainder of the allegations contained in paragraph 5 of Plaintiff's Complaint are denied in that after
reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the
truth of said allegations. Strict proof thereof is demanded.
6. Admitted in part and denied in part. It is admitted that the Defendant quoted the Plaintiff a
fee for the filing of a Chapter 7 Bankruptcy on behalf of the Plaintifi: It is denied, however, that the initial
agreement between the parties was for a fee of $1,100.00, to the contrary at the initial meeting between the
parties, Plaintiff was quoted a minimum charge of $1,200.00 which consisted of a $1,000.00 attorney's fee
and $200.00 for the filing fee for the Chapter 7 Bankruptcy proceeding.
7. Admitted.
8. Denied. It is denied that the Defendant presented to the Plaintiff at their second meeting
numerous papers with regard to a Bankruptcy or that the Plaintiff was not provided with copies of file
documents relating to the Bankruptcy proceeding, to the contrary there were at least three meetings held
between the parties before any documents concerning the Chapter 7 Bankruptcy filings were presented to
the Plaintiff for signature due to the amount of information which had to be accumulated before the
documents could be prepared and the numerous questions posed by the Plaintiff prior to the documents
being prepared. In addition the Plaintiff was provided copies of all documents he signed for the Chapter 7
Bankruptcy proceeding.
9. Denied. It is denied that the Defendant was given an accurate assessment of the value of all
of the Plaintiff's assets during the first two meetings. To the contrary, the Plaintiff was uncertain as to the
value of the real estate because no appraisals had been done on the properties.
Denied. After reasonable investigation Defendant is without knowledge or information
10.
sufficient to form a belief as to the truth of said allegations. Strict proof thereof is demanded.
11. Denied. The Chapter 7 Bankruptcy was filed after numerous, lengthy discussions
concerning the advantages and disadvantages of filing either a Chapter 7 or a Chapter 13 Bankruptcy. The
decision to file a Chapter 7 Bankruptcy proceeding was the decision of the Plaintiff. The remainder of the
allegations contained in paragraph 11 of Plaintiff's Complaint are denied in that after reasonable
investigation Defendant is without knowledge or information sufficient to form a belief as to the troth of
said allegations. Strict proof thereof is demanded.
12. Admitted in part and denied in part. Rental payments being made on the Plaintiff's
properties would not have prevented those properties from being sold in a Bankruptcy proceeding as it is
the equity in the properties which determines if the trustee can sell the properties.
13. Admitted. It is admitted that by selling personal assets the Plaintiff at the time of the filing
of the Bankruptcy was able to bring his mortgages on the properties current.
14. Admitted in part and denied in part. It is admitted that the Defendant was advised that
Plaintiff would be receiving $19,000.00 and that $19,000.00 was eventually collected and paid over to the
trustee for the benefit of the creditors in the Bankruptcy proceeding. The remainder of the allegations
contained in paragraph 14 of Plaintiff's Complaint are denied :in that after reasonable investigation
Defendant is without knowledge or information sufficient to form a belief as to the troth of said allegations,
the same are therefore denied and strict proof is demanded.
15. Denied. After reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations and the same are therefore denied. Strict proof
thereof is demanded.
4
16. Denied. After reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations and the same are therefore denied. Strict proof
thereof is demanded.
17. Denied. It is denied that a Notice of Intent to File Bankruptcy was filed on or about
September 21, 2000 without notice to the Plaintiff. To the contrary, no such Notice of Intent to File
Bankruptcy was filed. A Petition for Chapter 7 Bankruptcy was filed on September 26, 2000 after the
Petition was signed and authorized by the Plaintiff.
18. Denied. After reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations and the same are therefore denied. Strict proof
thereof is demanded.
19. Denied. Defendant provided Plaintiff with copies of all documents filed with the
Bankruptcy Court.
20. Denied. All creditors and indebtedness listed on the Chapter 7 Bankruptcy schedules
accurately reflected the bills and information given to the Defendant by the Plaintiff.
21. Denied. All creditors listed and dollar amounts claimed accurately reflected the
information provided to the Defendant by the Plaintiff.
22. Admitted. The initial Chapter 7 Petition was filed without schedules attached to curtail
creditors' activities at the request of the Plaintiff.
23. Denied. It is denied that the Defendant contacted Plaintiff's daughter requesting additional
monies for representation in the Chapter 7 Bankruptcy proceeding, to the contrary the Defendant discussed
with the Plaintiff the need for his payment of additional monies for the Defendant's legal representation for
items outside the scope of a normal Chapter 7 Bankruptcy representation.
24. Denied as stated. Defendant did notify the Plaintiff that monies would be required in
addition to the minimum fee initially quoted to the Plaintiff because of the inordinate amount of hours
incurred by the Defendant for pre-Bankruptcy meetings with the Plaintiff and plans to attempt to shield the
Plaintiff's assets from creditors. All fees charged by the Defendant were disclosed on the compensation of
auorney for debtors filed in the Chapter 7 Bankruptcy proceeding.
25. Denied as stated. The Defendant did not advise the Plalntiffthat it would take three months
to complete the Bankruptcy proceeding, to the contrary, the Plaintiff was advised by the Defendant that it
would take approximately three months from the date of the filing of the Chapter 7 Petition to the date that
he would receive his discharge.
26. Denied. It is denied that the original fee quoted by the Defendant to the Plaintiff was
$1,100.00 for the Chapter 7 Bankruptcy representation. To the contrary the original quoted fee by the
Defendant was the minimum sum of $1,200.00 which included $1,000.00 for attorney's lees and $200.00
for the filing fee with the Court. Defendant did agree to accept an additional $500.00 from the Plaintiff as
attorney's fees in this matter.
27. Admitted. It is admitted that the Defendant agreed to accept the sum of $500.00 for
additional attorney's fees with the understanding between the parties that any additional paperwork needed
to be filed on the Plaintiff's behalf in the Chapter 7 Bankruptcy proceeding would be billed to the Plaintiff
to which he agreed.
28. Denied. After reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations and the '.same are therefore denied. Strict proof
thereof is demanded.
29. Admitted.
30.
of Affairs and
proceeding.
31.
32.
Denied. Plaintiff was provided with a copy of the Chapter 7 Bankruptcy Petition, Statement
Schedules disclosing the compensation and the filing fees incurred in the Bankruptcy
Admitted.
Admitted. Sometime subsequent to January 29, 2001 Defendant did receive some of the
information requested by the trustee from the Plaintiff's daughter.
33. Admitted. Sometime subsequent to January 29, 2001 Defendant did receive some of the
information requested by the trustee from the Plaintiff's daughter.
34. Admitted. It is admitted that sometime subsequent to January 29, 2001 the attorney for the
Bankruptcy trustee again requested information regarding the Plaintiff's assets.
35. Admitted in part and denied in part. It is denied that the Plaintiff had not been provided
with copies of all documents filed in the Bankruptcy proceeding, to the contrary, Defendant provided the
Plaintiff with all documents filed in that proceeding.
36. Admitted. In his March 16, 2001 letter to the Defendant, trustee and attorney for the trustee
he advised those individuals that for responses he was the party to contact.
37. Admitted.
38. Admitted.
39. Admitted. Defendant did not respond to the Plaintiff's April 12, 2001 as the Plaintiff was
well aware of the reasons set forth in the Defendant's Motion to Withdraw as counsel and that the
Bankruptcy Court had scheduled a telephone conference with the Plaintiff and the Defendant for May 15,
2001.
40. Admiued.
41. Denied. Proof of Claim forms, if sent to the Plaintiff, would have been forwarded by the
Bankruptcy Clerk's office in that a debtor does not file a proof of claim in his own case.
42. Admitted.
43. Denied. It is denied that the Defendant did not participate actively participate in the
telephone conference with Judge Woodside, to the contrary, Defendant advised the Judge in that
conference his reasons for filing a Motion to Withdraw as counsel and his belief that the Plaintiff no longer
wanted him to represent him, the difficulties the Defendant had in representing the Plaintiff and other
related matters with regard to his representation of the Plaintiff in the Bankruptcy proceedings.
44. Denied. It is denied that the Defendant failed in the phone conference with Judge
Woodside and the Plaintiff to discuss Plaintiff's ongoing Bankruptcy case, to the contrary, the Defendant
actively participated in the telephone conversation and discussed the Plaintiff's Bankruptcy proceedings at
length with the Judge as set forth in paragraph 43 of this Answer.
45. Denied. It is denied that the Defendant did not speak during the telephone conference with
Judge Woodside concerning his request to withdraw as counsel for the Plaintiff, to the contrary, the
Defendant actively participated in the telephone conference as more fully set forth in paragraph 43 of this
Answer.
46. Denied. After reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations and the same are therefore denied. Strict proof
thereof is demanded. In addition, at the time of the telephone conference with Judge Woodside and the
parties the Bankruptcy trustee had not taken any definite action concerning the Plaintiff's real estate
although the possibility of converting the Chapter 7 to a Chapter 13 had been discussed on numerous
occasions between the Defendant and the Plaintiff.
8
47. Denied. It is denied that the Plaintiff was not advised by the Defendant of the possibility of
the Bankruptcy trustee attempting to convert his property assets, to the contrary the possibility of
converting the Chapter 7 Bankruptcy proceeding to a Chapter 13 proceeding was discussed on numerous
occasions by the Defendant and the Plaintiff.
48. Denied. Said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e).
Strict proof is demanded.
49. Denied. Said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e).
Strict proof is demanded.
50. Denied. All values listed in the Chapter 7 Bankruptcy schedules were approved by the
Plaintiff as was the decision to file a Chapter 7 proceeding instead of a Chapter 13 proceeding. Plaintiff
was clearly advised by the Defendant as to the advantages and disadvantages of the filing of a Chapter 7 as
opposed to a Chapter 13 Bankruptcy proceeding. The remainder of' the 'allegations contained in paragraph
50 of the Plaintifffs Complaint are denied in that after reasonable investigation Defendant is without
knowledge or information sufficient to form a belief as to the truth of said allegations, the same are
therefore denied and strict proof is demanded.
51. Denied. After being explained the advantages and disadvantages of filing a Chapter 7 as
opposed to filing a Chapter 13 Bankruptcy proceeding the Plaintiff made the decision to proceed and file a
Chapter 7 proceeding. The remainder of the allegations contained in paragraph 51 of the Plaintiff's
Complaint are denied in that after reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations, the same are therefore denied and strict proof is
demanded.
52. Denied. After being explained the advantages and disadvantages of filing a Chapter 7 as
opposed to filing a Chapter 13 Bankruptcy proceeding the Plaintiff made the decision to proceed and file a
Chapter 7 proceeding. The remainder of the allegations contained in paragraph 51 of the Plaintiff's
Complaint are denied in that after reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations, the same are therefore denied and strict proof is
demanded.
53. Denied. Said allegations are specifically denied in. accordance with Pa. R.C.P. 1029(e).
Strict proof is demanded.
54. Denied. Said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e).
Strict proof is demanded.
55. Denied. The advantages and disadvantages of filing a Chapter 7 Bankruptcy proceeding
versus those of filing a Chapter 13 proceeding were explained to the Plaintiff by the Defendant in several
meetings prior to the filing of the Chapter 7 proceeding. The decision to file a Chapter 7 proceeding in
Bankruptcy was that of the Plaintiff. The remainder of the allegations contained in paragraph 51 of the
Plaintiff's Complaint are denied in that after reasonable investigation Defendant is without knowledge or
information sufficient to form a belief as to the truth of said allegations, the same are therefore denied and
strict proof is demanded.
56. Denied. After reasonable investigation Defendant is without knowledge or information
sufficient to form a belief as to the truth of said allegations, the same are therefore denied and strict proof is
demanded.
57. Denied. It is denied that the Defendant never informed the Plaintiff that non-secured
creditors could force the sale of the Plaintiff's properties, to the contrary, prior to the filing of the Chapter
10
Bankruptcy proceeding the Defendant did discuss with Plaintiff what the consequences were if the trustee
or the Court disagreed with the values placed on the Bankruptcy schedules.
58. Denied. The attorney for the trustee and the trustee are paid out of the assets of the estate.
The remainder of the allegations contained in paragraph 58 of the Plaintiffs Complaint are denied in that
after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as
to the tmth of said allegations, the same are therefore denied and strict proof is demanded.
59. Admitted in part and denied in part. It is admitted that the Defendant filed a Motion to
Waive the Debtors appearance at the 341 meeting and to participate in the hearing by telephone due to the
Plaintiffs incarceration at that time. The remainder of the allegations contained in paragraph 59 of the
Plaintiffs Complaint have either been denied in answer 1 through 58 of this Answer or after reasonable
investigation Defendant is without knowledge or information sufficient to form a belief as to the troth of
said 'allegations, the same are therefore denied and strict proof is demanded.
WHEREFORE, Answering Defendant, Lawrence G. Frank demands judgment in his favor and
against the Plaintiff together with costs of suit.
NEW MATTER
LAWRENCE G. FRANK V. RODNEY MILLER
By way of further answer, Lawrence G. Frank asserts the following New Matter:
60. Paragraphs 1 through 59 above are incorporated herein by reference as though set forth at
length.
61.
62.
63.
Plaintiff fails to state a cause of action upon which relief can be granted.
Plaintiff may have failed to mitigate his alleged damages.
Plaintiffs actions or conduct may bar or reduce his claim for recovery.
11
64. PlaintiWs Complaint may be barred by the applicable, statute of limitations.
65. PlaintiWs Complaint fails to conform to law or role of Court.
WItEREFORE, Answering Defendant, Lawrence G. Frank demands judgment in his favor and
against the Plaintiff together with cost of suit.
Date:
By:
Peters & W~silefski
William J. Peters, Esquire
Attorney ID #52670
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
Attorney for Defendant,
Lawrence G. Frank
12
VERIFICATION
I hereby affirm that the following facts are correct:
I am the Defendant and am authorized to make this Verification; the attached Answer
and New Matter to Plaintiff' s Complaint of Defendant; Lawrence (3. Frank is based upon information
which I have furnished to my counsel and information which has been gathered by my counsel in the
preparation of the lawsuit. The language of the Answer and New Matter to Plaintiff' s Complaint of
Defendant, Lawrence G. Frank is that of counsel and not of me. I have read the Answer and New
Matter to Plaintiff's Complaint of Defendant, Lawrence G. Frank and to the extent that the same is
based upon information which I have given to my counsel, it is true and correct to the best of my
knowledge, information and behef. '?, the extent that the content of the Answer and New Matter to
Plaintiff's Complaint of Defendant, Lawrence G. Frank is that of counsel, I have relied upon counsel in
making this Verification. I hereby acknowledge that the fac[,s set forth in the Answer and New Matter
to Plaintiff's Complaint of Defendant, Lawrence G. Frank are made subject to the penalties of 18 Pa.
C.S. Section 4904 relating to unswom falsification to authorities.
Lawrence G. Frank
Date:
RODNEY MILLER,
Plaintiff
PENNSYLVANIA
LAWRENCE G. FRANK,
Defendant
Vo
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
DOCKET NO: 03-1878
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have served a tree and correct copy of the foregoing
Answer and New Matter to Plaintiff's Complaint on all counsel of record by placing the same in
the United States Mail, first class, postage prepaid, in Harrisburg, Pennsylvania and by serving the
same by Certified Mail, Return Receipt Requested on this 30~h day of May, 2003, and addressed as
follows:
Rodney J. Miller, pro se
UPS Allenwood - 3B
Post Office Box 3000
White Deer, Pennsylvania 17887
Peters & Wasilefski
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY~ PENNSYLVANIA
Rodne¥ Miller,
plaintiff
Lawrence G. Frank,
defendant
Case No. 03-1878
NOTICE OF RESPONSE
You are hereby notified to file a reply to the enclosed
response to Defendant's answer and new matter to Plaintiff's complaint
of Defendant Lawrence G. Frank within twenty (20) days from service
hereof or a judgement may be entered against you.
June 16, 2003
P.O. Box 3000
White Deer, PA 17887
page 1
Plaintiff's Response to Defendant's
Answer and New Matter
Now comes Plaintiff Rodney Miller, proceeding pro-se, who hereby
files this Response to Defendant's Answer and New Matter to Plaintiff's
Complaint as follows:
1) No response is necessary as Defendant gave admission.
2) No response is necessary as Defendant gave admission.
3) Response: The Defendant first met with the Plaintiff on or about
May 12, 2000 to advise the Plaintiff on Bankruptcy proceedings,
this in his professional capacity as a Bankruptcy Attorney.
4) Response: Plaintiff stated to the Defendant his main prerogative
was to retain his two properties.
5) Response: The Defendant recommended that the Plaintiff file under
a Chapter 7 Bankruptcy. Defendant focused on a Chapter 7 at the
bankruptcy meeting. The focal point being the importance of the
projected downward pricing of the values of both the properties.
The sales prices are evidence of this fact from the useage of inac-
curate assessment.
6) Response: Plaintiff demands proof of fee agreement/contract between
parties at time of payment of $1000 check by Kelli Miller, Plaintiff's
daughter.
7) No response is necessary as Defendant gave admission.
8) Response: Defendant had Plaintiff sign numerous papers and demands
strict proof of signatures and Plaintiff receiving copy of the same.
9) Response: The Plaintiff has knowledge of an apprassial being done on
the Plaintiff's home property in 1994 as reference for a banking
institution that gave a "blanket mortgage" of $50,000 on the
Plaintiff's rental property in April 199&. If the Defendant claims
no knowledge,why was it not his recommendation to investigate values.
10) Response: All , or both of the Plaintiff's properties were sold by
the trustee in the year 2002 per the Chapter 7 filing done by the
Plaintiff's attorney Larry Frank the Defendant.
11) Response: Defendant states in #8 of his answer to the original
complaint :"due to the amount of information which had to be accum-
ulated before the documents could be prepared". Although Defendant
feigns ignorance in #9 of his answer to the original complaint as
to the upmost pertinent information of his client's affairs.
Proof is ~0il'inclusive in the sale prices of the properties in
question.
~ge2
12) Respo~:In regard to partial denial; If the bankruptcy would not
have been filed, unsecured creditors could not force a sale of
property in question. Additionally Defendant states: "it is the
equity in the properties which determines if the trustee can sell
properties."
13) No response is necessary as Defendant gave admission
14) Response: Defendant admits Rnowledge of Plaintiff to receive $19,000.
The only reason Trustee is given access is the fact of the bankruptcy
being filed 6-7 months prior.
15) Response: Plaintiff, Defendant FranR and Plaintiff's criminal
attorney, R. Mark Thomas were all present in a room at the Cumberland
County Prison. Proof shall be made available through the discovery
process to secure prison records.
16) Response: Strict proof shall be had through the sworn affidavit
of a relative whom suggested the question proffered to the Defendant
in regard to negoitiating.
17) Response: Plaintiff demands strict proof of signature dateland filing
of the same.
18) Response: Plaintiff will provide strict proof through the discovery
process.
19) Response: Plaintiff demands strict proof of reception of said
documents.
20) Response: The Plaintiff is not debtor to several of the accounts
listed on the schedules filed by the Defendant. The sheet I signed
in regard to the Creditors lists 5 sheets, however there are 6 sheets
on file.
21) Response: The plaintiff demands strict proof as to obligations to
the listed Creditors as Defendant did not present the listing of
Creditors, except for the Plaintiff to merely sign on the signature
line provided him at the county prison where the Plaintiff was~with-
out access to his private records.
22) Response: Existence of extension exihibits ov&rburdened caseload on
part of Defendant. Also filing of petition without Plaintiff's
knowledge was done by Defendant to adhere Plaintiff to the act.
23) Response: The Plaintiff will provide strict proof through the
discovery process.
24) Response: Defendant admits requesting additional monies. Plaintiff
requests strict proof as to all fee agreements and or contracts.
Also plaintiff demands strict proof as to how the Defendant shielded
the Plaintiff from Creditors.
page 3
25) Response: Defenda~lt did not define
Plaintiff.
26) Response: Plaintiff demands strict
as a "minimum sum".
the legal term "discharge" to the
proof as to the original fee quoted
27) No response is necessary as Defendant gave admission.
28) Response: Plaintiff will provide strict proof through the discovery
process ·
29) No response is necessary as Defendant gave admission.
30) Response: Plaintiff demands strict proof of mailing by Defendant.
31) No response is necessary as Defendant gave admission.
32) In a letter dated January 29, 2001 attorney for the trustee requested
information in regard to Plaintiff's assets, tenants, etcetra.
33) No response is necessary as Defendant gave admission.
34) Response: In aletter dated March 29, 2001 the attorney for the trustee,
Sara Austin again requested informati°n regarding the Plaintiff's
assets ·
35) Response: In this letter of March 29, 2001 the attorney for the
trustee, Sara Austin states: Addition lly, I want to make sure that
you are aware your client is requesting that documents also be sent
to him."
36) No response
37) No response
is necessary as
is necessary as
Defendant gave admission.
Defendant gaw~ admission.
38) No response is necessary as Defendant gave admission.
39) No response necessary as Defendant gave admission.
40) No response is necessary as Defendant gave admission.
41) Response: Pi~ntiff requested proof of claim forms through the
defendant~ so as he could file a claim on fines
owed to the D.O.J.
42)
43)
44)
No response is necessary as Defendant gave admission.
Response: Plaintiff sent a letter dated April 12,
in which he questions contract/fee agreement and
to help expedite matters concerning the case.
2001 to the Defendant
suggests procedure
Response: How did the Defendant "actively participate" in the phone
conference held on or about May 15, 2001, Plaintiffideman~ strict
proof of Defendant's zealous protection of the Plaintiff's property
and rights in regard to the case.
page 4
45) Response: The Plaintiff filed with the court an objection and request-
ed a hearing on defendant's motion to withdraw~ hence the plaintiff
in so doing is making a plea for assistance in this case that the
Defendant took responsibilty in representing.
46) Response: Instead of assisting Plaintiff in filing a reorganizational
chapter 13 which would enable the Plaintiff to retain his property~
the Defendant opts to withdraw from the case.
47) Response: In above # 40 averment Defendant admits knowledge of trustee
converting case to an asset case and thereby putting Plaintiff's
property in jeporady of being liquidated~ this a week or so prior to
the phone conference.
48) Response: Plaintiff will provide strict proof through the discovery
process.
strict proof through the discovery
field of Bankruptcy
will be presented
49) Response: Plaintiff will provide
process.
50) Response: Defendant had 27 years experience in, the
at the time he advised the Plaintiff. Strict proof
through the discovery process as to net assets.
51) Response: The Defendant~'advised the ~Plaintiff t~ file Bankruptcy! '
through aChapter 7 procedure. Strict proolf will be had through the
discovery process.
52) Response: The Defendant had 27 years experience in the Bankruptcy
field at the time of advising the Plaintiff on the subject. The Plain-
tiff will provide strict proof of damages incurred by Defendant's
fraud, deceit, negligence as it pertain~ to the Plaintiff.
53) Response: The Defendant had the Plaintiff sign numerous papers on
signatory lines awhile meeting with him at the Cumberland County
Prison.
54) Response: The Defendant did not want to take the time for the Plain-
tiff to review schedules and forms to be filed on behalf of the
Plaintiff's case and merely had the Plaintiff sign numerous signature
lin~ and date the same. Strict proof is demanded as to where the
Defendant derived the entities found on the Creditor Schedule F, and
that the Defendant verified the same to Plaintiff.
55)
Response: Defendant in his answer does not address the question posed
he only speaks of '~adwntages and disadvantages". Also Defendant ad-
mits to having knowledge of Plaintiff having his mortgages paid in
good standing at time of bankruptcy filing, per #13 in his responses,
being such the Plaintiff is in possession and control of ~is property,
UNTIL the bankru~cy is filed.
56) Response: The Defendant in filing Schedules2I and J, income and expend-
itures of debtor shows a $3.10 excess after meeting all liabilities
associated to his two properties. Included in the expenditures $85 for
clothing and personal not essential to plaintiff.
page 5
57) Response: The Defendant knowingly fails to advise the Plaintiff
differently, awhile having information to the Plaintiff's good
standing on the mortgages and knowledge of him being able to meet
obligations to the same.
58) Response: The Defendant claims 27 years experience in the field of
Bankru~cy at the time of representing Plaintiff. An "estate" is
had or created by the filing of the banru~cy, and all assets are
derived from liquidating the filer's possessions.
59) Response: Plaintiff follows advice of his paid attorney.
In his answer, Defendant asserted a new matter enumerated in
paragraphs 60 through 65. Each assertion is vague and generic in nature
and lacks specificity. In the interest of caution Plaintiff responds to
them briefly.
60)
In response, Plaintiff asserts that no reply is necessary as Defen-
dant merely incorporates paragraphs 1 through 59 into the New Matter
Section.
62)
In response, Plaintiff claims that he has stated a claim u~n which
relief can be granted. The complaint sets forth factual evidence that
Defendant did not safeguard Plaintiff's rights and zealously ad,cate
his cause to retain his properties. In fact, the evidence supports
that the Defendant misled the Plaintiff into believing that the
chapter 7 proceeding would be the best route to take in order to
retain his properties. The Defendant deceived Plaintiff, who was
ignorant to the governing laws of bankruptcy, and manipulated him
into filing a chapter 7 with a pr6jected downward value on the prop-
erties being the basis of neutralizing the attention of the trustee;
as a result, it would give Plaintiff time to pay off the mortgage
creditor. Meanwhile, Defendant knew that the chapter I3 proceeding
was the only procedure in bankruptcy trul]~ Consistent ~ith Plaintiff's
desire to retain his properties, rather than liquidate them; OR, Not
for a bankruptcy to be filed at all.Hence the Defendant had the
Plaintiff venture into the chapter 7 proceeding knowing that a liquid-
ation of the properties would occur and through deception made
Plaintiff assume his properties were safe from disolvement.
In response, Plaintiff claims that he could not have mitigated his
alleged damages. The reason for employment of the Defendant was for
that very purpose. Plaintiff is a novice at law and therefore retained
the services of the Defendant who could file legal papers and repre-
sent him in a legal capacity. For the Defendant to now claim that
Plaintiff may have failed to mitigate his alleged damages is ridiculous.
63) In response, Plaintiff alleges that his actions or conduct in the
course of the bankruptcy proceeding may not bar or reduce his claim
for recovery. Every course of action or conduc~was~result of the
legal advice of Defendant as he was the expert of law, not Plaintiff.
Plaintiff reluctantly followed the advice of Defendant, and his
actions or conduct were governed by deceptive advice. In short, the
Plaintiff trusted the expertise of the Defendant and Plaintiff was
Totally at his mercy when it came to his actions and conduct through
the entire ~il.ing:process. For Defendant to now claim Plaintiff may
page 6
bar or reduce his claim for relief based on actions or conduct
prompted by erroneous legal advise is absurd.
64) In response, Plaintiff asserts his claim has been filed within the
statule of limitations and Defendant has failed to set forth evidence
to the contrary. Strict proof thus is demanded.
65) In response, Plaintiff states that his pro-se complaint must be held
to a less stringent standard than documents filed by a lawyer. To
hold Plaintiff to the exact standard as an attorney would violate
the decision announced in Haines v. Kernes, 404 U.S. 519 (1972).
Wherefore, DefendantTs application for judgement in his favor
and against the Plaintiff together with~cost of suit should be denied
as material disputed facts exist to prevent such as well as for the
other reasons set forth above.
June 16, 2003
RespeCtfully Subm~d,
Rod~r~Miller,~p~o se
10 9/067
P.b. Box 3000
White Deer, PA 17887
page 7
CERTIFICATE OF SERVICE
I hereby swear under penalty of perjury to mailing the foregoing
response to the Miller v. Frank ci~il~action No. 03-1878 to the counsel
for the Defendant, by first class mail on this 16th day of June, 2003.
William J. Peters, Esquire
Attorney ID #52670
2931 North Front St.
Harrisburg, PA 17110
Attorney for Defendant
Lawrence G. Frank
1005~ 67
Allenwood-3B
P.O. x 3000
White Deer, PA 17887
RODNEY MILLER,
Plaintiff
LAWRENCE G. FRANK,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO: 03-1878
CIVIL ACTION - LAW
PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Enter Judgment of Non Pros against Rodney Miller, Plaintiff in the Professional Liability Claim
against Lawrence G. Frank, Defendant in the above-referenced matter.
I the undersigned certify that the Plaintiff named above has asserted a professional liability claim
against the Defendant named above who is a licensed professional, that no certificate of merit has been
filed within the time required by Pa. R.C.P. 1042.3 and that there is no Motion to extend the time for filing
a Certificate pending before the Court.
Date:
AND NOW, this
is entered.
Peters & Wasilefski
William'& Peters, Esqui~
Attorney ID #52670
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
Attorney for Defendant,
Lawrence G. Frank
day of ~'~'~'
,2003 a Judgment of Non Pros
In the Court of Common Pleas
Rodney Miller,
Plaintiff Ct~nberland County, Pennsylvania
Lawrence G. Frank,
Defendant
Decket No. 03-1878
Civil Action- Law
MOTION
To the Prothonotary of Cumberland County,
Vacate entry of judgement of Non Pros against Rodney Miller in the
professional liability claim against Lawrence G. Frank, Defendant in the above
referenced matter.
Rodney i~llJr, ~o-se
10059-~67
UPS All~nwood 3B
P.O. Box 3000
White Deer, Pa. 17887
Dated June 30, 2003
Pro-Se, Plaintiff
AND NOW this thirtieth day of June, 2003 a judgement of Non Pros is vacated.
Prothonotary
Rodney Miller, In the Court of Common Pleas
Plaintiff Cumberland County, Pennsylvania
Lawrence G. Frank,
Defendant
Docket No. 03-1878
Civil Action- Law
Declaration of Rodney Miller
To the prothonotary of Cumberland County:
I, Rodney Miller, hereby declare under penalty of perjury as follows:
1) I am the Plaintiff in the above caption~] action.
2) I submit this declaration in opposition 'to Defendant's motion entitled
Praecipe for entry of Judgement of Non Pros pursuant to Rule 1042~.
3) Defendant filed the above noted motion ~ June 24, 2003 and the
Prothonotary entered a judgement of Non Pros on June 25, 2003.
4) Plaintiff is currently incarcerated and a pro-se litigant who has
very little knowledge of law and espcially procedural rules governing
this civil action.
5) ~The prison library does not stock the Pennsylvania Rules of Civil
Procedure (PRCP). In fact Plaintiff had to request an outside library
to lend him a copy of the PRCP. The library permitted Plaintiff to
read the book which was subject to Bureau of Prisons (BOP) control
and custody.
6) As a result~ Plaintiff had limited access to the book and copied some
of it. A week later the BOP returned the PRCP to the library.
s)
As noted above, Plaintiff is not familiar with the PRCP as he is a
novice at law, and therefore could not be expected to file a Certificate
of Merit pursuant to PRCP 1042.3 or a motion to extend the time for
filing such.
Plaintiff believes his pleadings and conplaint should be held to a
less stringent standard than those prepared by lawyers. To vacate
the entry of the Judgement of Non Pros would be the appropriate measure
to take in this case considering the facts set forth above.
June 30, 2003
White Deer, Pa.
I, Rodney Miller, declare under penalty of perjury that the foregoing is
true and correct.
Certificate of Servic%
I hereby swear under penalty of perjury to mailing the foregoing motion
and d~claration to the counsel for the Defendant, by first class mail on this
30 th day of June, 2003.
William J. Peters, Esquire
Attorney ID #52670
2931 North Front St.
Harrisburg, PA 17110
Attorney for Defendant
Lawrence G. Frank
UPS Allenwood-3B
P.O. Box 3000
White Deer, Pa. 17887
RODNEY MILLER,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
LAWRENCE G. FRANK,
DEFENDANT
: 03-1878 CIVIL TERM
AND NOW, this
ORDER OF COURT
day of July, 2003, a Rule is entered against
defendant, Lawrence G. Frank, to show cause why the judgment of non pros entered on
June 25, 2003, should not be stricken. Rule returnable twenty (20) days after service
with a brief to be forwarded by defendant to chambers. Plaintiff shall file a response
brief in chambers not later than forty (40) days from this date.
Rodney Miller, Pro se
10059-067
UPS Allenwood 3B
P.O. Box 3000
White Deer, PA 17887
William J. Peters, Esquire
For Defendant
Edgar B.
:sal
Rodney Miller,
Plaintiff
lawrence G. Frank,
Defendant
JUL 0 3 tO03
In the Court of Co~on Pleas
Cumberland County, Pennsylvania
Docket No. 03-1878
Civil Action- Law
MOTION
To the Prothonotary of Cumberland County,
Vacate entry of judgement of Non Pros against Rodney Miller in the
professional liability claim against lawrence G. Frank, Defendant in the above
referenced matter.
P.O. Box 3000
White Deer, Pa. 17887
Dated June 30, 2003
Pro-Se, Plaintiff
AND NOW this thirtieth day of June, 2003 a judgement of Non Pros is vacated.
Prothonotary
Rodney Miller, In the Court of Common Pleas
Plaintiff Cumberland County, Pennsylvania
lawrence G. Frank,
Defendant
Docket No. 03-1878
Civil Action- law
Declaration of Rodney Miller
To the prothonotary of Cumberland County:
I, Rodney Miller, hereby declare under penalty of perjury as follows:
1) I am the Plaintiff in the above captioned action.
2) I submit this declaration in opposition to Defendant's motion entitled
Praecipe for entry of Judgement of Non Pros pursuant to Rule 1042.g.
3) Defendant filed the above noted motion on June 24, 2003 and the
Prothonotary entered a judgement of Non Pros on June 25, 2003.
4) Plaintiff is currently incarcerated and a pro-se litigant who has
very little knowledge of law and espcially procedural rules governing
this civil action.
5) -The prison library does not stock the Pennsylvania Rules of Civil
Procedure (PRCP). In fact Plaintiff had to request an outside library
to lend him a copy of the PRCP. The library permitted Plaintiff to
read the book which was subject to Bureau of Prisons (BOP) control
and custody.
6) As a result, Plaintiff had limited access to the book and copied some
of it. A week later the BOP returned the PRCP to the library.
7) As noted above, Plaintiff is not familiar with the PRCP as he is a
novice at law, and therefore could not be expected to file a Certificate
of Merit pursuant to PRCP 1042.3 or a motion to extend the time for
filing such.
8) Plaintiff believes his pleadings and complaint should be held to a
less stringent standard than those prepared by lawyers. To vacate
the entry of the Judgement of Non Pros would be the appropriate measure
to take in this case considering the facts set forth above.
I, Rodney Miller, declare under penalty of perjury that the foregoing is
June 30, 2003
White Deer, Pa. Rodney~liler, pro-se
Certificate of Service
I hereby swear under penalty of perjury to mailing the foregoing motion
and d~claration to the counsel for the Defendant, by first class mail on this
30 th day of June, 2003.
William J. Peters, Esquire
Attorney ID #52670
2931 North Front St.
Harrisburg, PA 17110
Attorney for Defendant
Lawrence G. Frank
Rodn~iller, pro-se
10059-067
UPS Allenwood-3B
P.O. Box 3000
White Deer, Pa. 17887
RODNEY MILLER,
Plaintiff
LAWRENCE G. FRANK,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO: 03-1878
CIVIL ACTION - LAW
ANSWER AND NEW MATTER TO PLAINTIFF'S MOTION TO VACATE/STRIKE
JUDGMENT OF NON-PROS
AND NOW, comes Defendant, Lawrence G. Frank ("Defendant") by and through his
attorneys, Peters & Wasilefski and William J. Peters, Esquire and files the following Answer and
New Matter to the Plaintiff's Petition as follows:
1. Admitted.
2. Denied. Defendant, on June 25, 2003 filed a Praecipe for Entry of Judgment of Non
Pros pursuant to Rule 1042.6.
3. Denied. Defendant filed a Praecipe for Entry of Judgment of Non Pros pursuant to
Rule 1042.6 on June 25, 2003.
4. Admitted in part and denied in part. It is admitted that Plaintiff is currently
incarcerated and a pro se litigant. The remainder of the allegations contained in corresponding
paragraph 4 of Plaintiff's Petition are denied in that after reasonable investigation Defendant is
without knowledge or information sufficient to form a belief as to the truth of said allegations and the
same are therefore denied.
5. Denied. After reasonable investigation Defendant is without knowledge or
information sufficient to form a belief as to the truth of said allegations and the same are therefore
denied and strict proof demanded.
6. Denied. After reasonable investigation Defendant is without knowledge or
information sufficient to form a belief as to the troth of said allegations and the same are therefore
denied and strict proof demanded.
7. Denied. It is denied that the pro se litigant is not familiar with the Pennsylvania Rules
of Civil Procedure as he has filed a Complaint against Defendant including Notice to Defend. The
remainder of the allegations contained in corresponding paragraph 7 of the Petition are denied in that
after reasonable investigation Defendant is without knowledge or information sufficient to form a
belief as to the truth of said allegations and the same are therefore denied and strict proof demanded.
8. Denied. It is denied that the Plaintiff should be held to a less stringent standard than
other individuals represented by counsel. Plaintiff is subject to the provisions of Pennsylvania Rules
of Civil Procedure 1042.1 through 1042.8 which was adopted by the Supreme Court on January 27,
2003 to become effective immediately. The remainder of the allegations contained in corresponding
paragraph number 8 of the Petition are denied in that after reasonable investigation Defendant is
without knowledge or information sufficient to form a belief as to the truth of said allegations and the
same are therefore denied and strict proof demanded.
WItEREFORE, Answering Defendant, Lawrence G. Frank requests that the Plaintiff's
Petition to Vacate/Strike the Judgment of Non Pros be denied.
NEW MATTER
LAWRENCE G. FRANK v. RODNEY MILLER
By way of further Answer Lawrence G. Frank asserts the following New Matter:
9. Plaintiff has not alleged in his Petition to Vacate/Strike the Judgment of Non Pros any
defects on the face of the record upon which relief can be granted.
10. Pa. R.C.P. 1042.6(a) Entry of Judgment of Non Pros for failure to file Certification is
not discretionary but mandatory.
11. It is the presumption that the intent of the Supreme Court in enacting Pennsylvania
Rule of Civil Procedure 1042.1 through 1042.8 is that it intends the entire Rule on Rules to be
affective and certain.
12. There is no exception set forth in Pennsylvania Rule of Civil Procedure 1042.1
through 1042.8 that these Rules do not apply to pro se litigants.
13. Plaintiff in the provisions of Pennsylvania Rules of Civil Procedure is estopped from
having his request for relief granted.
14. Plaintiff has failed to provide a reasonable explanation or legitimate reason for failing
to comply with the provisions of Pa. R.C.P. 1042.3 and he is not entitled to the relief he requested
in his Petition.
15. Plaintiff has failed to list facts sufficient to support a cause of action, therefore he is
not entitled to relief from non pros judgment.
WHEREFORE, Answering Defendant, Lawrence G. Frank requests that the Plaintiff's
prayer for relief that the judgment of non pros be vacated/stricken be denied.
Peters & Wasilefski
Date:
By:
William J. Peters, Esquire
Attorney ID//52670
2931 North Front Street
Harrisburg, PA 17110
717-238-7555
Attorney for Defendant,
Lawrence G. Frank
VERIFICATION
I hereby affirm that the following facts are correct:
I am the Defendant and am authorized to make this Verification; the attached Answer
and New Matter to Plaintiff's Petition to Vacate/Strike Judgment of Non Pros is based upon information
which I have furnished to my counsel and information which has been gathered by my counsel in the
preparation of the lawsuit/ The language of the Answer and New .Matter to PlaintifFs Petition to
Vacate/Strike Judgment of Non Pros is that of counsel and not of me. I have read the Answer and New
Matter to PlaintiWs Petition to Vacate/Strike Judgment of Non Pros and to the extent that the same is
based upon information which I have given to my counsel, it is true and correct to the best of my
knowledge, information and belief. To the extent that the content of the Answer and New Matter to
PlaintiW s Petition to Vacate/Strike Judgment of Non Pros is that of counsel, I have relied upon counsel
in making this Verification. I hereby acknowledge that the facts set forth in the Answer and New
Matter to PlaintiWs Petition to Vacate/Strike Judgment of Non Pros are made subject to the penalties of
18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities.
Lawre'hce G. Frm~k
Date:
RODNEY MILLER,
Plaintiff
PENNSYLVANIA
LAWRENCE G. FRANK,
Defendant
Vo
IN THE COURT OF COMMON PLEAS
CUMBERLAND cOUNTY,
DOCKET NO: 03-1878
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have served a true and correct copy of the foregoing
Answer and New Matter to Plaintiff's Motion to Vacate/Strike Judgment of Non Pros has
been served on all parties of record by placing the same in the United States Mail, first class,
postage prepaid, in Harrisburg, Pennsylvania and by serving the same by Certified Mail, Return
Receipt Requested on this 25tn day of June, 2003, and addressed as follows:
Rodney J. Miller, pro se
UPS Allenwood - 3B
Post Office Box 3000
White Deer, Pennsylvania 17887
Peters & Wasilefski
RODNEY MILLER,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
LAWRENCE G. FRANK,
DEFENDANT : 03-1878 CIVIL TERM
IN RE: PETITION OF PLAINTIFF TO VACATE JUDGMENT OF NON PROS
ORDER OF COURT
AND NOW, this ~ day of September, 2003, the petition of plaintiff to vacate a
judgment of non pros, IS DENIED.
~odney Miller, Pro se
UPS Allenwood - 3B
P.O. Box 3000
White Deer, PA 17887
,~/~lliam J. Peters, Esquire
2931 North Front Street
Harrisburg, PA 17110
For Defendant
Edgar B. Bayley, ~'
:sal
RODNEY MILLER,
PLAINTIFF
: IN THE COURT Of COMMON PLEAS Of
: CUMBERLAND COUNTY, PENNSYLVANIA
LAWRENCE G. FRANK,
DEFENDANT : 03-1878 CIVIL TERM
IN RE: PETITION OF PLAINTIFF TO VACATE JUDGMENT OF NON PROS
OPINION AND ORDER OF COURT
Bayley, J., September 8, 2003:--
On April 23, 2003, plaintiff, Rodney Miller, filed a complaint against defendant,
Lawrence G. Frank, an attorney, seeking damages for alleged professional negligence
in representing him in a bar~kruptcy. When the complaint was filed, and currently,
plaintiff is a prisoner in the United States Penitentiary at Allenwood, Pennsylvania. On
May 30, 2003, defendant filed an answer and new matter to plaintiff's complaint. On
June 3, 2003, plaintiff filed an answer to defendant's new matter. On June 24, 2003,
defendant, pursuant to Pa. Rule of Civil Procedure 1042.6, filed a praecipe with the
Prothonotary to enter a judgment of non pros for the failure of plaintiff a file a Certificate
of Merit "within the time required by Pa.R.C.P. 1042.3 and that there is no Motion to
extend the time for filing a Certificate pending before the Court." The Prothonotary
entered the judgment of non pros on June 25, 2003. On July 3, 2003, plaintiff filed a
petition to vacate the judgment of non pros. Five days later on July 8, 2003, on the
motion of plaintiff, a Rule was entered against defendant ilo show cause why the
03-1878 CIVIL TERM
judgment of non pros should not be vacated. On July 25, 2003, defendant filed an
answer and new matter to the motion to vacate judgment ,of non pros. On August 13,
2003, plaintiff filed a motion for an extension of time in which to file a Certificate of
Merit, and a motion for an order "directing the clerk to provide [him] with a copy of Rule
1041.1 to 1041.8 which sets forth the requirements of filing such a motion because [he]
cannot obtain a copy of the rule himself." On August 15, 2003, plaintiff filed an answer
to defendant's new matter with new matter. Both parties have briefed the issue of
plaintiff's motion to vacate the judgment of non pros.
DISCUSSION
On January 27, 2003, a little less than three months before plaintiff filed his
complaint, the Supreme Court of Pennsylvania adopted Civil Rules 1042.1 through
1042.8 which apply to professional liability actions? Rule 1042.1(b)(2) defines a
"licensed professional" to include an attorney at law. Rule 1042.3 provides:
(a) In any action based upon an allegation that a licensed
professional deviated from an acceptable professional standard, the
attorney for the plaintiff, or the plaintiff if' not represented, shall file
with the complaint or within sixty days after the filing of the
complaint, a certificate of merit signed byr the attorney or party that
either
(1) an appropriate licensed professional has supplied a written
statement that there exists a reasonable probability that the care, skill or
knowledge exercised or exhibited in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable professional
standards and that such conduct was a cause in bringing about the harm,
or...
The Supreme Court made the Rule effective immediately and waived all requirements
of prior distribution and publication.
-2-
03-1878 CIVIL TERM
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim. (l:!mphasis added.)
Rule 1042.3(d) provides:
The court, upon good cause shown, shall extend the time for filing a
certificate of merit for a period not to exceed sixty days. The motion to
extend the time for filing a certificate of merit must be filed on or
before the filing date that the plaintiff seeks to extend. The filing of a
motion to extend tolls the time period within which a certificate of merit
must be filed until the court rules upon the motion. (Emphasis added.)
Rule 1042.6(a) provides:
The prothonotary, on praceipe of the defendant, shall enter a
judgment of non pros against the plaintiff for failure to file a certificate of
merit within the required time provided that there is no pending timely filed
motion seeking to extend the time to file the certificate.
To be entitled to relief from a judgment of non pros, the burden is on the moving
party to demonstrate (1) that the petition for relief was timely filed, (2) a reasonable
explanation or legitimate excuse exists for the default, an~'l (3) there exists sufficient
facts to support a cause of action. Petrone v. Whirlwind, Inc., 444 Pa. Super. 447
(1995). Plaintiff maintains that he has a reasonable explanation and legitimate excuse
for failing to file a Certificate of Merit or a motion to extend the time for filing a
certification because he is incarcerated in a federal prison and has no access to
Pennsylvania Rules of Civil Procedure 1042.1 through 1042.8. In Thomas v. Elash,
781 A.2d 170 (Pa. Super. 2001), the Superior Court of Pennsylvania stated:
We note that Appellant's "pro se status does not entitle [him] to any
particular advantage because of his.., lack of legal training." First Union
Mortg. Corp. v.. Frempong, 744 A.2d 327, 3:33 (Pa. Super. 1999).
Moreover, his contention that he should be held to some lesser standard
03-1878 CIVIL TERM
than other pro se litigants who are not incarcerated is ridiculous. We will
not permit Appellant to benefit from his criminal conviction.
In the case sub judice, plaintiff's representation that he did not have access in
federal prison to Pennsylvania Rules of Civil Procedure 1(:)42.1 through 1042.8 is a
reasonable explanation as to why he did not comply with those Rules. However, it is
not a legitimate excuse for non-compliance. To provide plaintiff relief would allow him a
lesser standard to litigate this case than other pro se litigants who are not incarcerated?
Accordingly, the following order is entered.
ORDER OF COURT
AND NOW, this ___~- day' of September, 2003, the petition of plaintiff to vacate a
judgment of non pros, IS DENIED.
Edgar B. Bayleyl J.~
2 Plaintiff's motion filed on August 13, 2003, for an extension of time in which to file a
certificate of merit cannot be granted because it was not filed within sixty days of the
filing of the complaint on April 23, 2003.
03-1878 CIVIL TERM
Rodney Miller, Pro se
UPS Allenwood - 3B
P.O. Box 3000
VVhite Deer, PA 17887
William J. Peters, Esquire
2931 North Front Street
Harrisburg, PA 17110
For Defendant
:sal
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h~J?~ce G,