Eline v. Wetzel, CIVIL NO. 3:CV-11-0767

• Decision Date: 16 December 2014
• Docket Number: CIVIL NO. 3:CV-11-0767
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: PAUL H. ELINE, Petitioner v. JOHN E. WETZEL, et al., Respondents

PAUL H. ELINE, Petitioner v. JOHN E. WETZEL, et al., Respondents

CIVIL NO. 3:CV-11-0767

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

December 16, 2014

(Judge Caputo)

MEMORANDUM

I. Introduction

In 2006, the pro se petitioner, Paul H. Eline, was convicted of multiple counts of theft by deception 18 PA. CON. STAT. ANN. § 3922(a)(1) and deceptive business practices under 18 PA. CON. STAT. ANN. § 4107(a)(2) in the Court of Common Pleas of Schuylkill County. These convictions resulted from charges alleging that Mr. Eline fraudulently contracted to install residential swimming pools and accepted payment thereof, but failed to install the pools. Mr. Eline received an aggregate sentence of ten (10) to twenty (20) years' imprisonment and ordered to pay $154,193.50 in restitution.

Mr. Eline has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising the following challenges: (1) his trial and appellate counsel were ineffective on several grounds, including their failure to adequately prepare; (2) his criminal information was defective as it was signed by an unauthorized official;(3) insufficient evidence to convict him of Deceptive Business Practices; (4) trial counsel was ineffective for failing to seek a change of venue; (5) trial counsel was ineffective for failing to request that the jury be polled after the pronouncement of the verdict; (6) trial counsel failed to object to a violation of Mr. Eline's right to a speedy trial; and (7) that Mr. Eline was denied access to the courts when the Schuylkill County Clerk of Court denied him access to certain records pertaining to his criminal case. (Doc. 1; Doc. 1-7.) Respondents' response contends that Mr. Eline has only exhausted his state court remedies as to one sub-issue of his first claim relating to ineffective assistance of counsel. (Doc. 19-1.) As a result, Respondents argue that: (1) Mr. Eline's unexhausted claims should be dismissed based on his failure to exhaust and (2) Mr. Eline's exhausted ineffective assistance of counsel claim should be denied on the merits.

For the reasons that follow, the Petition will be denied.

II. Background

Originally, Mr. Eline was charged with twenty-seven counts alleging both theft by deception and deceptive business practices. Mr. Eline's business dealt with the installation of swimming pools. The charges stem from allegations that Mr. Eline accepted money in exchange for unfulfilled promises to install functioning pools.

On January 24, 2006, following a three day jury trial, Mr. Eline was found guilty of sixteen (16) counts of Deceptive Business Practices where the amount exceeds $2,000.00, and two (2) counts of deceptive business practices where the amount is greater than $200.00 but less than $2000.00. See Commonwealth v.Eline, 940 A.2d 421 (Pa. Super. Dec. 31, 2007). During the three-day trial, many of Mr. Eline's unsuspecting customers testified about their dealings with Mr. Eline. By way of example, the Pennsylvania Superior Court recounted, in part, the relevant facts as follows:

Timothy Schofield testified he responded to a newspaper advertisement, contacted [Mr. Eline] in order to have an in-ground swimming pool installed, and signed an installation agreement on July 10, 2004. Mr. Schofield gave [Mr. Eline] a deposit of $8,800.00, and [Mr. Eline] informed Mr. Schofield he would being the job within two weeks and have the pool completed during the first week of August, 2004. [Mr. Eline] informed Mr. Schofield that he "wasn't that busy" and could have the pool installed quickly. By August, 2004, nothing had been done, and Mr. Schofield attempted to contact [Mr. Eline], who did not take Mr. Schofield's telephone calls. In mid-August of 2004, [Mr. Eline] answered the telephone, and Mr. Schofield demanded the return of his deposit. [Mr. Eline] indicated he would come to Mr. Schofield's house to discuss the situation, and during the next week, pool supplies began appearing in Mr. Schofield's yard. [Mr. Eline] and Mr. Schofield discussed the situation, decided to proceed with the pool, and [Mr. Eline] dug a six inch deep hole. Several weeks passed without any further work being completed; however, at some point, heavy equipment was placed in Mr. Schofield's yard. In mid-September of 2004, Mr. Schofield telephoned [Mr. Eline] and told him that, until all of the pool supplies were delivered, [Mr. Eline] should proceed no further. [Mr. Eline] retrieved his equipment, delivered no pool supplies, did no further work, and refused to refund Mr. Schofield's deposit.

* * *

Jeffrey Tellez testified he contacted [Mr. Eline] on August 28, 2004, in order to have a swimming pool installed, and he signed an installation agreement. Mr. Tellez gave [Mr. Eline] a total of $10,000.00 as a deposit, and [Mr. Eline] stated the pool would be completed in two weeks. Mr. Tellez telephoned [Mr. Eline] repeatedly, and [Mr. Eline] came to his property in October of 2004. At this time, [Mr.Eline] removed a few tree stumps and partially removed part of Mr. Tellez'[s] concrete patio; on November 6, 2004, [Mr. Eline] began digging a hole for the swimming pool. After digging a hole for about half of the pool, no other work was completed. [Mr. Eline] never provided any reason for the delay, and despite requests from Mr. Tellez, he did not refund Mr. Tellez's deposit.

* * *

Clark Romberger testified that he saw an advertisement in the newspaper, contacted [Mr. Eline] on July 27, 2004, in order to have a swimming pool installed, and signed an installation agreement. Mr. Romberger paid [Mr. Eline] $9,300.00 as a deposit, and he was told the work would be completed by the end of August of 2004. In mid-August of 2004, the hole was dug and pool wall panels were installed; only part of the pool's concrete floor was installed. [Mr. Eline] gave Mr. Romberger a bill for $3,045.00, which Mr. Romberger refused to pay. Mr. Romberger indicated that the work, which [Mr. Eline] had already done, was shoddy in that the pool's walls were not properly anchored and wash out occurred, resulting in no concrete around the walls. Mr. Romberger requested completion of the job, and [Mr. Eline] said to just leave him alone and let him do his job. In late-September of 2004, Mr. Romberger asked that the contract be voided and [Mr. Eline] should return Mr. Romberger's money. [Mr. Eline] refused. In early-October of 2004, Mr. Romberger demanded the pool be completed by October 15, 2004, and [Mr. Eline] indicated it would be "no problem;" however, [Mr. Eline] did no additional work on Mr. Romberger's property.

* * *

Kathy Herb testified that she saw an advertisement in the newspaper, and she contacted [Mr. Eline] on June 10, 2004, to have an above-ground pool installed. [Mr. Eline] agreed to order a specific deck and pool from the pool manufacturer so that Ms. Herb's elderly father could enter the pool. Ms. Herb paid [Mr. Eline] $2,637.82, and [Mr. Eline] indicated the pool supplies would arrive in approximately three weeks. After approximately three weeks had passed without any work being done, Ms. Herb began calling [Mr. Eline]. Eventually, the pool wasinstalled; however, [Mr. Eline] supplied neither the ladder nor the deck for the pool. As a result, neither Ms. Herb's children nor elderly father could get into the pool. After making a demand, [Mr. Eline] gave her the ladder from the showroom; however, he never installed the deck. Ms. Herb's repeated telephone calls to [Mr. Eline] went unanswered. [Mr. Eline] never told Ms. Herb that he was unable to install the deck; he just did not do so. [Appellant] never gave Ms. Herb an installation agreement; however, he gave her a sales slip. Ms. Herb and her husband went to [Mr. Eline]'s place of business to see if they could find their special-order deck; however, it was not on [Mr. Eline]'s premise.

* * *

Michael Gallo testified that from April of 2004 until October 18, 2004, he was an excavator for [Mr. Eline]. He testified that, in installing a pool, an excavator digs a hole, the exterior walls are placed, footers are installed, and then the excavator backfills dirt behind the walls to raise the ground level to the top of the pool. From April to October of 2004, Mr. Gallo dug holes for approximately fifteen to twenty pools; however, he did not complete any one job. He testified that "I'd get so far on one job, and I'd be sent to another job site; start that job, sent to another job site, and constantly shifted around from site to site." Mr. Gallo indicated [Mr. Eline] was the person who sent him to the job sites. Mr. Gallo testified he was asked to leave job sites at the end of the day, take heavy equipment to different job sites and leave the equipment overnight, where he would then pick up the heavy equipment the next day and take it to a different job site. Mr. Gallo testified that during relevant time period he only backfilled properly one pool. Mr. Gallo testified that [Mr. Eline] did not have a warehouse and he stored pool parts at a lot next to his office.

* * *

[Mr. Eline] presented the testimony of Stephen Mazur, Jr., who was offered as an expert in excavating. He testified that weather conditions are a "major factor" in excavating, heavy equipment cannot be maneuvered in wet conditions, and backfilling is difficult when the soil is saturated with water. Mr. Mazur indicated that he was unable to completemany of his excavation projects in Schuylkill and Berks Counties during the summer of 2004 due to wet conditions. He indicated that he booked jobs in the spring of 2004 which could not be completed until the spring of 2005 due to the wet conditions. Mr. Mazur admitted that he had never performed any pool installation, he did not know of the specific conditions at any of the victims' homes, and he did not personally observe the condition of any of [Mr. Eline]'s work. Mr. Mazur indicated that he accepted five or six excavation projects for 2004, which was an average amount. He admitted that a crew of five

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