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Statement of Questions Involved
1. Have the Plaintiffs stated a valid reason to grant a motion for reconsideration to prevent
manifest injustice under Rule 59 (e), relating to Denial of Pilchesky’s standing as “Next
Friend”?
Proposed answer: Affirmative
2. Have the Plaintiffs stated a valid reason to grant a motion for reconsideration for error of
law under Rule 59 (e), relating Denial of Pilchesky’s standing as “Next Friend”/Failure to
give notice of evidentiary hearing to Pilchesky and Tarapchak?
Proposed answer: affirmative
3. Have the Plaintiffs stated a valid reason to grant a motion for reconsideration to prevent
manifest injustice under Rule 59 (e), relating to denial opportunity to amend?
Proposed answer: Affirmative
Law
In Lazaridis v. Wehmer, 591 F. 3d 666 - Court of Appeals, 3rd Circuit 2010, the Court wrote
as follows:
The purpose of a motion for reconsideration is "to correct manifest errors of law or fact or to
present newly discovered evidence." Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d
Cir.1999). A proper Rule 59(e) motion therefore must rely on one of three grounds: (1) an
intervening change in controlling law; (2) the availability of new evidence; or (3) the need to
correct clear error of law or prevent manifest injustice. N. River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir.1995) .
1
In Tischio v. Bontex, Inc., 16 F. Supp. 2d 511 - Dist. Court, D. New Jersey 1998, the Court wrote
as follows:
Motion for Reconsideration Standard of Review
Rule 59(e) provides:
“(e) Motion to Alter or Amend Judgment. Any motion to alter or amend a judgment shall be
filed no later than 10 days after entry of the judgment.”
Fed.R.Civ.P. 59(e). Rule 59(e) permits a plaintiff to move to alter or amend a judgment
within ten days of entry of an order. See id.; Database America v. Bellsouth Advertising &
Publishing, 825 F.Supp. 1216, 1219-20 (D.N.J.1993) . Local Civil Rule 7.1(g) of the United
States District Court for the District of New Jersey ("Local Rule 7.1(g)") requires the moving
party to set forth "concisely the matters or controlling decisions which counsel believes the
Judge or Magistrate Judge has overlooked." Local Rule 7.1(g); see North River Ins. Co. v.
CIGNA Reins. Co., 52 F.3d 1194, 1218 n. 38 (3d Cir.1995) ; Elizabethtown Water Co. v. Hartford
Cas. Ins. Co., 998 F.Supp. 447, 459 (D.N.J.1998) ; Database, 825 F.Supp. at 1220 .
A motion for reconsideration pursuant to Rule 59(e) is designed to "correct manifest errors
of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). As such,
a Rule 59(e) motion may be made for only one of three reasons: (1) an intervening change in the
controlling law has occurred, (2) evidence not previously available has become available, or (3)
it is necessary to correct a clear error of law or prevent manifest injustice. See North River, 52
F.3d at 1218; Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J.1992), aff'd,
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37 F.3d 1485 (3d Cir. 1994); Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406, 1419
(D.Md.1991).
A motion for reconsideration is not a vehicle to reargue the motion or to present evidence
which should have been raised in connection with an earlier motion. See Database, 825 F.Supp.
at 1220; Bermingham, 820 F.Supp. at 856 ; Weyerhaeuser, 771 F.Supp. at 1419 . "[A] motion for
reconsideration should not provide the parties with an opportunity for a second bite at the
apple." In re Christie, 222 B.R. 64, 66 (Bankr. D.N.J.1998) (citing Database Am., 825 F.Supp. at
1220). "A party seeking reconsideration must show more than a disagreement with the Court's
decision, and `recapitulation of the cases and arguments considered by the court before rendering
its original decision fails to carry the moving party's burden.'" Database, 825 F.Supp. at 1220 ; G-
69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J. 1990) ; see also Elizabethtown Water Co., 998
F.Supp. at 459; Egloff v. New Jersey Air Nat'l Guard, 684 F.Supp. 1275, 1279 (D.N.J. 1988)
(denying motion for reconsideration where plaintiff failed to cite any pertinent case law or fact
court may have overlooked). Nor is a motion for reconsideration properly grounded on a
request that a court rethink a decision already made. See Glendon Energy Co. v. Borough of
Glendon, 836 F.Supp. 1109, 1122 (E.D.Pa.1993) . A party may not submit evidence which was
available to it prior to the issuance of the challenged order. See Smith, 155 F.R.D. at 97 . All of
the data and detail in support of the Motion for Reargument were available and could have been
submitted for the Motion to Transfer — only a portion was so submitted.
Amendment standards
In Shane v. Fauver, 213 F. 3d 113 - Court of Appeals, 3rd Circuit 2000, the Court stated,
3
Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend a pleading "once
as a matter of course at any time before a responsive pleading is served." A motion to dismiss for
failure to state a claim must be made "before pleading if a further pleading is permitted."
Fed.R.Civ.P. 12(b). Thus, in the typical case in which a defendant asserts the defense of failure
to state a claim by motion, the plaintiff may amend the complaint once "as a matter of course"
without leave of court. See 2 James Wm. Moore et al., Moore's Federal Practice § 12.34[5], at
12-76 (3d ed.1999) (quoting Fed.R.Civ.P. 15(a)). After amending once or after an answer has
been filed, the plaintiff may amend only with leave of court or the written consent of the
opposing party, but "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a).
The Supreme Court has instructed that although "the grant or denial of an opportunity to amend
is within the discretion of the District Court, . . . outright refusal to grant the leave without any
justifying reason appearing for the denial is not an exercise of discretion; it is merely an abuse of
that discretion and inconsistent with the spirit of the Federal Rules." Foman v. Davis, 371 U.S.
178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
"Among the grounds that could justify a denial of leave to amend are undue delay, bad faith,
dilatory motive, prejudice, and futility." In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1434 (3d Cir.1997) ("Burlington"); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d
Cir.1993). "Futility" means that the complaint, as amended, would fail to state a claim upon
which relief could be granted. Burlington, 114 F.3d at 1434 . In assessing "futility," the District
Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6). Id.; 3
Moore's Federal Practice, supra § 15.15[3], at 15-47 to -48 (3d ed.2000). Accordingly, if a
claim is vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend, leave to
amend generally must be granted unless the amendment would not cure the deficiency.
4
The Federal Rules of Civil Procedure do not address the situation in which a deficiency in a
complaint could be cured by amendment but leave to amend is not sought. Circuit case law,
however, holds that leave to amend must be given in this situation as well. In Borelli v. City of
Reading, 532 F.2d 950 (3d Cir.1976), this court stated that a district court should use the
following procedure in dismissing a complaint for failure to state a claim:
[W]e suggest that district judges expressly state, where appropriate, that the plaintiff has leave
to amend within a specified period of time, and that application for dismissal of the action may
be made if a timely amendment is not forthcoming within that time. If the plaintiff does not
desire to amend, he may file an appropriate notice with the district court asserting his intent to
stand on the complaint, at which time an order to dismiss the action would be appropriate.
Borelli, 532 F.2d at 951 n. 1 . In Darr v. Wolfe, 767 F.2d 79 (3d Cir.1985), we stated:
[T]his court has consistently held that when an individual has filed a complaint under § 1983
which is dismissable [sic] for lack of factual specificity, he should be given a reasonable
opportunity to cure the defect, if he can, by amendment of the complaint and that denial of an
application for leave to amend under these circumstances is an abuse of discretion. Darr, 767
F.2d at 81.
These cases were followed by District Council 47 v. Bradley, 795 F.2d 310 (3d Cir.1986), in
which the court held that, if the complaint in that case was deficient, the District Court should
have followed the procedure outlined in Borelli and granted leave to amend even though the
plaintiff, which was represented by experienced counsel, had never sought leave to amend.
5
District Council 47, 795 F.2d at 316 . The court observed that "we have never required plaintiffs
to request leave to amend following a district court's dismissal of a complaint." Id.
Argument
“Next Friend” standing and surprise evidentiary hearing
The Presence of Prejudice
At the outset, as background, it is worth noting that Judge Kearney gave Pilchesky only
seven (7) days to respond to the Rule that he issued upon him on January 14, 2016, to show
cause why he should be permitted to represent incarcerated Tarapchak as her “Next Friend”. It is
further worth noting that Judge Kearney denied Pilchesky’s Emergency Motion to inspect the
prison’s Law Library and to interview the prison’s Law Librarian, notwithstanding the fact that a
required element of the legal standard that Pilchesky had to meet to be granted “Next Friend”
status was to show that the prison had a deficient and ineffective Law Library and an untrained
and incompetent Law Librarian. Pilchesky wanted to take pictures of the Law Library because
Tarapchak had reported to him it is a small room and there are no legal reference books.
Pilchesky also wanted to inspect the prison’s computer and/or word processor, because
Tarapchak had reported to him that there was no internet service and that the computer and/or
word processor did not have a “save” feature to save work in progress, or to save legal research
documents. Pilchesky also wanted to interview the Law Librarian. Since Pilchesky was unable to
inspect the Law Library or interview the Law Librarian, he was unable to submit any proof of
that aspect of the Law Library’s inadequacies to support his argument on the “Next Friend” issue
as relates to lack of access to the courts.
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In hindsight, the clearest sight, the record is clear and obvious that Judge Kearney had no
intention of disposing of the issue of Pilchesky’s “Next Friend” status until after he held an
evidentiary hearing on the matter on March 1, 2016, which intention he concealed from
Pilchesky and Tarapchak. Judge Kearney could have included information in his February 5,
2016, order that scheduled a hearing on “all outstanding motions” that an evidentiary hearing
was also going to be held on the issue of “Next Friend”, but he did not. Judge Kearney could
have included a hearing date in the Rule to Show Cause, but he did not. Judge Kearney could
have also given Pilchesky until February 14, 2016, or thirty (30) days, to file his Answer to the
Rule regarding “Next Friend” status, which would have allowed Pilchesky the opportunity to
propound discovery upon Administrators and doctors at the Lackawanna County Prison. Judge
Kearney then could have given the Defendants fifteen (15) days to respond. Proper notice that an
evidentiary hearing was also going to be held on March 1, 2016, would have triggered further
due diligence action for Pilchesky to prepare accordingly. Furthermore, Judge Kearney only
issued the Rule upon Pilchesky, and not Tarapchak. The record is absent any request by any
party for an evidentiary hearing. With proper notice of an evidentiary hearing, Pilchesky could
have, and would have, subpoenaed Warden McMillan, Dr. Malik, the prison doctor, and the
prison’s Law Librarian to support Pilchesky’s assertions that Tarapchak did not have access to
the court due to an inadequate Law Library and mental incompetence. Pilchesky asserts that this
Court knew that he would be severely prejudiced absent proper notice of an evidentiary hearing,
as it knew Pilchesky was prejudiced by being denied access to the Law Library and the Law
Librarian. Pilchesky further asserts that the Court’s conduct was intentionally deceptive to the
prejudice of the Plaintiffs and to the benefit of the Defendants. This Court’s own Finding of Fact
at page (2) refers to the evidentiary hearing as relating to the rule to show cause.
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Review of the Court’s The Findings of Fact and Conclusions of Law illustrates prejudice
The Findings of Fact and Conclusions of Law1 (Finding) is a substantially comprehensive
finding of facts through the Court’s eyes as the result of holding an evidentiary hearing that only
the Court and the Defendants knew was going to take place on March 1, 2016, as well as
responses to the Court’s Rule issued on January 14, 2016. The Finding is fifteen (15) pages long,
composed of fifty-eight (58) paragraphs and seventy-one (71) footnotes and it is not signed.
Worthy of note is that practically none of the footnotes make an accurate reference to the record,
either in context or page number, or both. The Finding addresses only the issue of Pilchesky’s
“Next Friend” status to represent Tarapchak as an incarcerated Plaintiff.
Cherry-picked v. Omitted Facts within the Finding and Conclusion
The Finding has methodically, almost pain-staking, “cherry-picked” through the transcript of
the March 1, 2016, evidentiary hearing and Pilchesky’s Answer to the Rule to Show Cause to
support its Conclusion of Law to deny “Next Friend” standing to Pilchesky, harvesting certain
facts to the benefit of supporting the denial, but omitting many other facts that could support
granting the standing. In that regard, Pilchesky and Tarapchak offer the following paragraph-by-
paragraph critique of the Finding in dispute of its veracity in support of this instant motion:
1. It is specifically denied that (N.T. March 1, 2016 at p. 16) states that Pilchesky claimed
he and Tarapchak were romantic partners since February or March 2015. That statement
is not made anywhere in the transcript.
2. It is admitted the Pilchesky was Tarapchak’s Durable Power of Attorney and has owned
50% of her medical practice since 2013.
1 Doc. 119
8
3. It is admitted that Tarapchak has been incarcerated on a bail violation since October 23,
2014.
4. It is admitted that Pilchesky became more involved in representing Tarapchak after her
bail violation incident due to becoming uncomfortable with her representation.
5. It is specifically denied that p.33 states that Pilchesky often sends case law and research
to Tarapchak. He admitted at p. 35 that he sends her case law often, but only to help her
understand it, without admitting that she understood any of it, but nonetheless, she’d still
be incapable of preparing legal documents and giving a presentation in court in an
adversarial setting. Furthermore, at p. 36 & 37, Pilchesky explained that if he wasn’t
helping her, none of the legal papers would have been prepared and filed, and if he
doesn’t continue to help her, she’ll be incapable of responding to litigation and she won’t
do anything and it’ll be over, and, she admitted that it would have been impossible for her
to do it herself.
6. It is specifically denied that p.26 states that Tarapchak reads, writes and understands
English, although it may be stated elsewhere. More specifically, wherever it may be
stated, it does not state that she can read, write and understand law, the legal concepts of
law, the legal standards of law, how to prepare legal documents, how to prepare briefs,
how to read legal documents and briefs, how to interpret case law, common law and
statutes and how to present arguments, take depositions and engage in pre-trial , trial and
evidential hearing procedures.
7. It is admitted that Tarapchak opened a medical office and operated it without Pilchesky.
However, it is also well-established on the record that Tarapchak was convicted of
9
mismanaging her medical office over a period of several years, to include the
misadministration of, and failure, to prepare and file medical documents and records.
8. It is specifically denied that Pilchesky admitted at p.29 that Tarapchak is someone who
can process complicated information. To the Contrary, at p.31, 32 & 33 he explained that
she has not made good decisions in her personal and financial life and that she managed
her medical office poorly, which is how she got herself in the trouble she’s in.
9. It is admitted that Tarapchak could describe what “decompensated” means, but she was
trained as a doctor to describe it, and she suffered from being “decompensated” due to
her experience of being arrested, incarcerated and convicted through a rigged trial. She
also described psychosis, which she also suffers from. She testified at p.49 that she sees
things, hears things and that she’s become more paranoid. She also testified at p.50 that
her psychotropic medication dosages were increased by the prison doctor and that she
was placed in a camera watch cell twice at the instruction of a prison doctor. She testified
at p.51 that she’ll be on the medications for a long time. At p.52 she testified that she
would not have been able to prepare the Complaint because the ability to process
information is affected by the medications, and she has memory issues. She also testified
that if Pilchesky didn’t help her to prepare and file the documents it would be impossible
for her to do it.
10. It is patently denied that Pilchesky said Tarapchak provided him with a very good
diagnosis of how own heart condition at p.42. To the contrary, at p.44, after Pilchesky
explained to the Court that Tarapchak had forced him to have a catherization done, it was
the Court, and not Pilchesky, who said it “sounds like a good diagnosis.”
10
11. It is specifically denied that Pilchesky stated at p. 42 that Tarapchak was “okay” while on
home detention. To the contrary, at p.42 he explained she suffered from hallucinations
and believed people were chasing her. At p.43 he explained she should have been on
medication because she had boarded up his home believing that people were chasing her.
12. It is admitted that Tarapchak testified she was hearing and seeing things, among other
adverse psychological reactions, but she testified that she was taking five psychotropic
medications, i.e., plural, and not one medication, as erroneously indicated in this
paragraph.
13. It is admitted that Tarapchak testified that she suffered from short-term memory loss.
14. It is admitted that Tarapchak testified that she was taking medications before Pilchesky
began action as her “next friend”.
15. It is denied that Tarapchak testified at p.55-56 that her present medications resolve her
psychiatric symptoms (plural). More specifically, she testified that it resolved only one.
16. It is admitted that Tarapchak testified that she sees a psychiatrist over two months and
stayed with medications with an increase in dosage of antipsychotics.
17. It is admitted that Tarapchak testified that she was twice placed in isolation by prison
doctors for suicide concerns. Her testimony was under oath. In addition, she submitted an
affidavit to the Court on January 21, 2016, which only lacked notarization because the
prison had no public notary on duty to notarize it. Furthermore, if Pilchesky or
Tarapchak were given more time to propound discovery, they would have had medical
documents to support her testimony and statements. Furthermore, had Pilchesky or
Tarapchak been given the same notice of the evidentiary hearing as the Defendants had,
they would have known they needed the documents, and would have subpoenaed Dr.
11
Malik for his testimony. Clearly, a diagnosis to twice place any inmate in a camera cell is
sufficient to establish that the inmate has taken leave of her faculties and the ability to
reason.
18. It is patently denied that Pilchesky testified at p.7 or anywhere else that he has no medical
expertise, that he observed the psychotropic medications prescribed and taken by
Tarapchak for several years which has now affected her ability to represent herself. At
p.9 Pilchesky testified that he learned of her medications through discussions with her.
To assert that Pilchesky made this statement is incredulous.
19. Pilchesky admits that he testified that he is a high school graduate, and not a trained
attorney, and that he acquired legal knowledge through serving as an expert witness,
suing the government and doing research, which, in itself, is a measure of training. Call it
on-the-job training.
20. It is admitted that Tarapchak is permitted to use the prison law library for two hours on
Friday, Saturday and Sunday of each week, but can only use the word processors for 20
minutes each time. It is admitted that she testified that the computers are broken and the
library is loud. It is admitted that she testified that the librarian lacks legal knowledge.
However, as evidenced by Tarapchak’s affidavit included in Doc. 69, the Law Library
has no reference books, the computer has no internet service and there is no save feature
to preserve word documents or store research documents for re-engaging in document
production. Furthermore, this Court denied Pilchesky access to the Law Library and the
Librarian to give him the opportunity to see it for himself, to take pictures, to inspect the
computers, and to interview the Librarian, who, by the way, was fired the day after the
evidentiary hearing. She was, according to Tarapchak, nothing more than a nice cleaning
12
lady. Pilchesky was denied the right to prepare for an evidentiary hearing when the Court
knew there was going to be one on March 1, 2016, but concealed it from him.
21. It is admitted that Tarapchak is able to write and communicates with Pilchesky by
telephone, neither of which support that she is able to prepare and file legal documents,
do legal research in books that do not exist, do legal research on a computer without
internet access, save legal documents on a word processor or computer without a save
feature and or prepare for a presentation in a courtroom against trained lawyers,
particularly before a judge holding such severe prejudice as to secretly schedule an
evidentiary hearing and give notice to everyone involved, except Pilchesky and
Tarapchak.
22. It is specifically denied that Pilchesky admitted he lacked legal training at p.28.
23. It is admitted that a civil complaint was filed in Lackawanna County. It is specifically
denied that the complaint pleads any federal claims. It is specifically denied that
Tarapchak did not need Pilchesky to assist with the preparation and service of the
complaint, and he admitted to her needing the same while testifying at p.28.
24. It is admitted that Pilchesky prepared a civil complaint for Tarapchak even though he is
not a lawyer.
25. It is admitted that Pilchesky discussed claims in the civil complaint with Tarapchak. It is
admitted he submitted drafts to her. It is admitted they were on the same page. It is
denied that Tarapchak testified that she played a role in the formatting and construction
of the complaint. It is admitted that Pilchesky affirmed facts with Tarapchak because the
facts were harvested from the record and Pilchesky likewise provided copies of the
record to Tarapchak.
13
26. It is denied that Tarapchak prepared the affidavit. It is admitted that Pilchesky drafted it,
presented it to her at the prison, she then reviewed it through the glass divider, agreed
with it, and signed it when a prison guard took it to her. It is admitted that the affidavit
was presented as truthful and accurate.
27. It is admitted that Pilchesky is directing discovery. It is admitted he requested documents
from Tarapchak’s former lawyer. It is denied that Pilchesky admitted that he didn’t
understand the issue of privilege as relates to the release of privileged documents.
Furthermore, Pilchesky testified at p.20-25 that Tarapchak directed him to acquire the
privileged documents. Furthermore, Pilchesky did not acquire said documents and the
Defendant had not responded to discovery with said documents.
28. It is admitted that neither Pilchesky nor Tarapchak presented expert reports or medical
records which assert that Tarapchak suffers from a mental incapacity. The reason for
this is that either Pilchesky or Tarapchak, unlike the Court and all Defendants, had
any notice that an evidentiary hearing was going to be conducted on March 1, 2016.
In addition, there was not sufficient time for Pilchesky to get that information through
discovery after the Court issued its Rule to Show Cause regarding the issue of “Next
Friend” status, because the Court gave him a scant seven (7) days to file his Answer, two
days of which were weekend days, notwithstanding the fact that the Court knew it was
not going to hold an evidentiary hearing for several more weeks.
29. It is specifically denied that Pilchesky testified that Tarapchak is competent in all
professional regards. That is a patently false statement. It is outrageously incredulous
for this Court to assert that medical support was needed to show that Tarapchak has done
poorly in her personal life and she is not familiar with the legal system. That statement is
14
beyond ludicrous. Tarapchak appeared before this Court with a life completely savaged
and tortured by poor personal decisions, as well as suffering betrayal from her own
lawyers, as the record supports, which speaks for itself and needs absolutely no medical
support. What medical support could possibly be needed to support that Tarapchak was
not familiar with the legal system?
30. It is specifically denied that Pilchesky testified that he is concerned that Tarapchak is not
the person she used to be and has lost a few steps. He emphatically stated that she is not
the person she used to be and she has lost a few steps.
31. It is admitted that neither Pilchesky nor Tarapchak presented expert reports or medical
records which assert that Tarapchak attempted suicide. The reason for this is that either
Pilchesky or Tarapchak, unlike the Court and all Defendants, had any notice that
an evidentiary hearing was going to be conducted on March 1, 2016. In addition,
there was not time for Pilchesky to get any possible pertinent information after the Court
issued its Rule to Show Cause regarding the issue of “Next Friend” status, because the
Court gave him a scant seven (7) days to file his Answer, two days of which were
weekend days, notwithstanding the fact that the Court knew it was not going to hold an
evidentiary hearing for several more weeks.
32. It is admitted that Tarapchak understands why she is in prison as relates to charges
against her and her conviction thereof.
33. Pilchesky admits that he testified that Tarapchak does not have the finances to hire
private counsel and that private counsel would likely serve her better. However,
Tarapchak also testified that Pilchesky has served her well.
The Court’s Conclusions of Law
15
34. It is agreed that the “Next Friend” standard is based upon either mental incompetence or
inaccessibility to the courts.
35. This is a patently erroneous conclusion of law. While some of the 1983 claims against
Defendants Lynn and McMillan somewhat relate to her habeas claims, the other 1985 and
1986 claims relate to a conspiracy to deprive her of her due process, liberty and fair trial
rights, which are explicitly not analogous to habeas relief or claims.
36. It is agreed that “Next Friend” status requires either inaccessibility to the courts or mental
incompetence, and a significant relationship with the party in interest.
37. It is agreed that a non-licensed individuals may not use the “next friend” device as an
artifice for the unauthorized practice of law. However, there is no such thing as a license
to practice law in Pennsylvania. Lawyers do not have a license to practice law. They
carry a membership card to a private corporation. They are not judicial officers. They are
corporate members only. No lawyer has ever claimed judicial immunity when sued for
malpractice. Furthermore, the Due Process clauses in either the Fifth or Fourteenth
Amendment do not require intervention by a legal professional to be guaranteed due
process. Finally, the flags that adorn state and federal courtrooms are not judicial, they
are military. The Pennsylvania seal is a corporate seal. The Judicial seal is a corporate
seal. Pennsylvania criminal law only forbids non-lawyers from advertising that they are
lawyers and practicing law, not from just practicing law. Read Pa 42 C.S. 2524 (a) and
(b) carefully. Tarapchak at all times knew that Pilchesky was not a licensed attorney, but
100% of all of her problems that she suffered in the last ten years can be directly
attributed to the trust she placed in licensed attorneys who charged her over $400,000.00
to ruin her life, cause the loss of her medical license and place her exactly where she sits
16
today. Save for what Pilchesky has done for her, legal help and other mental and
emotional support considered, Tarapchak would be dead by her own hand. She does not
want to trust lawyers. Or judges, for that matter, as this exact instant experience
evidences. Why was Tarapchak subjected to an evidentiary hearing without due notice
by this Court? Why did this Court subject her to that which gave rise to the causes of
action listed in her Second Amended Complaint?
38. It is agreed that the burden is on the “next friend” to establish his status and “justify the
jurisdiction of the court.”
39. The conclusion of law at p.39 is irrelevant. There is no issue of waiver here.
40. It is specifically denied that Pilchesky failed to show Tarapchak’s mental incompetence.
She testified that she is on five psychotropic medications. She appeared in Court twenty-
five (25) pounds underweight. Her demeanor while testifying was clearly demonstrative
of her confusion on many questions. She repeatedly stated that she didn’t understand
certain questions. She clearly testified that she cannot process the information necessary
to prepare legal documents and litigate on her own behalf. Absolutely nothing in any
portion of Tarapchak’s testimony indicated that she is capable of proceeding on her own
behalf. She admitted she can read, write and understand English, but so can the court
reporter, but can he litigate a federal case involving twelve defendants? So can the
marshals and most of the non-lawyer defendants, but can they litigate a federal case
involving twelve defendants, especially if incarcerated in the Lackawanna County Prison
with a Law Library that mirrors a school that’s been closed for twenty years? The
conclusion that Tarapchak could have prepared the Second Amended Complaint, the
Briefs in Opposition or even the Answer to Rule to Show Cause bears witness to the fact
17
that this Court’s reasoning is somehow languishing in the minds of courts past when
prisoners were considered laborers of the state, circa 1816. Both state and federal courts
have expressly amended and modified laws to fit contemporary jurisprudence, and have
expressly codified many new laws to advance justice and/or created new case law to
bring light where the dark prejudiced those deserving of the full strength of constitutional
guarantees and justice. It’s 2016! Animals can no longer be left tied to a tree without food
or water. Children can no longer miss school. Men can no longer beat their wives. Parents
can no longer leave their kids alone in their car while shopping. Drunks can no longer kill
and escape accountability, or even continue to drive home drunk. Criminal defendants are
no longer allowed to waive counsel absent full and meaningful colloquy. Hospitals can
no longer deny treatment. Teachers can’t paddle students. And the list goes on, all the
result of laws amended, repeatedly amended or created over the last thirty years. It’s time
to bring the issue of “next friend” status up to speed and rule to the benefit of David.
Surely, Goliath can defend himself against a slingshot. It is agreed that an evidentiary
hearing would bear out whether Tarapchak can proceed on her own behalf, but no
hearing is an evidentiary hearing absent proper notice to all of the parties.
41. It is specifically denied that this Court used an evidentiary hearing to determine “next
friend” standing requirements, evaluate competency and credibility, and determine if the
incarcerated party is capable of making a rational decision. An evidentiary hearing absent
proper notice of the same to all parties is a nullity! Granted, the Court was impressively
prepared to fully examine both Pilchesky and Tarapchak, as were all of the Defendants.
However, neither Pilchesky nor Tarapchak were prepared to be examined, or to examine
one another, because they had no notice that an evidentiary hearing was going to take
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place on the issue of “next friend” status. A Rule is not a motion. The Court’s scheduling
order did not include mention of the Rule. Pilchesky and Tarapchak were only noticed
that a hearing was going to take place on March 1, 2016, relating to “all pending
motions”2. The issue of “Next Friend” status was not raised by way of motion by any
party seeking specific relief. It was raised by way of a sua sponte Rule to Show Cause,
which was direction, and not a motion. Furthermore, this Court permitted Pilchesky to
represent Tarapchak beyond the time required for him to respond to the Court’s Rule to
Show Cause. This Court knew that Pilchesky had prepared and filed all of the Briefs in
Opposition to the Defendants’ Motions to Dismiss. This Court even granted Pilchesky’s
Motion for Leave of Court to file supplemental briefs on behalf of Tarapchak because he
was not permitted to orally argue on her behalf on March 1, 2016. As this Court well
knows, Tarapchak would not have been able to prepare this instant motion to protect her
rights. She need Pilchesky to do it. She needs him to argue it as her “Next Friend”. In
fact, because she’s not internet connected, she did not receive a copy of this Court’s order
until March 28, 2019. She could have studied the Court’s Memorandum, Findings of Fact
and Conclusions of Law and Order for months and still made no sense of it to be able to
prepare this motion. She would have just accepted it and its consequences. And that is
justice? That is fairness? That is equity? That is constitutional due process? It is none of
those. It is unconscionable and disturbing prejudice that is unbecoming of any federal
court officer.
With proper notice that an evidentiary hearing was going to be conducted on March 1,
2016, Pilchesky could have prepared himself and Tarapchak for examination and perhaps
to examine one another. Furthermore, Pilchesky would have subpoenaed both the prison
2 Doc 90
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warden and Tarapchak’s doctors, and all of Tarapchak’s prison medical records, as well
as all applicable out-of-prison medical records. Pilchesky could have even produced
records from recent state cases where the warden obtained a protective order to prevent
disclosure to Tarapchak of her own prison medical records. Pilchesky and Tarapchak
were caught completely off guard by this one-sided surprise evidentiary hearing, having
prepared only to argue the Defendants’ Motions to Dismiss and having done no
additional preparation for argument on the issue of “next friend” status. Pilchesky didn’t
even know Warden McMillan was in the courtroom until the hearing was over when he
saw him rise and leave, or he may have been alert enough to call him to the stand to
discuss the adequacy of the Law Library and the Librarian.
This Court even permitted the Defendants to delve into direct examination of
Pilchesky that crossed well into testimony that was more relevant to the unauthorized
practice of law than “next friend” status, notwithstanding the fact that at some point the
Court gave Pilchesky Fifth Amendment warnings, but they came too late. The
Defendants even brought exhibits with them. Furthermore, this Court opened Pilchesky’s
examination with stern warnings and threats of prosecution for perjury and jail time in an
attempt to intimidate him, which he did not give to Tarapchak, and which no witness ever
hears prior to testifying where unjustified.
42. Admitted and agreed, but the statements asserted in this paragraph were merely a loosely-
knitted narrative of the complete history of the abuse to Tarapchak. The Second
Amended Complaint speaks for itself in that regard.
43. The response to paragraph (41) is hereby incorporated by reference as if set forth in full.
44. Admitted and agreed that Tarapchak was unable to access the courts.
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45. Admitted and agreed in part. It is a constitutional right to access to the courts on many
claims and defenses, not just appeals and habeas issues.
46. This paragraph is in complete conflict with itself. It is denied that establishing a subpar
law library or librarian is insufficient when discussing access to the courts.
Demonstrating a subpar law library is demonstrating hindrance of an inmate’s efforts to
pursue a legal claim. It is incredible the prejudicial thinking that any inmate suffers at the
hands of the Court. It’s wholly challenging enough for an inmate to even know where to
start to file any kind of claim, let alone to do it without any legal research resources. See
North Korea.
47. This is a knowingly and patently false statement . It is agreed that Tarapchak has access to
the Law Library for three two-hour sessions a week, and for 20 minutes each session, she
can, if she’s lucky, get access to a word processor or computer. It is patently false that
there is internet access. She testified to that and submitted a statement to that effect in her
affidavit. No testimony was offered to dispute it. It is patently false that there is a
qualified law librarian. This Court knew there is no internet access or qualified law
librarian. And it was Pilchesky who was threatened with prosecution for making false
statements? By way of further comment, Pilchesky adopts his answer to paragraph (41).
Doc. 69 at p.5 does not state there is internet access or a functioning and trained law
library. It states to the contrary, and includes that there are no reference books or save
features on the computer or word process, something left out of the Court’s review of
Doc. 69 at p.5. Shameful!
48. This paragraph is a preposterous, ridiculous, and outrageously ludicrous conclusion that
is repeatedly in conflict with itself. In review the Court’s conclusions: 1. Tarapchak’s
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rights were not deprived because the law library and its librarian are legally adequate.
[That’s a knowingly patent lie. This Court knew that the Law Library was inadequate and
the Librarian was unqualified. There is no testimony to support otherwise]; 2. Her ability
to file papers is greatly restricted, but nonetheless she has access to the courts. [If her
ability is restricted, her access is restricted]; 3. Pilchesky has repeatedly prepared and
filed papers for her and he can continue to do so. [If she was unable to do it herself and
he must continue to do so, then she needs a “next friend”]; 4. Although Pilchesky can do
her legal research and type all of her papers, and file them for her, he just can’t do it as
her “next friend”. [Because, translated, that would mean he would be able to present
argument in court on the legal research he did without, like her, being confined to a
prison cell, without suffering the effects of taking five (5) psychotropic medications,
without limited access to computers, without being kept up all night because his bedroom
lights are on all night, without being in handcuffs and leg irons, without being transported
to a courthouse at 7 am to sit in a holding cell for three hours waiting for a judge to show
up, without being denied access to research of opposing legal theories, without having
any experience litigating in court and without any knowledge of court procedure and
process, all of which is too threatening to twelve “licensed” attorneys with over 200 years
of accumulated experience. Pilchesky is a carpenter. Why do twelve lawyers with over
200 years of experience fear having a simple carpenter as an opponent? They should be
chomping at the bit to get at him in a courtroom. To put it more metaphorically, they are
the major league hitters in this game. Pilchesky is merely a high school pitcher. What
major league hitter would not want to hit against a high school pitcher? The answer to
paragraph (41) is adopted into the answer to this paragraph.
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49. See the answer to paragraph (41).
50. It is agreed that another way to get “next friend” standing is through another disability.
51. See the answer to paragraph (41).
52. See the answer to paragraph (41)
53. It is denied that a “next friend” must be a blood relative. No case law has set out specific
restrictions on non-blood persons being a “next friend”. Moreover, relationships of a
significant nature are more often than not of the non-blood type. Significance is the
operation of a demonstration of interests that always includes battle-tested trust, loyalty
and support to another, which exists between Pilchesky and Tarapchak. Relationships
that cannot be divided and conquered by a prison’s brick and mortar, but rather grow and
flourish, are of the significant kind, in case the Court’s own parents failed to teach that at
home, but it would be fair to conclude that any judge with its unbiased eye on society’s
challenges would understand that after a short period of time of being exposed to inmates
and attendant challenges with significant others.
54. This is not a conclusion supported at law in terms of restricting non-blood persons from
having “next friend” status conferred where justified, as it is here. Tarapchak has
relatives, many of them. Like Tarapchak, even though they are not incarcerated, they do
not have Pilchesky’s experience and skill sets, as limited as they are, to help her as a
“next friend” to pursue her constitutional rights to relief on civil rights issues. They’d be
as much of a detriment to her as if Tarapchak was representing herself. See also the
answer to paragraph (41).
55. It is admitted that Tarapchak testified she has a close and intimate relationship with
Pilchesky.
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56. See the answer to paragraph (41). Not one of the Defendants’ counsel or the Court has
shown any authority that a paramour cannot have “next friend” standing, and if opposing
counsel had it, they’d have delivered it on a silver platter. So, perhaps this is a case of
first impression, and if it is, make the proper impression and reverse this ruling in the
interest of justice.
57. This is another conclusion in conflict with itself that requires no comment.
58. See the answer to paragraph (41).
Opportunity to amend should be granted
The Plaintiffs have not acted to cause undue delay, acted in bad faith, have no dilatory
motive, have not imposed or imported prejudice, and amending will not result in futility, as
discussed in Burlington, supra. Although admonished for filing a Second Amended Complaint
that the Court reflected upon as unduly repetitive and long, it was nonetheless a complaint that
sounded in § 1985 and § 1986 claims involving many defendants. Claims involving conspiracies
often have causes of action inherent to the citation of facts necessary to put the defendants on
notice to that which they must defend against. The Plaintiffs wanted to avoid unnecessary
Twombly claims by filing facts sufficient to tell the conspiracy story, but the Defendants filed
Twombly objections, anyway. The Plaintiffs cited only facts from the record and it was not their
fault that there were so many facts.
The fact remains that very bad things happened to Stephanie Tarapchak, which resulted in
willful violations of her due process and liberty rights. They were done by the named defendants,
each of whom had a duty and obligation to prevent her civil rights. She can amend accordingly to
satisfy “custom and policy” Monell claims against the Defendant County, relating to meeting the
24
requirements for due process and liberty claims, as relates to Defendant Lynn’s unconstitutional
bail violation hearings in a prison hallway, prison conditions and treatment and equal protection
claims. She already alluded to the existence of some kind of special “Procedure” within the
County system, different than that effectuated at law by the General Assembly, which repeatedly
placed Defendant Lynn in the prison adjudicating bail violations in conflict with the
constitutional rights of alleged violators, one of which was Tarapchak. That was a manifest
showing of indifference to her rights. By amending to identify the special “Procedure” as a
“custom or policy” that has existed for a long period of time, she can show prejudice and
“different treatment’ because, as an alleged bail violator, she was subjected to Defendant Lynn’s
unconstitutional jailhouse hearings and illegally incarcerated for nearly a year, where other
alleged bail violators got proper hearings before a judicial officer under the color of law with a
different result.
She should additionally be permitted to amend to add the Lackawanna County Prison Board,
because it more directly controlled the function and administration of the prison. It was harmless
error to leave the Prison Board off as a defendant, but the Plaintiffs initially viewed it as an
ancillary division of Lackawanna County, thus falling under its umbrella of authority and
liability.
Tarapchak can also set forth meritorious § 1983 claims against both Defendant Brown and
Defendant Kalinowski by relying upon the same set of facts that alleged § 1985 claims. Both
defense counselors had endless opportunities to free Tarapchak from imprisonment by filing an
appropriate habeas corpus citing the failure to give her a bail violation hearing within (72) hours
as mandated under Pa Code 234, § 510, et seq. They could have restored her freedom and
intentionally failed to do so. Kalinowski could have ensured her due process right to a bail
25
violation hearing, but he didn’t do it, instead remaining silent when he knew that Defendant
Lynn had illegally found her guilty of a bail violation through an unconstitutional hearing held in
her absence in a prison hallway. His silence to restore her liberty operated to protect himself and
Lynn. Kalinowski’s actions, or lack thereof, should not go unpunished. Brown could not have
protected her due process right to a bail violation hearing as he got on board after she was
already incarcerated for nearly a half a year, but once on board, he knew she was wrongfully
incarcerated and he did not file a habeas corpus petition to restore her liberty, all of which was to
protect Kalinowski and Lynn. Brown’s actions, or lack thereof, should not go unpunished. Both
of these defense counselors caused her to suffer with deliberate indifference to her civil rights.
They knowingly put themselves at risk of judicial redress. It would prevent an injustice to allow
Tarapchak to amend accordingly.
Conclusion
For the valid reasons stated above, Plaintiffs Pilchesky and Tarapchak respectfully assert
that manifest injustice will be prevented if the Court reverses itself and GRANTS this Motion
for Reconsideration of its order dated March 24, 2016, and GRANTS Pilchesky “Next Friend”
standing. If granted, the Plaintiffs further request that the Court’s order dated March 24, 2016 is
vacated for the reasons stated above and that a new hearing is set on the Defendants’ Motions to
Dismiss, because Pilchesky was denied the opportunity to argue. If denied, the Plaintiffs
respectfully request a new evidentiary hearing on the issue of “Next Friend” standing for Joseph
Pilchesky.
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The Plaintiffs assert that they will suffer manifest injustice if they are not permitted to amend
as requested above.
WHEREFORE, the Plaintiffs respectfully request that their request for relief is granted.
Respectfully submitted,
______________________________ _____________________________
Dr. Stephanie Tarapchak, Plaintiff Joseph Pilchesky, Plaintiff
1371 N. Washington Ave. And as Next Friend for Dr. Tarapchak
Scranton, PA 18509 819 Sunset St.
Scranton, PA 18509
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CERTIFICATE OF SERVICE
This is to certify that I, Joseph Pilchesky, did cause to be served upon the parties listed below
a true and correct copy of the foregoing Brief in support of Motion for Reconsideration on this
4th day of April, 2016, by electronic service as indicated:
Sean McDonough, Esq. – for Patrick Lynn - electronically
Timothy Keating, Esq. – for Kathleen Kane, Esq, and Robert LeBar, Esq. - electronically
David Heisler, Esq. – for Warden Robert McMillan and Atty. Kravitz – electronically
Timothy Hinton, Esq. – for Atty. Joseph P. Kalinowski and Atty. Bernard Brown– electronically
Michael Daley, Esq. – for Judge Barrasse, Judge Geroulo and Judge Braxton – electronically
Harry Coleman, Esq. – for Lackawanna County – electronically
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______________________________
Stephanie Tarapchak, incarcerated person
1371 N. Washington Ave.
Scranton, PA 18509
________________________________
Joseph Pilchesky
819 Sunset St.
Scranton, PA 18509
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