Phila. restaurant school sues former student, attorney for wrongful use of civil process

By Jon Campisi | Oct 17, 2012

A Philadelphia restaurant school is suing a former student and his lawyer

A Philadelphia restaurant school is suing a former student and his lawyer

over claims that the two defendants wrongfully initiated a class action lawsuit against the plaintiff stemming from claims that the school unfairly charges certain fees related to residency.

The Restaurant School at Walnut Hill College, which is located at 4207 Walnut St. in downtown Philadelphia, filed suit Oct. 12 in state court in Philadelphia against West Chester, Pa. resident Justin Lomax and Newtown, Pa. attorney Ron Smolow.

Lomax had attended the institution from September to December 2009, leaving prior to the end of his term due to injuries from a car accident, the lawsuit states.

At the time Lomax left the school, he had an outstanding bill of $2,768.96, which included funds related to a residential leasing fee.

The school soon engaged in collection procedures in an attempt to recover the amount due to the plaintiff, the suit shows.

Lomax was represented by defendant Smolow during this time.

As the collection process unfolded, Smolow filed suit on behalf of Lomax and others similarly situated with respect to residency circumstances surrounding the enrollment at the school, the suit states.

The current complaint states that since the date of the prior civil action filed on behalf of Lomax, there have been three amended versions of that previous lawsuit filed against the school.

The school contends that the defendants have “maliciously, willfully and intentionally abused the legal process” in the filing of their complaint, which they sought to have certified as a class action.

“This matter started out as a ‘collection’ case, not as a class-action case,” the current suit states. “Current counsel represented the lead Plaintiff in attempting to get additional time to pay off his bill to the Defendant [school].”

In the current civil action, the school claims that there is no other student at the school who has voiced a complaint with reference to the residency agreement relationship or the residency learning fee.

The school contends that this is proven by Lomax’s deposition taken in February 2011 in which he responded that none of his friends at the school had any similar complaints about the residency issue.

In its complaint, the restaurant school claims that class action certification in the other lawsuit is wrong because there is no class of people who have been injured.

“Here, there is absolutely no evidence whatsoever that anyone other than Justin Lomax is involved,” the lawsuit states. “It would be a perverse absurdity and an abuse of process to certify a class-action where, in fact, there is no factual evidence that numerous claimants exist. That is totally absent here.”

The school claims that Lomax’s prior testimony during his deposition confirms that nobody else is involved with the litigation, and that certification cannot be valid if a factual class does not exist.

“Considering that Justin Lomax is the only person identified in any way shape or form as part of this class, this Complaint Certification absolutely lacks numerosity,” the suit states. “There is only one person.”

The school also claims that Lomax’s suit lacks commonality, another requirement for class certification.

The plaintiff alleges that it has had to spend $45,000 thus far defending itself against Lomax’s claims, and that it will be expected to spend another $15,000 or so in connection with the current case, bringing the total to more than $60,000 in legal fees.

The school seeks compensatory damages in excess of $60,000, plus more than $300,000 in punitive damages and other court relief.

The lawsuit was filed by Philadelphia attorney Jeffrey D. Servin.


The case ID number is 121001749.

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