He says it was prostitution, she says it was Pilates. Whatever the truth is, a Philadelphia judge has ruled that a legally blind lawyer who claims a woman overcharged him for sexual services cannot sue a credit card company for not taking any action against her.

John F. Peoples, 60, filed his bizarre lawsuit after allegedly discovering that Ginger Dayle had taken advantage of his blindness by entering amounts on his Discover Card receipts that were larger than what she told him she was charging him. He claimed she overbilled him by $8,650 for eleven “sessions” in October and November 2007.

“Discover Card failed to take any action in response to the fraud and has not removed the disputed amounts from Plaintiff's bill or charged back against the merchant,” Peoples, who practices law in Broomall, Pa., said in his complaint.

Under a rule of public policy known as the “illegality doctrine,” a lawsuit cannot arise from an illegal act –- or, in a more colorful phrase, “the dirty dog gets no dinner here.” U.S. District Judge Edmund V. Ludwig didn't need the doctrine to summarily dismiss Peoples' breach-of-contract claim, relying instead on the Discover Cardmember agreement, which prohibits unlawful transactions.

“Under Pennsylvania law, patronizing a prostitute is illegal,” he said in a Sept. 22 opinion. “Plaintiff testified that the charges in dispute were for prostitution services, and, consequently, he cannot recover based on them.”

Ludwig also found Peoples had no Americans With Disabilities Act claim against Discover Financial Services for failing to reasonably accommodate the blind since “there is no connection here between the services offered by DFS and a physical accommodation.”

Peoples, represented by a lawyer in his office, has litigated the case tenaciously and isn't ready to give up yet, filing a notice of appeal earlier this month. His earlier pleadings suggest he will argue that the alleged fraud is distinguishable from acts of prostitution.

“The alleged prostitution merely gave Dayle the opportunity to steal" from him, he said in a brief opposing summary judgment. “But her stealing from him had nothing to do with prostitution. It was theft by deception.”

Peoples also sued Dayle for fraud. Dayle, a fitness instructor, actress and dancer, says she provided him only with Pilates lessons, denies being a prostitute and has countersued for assault and battery, alleging he touched her buttocks.

Peoples' complaint, filed in April 2008, made no mention of prostitution. It described Dayle only as a “service provider” who “advertises herself a[s] an expert at providing personal, hands-on service to individual customers in private sessions at a set rate.”

According to the suit, Dayle charged $375 for the first session and $275 for each session thereafter. “Dayle defrauded Plaintiff by telling him the [credit card] receipt said $275 when it said $1100 or $1600 and thereby getting him to sign it, knowing he was blind and could not see he was being tricked,” the suit said.

At his deposition in October 2008, Peoples was more specific about Dayle's alleged services, as this excerpt illustrates:

Q: Is it your contention that Ginger Dayle is a prostitute?
A: Yes.
Q: Okay. What is the factual basis for that statement?
A: Because I paid her and she had sex with me and there was an understanding that it was a payment for sex.

He also testified that he saw no conflict between being an attorney sworn to uphold the law and using a prostitute. “It doesn't bother me because it doesn't affect my practice of law,” he said.

But his testimony opened the door for Discover to assert the illegality doctrine as a defense. “[T]he principal [sic] of public policy is, that no court will lend its aid to a plaintiff who grounds his action upon an immoral or illegal act,” it noted in its summary judgment motion.

Peoples responded with unabashed hyperbole:

If the Court were to drastically expand the illegality doctrine to encompass the facts of this case, it would mean that any kind of wrongdoing committed in relation to prostitution would immunize everyone from suit. So even if Dayle stole $1 million from Mr. Peoples, he would have no recourse ... We are back in the Wild Wild West.

Peoples' fraud claim against Dayle –- and her countersuit -– can still be litigated in state court. If she was a prostitute at the time of his alleged touching, he said in a brief, she “cannot maintain a claim that the painless, harmless single touch of her buttocks was nonconsensual.”

By Matthew Heller
10/15/09