The opinion of the court was delivered by: Clarence C. Newcomer, S.J.
Defendants' Motion to Dismiss Plaintiffs' Complaint is currently
before the Court.
The plaintiffs in this case are Messody T. Perlberger and Karen
Daniella Perlberger, mother and daughter, and they have
Complaint pro se. They allege that the defendants in this case have
engaged in a fraudulent scheme to overbill plaintiffs for legal
services. More specifically, plaintiffs allege violations of the
Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1961-68 (West 2001), by use of mail and wire fraud, in
violation of 18 U.S.C. § 1341 and 1343 (West 2001). Plaintiffs also
bring claims based in state law for fraud, legal malpractice, intentional
infliction of emotional distress, negligent infliction of emotional
distress, breach of contract, and breach of fiduciary duty.*fn1
Plaintiffs reside at 320 Mulberry Lane; Elkins Park, Pennsylvania.
Messody Perlberger allegedly suffers from impairing disabilities
including visual impairment not limited to macula/retinal degeneration,
insulin dependant diabetes with complications, cardiovascular
complications and depression. Defendants Mary Huwaldt and Richard Caplan
are partners at the law firm of defendant Caplan & Luber LLP with offices
at 40 Darby Road; Paoli, Pennsylvania, and 1 Greentree Center; Marlton,
Although difficult to decipher from plaintiffs' thirty six page, single
spaced, handwritten Complaint, plaintiffs allege the following facts: On
or about June 18, 1997, plaintiff Messody Perlberger filed a pro se
Complaint in this Courthouse on behalf of herself and her daughters Karen
and Laura against her husband Norman Perlberger (hereinafter "Perlberger
I"). That Complaint alleged that Norman Perlberger, a lawyer and
recognized family law expert, engaged in a fraudulent scheme with several
other defendants to conceal the true value of Norman Perlberger's income
during Messody and Norman Perlberger's divorce proceedings. Sometime
after the Complaint was filed in Perlberger I, defendants moved to
dismiss the Complaint, but that motion was granted in part and denied in
part. After plaintiff's Complaint was sustained, Messody Perlberger met
with the defendants in this case, Caplan & Luber, to see whether Caplan &
Luber would represent her in Perlberger I.
Shortly thereafter, Caplan & Luber offered to represent Messody
Perlberger and her children in Perlberger I without a retainer
agreement. When Messody Perlberger asked defendants Caplan & Luber
whether they were experienced in handling RICO casas, defendants
represented themselves as RICO experts, telling plaintiff they had "just
received a five million dollar settlement offer" in a RICO case.
Additionally, defendant Huwaldt told plaintiff that defendant Richard
Caplan would be the trial lawyer in Perlberger I. Plaintiff further
alleges that these representations were made through "the United States
wires and telephones."
Plaintiffs claim that the preceding representations were fraudulent,
and avers that defendants made countless other fraudulent representations
during the course of Perlberger I. First, plaintiffs claim that
defendants had little or no expertise in RICO cases, as they were instead
known as a firm specializing in professional malpractice and insurance
coverage. Plaintiffs claim that defendants induced Messody Perlberger to
hire them because defendants knew that plaintiffs case was a high profile
one; it involved a prominent family law attorney
being sued by his wife
and children, and his mistress in a separate but related case.
Additionally, plaintiffs contend that during Perlberger I, defendants
routinely billed plaintiffs for work defendants did not perform, hired a
CPA unnecessarily and without the consent of plaintiffs, charged
plaintiffs excessively high fees to coerce plaintiff into settling
Perlberger I, failed to communicate an April 16, 1998 settlement offer to
plaintiffs, refused to allow plaintiff to accept a settlement offer on
April 29, 2001, refused to provide an accounting of the CPA's work to
plaintiffs, failed to communicate settlement offers to the CPA for the CPA
to evaluate, made unnecessary visits to plaintiffs to inflate their
fees, withheld files after plaintiffs disputed the fees defendants
charged, and attempted to dissuade other attorneys from representing
plaintiffs after defendants withdrew from representing plaintiffs in
Perlberger I. Plaintiffs claim that each of defendants' fraudulent acts
in Perlberger I were part of a scheme to defraud plaintiffs, and to take
advantage of Messody Perlberger in her vulnerable state. Additionally,
plaintiffs contend that each of the fraudulent acts they now contest were
made using the mails, wire and telephones.
In light of these facts, the Court now turns to defendants' Motion
to Dismiss plaintiff's Complaint.
Defendants' Motion to Dismiss
On a motion to dismiss, the district court must read a pro se
plaintiff's allegations liberally and apply a less stringent standard to
the pleadings of a pro se plaintiff than to a Complaint drafted by
counsel. See Haines v. Kerner, 404 U.S. 519, ...