PITTSBURGH – A Western Pennsylvania attorney who alleged that proprietary information from his law firm is in the possession of other counsel and that those defendants have refused to return his information to him, is now fighting sanctions levied against him by the defendants.
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. 2 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.
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.
Following up on their vow, counsel for the defendants filed a motion for sanctions on Oct. 6.
“Defendants file this motion for sanctions because plaintiff filed an obviously time-barred and frivolous lawsuit alleging conversion based on an email that he voluntarily sent to defendant Sell over 6 years ago, in January 2017. Plaintiff sued the Evey Black attorneys because Ms. Sell forwarded the unsolicited email to the Evey Black Attorneys, her lawyers at that time. Efforts to secure voluntary dismissal have been unsuccessful, as explained below. Thus, this motion is advanced pursuant to Pennsylvania Rule of Civil Procedure 1023.2. As background, O’Day sent an email to Sell on Jan, 24, 2017. At that time, O’Day was attempting to solicit Ms. Sell as a client. She was uninterested. For the past six years, in fits and spurts, O’Day has engaged in activity relative to the 2017 email,” per the motion.
“In 2017, O’Day (through his counsel) sent a litigation hold letter to Ms. Sell’s former employer. It must be emphasized that in this initial letter, O’Day did not claim any privilege or his own or on behalf of any client in connection with the email that he sent to Ms. Sell. Rather, he simply stated that he communicated with Ms. Sell and thought the communication might be relevant to an ongoing lawsuit. Over a year later, in December 2018. O’Day sent another litigation hold letter to Ms. Sell’s former employer, not only demanding preservation of the email, but that the email be returned. No privilege was asserted in O’Day’s letter to the former employer. Also in December 2018. O’Day sent the Evey Black attorneys a draft complaint, threatening to sue if the email was not returned, both as a hard copy and in electronic format.”
Furthermore, the motion stated that the Evey Black attorneys “owe no duty of care to O’Day and to the contrary, “their undivided duty of loyalty was to their client at that time, Ms. Sell [and] O’Day had no right to interfere.”
“Another 5 years passed and O’Day then filed this action on April 4, 2023. In June 2023, defendants both provided a written notice and demand to O’Day requesting that he dismiss his frivolous lawsuit. O’Day has not withdrawn his lawsuit. O’Day’s complaint sets forth claims of conversion, alleging that defendants are in possession of his intangible company property, a string of emails and metadata, and that they refuse to return them. This is the same general claim that O’Day threatened in 2018. It was frivolous then, and is frivolous now. And by now, it is clearly time-barred,” the motion continued.
“Defendants do not lightly file a motion for sanctions, but it is obvious that the claims are both frivolous and egregiously time-barred. And, based on those facts, it may be inferred that this lawsuit was intended only to harass the defendants, or filed for some ulterior purpose, other than securing the relief sought. Therefore, O’Day has violated Rule 1023.1(c) in multiple respects. His behavior warrants the imposition of sanctions, as merely securing dismissal of the complaint is insufficient relief.”
UPDATE
On Oct. 26, Allegheny County Court of Common Pleas Judge Andrew Szefi sustained the preliminary objections and dismissed the case without prejudice.
Nearly two months later, the plaintiff replied to the motion for sanctions on Dec. 22.
“On Oct. 26, 2023, following argument concentrated on the novel issue of ownership and/or possession of the emails and metadata requested, the Honorable Andrew Szefi, granted defendants’ preliminary objections without prejudice. Plaintiff did not appeal Judge Szefi’s 10-26-23 order. Thereafter, on Nov. 29, 2023, defendants filed a motion for sanctions alleging statute of limitations, bad faith/frivolous/arbitrary and/or vexatious conduct, lack of ownership in his privileged attorney-client and/or work product emails and metadata contained therein, as reasons to support their request for sanctions,” the reply stated, in part.
“Plaintiff contends that the issue of ownership to an attorney’s confidential email communications and meta data contained therein is not remotely settled law in Pennsylvania as his reply brief fully details and argument before the Honorable Andrew Szefi revealed. In fact, plaintiff requested exclusively the metadata contained in the 1-24-2017 (1:24 p.m.) alleged email in redacted form, free from any attorney-client communications and/or privileged work product. Instead, defendants self-servingly withheld and/or failed to simply return electronically in raw and/or native form, the email(s) and/or email headers at issue and chose to attach on two separate pleadings, a photostatic copy of a confidential attorney-client communications and attorney work product knowing the authenticity of these emails were in question.”
The plaintiff “further contends that simply returning the emails electronically as requested nearly a dozen times as a professional courtesy would have negated the need for any litigation and/or controversy” and that, instead, “defendants chose to litigate the ownership and/or chattel interests of a confidential privileged email (and the metadata contained therein) that they later decided to attach and publish as a pleading on two separate occasions.”
“Finally, plaintiff further contends that he is at all times required to maintain the sanctity of his attorney-client communications and attorney work product; therefore retrieving any communication in any form, from any source (particularly an attorney) is compulsory conduct and to characterize such as frivolous/vexatious/arbitrary and/or bad faith is consistent with the questionable arguments and actions of defendants associated with this litigation,” the reply stated.
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