PITTSBURGH – Two attorneys have refuted allegations that they illegally possess the proprietary information of another lawyer and refuse to return it to him, arguing that his allegations of conversion are ill-founded.
Michael P. O’Day (doing business as “The Law Offices of Michael P. O’Day”) of Aspinwall first filed suit in the Allegheny County Court of Common Pleas on April 4 versus Brawna Sell of Woodbury and Kathy Mauk (doing business as “Evey Black Attorneys”) of Roaring Spring.
“'On or about Jan. 10, 2022, plaintiff retained the services of attorney John W. Sullivan III, 80 Maiden Lane, Suite 1502, New York, NY 10038, related to an ongoing confidential personnel investigation related to his law practice, located here in Allegheny County. During the course of attorney Sullivan’s ongoing investigation, several peculiarities were discovered regarding, particular email communications between plaintiff from his law offices located here in Allegheny County to defendant Sell in Bedford County, who immediately forwarded all of plaintiff’s email communications to defendant Mauk in Blair County,” the suit said.
“As a result of discovering these peculiarities, on Dec. 21, 2022, attorney Sullivan, initially attempted to contact defendant Mauk’s counsel, Amy Coco, via email, regarding specific metadata, contained in these particular email(s). Specifically, plaintiff allegedly sent several emails to defendant Sell, it was attorney Sullivan’s intention to retrieve these emails and the metadata contained therein, that are currently in both defendants’ possession to further his confidential personnel investigation on behalf of plaintiff. Attorney Coco did not respond to attorney Sullivan’s initial email.”
The suit added that on Jan. 11, 2023, presuming attorney Coco no longer represented Mauk, attorney Sullivan sent an email to Mauk directly, requesting as a professional courtesy that she contact him regarding the requested email(s) that Sell had forwarded to her and the return of plaintiff’s company property, i.e., specific information contained in particular email header(s) that contained plaintiff’s metadata. Mauk did not respond to attorney Sullivan’s Jan. 11 email.
“Thereafter, on Jan. 20, 2023, attorney Sullivan sent a follow up email to Mauk again requesting as a professional courtesy that she contact him regarding the requested email(s) in her possession and the return of plaintiff’s company property i.e., information contained in particular email headers that contained plaintiff’s metadata. Thereafter, on Jan. 24, 2023, attorney Sullivan sent an email to attorney Coco following an initial phone conversation wherein she confirmed her representation of Mauk. Again, attorney Sullivan specifically requested the return of metadata contained in the email header(s) that are the property of plaintiff’s law practice and presumably still in the possession of defendants Sell and/or Mauk,” the suit stated.
“Thereafter, on Feb. 2nd and Feb. 14, 2023, attorney Sullivan sent additional emails to attorney Coco (who did not communicate with attorney Sullivan following their initial phone call, and/or Jan. 24 follow-up email) again specifically requesting the return of metadata, contained in the email header(s) that are the property of plaintiff’s law practice and presumably still in the possession of defendants Sell and/or Mauk. On Feb. 24, 2023, attorney Coco replied to attorney Sullivan’s email on that same day, rather than simply coordinating the return of plaintiff’s emails, she specifically denied plaintiff’s multiple requests and alleged that a cause of action and/or legal authority did not exist that would compel defendants to comply with plaintiff’s numerous requests.”
Subsequently, the suit stated, on Feb. 28, 2023, attorney Coco further responded to attorney Sullivan via email, further alleging that a cause of action and/or authority did not exist, and adding the defenses of statute of limitation, standing, lack of possessory interest, privilege and/or confidentiality as reasoning for defendants’ failure to comply with plaintiff’s numerous requests to simply return his company metadata contained in his company emails.
All of attorney Coco’s reasonings and/or defenses are neither supported in law and/or fact and defendants Mauk and Sell inexplicably continue to refuse to return plaintiff’s company property as of the filing of this complaint in civil action.
UPDATE
On July 17, the defendants separately filed preliminary objections to O’Day’s complaint, both of which provided that the plaintiff failed to state claims upon which relief could be granted.
“Plaintiff O’Day does not have any ownership right in an email that he voluntarily and gratuitously sent to Ms. Sell and therefore, his claim of conversion fails as a matter of law. Conversion is the deprivation of another’s right in the use or possession of a chattel, without the owner’s consent and without lawful justification. Conversion can be committed by ‘(a) Acquiring possession of the goods, with an intent to assert a right to them which is in fact adverse to that of the owner; (b) Transferring the goods in a manner which deprives the owner of control; (c) Unreasonably withholding possession from one who has the right to it; (d) Seriously damaging or misusing the chattel in defiance of the owner’s rights. The elements of a claim of conversion do not fit the circumstances of this case. Plaintiff intentionally sent the email to Ms. Sell. Defendants did not transfer the emails in a manner that deprived plaintiff of control because Ms. Sell was the intended recipient of the email and had the right to forward the email to attorney Mauk,” according to Mauk’s preliminary objections, in part.
“Defendants did not unreasonably withhold possession of plaintiff’s emails, as plaintiff still had access to the emails because he is the one who sent them in the first place. Defendants did not request the emails (or any metadata), they were not expecting the emails, they had no use for the emails, and plaintiff never suggested that the emails should be returned at some subsequent date (assuming that is even possible with email). O’Day’s email was akin to a gift that she could use or dispose of in any manner without obligation to O’Day, the sender. Further, Ms. Sell was entitled to consult with her legal counsel about what she had received. Defendants are justified in holding the emails because the email was intentionally sent to Ms. Sell and the email became part of Ms. Sell’s client file in the possession of attorney Mauk. Therefore, plaintiff O’Day has not stated a proper claim of conversion of property and the lawsuit should be dismissed with prejudice.”
Mauk added that the email in question was not attached in the plaintiff’s complaint and that it was barred by the two-year statute of limitations, which expired in 2019.
Sell’s preliminary objections to the complaint were of a similar nature.
“Plaintiff’s complaint lacks specificity in violation of Rule 1019. Contrary to Rule 1019(i), plaintiff’s complaint fails to attach the writing (an email) that plaintiff’s complaint apparently seeks to have the defendants return to him. Contrary to Rule 1019, plaintiff’s complaint fails to adequately identify the email that he seeks to be returned or otherwise describe or define the metadata somehow attached thereto. Contrary to Rule 1019(i), plaintiff’s claims of conversion are based upon the transmission of an email message, but plaintiff’s complaint fails to attach a copy thereof. Contrary to Rule 1019(f), plaintiff’s complaint fails to allege the date on
which the email that is the foundation of plaintiff’s claims was allegedly sent by the plaintiff to the defendant. Contrary to Rule 1028(3), the factual allegations in plaintiff’s complaint are insufficiently specific to allow the defendant to understand what the plaintiff seeks, how the plaintiff has been harmed, and what damages the plaintiff claims,” per Sell’s objections.
“Plaintiff’s complaint seeks to compel the defendant to return an email that plaintiff voluntarily and gratuitously transmitted to the defendant. Plaintiff has not alleged any recognized property right or ownership interest in the email such that defendant could be legally compelled to return it to him. As such, plaintiff’s complaint fails to state a claim upon which relief might be granted. Plaintiff’s complaint seeks the return of an email that the plaintiff voluntarily and gratuitously sent to the defendant without condition or expectation of remuneration or compensation. Defendant received the email without having requested such an email. Therefore, pursuant to applicable law, the email sent by the plaintiff to the defendant, along with any attendant metadata, was a gift and defendant cannot be compelled to return it or compensate the plaintiff. Plaintiff asserts a cause of action for conversion. Such a claim is barred by the applicable statute of limitations. The email that plaintiff seeks to be returned was sent more than six years ago. The statute of limitations for conversion is two years. Plaintiff’s claims are barred by the doctrine of laches.”
According to Sell, “plaintiff commenced this action in bad faith, without probable cause, and in violation of 42 Pa. C.S.A. Section 2503(9); plaintiff should be sanctioned and compelled to pay counsel fees to the defendant for his arbitrary, vexatious and bad faith conduct.”
Sell added that on June 6, the plaintiff was advised in writing that his complaint violated Rule 1023.1 and that sanctions would be sought if he failed to discontinue this action.
For two counts of conversion, the plaintiff is seeking the immediate return of any and all intangible company property merged into the form of his confidential privileged emails, and any and all metadata in native form, contained therein, currently in the possession of the defendants, injunctive relief and/or any other relief in equity that this Honorable Court deems appropriate, plus damages, including attorney’s fees, and requests judgment against the defendants, individually and collectively, in an amount exceeding the arbitration division limits.
The plaintiff is representing himself in this matter.
The defendants are represented by Bethann R. Lloyd and Aaliyah D. Hyacinthe of Weinheimer Haber & Coco, plus Jay N. Silberblatt of Silberblatt Mermelstein, all in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-004603
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com