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HomeMy WebLinkAbout07-0603JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY No. 07 - (p D3 JAMES R. CAPOZZOLI, Defendant. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 637789.1 Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. JAMES R. CAPOZZOLI, Defendant. CIVIL ACTION -EQUITY NO. d7~(~Q3 ~lv~~~~- COMPLAINT NOW COME, Plaintiff Julia C. Beall-McKelvey, and Plaintiff Hearing Instruments, Inc., on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and file the within Complaint as follows: PARTIES 1. Plaintiff Hearing Instruments, Inc. ("Hearing Instruments") is a Pennsylvania 637548.1 corporation with its principal place of business at 1501 Market Street, Camp Hill, PA 17011. Hearing Instruments is a franchisee of Miracle-Ear and Amplifon, manufacturers and distributors of hearing aids and hearing aid accessories. Hearing Instruments owns and operates numerous Miracle-Ear and Amplifon offices in and around Pennsylvania. 2. Plaintiff Julia C. Beall-McKelvey ("Ms. Beall-McKelvey") is an adult individual residing in Lewisberry, Pennsylvania. Ms. Beall-McKelvey is the President and Part Owner of Hearing Instruments. 3. Defendant James R. Capozzoli ("Capozzoli") is an adult individual residing at 30 Forest Glen Drive, Imperial, Pennsylvania 15126. Capozzoli is a former employee of Hearing Instruments. JURISDICTION AND VENUE 4. This action arises under the laws of the Commonwealth and is within the subject matter of this Court. 5. Personal jurisdiction is proper pursuant to 42 Pa.C.S. § 5301(a)(1)(ii) because Capozzoli is domiciled in the Commonwealth. 6. Venue is proper pursuant to Pa.R.C.P. No. 1006(a)(1) because certain transactions or occurrences giving rise to this action have occurred and continue to occur in Cumberland County. FACTUAL BACKGROUND 7. Plaintiffs have filed, contemporaneously with this Complaint, a Petition for Special Relief in the Nature of an Ex Parte Special Injunction and a Preliminary Injunction with the Prothonotary of this Court. (A true and correct copy of the Petition is attached hereto as Exhibit "A" and incorporated herein by reference.) -2- 8. In January of 2004, Capozzoli was hired by Hearing Instruments as a Sales Consultant. 9. For approximately two-and-one-half years, until the Fall of 2006, Capozzoli worked for Hearing Instruments without incident. 10. Then, in September of 2006, Capozzoli and another co-employee voluntarily left Hearing Instruments without notice to start their own competitive hearing aid business. 11. One month later, Capozzoli had a change of heart about the new business venture. He informed Ms. Beall-McKelvey and her father, John Beall, CEO and Part Owner of Hearing Instruments, that he wanted to come back to work for Hearing Instruments. 12. On November 7, 2006, Hearing Instruments rehired Capozzoli. Capozzoli was to work as a Sales Consultant at two Miracle-Ear locations in Washington, Pennsylvania. 13. Shortly after being rehired, Capozzoli immediately began calling Ms. Beall- McKelvey and the other Sales Consultants and Managers multiple times each day to talk about what was happening at each Miracle-Ear location. 14. It quickly became apparent to all involved that Capozzoli felt that he should have been placed in a managerial position within the company. 15. Capozzoli's telephone calls were made both to Hearing Insruments' various Miracle-Ear offices and to Ms. Beall-McKelvey's personal cell phone. The calls began at 6:00 a.m. and were made well into the late evening. -3- t i 16. Ms. Beall-McKelvey told Capozzoli to stop calling her and other Hearing Instruments employees, but despite this, the calls continued. 17. Up to this point in time, Capozzoli's repeated telephone calls were merely bothersome and annoying. However, on December 12, 2006, the situation took a decidedly darker and more threatening tone. l8. At around 5:00 p.m. on December 12, 2006, while at Hearing Instruments' main office in Camp Hill, Ms. Beall-McKelvey received a telephone call from Capozzoli. He told her that he needed to see her right away and wanted to drive to the Camp Hill office. Concerned for her safety, Ms. Beall-McKelvey told Capozzoli that she would not see him; she told him that whatever needed to be discussed could be done over the telephone. 19. Capozzoli told Ms. Beall-McKelvey that he could not stop thinking about her and that he was obsessed with seeing her. He told her that every song on the radio reminds him of her, and that he had a doll in his house that resembled her and that always made him think of her. Capozzoli then told Ms. Beall-McKelvey that if he was promoted to a managerial position, he could be around her all the time. 20. When the phone conversation eventually turned to business (i.e. Capozzoli wanted to be promoted to a managerial position within the company), Ms. Beall-McKelvey, already frightened, tried her best not to upset Capozzoli. 21. When Capozzoli complained of not having enough to do as a Sales Consultant, Ms. Beall-McKelvey asked about the appointments that he had scheduled to test people for -4- hearing aids. Capozzoli replied that he would not be testing these people because he knew that they were "spying on him." 22. During the phone conversation, Capozzoli commented that he might look for other employment, and Ms. Beall-McKelvey agreed that doing so may be in everyone's best interest. To make herself clear, Ms. Beall-McKelvey told Capozzoli that she was not firing him, but that he was more than welcome to look for other employment if that was what he chose to do. 23. Immediately after hanging up with Capozzoli, Ms. Beall-McKelvey called her father to inform him of the conversation. Thereafter, Mr. Beall called Capozzoli and told him to never call Ms. Beall-McKelvey again. 24. Mr. Beall also made clear to Capozzoli that he had been rehired as a Sales Consultant for the two Washington offices and that he would not be promoted to a management position. 25. Between December 16, 2006 and January 2, 2007, contrary to Mr. Beall's express instructions, Capozzoli continued to call Ms. Beall-McKelvey and other Hearing Instruments employees as follows: (a) Capozzoli continued making repeated telephone calls to Ms. Beall- McKelvey on her cell phone and at Hearing Instruments' main office in Camp Hill. (b) The calls made to Ms. Beall-McKelvey's cell phone went unanswered and were forwarded to her voice mail. The calls made to the main office were intercepted by front desk personnel and were not returned. -5- (c) In addition, Capozzoli made repeated telephone calls to Hearing Instruments' Operations Manager in Pittsburgh. These calls were similarly screened. 26. On January 2, 2007, Mr. Beall called Capozzoli to, once again, tell him to stop making telephone calls to Ms. Beall-McKelvey and to other Hearing Instruments employees. 27. During this phone call, Capozzoli told Mr. Beall that "it wasn't working out" and that he wanted to be fired from his job so that he could collect workers' compensation because Mr. Beall and Ms. Beall-McKelvey were "driving him crazy." 28. At first, Mr. Beall did not wish to fire Capozzoli. However, after Capozzoli insisted several times, Mr. Beall finally relented and told him that he was fired. Capozzoli thanked Mr. Beall and hung up. 29. Almost immediately, Capozzoli began repeatedly calling the main office in Camp Hill in an attempt to speak with Ms. Beall-McKelvey. These calls were intercepted by front desk personnel, who informed Capozzoli that he was not permitted to speak with Ms. Beall- McKelvey. Capozzoli begged and pleaded to speak with Ms. Beall-McKelvey. Capozzoli stated that he was confused as to why Mr. Beall had fired him and did not know what to do. 30. Finally, Ms. Beall-McKelvey took one of Capozzoli's calls to tell him that he had been fired, and he needed to immediately leave the Washington Miracle-Ear office that he was calling from. 31. Capozzoli refused to leave. Ms. Beall-McKelvey informed him that she would call the police to have him removed. Capozzoli stated that he would not leave unless he was escorted from the building. -6- 32. Ms. Beall-McKelvey called the Washington police department and had Capozzoli removed from the Miracle-Ear office. The police informed Capozzoli that he was not permitted to visit any Miracle-Ear office and that he was not permitted to make any further contact with Hearing Instruments' employees. 33. Throughout the remainder of the day, however, in blatant defiance of the police's instructions, Capozzoli telephoned and visited several Miracle-Ear offices. 34. In an effort to stop this conduct, Hearing Instruments sent Capozzoli, via email and certified mail, a "No Contact/No Trespassing" Notice. Hearing Instruments also sent copies of the Notice to thirty (30) police departments in the areas where Hearing Instruments' Miracle- Ear offices are located. (A true and correct copy of the "No Contact/No Trespassing" Notice is attached hereto as Exhibit "B" and incorporated herein by reference.) 35. The Notice informed Capozzoli that he was prohibited from visiting Hearing Instruments' main office in Camp Hill and was also prohibited from visiting Hearing Instruments' Miracle-Ear and Amplifon offices. Additionally, the Notice informed Capozzoli that he was prohibited from contacting any Hearing Instruments employee and/or management personnel at work or at home. 36. Hearing Instruments also sent Instructions, via facsimile, to its Miracle-Ear offices to inform its employees of what to do in the event that Capozzoli showed up at their office (~, ignore him and alert the appropriate authorities}. (A true and correct copy of the Instructions is attached hereto as Exhibit "C" and incorporated herein by reference.) -7- a 37. Despite these efforts, Capozzoli has continued to engage in a ongoing course of conduct that is designed to annoy, threaten, harass, and intimidate Ms. Beall-McKelvey and Hearing Instruments' employees, customers, and/or invitees. (See Chronology of Events, as documented by Ms. Beall-McKelvey, attached hereto as Exhibit "D" and incorporated herein by reference.) 38. Examples of Capozzoli's annoying, threatening, harassing, and intimidating conduct include: (a) making repeated telephone calls to several Hearing Instruments employees at work, on their cell phones, and at their homes; (b) sitting directly outside Hearing Instruments' Sears-based Miracle-Ear offices and glaring at the employees inside; (c) attempting to disguise his appearance to avoid detection while waiting outside Hearing Instruments' Sears-based Miracle-Ear offices for an employee to take her lunch break; (d) informing a police officer that he could "get to" Ms. Beall-McKelvey if only he could "get rid of ' Mr. Beall; (e) promising to voluntarily commit himself to a hospital for fear of hurting himself, while at the same time refusing to take the medication prescribed to him by his psychiatrist; (f) calling Miracle-Ear offices pretending to be a prospective customer; -8- (g) calling Miracle-Ear offices pretending to be an attorney; and (h) calling Ms. Beall-McKelvey at work and on her cell phone to leave disturbing and unintelligible voicemail messages. 39. Capozzoli's conduct, as described above and more fully in the attached Chronology of Events, serves no other purpose than to annoy, threaten, harass, and intimidate Ms. Beall-McKelvey and Hearing Instruments' employees, customers, and/or invitees. 40. Capozzoli's actions have continued to escalate since his termination and, as the attached Chronology of Events makes clear, show no signs of stopping anytime soon. Plaintiffs are concerned that Capozzoli's actions to date are merely a precursor to imminent violent behavior. 41. Ms. Beall-McKelvey, along with several other Hearing Instruments employees working at various Miracle-Ear offices, have become frightened for their personal safety and physical and mental well-being. 42. Police departments in several different areas, including North Franklin, Washington, South Hills Village, Monroeville, Lewisberry, and Camp Hill, have been made aware of Capozzoli's conduct, but the available criminal remedies do not provide Plaintiffs with adequate relief. Currently, criminal harassment charges under 18 Pa.C.S. § 2709 are pending against Capozzoli in Cumberland County. However, a hearing on that matter will not be held until Wednesday, February 28, 2007. Plaintiffs are in need of immediate relief, which can only come about through the granting of a civil injunction. -9- 43. Capozzoli's disruptive conduct will not cease unless and until a Court Order is issued prohibiting Capozzoli from any further contact with Ms. Beall-McKelvey, Hearing Instruments, or Hearing Instruments' employees. EQUITABLE RELIEF 44. Capozzoli's actions constitute impermissible and unlawful entry onto Hearing Instruments' property and violate Hearing Instruments' right to the peaceful use and enjoyment of its property. Moreover, Capozzoli's actions constitute a clear threat to breach the peace, which could result in damage to Hearing Instruments' property and potential injury to Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees. 45. Additionally, Capozzoli's course of conduct, should it continue, will result in irreparable harm to Hearing Instruments' business efforts by, inter alia, diminishing the value of Hearing Instruments' goodwill among its customers and adversely affecting the morale and productivity of its employees. 46. Ms. Beall-McKelvey and Hearing Instruments have a clear right to relief, but do not have an adequate remedy at law to prevent Capozzoli's ongoing and unlawful conduct. 47. Because Capozzoli's actions are continuous and ongoing, the threat of irreparable and immediate harm requires intervention by this Court in order to protect Ms. Beall- McKelvey's and Hearing Instruments' rights, as well as the rights and safety of Hearing Instruments' employees, customers, andlor invitees. 48. Pursuant to the principles of equity recognized in this Commonwealth, Plaintiffs are authorized to seek injunctive relief from this Court to prevent Capozzoli's continuing and -10- R defiant trespasses, to prevent Capozzoli from interfering with Plaintiffs' use and enjoyment of their property, and to prevent Capozzoli's annoying, threatening, harassing, and intimidating conduct directed towards Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. COUNTI IIED (Julia C. Beall-McKelvey v. Capozzoli) 49. Plaintiffs incorporate the above allegations as though fully set forth herein. 50. Capozzoli's intentional conduct, as described above, is extreme, outrageous, and clearly goes beyond all possible bounds of decency. Moreover, such conduct was carried out with the intent to cause Ms. Beall-McKelvey to suffer severe emotional distress. 51. Ms. Beall-McKelvey has, in fact, suffered, and continues to suffer, severe emotional distress as a result of Capozzoli's extreme and outrageous behavior. 52. Specifically, the continuous and intense nature of Capozzoli's conduct has placed Ms. Beall-McKelvey in a ongoing state of fear and has caused her to suffer from heightened and intolerable levels of anxiety, fright, nervousness, and sleeplessness. 53. Damages may be assessed to compensate Ms. Beall-McKelvey for her emotional distress, and Capozzoli's actions are subject to punitive damages. 54. However, the continuous and ongoing nature Capozzoli's extreme and outrageous conduct will result in a multiplicity of lawsuits, and thus, leaves Ms. Beall-McKelvey without an adequate remedy at law. -11- c 55. Equitable relief is, therefore, the best remedy to prevent Capozzoli's continuous and ongoing extreme and outrageous conduct. 56. In addition to equitable relief, Ms. Beall-McKelvey reserves the right to seek damages, both compensatory and punitive, for Capozzoli's extreme and outrageous conduct. COUNT II CONTINUING TRESPASS (Hearing Instruments v. Capozzoli) 57. Plaintiffs incorporate the above allegations as though fully set forth herein. 58. Capozzoli's conduct, as described above, constitutes actionable trespass in that he (1) intended to; and (2) did, in fact, enter upon Hearing Instruments' Miracle-Ear offices, contrary to the express instructions of the "No Contact/No Trespass" Notice that was sent on January 2, 2007. 59. Moreover, the continuous and ongoing nature of Capozzoli's trespasses involve the likelihood of a multiplicity of actions to obtain redress in damages, any one instance of which may produce only nominal damages. 60. Equitable relief is, therefore, the best remedy to prevent Capozzoli's continuous and ongoing trespasses. 61. In addition to equitable relief, Hearing Instruments reserves the right to seek damages, both compensatory and punitive, for Capozzoli's trespasses. -12- COUNT III NUISANCE (All Plaintiffs v. Capozzoli) 62. Plaintiffs incorporate the above allegations as though fully set forth herein. 63. Capozzoli's conduct, as described above, constitutes an actionable nuisance in that he made repeated, continuous, and harassing telephone calls to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees. 64. The number, frequency, and nature of these calls that Capozzoli has made and continues to make to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees has reached a highly offensive and intolerable level, one by which a person of ordinary sensibilities would surely be annoyed and offended. 65. Capozzoli's incessant telephone calls to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees (both at work, at home, and on their cell phones) constitute a deprivation of Ms. Beall-McKelvey's and Hearing Instruments' peaceful enjoyment of their property, tantamount to a nuisance. 66. Equitable relief is, therefore, the best remedy to prevent Capozzoli's repeated, continuous, and harassing telephone calls. 67. In addition to equitable relief, Plaintiffs reserve the right to seek damages, both compensatory and punitive, for Capozzoli's harassing telephone calls. -13- COUNT IV HARASSMENT OF EMPLOYEES (Hearing Instruments on behalf of its employees, customers, and/or invitees v. Capozzoli) 68. Plaintiffs incorporate the above allegations as though fully set forth herein. 69. Capozzoli's actions, as described above, constitutes actionable harassment in that his conduct was designed to annoy, threaten, harass, and intimidate Hearing Instruments' employees, customers, and/or invitees. 70. Hearing Instruments, as an employer and as a business, has a duty to ensure the safety of its employees, customers, and/or invitees. 71. Capozzoli, by his actions, which are continuous and ongoing, has demonstrated that he poses a significant threat to the safety and well-being of Hearing Instruments' employees, customers, and/or invitees. 72. Indeed, Hearing Instruments' employees have become fearful for their own safety in light of Capozzoli's conduct, which comes within the definition of "harassment" under 18 Pa.C.S. § 2709. 73. A reasonable person would be seriously alarmed and annoyed, and/or feel threatened by Capozzoli's conduct. 74. Moreover, it is likely that, given Capozzoli's volatile condition, there is a very real possibility that his actions may escalate to physical violence, placing Hearing Instruments' employees, customers, and/or invitees in danger of being harmed. -14- 75. Consequently, Hearing Instruments should be entitled to seek injunctive relief, on behalf of its employees, customers, and/or invitees, to prevent Capozzoli from engaging in the above-mentioned conduct. 76. In addition to equitable relief, Hearing Instruments reserves the right to seek damages, both compensatory and punitive, for Capozzoli's annoying, harassing, threatening, and intimidating conduct. PRAYER FOR RELIEF WHEREFORE, Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc., on behalf of itself, its employees, and its customers and/or invitees, respectfully request: (1) An injunction which enjoins Defendant James R. Capozzoli, both preliminarily and permanently, from engaging in the following conduct: (a) Calling, or otherwise contacting in any way, Hearing Instruments' main office located in Camp Hill, Pennsylvania; (b) Visiting or coming within 100 feet of Hearing Instruments' main office located in Camp Hill, Pennsylvania; (c) Calling, or otherwise contacting in any way, any or all of Hearing Instruments' Miracle-Ear and/or Amplifon offices; (d) Visiting or coming within 100 feet of Hearing Instruments' standalone Miracle-Ear and/or Amplifon offices; -15- 4 (e) Visiting or coming within 30 feet of Hearing Instruments' Sears-based Miracle-Ear offices; (f) Calling, or otherwise contacting in any way, Hearing Instruments' employees, managers, and owners: (i) at their places of work; (ii) at their homes; and/or (iii) on their cell phones; (g) Visiting or coming within 100 feet of the residences of Hearing Instruments' employees, managers, or owners; (h) Calling, or otherwise contacting in any way, Julia C. Beall-McKelvey (i) at work; (ii) at her home; and/or (iii) on her cell phone; (i) Visiting or coming within 100 feet of the residence of Julia C. Beall- McKelvey; (j) Coming within 30 feet of Julia C. Beall-McKelvey anywhere outside her residence or place of work; (k) Calling or otherwise contacting in any way, John Beall (i) at work; (ii) at his home; and/or (iii) on his cell phone; (1) Visiting or coming within 100 fee of the residence of John Beall; (m) Coming within 30 feet of John Beall anywhere outside his residence or place of work; (2) Compensatory and punitive damages in an amount to be determined at the time of trial; and -16- (3) Such other relief as this Court deems just and appropriate. Respectfully submitted, BROADS & SINON LLP By: ' Todd J. Shill John R. Martin BROADS & S1NON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 17- %11;'~9r'~J~i 1~:0F~ '177618146 FELL HEARIhIG AID CEhI PAGE 03104 YE>~ttFICATION Julia C_ call-McKelvey, President and Part Owner of Hearing Instruments, Inc., deposes and says, subject to the penalties of 18 S.C.S. § ~90~, rcla~ting to unsworn falsification to authorities, dtat the facts set forth in the ftlregain~ docuntent are true and. correct to the best oP her knowledge, information, and belief. Date: ~~~ v - -T Julia C. Beall-Mcl~,elvey, President and Fart Owner Hefuing Instruments, Inc. GJ7"+8G.1 Exhibit "A" 635685.1 Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, v. Plaintiffs, JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY NO. PETITION FOR SPECIAL RELIEF IN THE NATURE OF AN EX PARTS SPECIAL INJUNCTION AND A PRELIMINARY INJUNCTION NOW COME, Plaintiffs/Petitioners Julia C. Beall-McKelvey and Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and Petition this Court for the issuance an Ex Parte Special Injunction and Preliminary Injunction pursuant to Pa.R.C.P. No. 1531, and in support state the following: 1. Plaintiffs Julia C. Beall-McKelvey ("Ms. Beall-McKelvey") and Hearing Instruments, Inc. ("Hearing Instruments") (collectively referred to as "Plaintiffs") filed, contemporaneously with this Petition, a verified Complaint in Equity with the Prothonotary of this Court. (A true and correct copy of the Complaint is attached hereto as Exhibit "A" incorporated herein by reference.) 637522.1 2. Plaintiffs' Complaint seeks injunctive relief to prevent Defendant/Respondent James R. Capozzoli ("Capozzoli") from further trespassing upon Hearing Instruments' property, from further interfering with the peaceful enjoyment of their property, from further interfering with the operation of Hearing Instruments' business, and from further harassing Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees, the detailed circumstances of which are set forth in Plaintiffs' Complaint. 3. Capozzoli's actions constitute impermissible and unlawful entry onto Hearing Instruments' property and violate Hearing Instruments' right to the peaceful use and enjoyment of its property. Moreover, Capozzoli's actions constitute a clear threat to breach the peace, which could result in damage to Hearing Instruments' property and potential injury to Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees. 4. Additionally, Capozzoli's course of conduct, should it continue, will result in irreparable harm to Hearing Instruments' business efforts by, inter alia, diminishing the value of Hearing Instruments' goodwill among its customers and adversely affecting the morale and productivity of its employees. 5. Ms. Beall-McKelvey and Hearing Instruments have a clear right to relief, but do not have an adequate remedy at law to prevent Capozzoli's ongoing and unlawful conduct. 6. Because Capozzoli's actions are continuous and ongoing, the threat of irreparable and immediate harm requires intervention by this Court in order to protect Ms. Beall- McKelvey's and Hearing Instruments' rights and the rights and safety of Hearing Instruments' employees, customers, and/or invitees. -2- 7. Pursuant to the principles of equity recognized in this Commonwealth, Plaintiffs are authorized to seek injunctive relief from this Court to prevent Capozzoli's continuing and defiant trespasses, to prevent Capozzoli from interfering with Plaintiffs' use and enjoyment of their property, and to prevent Capozzoli's annoying, threatening, harassing, and intimidating conduct directed towards Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. 8. Capozzoli will suffer no harm as a result of the issuance of the injunction. 9. Plaintiffs' requested injunctive relief is not contrary to the public interest. Rather, an injunction will further the public interest in that an employer, i.e. Hearing Instruments, has a duty to ensure the safety of its employees, customers, and/or invitees from the very real threat of physical harm posed by Capozzoli and his outlandish behavior. 10. The injunction sought is limited in scope to address the imminent and immediate threats to the rights of Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees, as set forth in Plaintiffs' Complaint. 11. Plaintiffs are likely to succeed on the merits of their claims and are willing to post a reasonable bond in an amount to be determined by the Court. 12. This Court is best suited to grant the requested injunctive relief because Hearing Instruments' main office is located in Cumberland County, and many, if not most, of the harassing phone calls made by Defendant have been and continue to be directed to Hearing Instruments' main office and to the cell phone of Ms. Beall-McKelvey, who works primarily in the main office. -3- 13. Moreover, Hearing Instruments operates several Miracle-Ear and Amplifon offices throughout Pennsylvania (Western Pennsylvania, Central Pennsylvania, and Northeast Pennsylvania). Capozzoli's conduct adversely impacts all of these locations, yet it would be both cumbersome and impractical to seek injunctive relief in each of those counties. 14. To that end, the Order entered by this Court and imposed upon Capozzoli could be transferred and enforced against Capozzoli in each county where Hearing Instruments operates its Miracle-Ear and Amplifon franchises, thus eliminating the need for duplicative equitable actions. WHEREFORE, Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, respectfully requests that this Court: (a) immediately issue a special injunction, ex parte, in form of the Proposed Order (attached hereto) to preserve the status quo and protect the rights and interests of Plaintiffs as set forth herein and in Plaintiffs' Complaint; (b) issue a Rule upon Capozzoli (attached hereto} to show cause why Plaintiffs are not entitled to the injunctive relief that they seek; (c) set a date for a hearing to continue the special ex parte injunction, and a date for a hearing to determine the propriety of the preliminary injunctive relief requested herein, to continue during the pendency of the proceeding and until a final determination can be made on Plaintiffs' claims; -4- (d) issue a preliminary injunction in the form of the Proposed Order (attached hereto) following a hearing; and (e) grant such other relief that this Court deems just and appropriate. Respectfully submitted, BROADS & S1NON LLP By: -C /~'~ Todd J. Shill John R. Martin BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs -5- Exhibit "B" January 2, 2007 Jim Capozzoli 30 Forest Glen Drive Imperial, Pa 15126 Dear Mr. Capozzoli: As you aze awaze, your employment with this company was terminated today, effective immediately. The purpose of this letter is to provide you with formal notification that, based on recent events, and out of concern for the safety of our management and employees, we cannot allow you to be on company property or to contact our management or employees. This includes all of our Miracle-Ear offices and our Amplifon Hearing Aid Center offices. This means that you may not visit our corporate offices or any of our retail locations, for any reason. In addition, you are prohibited from visiting or contacting any member of our management at their homes or on their cell phones. In the event you violate this no-contact and no-trespassing notice, we will have no choice but to contact the appropriate law enforcement officials for prosecution as warranted. Julia C. Beall-McKelvey President Hearing Instruments Inc. CC: Altoona Police Department Bedford Police Department Bloomsburg Police Department Butler Police Department Camp Hill Police Department Cazlisle Police Department Chambersburg Police Department Frackville Police Department Greensburg Police Department Hanover Police Department Harrisburg Police Department Indiana Police Department Johnstown Police Department Mechanicsburg Police Department Millersburg Police Department Monaca Police Department Monroeville Police Department Reading Police Department Robinson Police Department Ross Park Police Department Selinsgrove Police Department Somerset Police Department South Hills Police Deparhnent Washington Police Department Wellsboro Police Department West Mifflin Police Department Wilkes-Barre Police Departinent Pennsdale Police Department Yeagertown Police Department York Police Department Exhibit "C" TO: All WESTERN PA MIRACLE-EAR AND AHAC OFFICES FR: JULIE DT: 1-4-07 RE: Jim Capozzoli If Jim Capozzoli shows up in your office like he did yesterday just ignore him and call security immediately to alert them that he is there. All Sears stores in the area are aware of the current situation with Jim and they are all watching him on the store cameras as he enters the store. Three things are extremely important if you see him: 1. IGNORE HIM and do not speak to him 2. Call Beth at Corporate immediately 3. Document what time you saw him and anything that you hear him say and fax it to Corporate immediately. . We are in the process of taking the appropriate legal action to keep him away from our offices and our employees and everything will be fine. We all just need to get on with the business of helping people hear. Thank you, Julie Exhibit "D" CHRONOLOGY OF EVENTS (as recalled and documented by Julia C. Bea11=McKelvey) The following is a chronology of events detailing the annoying, harassing, threatening, and intimidating actions and conduct of Defendant James R. Capozzoli ("Capozzoli"). The chronology was documented by Plaintiff Julia C. Beall-McKelvey on behalf of herself and on behalf of Hearing Instruments and its employees, customers, and/or invitees. The chronology begins on January 2, 2007, immediately after Capozzoli was fired from Hearing Instruments and then removed from the standalone Washington Miracle-Ear office by the Washington police: January 2, 2007 After Capozzoli was removed from the standalone Miracle-Ear Office in Washington • Locks are changed in that office and also in the Miracle-Ear office up the street, which is located inside the Sears department store. • Thirty minutes later, Elaine Romano, the receptionist in the Sears-based Washington Miracle-Ear office, calls the main office in Camp Hill to report that Capozzoli is calling the office in disguise as a customer and trying to make an appointment for a hearing test. • Capozzoli then begins calling the standalone Washington Miracle-Ear office (where the police had him removed), again attempting to disguise himself as a customer. • Capozzoli then goes to the Sears-based Washington Miracle-Ear office. I call the police again, but by the time they arrive at the office, he had already left. Sometime during the afternoon • Capozzoli calls me at the main office and leaves a voicemail message. In the message, Capozzoli says that I have no authority to call the police, and that he would contact his attorney, and good luck to me, and also that he never ever meant to hurt me. 2:19 p.m. • Beth, who works at the main office in Camp Hill, receives a call from the Sears-based Monroeville Miracle-Ear office reporting that Capozzoli was there and wanted to talk to Andy Hall, a Sales Consultant. • Capozzoli said that he wanted to explain to Andy what was going on, but left because he was told that Andy was not there. 638000.1 2:30 p.m. • Capozzoli calls the Sears-based Ross Park Miracle-Ear office and tells the receptionist, "I am no longer with the company but don't worry... I'll be back." 3:15 p.m. • Capozzoli again calls the Ross Park office and tells the receptionist to "make sure you call Beth to let her know I called and to tell Gary Mills that he can trust Julie, but not John." Approximately 4 p.m. • I receive a call from Gary Heagy, a Sales Consultant, telling me that Capozzoli is currently in the Robinson Miracle-Ear office. • Capozzoli entered the office telling his story of being fired to the receptionist and the consultant. Gary tells me that Capozzoli is being disruptive. • I get Capozzoli on the phone and sternly tell him that he needs to leave the office immediately because he was fired and is no longer permitted in any of our locations. • He says that he will not leave. Fortunately, Gary is able to walk him out to his car and convince him to leave the area. Sometime shortly after 4:00 p.m. • I begin calling the Camp Hill Police Department, 911, and my attorney to find out what steps I need to take to obtain a restraining order against Capozzoli. • I am told that nothing can be done until I send a certified letter to Capozzoli stating that he cannot enter our Miracle-Ear locations. 4:43 p.m. • Capozzoli calls my cell phone and leaves a voicemail message saying that he is going to call his attorney and go back to his Doctor. He keeps repeating over and over, "I don't know what to do." • He also keeps saying that Dad fired him out of the blue for no reason, and that he wants a reason. 4:46 p.m. • A copy of "No Contact/No Trespassing" Notice, with police department cc's, is emailed and mailed via certified mail to Capozzoli. -2- 4:52 p.m. • Capozzoli calls my cell phone again and leaves a voicemail message saying that I cannot trust my Dad, that he (my Dad) is out of control, and that this whole thing should have been between me and Capozzoli, and not my father. • He also says that I am the only reason that he decided to come back to work for Hearing Instruments. 6:47 p.m. • Capozzoli calls my cell phone again and says that I am to tell my Dad that he (Capozzoli) was going to the news with his "story" about being fired. • Capozzoli also says to tell my Dad that "it's not about you, it's about your Dad." January 3, 2007 6:22 a.m. • Capozzoli calls my cell phone saying that I need to warn my Dad that he (Capozzoli) is going to the TV station, Miracle-Ear corporate in Minnesota, Sears Holding Company, and Amplifon with "his story about what my Dad has done to him and to me." 9:30 a.m. Elaine, who works at the Sears-based Washington Miracle-Ear office, calls the main office and tells Beth that she received a call from Capozzoli the night before at her home. 10:00 a.m. The Sears-based Monroeville Miracle-Ear office calls the main office to report that Capozzoli had walked by, said "hi," and told the receptionist to tell the Sales Consultant at that location "good luck." • Capozzoli walked back again and said to the receptionist "nice meeting you." 10:50 a.m. • The receptionist at the Sears-based Ross Park Miracle-Ear office calls the main office to report that Capozzoli is over at the optical center talking loudly about what happened to him. He leaves around 10:55 a.m. -3- 12:50 p.m. • The receptionist from the Sears-based Monaca Miracle-Ear office calls the main office to report that Capozzoli was there, and that he told her to tell the Sales Consultant that he said "hi," and that he was on his way to Robinson office. • The Monaca office calls the Robinson office to alert the receptionist there that Capozzoli is on his way. Approximately 1:45 p.m. • The receptionist from the Robinson office calls the main office and tells Beth that Capozzoli is in the dental center (next to Miracle-Ear office) talking to the employees there about what had happened. • The dental center employees tell the Miracle-Ear receptionist that Capozzoli was there first thing that morning waiting for her. • I receive calls from Monaca, Robinson, and South Hills Sears managers -Capozzoli had went into each of the Sears offices and waived an email copy of the "No Contact/No Trespassing" Notice around and gave the managers copies. • Capozzoli wanted permission from each manager that he was allowed to shop in their store. He also asked the managers to call me to tell me that he was there. • I explain the situation to the managers, and all of the Sears locations begin watching Capozzoli on the security cameras throughout the day. The manager of the South Hills Sears bars Capozzoli from going anywhere near any of the Sears licensed businesses, including Miracle-Ear. 5:00 p.m. • Capozzoli calls me at the main office, and I answer not knowing it is him. He asks how I was doing, and I immediately state that he is not allowed to contact me, and that I was calling the police. He says that the "No Contact/No Trespassing" Notice did not say that he could not contact me - it said that I could not contact the "management." • He wants to know why he was fired and I tell him that I will not discuss it with him. He says that he needs to work. I say "Jim, you have been fired from this company and that is no longer anoption -you need to get on with your life -stop calling me and stop going into the stores." He says that he is allowed in the Sears stores and that I cannot stop him from going in there. • He then asks me twice - "Why did you hire me back Julie, why did you hire me back?" I then hang up on him and call the Camp Hill Police Department and my attorney. -4- • Officer Olsen from the Camp Hill Police Department then calls Capozzoli and tells him that he has to stay away from me and from Camp Hill and all of the Miracle-Ear offices. The officer agrees with me that there is something wrong with Capozzoli. • Capozzoli tells the officer twice that he is planning on going to our sales meeting in Bedford on Friday, January 5. The officer tells him that it would not be wise to do that. Approximately 6 p.m. • Capozzoli calls Elaine, the receptionist at Sears-based Washington Miracle-Ear office. Her husband answers the call. • Elaine and all of the employees are extremely fearful at this point. • Capozzoli tells Elaine's husband to have Elaine call him ASAP. She does not call him back. When Elaine gets to her home, the caller ID indicates that Capozzoli had called her there as well, but no message was left. January 4, 2007 7:45 a.m. • Cappozoli calls the main office and hit extension "0." Glenn picks up the phone and Capozzoli says "I'm not supposed to talk to you - I was trying to leave a message for John." Glenn tells him to call back and leave a message on John's voicemail. He never calls back. Sometime during the morning • I receive a message from Capozzoli's attorney saying that there "seems to be a misunderstanding about whether or not Jim Caopzzoli is employed by your company." I do not call him back. • Dad calls Capozzoli's attorney and leaves a voicemail message informing the attorney that Capozzoli has been fired and does not work for this company. • I change the location of the sales meeting from Bedford to Somerset because Capozzoli told the Camp Hill Police Department that he intends on showing up to the sales meeting in Bedford. • All Sales Consultants are called individually to inform them of the new and confidential location of the sales meeting. -5- 10:00 a.m. • Dad calls Capozzoli. Capozzoli tells him that he (Capozzoli) is not dropping all of "this" and is going to the U.S. and State Senators and to a judge, and the next time he shows up anyplace it is going to be with a representative of a senator or a judge, and that he knows that this is "all political," and that Dad is "deeply involved," and that there is a "big investigation," and that I better be careful, and that he is going to "get rid" of Dad and go back to work for the company. • He then says he is on his way to the South Hills office and then to all of the Miracle-Ear offices to do the same thing that he did yesterday. 10:30 a.m. • I call the South Hills office to alert them that Capozzoli maybe coming. 10:45 a.m. • Bob Bush, the Sales Consultant from the Sears-based South Hills Miracle-Ear office, calls to report that Capozzoli is in the optical department sitting in a chair facing the receptionist in Miracle-Ear and glaring at them. • While I am on the phone, Sears security comes to the optical department and removes Capozzoli from the store. • The Upper St. Clair Police Department is called. They issue a citation to Capozzoli and tell him that he is permanently banned from that Sears store. • I call Anna Guenther, the regional manager in charge of Sears' Loss Prevention, and leave a voicemail message about what had just occurred. • Another fax is sent out to the Western Pennsylvania Miracle-Ear offices alerting them that Capozzoli may show up. 11:45 a.m. • Elaine, from the Sears-based Washington Miracle-Ear office, calls the main office to report that Capozzoli is standing by the small appliances, which is next to the Miracle- Earoffice, wearing a blue shirt and sunglasses. • Elaine reports that Capozzoli keeps whispering and saying "hey, hey hey" and waiving. He says "lunchtime?" and looks at his watch, as if to say he is waiting for her to go lunch. • Elaine tells him several times to leave and that she is calling security, but by the time security arrives, Capozzoli had already left. Elaine then calls the standalone Washington Miracle-Ear office and warns the staff there that Capozzoli maybe on his way. -6- 11:55 a.m. • Eleanor, the receptionist at the standalone Washington Miracle-Ear office calls the main office to report that Elaine had called to say that Capozzoli maybe on his way. 12:00 p.m. Beth calls the Washington City police to let them know that Capozzoli maybe on his way to a Miracle-Ear office. 2:00 p.m. • An officer from the North Washington police department calls and speaks with Capozzoli regarding his conduct. The police issue Capozzoli a $300 fine for violating the "No Contact/No Trespassing" Notice and for harassing Elaine. The officer tells Capozzoli that he will be arrested if he enters the Sears-based Washington Miracle-Ear office again. • Capozzoli tells the police officer that "if he could just get rid of John Beall" he would be able to talk to me. The officer asks Capozzoli what he means by the term "get rid of." Capozzoli responds, "you know, like if he retires." The officer warns Jim that there will be officers in Bedford for the meeting, and that if he shows up there he will be arrested. 3:00 p.m. I call the Camp Hill Police Department. Sergeant Hope tells me he is tired of this guy and will issue a summons to Capozzoli as soon as he could get to it. • He says that Capozzoli would be arrested if he (Capozzoli) makes one more contact with me. January 5, 2007 7:00 a.m. • Capozzoli calls Dad on his cell phone to tell my Dad that there is now a "list" of people who are allowed to call him (Capozzoli), and that Dad cannot call him anymore. On the list are his wife, his attorney, and me. • Dad once again tries to reason with Capozzoli to stop -Capozzoli says that he is going to check himself into the hospital and will be gone for ten days to two weeks. He says that he will not take medication because he doesn't need it, but he wants to check himself in before he hurts himself or anyone else. -7- 8:37 a.m. • Capozzoli calls the main office and hits extension "0." David Royal answers. • Capozzoli says that he wanted David to pass along to me that he went to his psychiatrist, and that his psychiatrist said that he (Capozzoli) does not need any medication. • He says he feels screwed by John/Dad, and says that he is going to check himself into the hospital and would be there for two weeks. Capozzoli says that he wants to do this so that he doesn't hurt himself. He is not concerned with anyone else because he wouldn't hurt anyone else - he just doesn't want to hurt himself. • Capozzoli says that John/Dad is to have no contact with him and the only ones who could contact him were his attorney, his wife, and me. • David tells him to stop calling the Miracle-Ear offices because he is scaring the employees. Jim says that he is going to do that. • David Royal dials *57 to trace the call, then calls the phone company to report the trace. David then calls the police. Sometime during the morning • I call the Camp Hill police department. Sergeant Hope says that he is tired of this and is going to have Capozzoli arrested. He calls Capozzoli to tell him that he is to turn himself in to the Camp Hill Police Department today or he would be arrested. Jim tells Sergeant Hope that he cannot drive since he is on medication. Dad speaks to Capozzoli's wife who says that Capozzoli did not check himself in to the hospital as he had promised. She says that Capozzoli went to the psychiatrist, and, contrary to what Capozzoli told David Royal the day before, the psychiatrist did, in fact, prescribe him medication, but Capozzoli refuses to take the medication or check into the hospital because he feels that nothing is wrong with him. Dad talks to Capozzoli's attorney and another attempt is made to contact Capozzoli's doctor, but the Doctor will not return calls. Approximately 5:00 p.m. I call the Camp Hill police department on my way home from the sales meeting and speak to Officer Olson (the same officer that spoke with Capozzoli on January 3). She tells me that there has been no report filed. She also tells me to call the Lewisberry police (that is where I live). • I then call the Lewisberry police department to inform them about Capozzoli. They tell me they will have police patrolling the house over the weekend. -8- January 7, 2007 11:52 a.m. • Capozzoli calls Elaine, the receptionist at the Sears-based Washington Miracle Ear office, at her home and speaks with her daughter. Elaine's daughter says that Capozzoli cannot talk to Elaine and that he can never call again or charges will be filed by Elaine's family. Capozzoli tells Elaine's daughter that he has a job interview with a sporting good store and that he is done with hearing aids and Miracle-Ear and would stop contact. January 8, 2007 Sometime during the morning • Elaine calls me to tell me that Capozzoli called her yesterday. I ask her if she wants to press charges and she says that she does. • I suggest that she call the Washington police department, which she does. They tell her to come to the station to file charges. I allow her to close the office and go during the day instead of taking her personal time to deal with this. • Elaine then goes to the police station and explains the situation. The officer is not helpful at all and says to her "what do you want to do?" She says file a report, which she thought meant pressing charges. The officer never tells her what her options are and that she has to say the magic words "I want to press charges." • The officer then calls Jim and leaves him a message at his home warning him not to call again or he would be arrested. No further action is taken. • I speak with officer and tell him that Elaine wanted to press charges and ask whether she could still do that. He says no because the report has already been filed. Elaine feels really bad because she really wanted to press charged and feels as though the police were not paying attention to her. 11:44 a.m. • Capozzoli calls Gary Heagy, a Sales Consultant, on his cell phone and leaves a voicemail message saying that he is getting out of the hearing aid business and that it's ok for Gary to call him any time -Capozzoli repeated that a few times. -9- `t 5:12 p.m. • Capozzoli calls Gary Heagy on his cell phone again and leaves another message saying that he wanted a favor, and that Gary was to let him know if anything ever happened to Fran, a receptionist at the Robinson office. January 10, 2007 7:34 a.m. • Capozzoli calls my cell phone. I do not answer, and he does not leave a message. 7:35 a.m. • I contact the Camp Hill police department to report Capozzoli's call. 9:00 a.m. • I get a call from a fellow Franchisee Owner, Patrick Kochanowski. Patrick's Miracle-Ear office is located in Lower Burrell. • Patrick tells me that he is aware of the situation that we are having with Capozzoli. Patrick has been receiving messages from Capozzoli and has been receiving calls to his office from Capozzoli asking about a job. Patrick is not answering Capozzoli's calls. • Patrick also tells me that his receptionist called him this morning to report that Capozzoli was sitting in the parking lot and staring at the office. 10:00 a.m. • Capozzoli calls my cell phone, and I answer. He starts to say something about getting another job selling Seimens hearing aids. • I interrupt him and very clearly explain that he is not to call me and not to call the other employees. Before hanging up, I tell him that I am not interested in him personally or professionally and that I never want to have contact with him ever again. 11:00 a.m. • Capozzoli calls Gary Heagy's cell phone and leaves a voicemail message saying that he is "getting back into business with Seimens" and wanted to let Gary know that "the Beall's didn't leave me with any choice but to take them to court and my attorney will be contacting you." • Capozzoli's message to Gary continued, "There are two people in this company I can trust -you and Julie, and you will be subpoenaed, and I know you'll tell the truth." -10- ` '. 12:20 p.m. • The Sears-based Monaca Miracle-Ear office calls to report that Capozzoli walked by, said "hi," and then left. • The employees are very upset about this; Capozzoli is scaring a lot of the employees. • Capozzoli tells the employees at the dental office that he would be back at 1:00 p.m. for an appointment, but he never returns. 1:00 p.m. • Capozzoli calls Gary Heagy's cell phone again from a different number, and Gary answers not knowing it is Capozzoli calling. • Capozzoli says he wasn't going to do this, but now says he is taking the Bealls to court. He tells Gary Heagy that he (Capozzoli) talked to a customer, and had told the customer what had happened to him. According to Cappozoli, the customer was upset and was going to go to the media to tell Capozzoli's story. • Capozzoli tells Gary Heagy that Julie (me) has no right to tell him (Capozzoli) that he can't call his friends, and that Julie can't stop him from calling people. 1:23 p.m. • Someone calls the Ross Park office claiming to be Capozzoli's attorney, Tony Mengine. "Mr. Mengine" asks Gary Mills, a Sales Consultant, a series of questions and says that he and Capozzoli want Gary to testify in court on Capozzoli's behalf. • Gary Mills tells "Mr. Mengine" that he cannot talk to him and that all calls are to go to the main office in Camp Hill. 1:40 p.m. • Elaine Romano, from the Sears-based Washington Miracle-Ear office, receives the same call. "Mr. Mengine" wants Elaine to be a character witness. • Elaine tells him to call the main office in Camp Hill. "Mr. Mengine" says that he has been doing just that, but no one would return his calls. • Elaine says "Mr. Mengine" sounds like Capozzoli. -11- f 1:46 p.m. • Eleanor, from the standalone Washington Miracle-Ear office, gets the same call. "Mr. Mengine" wants her to be a character witness for Capozzoli, and that if she doesn't testify, she will be subpoenaed. • Eleanor also says "Mr. Mengine" sounds like Capozzoli. 1:50 p.m. • The Monroeville office gets the same call from "Mr. Mengine." 1:58 p.m. • The South Hills office gets the same call from "Mr. Mengine." 2:12 p.m. • The Robinson office gets the same call from "Mr. Mengine." • "Mr. Mengine" tells Fran, the receptionist, that she will be subpoenaed to testify. He also starts asking her questions about why "his client" was fired, but Fran says she doesn't know anything. 2:15 p.m. • I receive a voice message from Tony Mengine on my cell phone asking me if there is any way for Capozzoli to get his job back. • The number for this call comes from Mr. Mengine's office and also sounds like Mr. Mengine, not Capozzoli. 2:18 p.m. • I call Mr. Mengine and leave him a voicemail message that he must immediately stop calling all of the Miracle-Ear offices and to call my attorney if he wants anything. • I also tell Mr. Mengine that Capozzoli will never get his job back. 2:30 p.m. • I call Todd Shill at Rhoads & Sinon to tell him that Capozzoli's attorney is calling the Miracle-Ear offices. Todd then calls Mr. Mengine, who tells Todd that it was not him calling the offices. Mr. Mengine says that he had called me, and that was all, which verifies our suspicion that Capozzoli is calling the Miracle-Ear offices and posing as his attorney. -12- ~ ' 4:30 p.m. • Capozzoli calls Gary Heagy's cell phone from a different number and says that he spoke with an ex-employee from the Monaca office who has agreed to serve as his character witness. • Capozzoli also says that he has talked to the President and V.P. of Siemens. • He tells Gary to "tell John and Julie that the lawsuit is coming against them" for illegal monitoring of salespeople with baby monitors and for advertisements saying that people are factory-trained representatives when they are not (this is not true). He tells Gary Heagy to tell John and Julie that they will be the ones in court. • Gary Heagy tells me that the next time Capozzoli calls, he will tell Capozzoli to stop calling and will press charges if the calls continue. 5:00 p.m. • I speak with the regional manager of Sears Loss Prevention and fill her in on what has been happening. She, in turn, emails me a copy of the memo that went to all Sears employees warning them about Capozzoli. Sometime during the evening • Capozzoli calls the Camp Hill Police Department and asks to speak with Officer Olsen. • He instead speaks with Sergeant Hope, who again warns Capozzoli not to call me or any of Hearing Instruments' employees or he would be arrested. 6:00 p.m. • I talk to Sears security in Monaca to fill them in on the situation. 7:30 p.m. • I talk to Gary Mills about what Capozzoli said to him on the phone. • Gary says his receptionist is frightened of Capozzoli. January 11, 2007 • I call the North Franklin Police Department in Washington and leave a message reporting that Capozzoli called Elaine yesterday. An officer returned my call and said that someone will get back to me, but that in lieu of this there will probably just be a hearing in front of the judge. -13- '4 January 12, 2007 Sometime during the day • The main office receives calls from various Miracle-Ear offices reporting that Channel 4 News had called and asked who the business owner was, what the store hours were, etc. 7:20 p.m. • I receive a call on my cell phone from Capozzoli and let it go to voicemail. The voicemail message was a loud song playing on a car radio for the length of the entire message. Capozzoli said nothing. January 15, 2007 12:00 p.m. • Andy Hall from the Monroeville office calls to inform me that Capozzoli left a message on the office answering machine sometime on Sunday when no one was there and said something like, "This message is for Andy Hall and I just wanted to let him know that he is going to be in trouble because I'm going to be competing with him in Monroeville. I also want to wish him good luck." • I tell Andy to call the Wilkins Township police department and report the call. 12:30 p.m. • I call Gary Heagy at the Monaca office to see if Capozzoli had made contact over the weekend with him. Gary tells me that Capozzoli left two voicemail messages on his cell phone over the weekend saying that he (Capozzoli) had interviews with hearing aid companies next week and other rambling that Gary could not make out. • Gary then tells me that Capozzoli had called him this morning and left another voicemail message saying that he (Capozzoli) wanted Gary to call Julie to tell her that he is not a bad guy, and that he wants his job back. • Gary tells me that Capozzoli also said that he (Capozzoli) doesn't want to compete with Gary, but that he has an interview with "some guy" who is going to open offices up all over the place, and Capozzoli can get that guy to open an office in Monaca where he (Capozzoli) will be competing with Gary. -14- January 18, 2007 Between 5:00 p.m. and 7:00 p.m. • I receive four calls at the main office from a restricted number. When I pick up the phone, someone is there but not saying anything. There is music playing in the background. January 19, 2007 Between 5:00 p.m. and 7:00 p.m. • I receive two calls at the main office from a restricted number. These calls are identical to the calls that I received the previous night (i.e. no one there, just music playing in the background). January 20, 2007 1:48 a.m. • I receive a voicemail message on my cell phone from a restricted number. The music playing on the message is very loud. The song playing is "Fathers be good to your daughters." Capozzoli does not say anything, he just lets the music play. 4:27 p.m. • Capozzoli calls the main office and leaves a voicemail message with loud music playing for the length of the entire message. 4:36 p.m. • Capozzoli calls the main office. This time, however, he is groaning in ahigh-pitched voice and saying, "I want to see you." This is a very sick and disturbing message. 5:09 p.m. • Capozzoli calls my cell phone and leaves a voicemail message with loud music playing for the length of the entire message. 5:25 p.m. • Capozzoli calls my cell phone. This time my husband answers, but again, it is just loud music playing. Capozzoli does not say anything. -15- January 22, 2007 9:15 a.m. • Capozzoli calls the main office and leaves a voicemail message telling me that if I refuse to meet with him, "that's a problem." January 24, 2007 7:30 a.m. • Capozzoli calls the main office and leaves a voicemail message telling me, "thanks for everything and good luck." 9:47 a.m. • Capozzoli calls the main office. No message. 9:48 a.m. • Capozzoli calls the main office. No message. 4:09 p.m. • Capozzoli calls the main office. No message. 4:29 p.m. • Capozzoli calls my cell phone and leaves a voicemail message with loud music playing for the length of the entire message. 4:41 p.m. • Capozzoli calls my cell phone and leaves a voicemail message with loud music playing for the length of the entire message. 5:28 p.m. • Capozzoli calls the main office. This time, however, like before, he is moaning in a high- pitched voice. This is a very sick and disturbing message. -16- . '+ 4 ~ January 25, 2007 • I receive a call from Bob Stewart, the Executive Director of the State Association on which I serve as a Board Member. Bob tells me that Capozzoli called him multiple times. • Capozzoli told Bob that if he (Bob) did not get me to call Capozzoli, Capozzoli would report Board Members that are committing illegal acts in the course of their businesses. • In speaking with Bob, Capozzoli continually disparaged the characters of Dad, Patrick Kochanowski, and Debbie Swift. However, Capozzoli told Bob that my word was "gold," and that Bob could trust me. January 26, 2007 10:00 a.m. • Capozzoli calls the main office. No message. 10:01 a.m. • Capozzoli calls my cell phone and leaves a voicemail message telling me that this is the last time that he would call, and that he is sorry and wants to work with me. • He says that all I have to do is call him and tell him that there is "no chance" so that he can move on. • He then starts crying into the phone. January 28, 2007 7:06 a.m. • Capozzoli calls my cell phone and leaves a voicemail message telling me that he wants to know why he was fired and that I need to call him to hell him why so that he can move on. He goes on and on about the job interviews that he has set up, but that he still wants to work with me. 8:13 a.m. • Capozzoli calls the main office and leaves a voicemail message rambling unintelligibly and demanding that I call him. Sounds threatening. -17- FELL HEARING AIA CEN PAGE 04 01 X912©Or 16':0© r17i61B1~E f Y .:. 8:25 s.m. + Capozzoli calls my cell phone and leaves a voicemail message, araia ambling unintelligibiy, about when I "meet my maker." Sounds threatening. 8:46 a.m. • Capozzoli calls xny cell phone an~1 leaves a voicemail message with more unintelligible ramblia~g. 9:59 a.m. • Capozzoli, calls my cell phone and leaves a voicemail message with more unintelligible rambling. ~ Q:OS a.m. • Capozzoli calls r~ty cell phone and leaves a voicemail message with more unintelligible rambling. • Capozzoli calls my cell phone and leavPS a voicemail message witlx more unintelligible rarr~bling. x0:47 a.m. • Capozzoli calls my cell phone attdl leaves a voicemail message with more uc~intclligible rambling. 12:4? p.txt. • Capozzoli calls my ceil pltonc and, leave a voicemail message with more uniz~kelligible rambling. C - ~`~` L ulia C. Bee~ll-McKelvey President and 1?art Owner Hearing Instruments, Inc. _ lg_ y w .~ V n ~__ r r~ 4d- . c~_ ._r ~,, n -_.s C,... r, c~ G T ~l ~ - _./ ~~a a ~- Ft_ i ~~' ,, Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY v. ~ NO. Q^j.. L.03 1. /vc, (., ~ JAMES R. CAPOZZOLI, Defendant. PETITION FOR SPECIAL RELIEF IN THE NATURE OF AN EX PARTS SPECIAL INJUNCTION AND A PRELIMINARY INJUNCTION NOW COME, Plaintiffs/Petitioners Julia C. Beall-McKelvey and Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and Petition this Court for the issuance an Ex Parte Special Injunction and Preliminary Injunction pursuant to Pa.R.C.P. No. 1531, and in support state the following: 1. Plaintiffs Julia C. Beall-McKelvey ("Ms. Beall-McKelvey") and Hearing Instruments, Inc. ("Hearing Instruments") (collectively referred to as "Plaintiffs") filed, contemporaneously with this Petition, a verified Complaint in Equity with the Prothonotary of this Court. (A true and correct copy of the Complaint is attached hereto as Exhibit "A" incorporated herein by reference.) 637522.1 2. Plaintiffs' Complaint seeks injunctive relief to prevent Defendant/Respondent James R. Capozzoli ("Capozzoli") from further trespassing upon Hearing Instruments' property, from further interfering with the peaceful enjoyment of their property, from further interfering with the operation of Hearing Instruments' business, and from further harassing Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees, the detailed circumstances of which are set forth in Plaintiffs' Complaint. 3. Capozzoli's actions constitute impermissible and unlawful entry onto Hearing Instruments' property and violate Hearing Instruments' right to the peaceful use and enjoyment of its property. Moreover, Capozzoli's actions constitute a clear threat to breach the peace, which could result in damage to Hearing Instruments' property and potential injury to Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees. 4. Additionally, Capozzoli's course of conduct, should it continue, will result in irreparable harm to Hearing Instruments' business efforts by, inter alia, diminishing the value of Hearing Instruments' goodwill among its customers and adversely affecting the morale and productivity of its employees. 5. Ms. Beall-McKelvey and Hearing Instruments have a clear right to relief, but do not have an adequate remedy at law to prevent Capozzoli's ongoing and unlawful conduct. 6. Because Capozzoli's actions are continuous and ongoing, the threat of irreparable and immediate harm requires intervention by this Court in order to protect Ms. Beall- McKelvey's and Hearing Instruments' rights and the rights and safety of Hearing Instruments' employees, customers, and/or invitees. -2- 7. Pursuant to the principles of equity recognized in this Commonwealth, Plaintiffs are authorized to seek injunctive relief from this Court to prevent Capozzoli's continuing and defiant trespasses, to prevent Capozzoli from interfering with Plaintiffs' use and enjoyment of their property, and to prevent Capozzoli's annoying, threatening, harassing, and intimidating conduct directed towards Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. 8. Capozzoli will suffer no harm as a result of the issuance of the injunction. 9. Plaintiffs' requested injunctive relief is not contrary to the public interest. Rather, an injunction will further the public interest in that an employer, i.e. Hearing Instruments, has a duty to ensure the safety of its employees, customers, and/or invitees from the very real threat of physical harm posed by Capozzoli and his outlandish behavior. 10. The injunction sought is limited in scope to address the imminent and immediate threats to the rights of Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees, as set forth in Plaintiffs' Complaint. 11. Plaintiffs are likely to succeed on the merits of their claims and are willing to post a reasonable bond in an amount to be determined by the Court. 12. This Court is best suited to grant the requested injunctive relief because Hearing Instruments' main office is located in Cumberland County, and many, if not most, of the harassing phone calls made by Defendant have been and continue to be directed to Hearing Instruments' main office and to the cell phone of Ms. Beall-McKelvey, who works primarily in the main office. -3- 13. Moreover, Hearing Instruments operates several Miracle-Ear and Amplifon offices throughout Pennsylvania (Western Pennsylvania, Central Pennsylvania, and Northeast Pennsylvania). Capozzoli's conduct adversely impacts all of these locations, yet it would be both cumbersome and impractical to seek injunctive relief in each of those counties. 14. To that end, the Order entered by this Court and imposed upon Capozzoli could be transferred and enforced against Capozzoli in each county where Hearing Instruments operates its Miracle-Ear and Amplifon franchises, thus eliminating the need for duplicative equitable actions. WHEREFORE, Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, respectfully requests that this Court: (a) immediately issue a special injunction, ex parte, in form of the Proposed Order (attached hereto) to preserve the status quo and protect the rights and interests of Plaintiffs as set forth herein and in Plaintiffs' Complaint; (b) issue a Rule upon Capozzoli (attached hereto) to show cause why Plaintiffs are not entitled to the injunctive relief that they seek; (c) set a date for a hearing to continue the special ex parte injunction, and a date for a hearing to determine the propriety of the preliminary injunctive relief requested herein, to continue during the pendency of the proceeding and until a final determination can be made on Plaintiffs' claims; -4- (d) issue a preliminary injunction in the form of the Proposed Order (attached hereto) following a hearing; and (e) grant such other relief that this Court deems just and appropriate. Respectfully submitted, BROADS & S1NON LLP By: ' Todd J. Shill John R. Martin BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs -5- c~1i`?91~~~7 18: 0© ,177618118 FELL HEARING AID CEN vlvlt~>FKCAx~orr PAGE F 2;r ~t4 Julia C. Bea11~McKelvey, president and Part Owner off' Hearing Instruments, Inc., deposes and says, subject to the penalties of l $ PaC.S. § 4904, relating to unswomn falsil"ication to authorities, that tl~e facts set ,forth in tlye foregoing document are true and correct to the best of her knowledge, infrormation, and belief / q~ _ ~~ /' Date: I `02 / `~~ ~ ~ .R Julia C. Beall-M~Kelvcy, President and Prut Owner Hearing Instruments, Inc. a;+irR~. r Exhibit "A" 635685.1 Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, v. JAMES R. CAPOZZOLI, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY NO. COMPLAINT NOW COME, Plaintiff Julia C. Beall-McKelvey, and Plaintiff Hearing Instruments, Inc., on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and file the within Complaint as follows: PARTIES 1. Plaintiff Hearing Instruments, Inc. ("Hearing Instruments") is a Pennsylvania corporation with its principal place of business at 1501 Market Street, Camp Hill, PA 17011. Hearing Instruments is a franchisee of Miracle-Ear and Amplifon, manufacturers and distributors of hearing aids and hearing aid accessories. Hearing Instruments owns and operates numerous Miracle-Ear and Amplifon offices in and around Pennsylvania. 637548.1 2. Plaintiff Julia C. Beall-McKelvey ("Ms. Beall-McKelvey") is an adult individual residing in Lewisberry, Pennsylvania. Ms. Beall-McKelvey is the President and Part Owner of Hearing Instruments. 3. Defendant James R. Capozzoli ("Capozzoli") is an adult individual residing at 30 Forest Glen Drive, Imperial, Pennsylvania 15126. Capozzoli is a former employee of Hearing Instruments. JURISDICTION AND VENUE 4. This action arises under the laws of the Commonwealth and is within the subject matter of this Court. 5. Personal jurisdiction is proper pursuant to 42 Pa.C.S. § 5301(a)(1)(ii) because Capozzoli is domiciled in the Commonwealth. 6. Venue is proper pursuant to Pa.R.C.P. No. 1006(a)(1) because certain transactions or occurrences giving rise to this action have occurred and continue to occur in Cumberland County. FACTUAL BACKGROUND 7. Plaintiffs have filed, contemporaneously with this Complaint, a Petition for Special Relief in the Nature of an Ex Parte Special Injunction and a Preliminary Injunction with the Prothonotary of this Court. (A true and correct copy of the Petition is attached hereto as Exhibit "A" and incorporated herein by reference.) -2- 8. In January of 2004, Capozzoli was hired by Hearing Instruments as a Sales Consultant. 9. For approximately two-and-one-half years, until the Fall of 2006, Capozzoli worked for Hearing Instruments without incident. 10. Then, in September of 2006, Capozzoli and another co-employee voluntarily left Hearing Instruments without notice to start their own competitive hearing aid business. 11. One month later, Capozzoli had a change of heart about the new business venture. He informed Ms. Beall-McKelvey and her father, John Beall, CEO and Part Owner of Hearing Instruments, that he wanted to come back to work for Hearing Instruments. 12. On November 7, 2006, Hearing Instruments rehired Capozzoli. Capozzoli was to work as a Sales Consultant at two Miracle-Ear locations in Washington, Pennsylvania. 13. Shortly after being rehired, Capozzoli immediately began calling Ms. Beall- McKelvey and the other Sales Consultants and Managers multiple times each day to talk about what was happening at each Miracle-Ear location. 14. It quickly became apparent to all involved that Capozzoli felt that he should have been placed in a managerial position within the company. 15. Capozzoli's telephone calls were made both to Hearing Insruments' various Miracle-Ear offices and to Ms. Beall-McKelvey's personal cell phone. The calls began at 6:00 a.m. and were made well into the late evening. -3- 16. Ms. Beall-McKelvey told Capozzoli to stop calling her and other Hearing Instruments employees, but despite this, the calls continued. 17. Up to this point in time, Capozzoli's repeated telephone calls were merely bothersome and annoying. However, on December 12, 2006, the situation took a decidedly darker and more threatening tone. 18. At around 5:00 p.m. on December 12, 2006, while at Hearing Instruments' main office in Camp Hill, Ms. Beall-McKelvey received a telephone call from Capozzoli. He told her that he needed to see her right away and wanted to drive to the Camp Hill office. Concerned for her safety, Ms. Beall-McKelvey told Capozzoli that she would not see him; she told him that whatever needed to be discussed could be done over the telephone. 19. Capozzoli told Ms. Beall-McKelvey that he could not stop thinking about her and that he was obsessed with seeing her. He told her that every song on the radio reminds him of her, and that he had a doll in his house that resembled her and that always made him think of her. Capozzoli then told Ms. Beall-McKelvey that if he was promoted to a managerial position, he could be around her all the time. 20. When the phone conversation eventually turned to business (i.e. Capozzoli wanted to be promoted to a managerial position within the company), Ms. Beall-McKelvey, already frightened, tried her best not to upset Capozzoli. 21. When Capozzoli complained of not having enough to do as a Sales Consultant, Ms. Beall-McKelvey asked about the appointments that he had scheduled to test people for -4- hearing aids. Capozzoli replied that he would not be testing these people because he knew that they were "spying on him." 22. During the phone conversation, Capozzoli commented that he might look for other employment, and Ms. Beall-McKelvey agreed that doing so may be in everyone's best interest. To make herself clear, Ms. Beall-McKelvey told Capozzoli that she was not firing him, but that he was more than welcome to look for other employment if that was what he chose to do. 23. Immediately after hanging up with Capozzoli, Ms. Beall-McKelvey called her father to inform him of the conversation. Thereafter, Mr. Beall called Capozzoli and told him to never call Ms. Beall-McKelvey again. 24. Mr. Beall also made clear to Capozzoli that he had been rehired as a Sales Consultant for the two Washington offices and that he would not be promoted to a management position. 25. Between December 16, 2006 and January 2, 2007, contrary to Mr. Beall's express instructions, Capozzoli continued to call Ms. Beall-McKelvey and other Hearing Instruments employees as follows: (a) Capozzoli continued making repeated telephone calls to Ms. Beall- McKelvey on her cell phone and at Hearing Instruments' main office in Camp Hill. (b) The calls made to Ms. Beall-McKelvey's cell phone went unanswered and were forwarded to her voice mail. The calls made to the main office were intercepted by front desk personnel and were not returned. -5- (c) In addition, Capozzoli made repeated telephone calls to Hearing Instruments' Operations Manager in Pittsburgh. These calls were similarly screened. 26. On January 2, 2007, Mr. Beall called Capozzoli to, once again, tell him to stop making telephone calls to Ms. Beall-McKelvey and to other Hearing Instruments employees. 27. During this phone call, Capozzoli told Mr. Beall that "it wasn't working out" and that he wanted to be fired from his job so that he could collect workers' compensation because Mr. Beall and Ms. Beall-McKelvey were "driving him crazy." 28. At first, Mr. Beall did not wish to fire Capozzoli. However, after Capozzoli insisted several times, Mr. Beall finally relented and told him that he was fired. Capozzoli thanked Mr. Beall and hung up. 29. Almost immediately, Capozzoli began repeatedly calling the main office in Camp Hill in an attempt to speak with Ms. Beall-McKelvey. These calls were intercepted by front desk personnel, who informed Capozzoli that he was not permitted to speak with Ms. Beall- McKelvey. Capozzoli begged and pleaded to speak with Ms. Beall-McKelvey. Capozzoli stated that he was confused as to why Mr. Beall had fired him and did not know what to do. 30. Finally, Ms. Beall-McKelvey took one of Capozzoli's calls to tell him that he had been fired, and he needed to immediately leave the Washington Miracle-Ear office that he was calling from. 31. Capozzoli refused to leave. Ms. Beall-McKelvey informed him that she would call the police to have him removed. Capozzoli stated that he would not leave unless he was escorted from the building. -6- 32. Ms. Beall-McKelvey called the Washington police department and had Capozzoli removed from the Miracle-Ear office. The police informed Capozzoli that he was not permitted to visit any Miracle-Ear office and that he was not permitted to make any further contact with Hearing Instruments' employees. 33. Throughout the remainder of the day, however, in blatant defiance of the police's instructions, Capozzoli telephoned and visited several Miracle-Ear offices. 34. In an effort to stop this conduct, Hearing Instruments sent Capozzoli, via email and certified mail, a "No Contact/No Trespassing" Notice. Hearing Instruments also sent copies of the Notice to thirty (30) police departments in the areas where Hearing Instruments' Miracle- Ear offices are located. (A true and correct copy of the "No Contact/No Trespassing" Notice is attached hereto as Exhibit "B" and incorporated herein by reference.) 35. The Notice informed Capozzoli that he was prohibited from visiting Hearing Instruments' main office in Camp Hill and was also prohibited from visiting Hearing Instruments' Miracle-Ear and Amplifon offices. Additionally, the Notice informed Capozzoli that he was prohibited from contacting any Hearing Instruments employee and/or management personnel at work or at home. 36. Hearing Instruments also sent Instructions, via facsimile, to its Miracle-Ear offices to inform its employees of what to do in the event that Capozzoli showed up at their office (e_g_., ignore him and alert the appropriate authorities). (A true and correct copy of the Instructions is attached hereto as Exhibit "C" and incorporated herein by reference.) -7- 37. Despite these efforts, Capozzoli has continued to engage in a ongoing course of conduct that is designed to annoy, threaten, harass, and intimidate Ms. Beall-McKelvey and Hearing Instruments' employees, customers, and/or invitees. (See Chronology of Events, as documented by Ms. Beall-McKelvey, attached hereto as Exhibit "D" and incorporated herein by reference.) 38. Examples of Capozzoli's annoying, threatening, harassing, and intimidating conduct include: (a) making repeated telephone calls to several Hearing Instruments employees at work, on their cell phones, and at their homes; (b) sitting directly outside Hearing Instruments' Sears-based Miracle-Ear offices and glaring at the employees inside; (c) attempting to disguise his appearance to avoid detection while waiting outside Hearing Instruments' Sears-based Miracle-Ear offices for an employee to take her lunch break; (d) informing a police officer that he could "get to" Ms. Beall-McKelvey if only he could "get rid of Mr. Beall; (e) promising to voluntarily commit himself to a hospital for fear of hurting himself, while at the same time refusing to take the medication prescribed to him by his psychiatrist; (f) calling Miracle-Ear offices pretending to be a prospective customer; -8- (g) calling Miracle-Ear offices pretending to be an attorney; and (h) calling Ms. Beall-McKelvey at work and on her cell phone to leave disturbing and unintelligible voicemail messages. 39. Capozzoli's conduct, as described above and more fully in the attached Chronology of Events, serves no other purpose than to annoy, threaten, harass, and intimidate Ms. Beall-McKelvey and Hearing Instruments' employees, customers, and/or invitees. 40. Capozzoli's actions have continued to escalate since his termination and, as the attached Chronology of Events makes clear, show no signs of stopping anytime soon. Plaintiffs are concerned that Capozzoli's actions to date are merely a precursor to imminent violent behavior. 41. Ms. Beall-McKelvey, along with several other Hearing Instruments employees working at various Miracle-Ear offices, have become frightened for their personal safety and physical and mental well-being. 42. Police departments in several different areas, including North Franklin, Washington, South Hills Village, Monroeville, Lewisberry, and Camp Hill, have been made aware of Capozzoli's conduct, but the available criminal remedies do not provide Plaintiffs with adequate relief. Currently, criminal harassment charges under 18 Pa.C.S. § 2709 are pending against Capozzoli in Cumberland County. However, a hearing on that matter will not be held until Wednesday, February 28, 2007. Plaintiffs are in need of immediate relief, which can only come about through the granting of a civil injunction. -9- 43. Capozzoli's disruptive conduct will not cease unless and until a Court Order is issued prohibiting Capozzoli from any further contact with Ms. Beall-McKelvey, Hearing Instruments, or Hearing Instruments' employees. EQUITABLE RELIEF 44. Capozzoli's actions constitute impermissible and unlawful entry onto Hearing Instruments' property and violate Hearing Instruments' right to the peaceful use and enjoyment of its property. Moreover, Capozzoli's actions constitute a clear threat to breach the peace, which could result in damage to Hearing Instruments' property and potential injury to Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees. 45. Additionally, Capozzoli's course of conduct, should it continue, will result in irreparable harm to Hearing Instruments' business efforts by, inter alia, diminishing the value of Hearing Instruments' goodwill among its customers and adversely affecting the morale and productivity of its employees. 46. Ms. Beall-McKelvey and Hearing Instruments have a clear right to relief, but do not have an adequate remedy at law to prevent Capozzoli's ongoing and unlawful conduct. 47. Because Capozzoli's actions are continuous and ongoing, the threat of irreparable and immediate harm requires intervention by this Court in order to protect Ms. Beall- McKelvey's and Hearing Instruments' rights, as well as the rights and safety of Hearing Instruments' employees, customers, and/or invitees. 48. Pursuant to the principles of equity recognized in this Commonwealth, Plaintiffs are authorized to seek injunctive relief from this Court to prevent Capozzoli's continuing and -10- defiant trespasses, to prevent Capozzoli from interfering with Plaintiffs' use and enjoyment of their property, and to prevent Capozzoli's annoying, threatening, harassing, and intimidating conduct directed towards Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. COUNTI IIED (Julia C. Beall-McKelvey v. Capozzoli) 49. Plaintiffs incorporate the above allegations as though fully set forth herein. 50. Capozzoli's intentional conduct, as described above, is extreme, outrageous, and clearly goes beyond all possible bounds of decency. Moreover, such conduct was carried out with the intent to cause Ms. Beall-McKelvey to suffer severe emotional distress. 51. Ms. Beall-McKelvey has, in fact, suffered, and continues to suffer, severe emotional distress as a result of Capozzoli's extreme and outrageous behavior. 52. Specifically, the continuous and intense nature of Capozzoli's conduct has placed Ms. Beall-McKelvey in a ongoing state of fear and has caused her to suffer from heightened and intolerable levels of anxiety, fright, nervousness, and sleeplessness. 53. Damages may be assessed to compensate Ms. Beall-McKelvey for her emotional distress, and Capozzoli's actions are subject to punitive damages. 54. However, the continuous and ongoing nature Capozzoli's extreme and outrageous conduct will result in a multiplicity of lawsuits, and thus, leaves Ms. Beall-McKelvey without an adequate remedy at law. -11- 55. Equitable relief is, therefore, the best remedy to prevent Capozzoli's continuous and ongoing extreme and outrageous conduct. 56. In addition to equitable relief, Ms. Beall-McKelvey reserves the right to seek damages, both compensatory and punitive, for Capozzoli's extreme and outrageous conduct. COUNT II CONTINUING TRESPASS (Hearing Instruments v. Capozzoli) 57. Plaintiffs incorporate the above allegations as though fully set forth herein. 58. Capozzoli's conduct, as described above, constitutes actionable trespass in that he (1) intended to; and (2) did, in fact, enter upon Hearing Instruments' Miracle-Ear offices, contrary to the express instructions of the "No Contact/No Trespass" Notice that was sent on January 2, 2007. 59. Moreover, the continuous and ongoing nature of Capozzoli's trespasses involve the likelihood of a multiplicity of actions to obtain redress in damages, any one instance of which may produce only nominal damages. 60. Equitable relief is, therefore, the best remedy to prevent Capozzoli's continuous and ongoing trespasses. 61. In addition to equitable relief, Hearing Instruments reserves the right to seek damages, both compensatory and punitive, for Capozzoli's trespasses. -12- COUNT III NUISANCE (All Plaintiffs v. Capozzoli) 62. Plaintiffs incorporate the above allegations as though fully set forth herein. 63. Capozzoli's conduct, as described above, constitutes an actionable nuisance in that he made repeated, continuous, and harassing telephone calls to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees. 64. The number, frequency, and nature of these calls that Capozzoli has made and continues to make to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees has reached a highly offensive and intolerable level, one by which a person of ordinary sensibilities would surely be annoyed and offended. 65. Capozzoli's incessant telephone calls to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees (both at work, at home, and on their cell phones) constitute a deprivation of Ms. Beall-McKelvey's and Hearing Instruments' peaceful enjoyment of their property, tantamount to a nuisance. 66. Equitable relief is, therefore, the best remedy to prevent Capozzoli's repeated, continuous, and harassing telephone calls. 67. In addition to equitable relief, Plaintiffs reserve the right to seek damages, both compensatory and punitive, for Capozzoli's harassing telephone calls. -13- COUNT IV HARASSMENT OF EMPLOYEES (Hearing Instruments on behalf of its employees, customers, and/or invitees v. Capozzoli) 68. Plaintiffs incorporate the above allegations as though fully set forth herein. 69. Capozzoli's actions, as described above, constitutes actionable harassment in that his conduct was designed to annoy, threaten, harass, and intimidate Hearing Instruments' employees, customers, and/or invitees. 70. Hearing Instruments, as an employer and as a business, has a duty to ensure the safety of its employees, customers, and/or invitees. 71. Capozzoli, by his actions, which are continuous and ongoing, has demonstrated that he poses a significant threat to the safety and well-being of Hearing Instruments' employees, customers, and/or invitees. 72. Indeed, Hearing Instruments' employees have become fearful for their own safety in light of Capozzoli's conduct, which comes within the definition of "harassment" under 18 Pa.C.S. § 2709. 73. A reasonable person would be seriously alarmed and annoyed, and/or feel threatened by Capozzoli's conduct. 74. Moreover, it is likely that, given Capozzoli's volatile condition, there is a very real possibility that his actions may escalate to physical violence, placing Hearing Instruments' employees, customers, and/or invitees in danger of being harmed. -14- 75. Consequently, Hearing Instruments should be entitled to seek injunctive relief, on behalf of its employees, customers, and/or invitees, to prevent Capozzoli from engaging in the above-mentioned conduct. 76. In addition to equitable relief, Hearing Instruments reserves the right to seek damages, both compensatory and punitive, for Capozzoli's annoying, harassing, threatening, and intimidating conduct. PRAYER FOR RELIEF WHEREFORE, Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc., on behalf of itself, its employees, and its customers and/or invitees, respectfully request: (1) An injunction which enjoins Defendant James R. Capozzoli, both preliminarily and permanently, from engaging in the following conduct: (a) Calling, or otherwise contacting in any way, Hearing Instruments' main office located in Camp Hill, Pennsylvania; (b) Visiting or coming within 100 feet of Hearing Instruments' main office located in Camp Hill, Pennsylvania; (c) Calling, or otherwise contacting in any way, any or all of Hearing Instruments' Miracle-Ear and/or Amplifon offices; (d) Visiting or coming within 100 feet of Hearing Instruments' standalone Miracle-Ear and/or Amplifon offices; -15- (e) Visiting or coming within 30 feet of Hearing Instruments' Sears-based Miracle-Ear offices; (f) Calling, or otherwise contacting in any way, Hearing Instruments' employees, managers, and owners: (i) at their places of work; (ii) at their homes; and/or (iii) on their cell phones; (g) Visiting or coming within 100 feet of the residences of Hearing Instruments' employees, managers, or owners; (h) Calling, or otherwise contacting in any way, Julia C. Beall-McKelvey (i) at work; (ii) at her home; and/or (iii) on her cell phone; (i) Visiting or coming within 100 feet of the residence of Julia C. Beall- McKelvey; (j) Coming within 30 feet of Julia C. Beall-McKelvey anywhere outside her residence or place of work; (k) Calling or otherwise contacting in any way, John Beall (i) at work; (ii) at his home; and/or (iii) on his cell phone; (1) Visiting or coming within 100 fee of the residence of John Beall; (m) Coming within 30 feet of John Beall anywhere outside his residence or place of work; (2) Compensatory and punitive damages in an amount to be determined at the time of trial; and -16- (3) Such other relief as this Court deems just and appropriate. Respectfully submitted, BROADS & SINON LLP By: Todd J. Shill John R. Martin BROADS & S1NON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -17- n ^' _ ---~ =~:: ~ -n - ~ --a _ r~ ..- - _ C :D -r7 i"T ~ J - _ ~ } --Y-F _.'..~ r ~.. j ~ i~ - ~ • ~.~ _ i.~ __ Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its its customers and/or invitees, Plaintiffs, v. JAMES R. CAPOZZOLI, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -EQUITY NO. 07-603 Civil Term RETURN OF SERVICE TO THE PROTHONOTARY: I HEREBY CERTIFY THAT, AS INDICATED ON THE Affidavit of Se 'ce attached hereto as Exhibit A and incorporated herein by referenced, copies of (1) the Compl int; (2) The Petition for Special Relief in the Nature of an Ex Parte Special Injunction and a (Preliminary Injunction; and (3) the Court-ordered Special Injunction were served upon Defenda 't, James R. Capozzoli at his residence of 30 Forest Glen Drive, Imerial, Pennsylvania pursuant t PA R.C.P. 402. Respectfully submitted, BROADS & SINON By: ~ ~~ G Todd J. Shill John R. Martin One South Market Square, P.O. Box 1146 Harrisburg, PA 17108-1 l~ Attorneys for Plaintiff 639379. I CERTIFICATE OF SERVICE I hereby certify that on February 5, 2C of Service was served by means of United Sty following: James R. Capozzoli 30 Forest Glen Drive Imperial, PA 15126-9 Zeturn e EXHIBIT A 3t3LiA C_ BEALL-Mc~.ELVEY, arzd TM `~i'HE Cf7UR~' Off' ~~ ~II~AR,fMG iMSTI~t,~N'f'S, fMC. flF CUIviBERLA.MD C on behalf of itself, its employees. PEMMSYL~TAi*tiA and its customers andlor invitees, Plaintiffs, _ CI~~i.. AC~'f(~ItI - I~Q~.3IT~I v. = : I'~1~. fl7-6~3 Civil 'ezxn ,1~..'~I~S . CAPC3.~~~3L1, Defendant. P~'T~'T'~t~l~,_A~I S~'ECI~.L :~~ _ ~ Can the +~ ,-- day vfFebruary 2f}4~, at ~~. ~%t, ~n~., Iy ;,_ a corrtpeter~t adult, served Defendant 3arues k. Capozzoli with {l) the injunction; (?) tl~ie Petition fc~r Special T~.elief in the :Mature cif an ,~`x Prrr ~e a Preliminary iZajut~ction; and (3) the Complaint, as follows: JZ a v ,~,, J''1 y? i state that dais Affida.~it is true and correct based ugun the best of knov;~led~e, and. belief. 7;IifC}Tt13a~1t7T1, i understand that false statements herein are made subject to the penalties 494 relating to unsworn falsification to atith4ritie. of l8 Pa.C.S. Address: ~''~!~ ~ -r-/ {~~~', State ~tp: ~'v'.rt 5~~b~~ to a;~d subscribed before me tills ~r~~ day of February ~C1t17. 1 { ~ ~~ ~o~~~ u LzC M~ CQNiIViTSSi~3'~l .~ ~Pii~S: NC>1ARIAt SEAL 9tiRK B YAUGNAN tyotory Pubtlc CRANI4ERRY TWP, BUTTER C4UPITY My Gommissfon Expires Jean t 5, 21313 C7M PLEAS (~ ~5~~ e rdered S~esial injunction and E r~> ~ ~ .~., - -~°t __1 ~- , ; -;-, ~i ~ ~ ; - ~ ~~:-: t ~.~ - ~. J ..J ` -~ . " SAN 31 zoos, JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, v. JAMES R. CAPOZZOLI, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY No. d~ -- ~ O 3 l..lu~t+~~"f Defendant. ORDER -SPECIAL INJUNCTION AND NOW, this ~ "~ day of ft.G,tia , 200?, upon application of Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, it is hereby ORDERED that a special injunction is granted ex pane, immediately enjoining Defendant James R. Capozzoli from any of the following activities until further Order of this Court: (1) Calling, or otherwise contacting in any way, Plaintiff Hearing Instruments, Inc.'s main office located in Camp Hill, Pennsylvania. (2) Visiting or coming within 100 feet of Plaintiff Hearing Instruments, Inc.'s main office located in Camp Hill, Pennsylvania. (3) Calling, or otherwise contacting in any ~ way, any or all of Plaintiff Hearing Instruments, Inc.'s Miracle-Ear and/or Amplifon franchise locations. (4) Visiting or coming within 100 feet of Plaintiff Hearing Instruments, Inc.'s 637860.1 standalone Miracle-Ear and/or Amplifon franchise locations. ~l 1 i f ~ ,> ,t ~y ~"^y A 1' ~~t' k't t r: ov/7 iii, ~'~~} -. 1 ~ .f.i='ti l ~~ ~~~ ~~~ ~~'1~S ~~~1 thy. ~i,rfk,.yf~~ ~~ ~~. , (5) Visiting or coming within 30 feet of Plaintiff Hearing Instruments, Inc.'s Sears- based Miracle-Ear franchise locations. (6) Calling, or otherwise contacting in any way, Plaintiff Hearing Instruments, Inc.'s employees, managers, and owners: (i) at their places of work; (ii) at their homes; and/or (iii} on their cell phones. (7) Visiting or coming within 100 feet of the residences of Plaintiff Hearing Instruments, Inc.'s employees, managers, or owners. (8) Calling, or otherwise contacting in any way, Plaintiff Julia C. Beall-McKelvey (i) at work; (ii) at her home; and/or (iii) on her cell phone. (9) Visiting or coming within 100 feet of the residence of Plaintiff Julia C. Beall- McKelvey. (10) Coming within 30 feet of Plaintiff Julia C. Beall-McKelvey anywhere outside her residence or place of work. (11) Calling or otherwise contacting in any way, John Beall, CEO and Part Owner of Plaintiff Hearing Instruments, Inc., (i) at work; (ii) at his home; andlor (iii) on his cell phone. (12) Visiting or coming within 100 fee of the residence of John Beall, CEO and Part Owner of Plaintiff Hearing Instruments, Inc. (13) Coming within 30 feet of John Beall, CEO and Part Owner of Plaintiff Hearing Instruments, Inc., anywhere outside his residence or place of work. -2- Failure to abide by this Order will result in sanctions upon further application to this Court. A hearing on the continuation of this injunction shall be held on the G '" day of Fu 2007, in Courtroom ~ of the Cumberland County Courthouse at /~ ~ f! .m. BY THE COURT: ~~ Copies to: Todd J. Shill, Esq., John R. Martin, Esq., Rhoads & inon LLP, P.O. Box 1146, Harrisburg, PA 17108-1146 James R. Capozzoli, 30 Forest Glen Drive, Imperial, PA 15126 v ~© J. -3- Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-114b (?17)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, v. JAMES R. CAPOZZOLI, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY N0.07-603 Civil Term PETITION FOR ADJUDICATION OF CIVIL CONTEMPT WITH RULE TO SHOW CAUSE -VIOLATION OF PRELIMINARY INJUNCTION ORDER NOW COME, Plaintiffs/Petitioners Julia C. Beall-McKelvey and Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and Petition this Court to adjudicate Defendant James R. Capozzoli in civil contempt of this Court, and in support state the following: 1. Plaintiff Hearing Instruments, Inc. ("Hearing Instruments") is a Pennsylvania corporation with its principal place of business at 1501 Market Street, Camp Hill, PA ] 7011. Hearing Instruments is a franchisee of Miracle-Ear and Amplifon, manufacturers and distributors of hearing aids and hearing aid accessories. Hearing Instruments owns and operates numerous Miracle-Ear and Amplifon offices in and around Pennsylvania. 640248.1 2. Plaintiff Julia C. Beall-McKelvey ("Ms. Beall-McKelvey") is an adult individual residing in Lewisberry, Pennsylvania. Ms. Beall-McKelvey is the President and Part Owner of Hearing Instruments. 3. Defendant James R. Capozzoli ("Capozzoli") is an adult individual residing at 30 Forest Glen Drive, Imperial, Pennsylvania 15126. Capozzoli is a former employee of Hearing Instruments. 4. On January 30, 2007, Plaintiffs filed a verified Complaint in equity and a corresponding Petition for Ex Parte and Preliminary Injunctive Relief against Capozzoli to enjoin him from, inter alia, annoying, threatening, harassing, and intimidating Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. (True and correct copies of the Complaint and Petition are attached hereto as Exhibits "A" and "B," respectively, and incorporated herein by reference.) 5. Thereafter, on February 2, 2007, this Court issued a Special Injunction, Ex Parte, enjoining Capozzoli from inter alia, annoying, threatening, harassing, and intimidating Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. (A true and correct copy of the Ex Parte Special Injunction is attached hereto as Exhibit "C" and incorporated herein by reference.) 6. Capozzoli was served with the Ex Parte Special Injunction the following day, on February 3, 2007. (A true and correct copy of the Affidavit of Service is attached hereto as Exhibit "D" and incorporated herein by reference.) 2 7. Immediately thereafter, Capozzoli proceeded to make over twenty telephone calls to Ms. Beall-McKelvey's cell phone, in clear violation of the Ex Parte Special Injunction. 8. On February 6, 2007, after a hearing, this Court entered a Preliminary Injunction, enjoining Capozzoli from, inter alia, calling or contacting Ms. Beall-McKelvey or her father, John Beall, and harassing, annoying, alarming, or intimidating Hearing Instruments' employees. (A true and correct copy of the Preliminary Injunction Order is attached hereto as Exhibit "E" and incorporated herein by reference.) 9. Also on February 6, 2007, Capozzoli was cited in contempt for his flagrant violation of the Ex Parte Special Injunction. (See Exhibit "E.") 10. Since the hearing, Capozzoli has continued with his incessant harassing, annoying, alarming, and intimidating conduct. (See Revised Chronology of Events, as documented by Ms. Beall-McKelvey, attached hereto as Exhibit "F" and incorporated herein by reference.) 11. On Monday, February 12, 2007, Ms. Beall-McKelvey received a Valentine's Day card from Capozzoli (in clear violation of the Court Order prohibiting him from contacting Ms. Beall-McKelvey in any way). In the card, Capozzoli wrote, "HAPPY VALENTINES DAY. MAY GOD BLESS YOU & YOUR FAMILY EVERY DAY. THANK YOU FOR EVERYTHING YOU GAVE ME." (A true and correct copy of the Valentine's Day Card is attached hereto as Exhibit "G" and incorporated herein by reference.) 12. Since the preliminary injunction hearing on February 6, 2007, Capozzoli's actions have continued to escalate and, as the attached Revised Chronology of Events makes clear, show 3 • .. 4~ no signs of stopping anytime soon. Plaintiffs are understandably concerned about Capozzoli's unstable and disturbing behavior. 13. Ms. Beall-McKelvey, along with several other Hearing Instruments employees working at various Miracle-Ear offices, have become frightened for their personal safety and physical and mental well-being. 14. Clearly, Capozzoli's annoying, threatening, harassing, and intimidating conduct will not cease without further intervention from this Court, in the form of contempt adjudication. WHEREFORE, Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc. respectfully request the immediate entry of a Rule to Show Cause why Defendant James R. Capozzoli's contempt should not be adjudicated, and, upon subsequent hearing, an adjudication that Capozzoli is in civil contempt of the Preliminary Injunction Order, and that the following sanctions be imposed upon him: (a) An unconditional fine be imposed upon Capozzoli, payable to Plaintiffs, in the amount of all damages suffered by Plaintiffs due to Capozzoli's continued violation of the Preliminary Injunction Order, including: (i} damages for emotional distress suffered by Ms. Beall-McKelvey; (ii) all attorneys' fees and other costs incurred by Plaintiffs in enforcing the Preliminary Injunction Order against Capozzoli; and 4 .. ~~ (iii) all other damages incurred by Plaintiffs due to Capozzoli's violation of the Preliminary Injunction Order, including loss of productivity and goodwill. (b) Judgment be entered in favor of Plaintiffs and against Capozzoli for the amount of the foregoing fine, if Capozzoli should fail to pay. (c} Should Capozzoli fail to pay the full amount of the fine as set forth in paragraphs (a) and (b) above, he shall be coercively civilly incarcerated in Cumberland County until such time that full payment of said fine is rendered. (d) Such additional relief as this Court may deem just and proper under the circumstances. Respectfully submitted, BROADS & SINON LLP By: dd J. Shill ohn R. Martin BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs 5 0211212007 19:43 7177618148 BELL HEARING AID CEN PAGE 01/02 VER]Ck'ICA~O1~ Julia C. Beall-Mc~elvey, President and Part Ownh and s, subject to the penalties of l8 Pa.C.S. § 49~ ~Y authorities, that the facts set forth in the foregoing daeui~ kaer knowledge, infarmation, and belief. Date: ~ Od of Hearing Instruments, Tnc., deposes relating to unsworn falsii`Ecation to ;nt are true and correct to the best of C. Beall-1vlcKelvey, dent and Part Owner ing Instruments, J.nc. CERTIFICATE OF SERVICE I hereby certify that on this ~~day of F , 2007, a true and correct copy of the foregoing Petition was served by means of United States mail, first class, postage prepaid, upon the following: Anthony C. Mengine, Esq. Chiurazzi and Mengine, LLC Allegheny Building, Suite 1000 429 Forbes Avenue Pittsburgh, PA 15219 Kevin D. Rauch, Esq. Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. 1017 Mumma Road Lemoyne, PA 17043 Exhibit "A" JULIA C. BEALL-McKELVEY, and IN THE COURT OF COIVIlVION PLEAS HEARING INSTRUMENTS, INC. OF CUMBERLAND COUNTY, on behalf of itself, its employees, PENNSYLVANIA and its customers and/or invitees, Plaintiffs, CNIL ACTION -EQUITY ~. _ _ ~`_l-~,~... NO Q~' (o~ ~tv~ `'~ JAMES R. CAPOZZOLI, Defendant. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appeazance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CtJ11~ERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 c~ c ^' o c~ -,, _' F - f-~~' r ~~~ -r C~ ~'a• T 'T't -. ,_r _a;~.; {- ~_ ~%~ - - • ~. . - ~ ~~ t ` ~~' .~ `~ ~', 1 ~ns9.~ 4 Todd J. Shill Attorney I.D. No. 69225 John R Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS,'INC. on behalf of itself, its employees, ,and its customers and/or invitees, Plaintiffs, v. JAMES R. CAPOZZOLI, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVII. ACTION -EQUITY : NO. COMPLAINT NOW COME, Plaintiff Julia C. Beall-McKelvey, and Plaintiff Hearing Instruments, Inc., on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and file the within Complaint as follows: PARTIES 1. Plaintiff Hearing Instruments, Ina ("Hearing Instruments' is a Pennsylvania corporation with its principal place of business at 1501 Market Street, Camp Hill, PA 17011. Hearing Instruments is a franchisee of Miracle-Eaz and Amplifon, manufacturers and distributors of hearing aids and hearing aid accessories. Hearing Instruments owns and operates numerous Miracle-Ear and Amplifon offices in and around Pennsylvania. 637548.1 2. Plaintiff Julia C. Beall-McKelvey. ("Ms. Beall-McKelvey' is an adult individual residing in Lewisberry, Pennsylvania. Ms. Beall-McKelvey is the President and Part Owner of Hearing Instruments. 3. Defendant James R Capozzoli ("Capozzoli'~ is an adult individual residing at 30 Forest Glen Drive, Imperial, Pennsylvania 15126. Capozzoli is a former employee of Hearing Instruments. JURISDICTION AND VENUE 4. This action arises under the laws of the Commonwealth and is within the subject matter of this Court. 5. Personal jurisdiction is proper pursuant to 42 Pa.C.S. § 5301(a)(1)(ii) because Capozzoli is domiciled in the Commonwealth. 6. Venue is proper pursuant to Pa.RC.P. No. 1006(a)(1) because certain transactions or occurrences giving rise to this action have occurred and continue to occur in Cumberland County. FACTUAL BACKGROUND 7. Plaintiffs have filed, contemporaneously with this Complaint, a Petition for Special Relief in the Nature of an Ex Parte Special Injunction and a Preliminary Injunction with the Prothonotary of this Court. (A true and correct copy of the Petition is attached hereto as Exhibit "A" and incorporated herein by reference.) -2- 8. In January of 2004, Capozzoli was hired by Hearing Instruments as a Sales Consultant. 9. For approximately two-and-one-half years, until the Fall of 2006, Capozzoli worked for Hearing Instruments without incident. 10. Then, in September of 2006, Capozzoli and another co-employee voluntarily left Hearing Instruments without notice to start their own competitive hearing aid business. 11. One month later, Capozzoli had a change of heart about the new business venture. He informed Ms. Beall-McKelvey and her father, John Beall, CEO and Part Owner of Hearing Instruments, that'he wanted to come back to work for Hearing Instruments. 12. On November 7, 2006, Hearing Instruments rehired Capozzoli. Capozzoli was to work as a Sales Consultant at two Miracle-Eaz locations in Washington, Pennsylvania. 13. Shortly after being rehired, Capozzoli immediately began calling Ms. Beall- McKelvey and the other Sales Consultants and Managers multiple times each day to talk about what was happening at each Miracle-Eaz location. 14. It quickly became apparent to all involved that Capozzoli felt that he should have been placed in a managerial position within the company. 15. Capozzoli's telephone calls were made both to Hearing Insruments' various Miracle-Ear offices and to Ms. Beall-McKelvey's personal cell phone. The calls began at 6:00 a.m. and were made well into the late evening. -3- 16. Ms. Beall-McKelvey told Capozzoli to stop calling her and other Hearing Instruments employees, but despite this, the calls continued. 17. Up to this point in time, Capozzoli's repeated telephone calls were merely bothersome and annoying. However, on December 12, 2006, the situation took a decidedly darker and more threatening tone. 18. At around 5:00 p.m. on December 12, 2006, while at Hearing Instruments' main office in Camp Hill, Ms. Beall-McKelvey received a telephone call from Capozzoli. He told her that he needed to see her right away and wanted to drive to the Camp Hill office. Concerned for her safety, Ms. Beall-McKelvey told Capozzoli that she would not see him; she told him that whatever needed to be discussed could be done over the telephone. 19. Capozzoli told Ms. Beall-McKelvey that he could not stop thinking about her and that he was obsessed with seeing her. He told her that every song on the radio reminds him of her, and that he had a doll in his house that resembled her and that always made him think of her. Capozzoli then told Ms. Beall-McKelvey that if he was promoted to a managerial position, he could be around her all the time. 20. When the phone conversation eventually turned to business i.e. Capozzoli wanted to be promoted to a managerial position within the company), Ms. Beall-McKelvey, already frightened, tried her best not to upset Capozzoli. 21. When Capozzoli complained of not having enough to do as a Sales Consultant, Ms. Beall-McKelvey asked about the appointments that he had scheduled to test people for -4- hearing aids. Capozzoli replied that he would not be testing these people because he knew that they were "spying on him." 22. During the phone conversation, Capozzoli commented that he might look for other employment, and Ms. Beall-McKelvey agreed that doing so may be in everyone's best interest. To make herself cleaz, Ms. Beall-McKelvey told Capozzoli that she was not firing him, but that he was more than welcome to look for other employment if that was what he chose to do. 23. Immediately after hanging up with Capozzoli, Ms. Beall-McKelvey called her father to inform him of the conversation. Thereafter, Mr. Beall called Capozzoli and told him to never call Ms. Beall-McKelvey again. 24. Mr. Beall also made cleaz to Capozzoli that he had been rehired as a Sales Consultant for the two Washington offices and that he would not be promoted to a management position. 25. Between December 16, 2006 and January 2, 2007, contrary to Mr. Beall's express instructions, Capozzoli continued to call Ms. Beall-McKelvey and other Hearing Instruments employees as follows: (a) Capozzoli continued making repeated telephone calls to Ms. Beall- McKelvey on her cell phone and at Heazing Instruments' main office in Camp Hill. (b} The calls made to Ms. Beall-McKelvey's cell phone went unanswered and were forwazded to her voice mail. The calls made to the main office were intercepted by front desk personnel and were not returned. -5- (c) In addition, Capozzoli made repeated telephone calls to Hearing Instruments' Operations Manager in Pittsburgh. These calls were similarly screened. 26. On January 2, 2007, Mr. Beall called Capozzoli to, once again, tell him to stop making telephone calls to Ms. Beall-McKelvey and to other Hearing Instruments employees. 27. During this phone call, Capozzoli told Mr. Beall that "it wasn't working out" and that he wanted to be fired from his job so that he could collect workers' compensation because Mr. Beall and Ms. Beall-McKelvey were "driving him crazy." 28. At first, Mr. Beall did not wish to fire Capozzoli. However, after Capozzoli insisted several times, Mr. Beall finally relented and told him that he was fired. Capozzoli thanked Mr. Beall and hung up. 29. Almost immediately, Capozzoli began repeatedly calling the main office in Camp Hill in an attempt to speak with Ms. Beall-McKelvey. These calls were intercepted by front desk personnel, who informed Capozzoli that he was not permitted to speak with Ms. Beall- McKelvey. Capozzoli begged and pleaded to speak with Ms. Beall-McKelvey. Capozzoli stated that he was confused as to why Mr. Beall had fired him and did not know what to do. 30. Finally, Ms. Beall-McKelvey took one of Capozzoli's calls to tell him that he had been fired, and he needed to immediately leave the Washington Miracle-Ear office that he was calling from. 31. Capozzoli refused to leave. Ms. Beall-McKelvey informed him that she would call the police to have him removed. Capozzoli stated that he would not leave unless he was escorted from the building. -6- 32. Ms. Beall-McKelvey called the Washington police department and had Capozzoli removed from the Miracle-Ear office. The police informed Capozzoli that he was not permitted to visit any Miracle-Ear office and that he was not permitted to make any further contact with Hearing Instruments' employees. 33. Throughout the remainder of the day, .however, in blatant defiance of the police's instructions, Capozzoli telephoned and visited several Miracle-Eaz offices. 34. In an effort to stop this conduct, Hearing Instruments sent Capozzoli, via email and certified mail, a "No Contact/No Trespassing" Notice. Hearing Instruments also sent copies of the Notice to thirty (30) police departments in the areas where Hearing Instruments' Miracle- Ear offices aze located. (A true and correct copy of the "No Contact/No Trespassing" Notice is attached hereto as Exhibit `B" and incorporated herein by reference.) 35. The Notice informed Capozzoli that he was prohibited from visiting Hearing Instruments' main office in Camp Hill and was also prohibited from visiting Hearing Instruments' Miracle-Eaz and Amplifon offices. Additionally, the Notice informed Capozzoli that he was prohibited from contacting any Hearing Instruments employee and/or management personnel at work or at home. 36. Hearing Instruments also sent Instructions, via facsimile, to its Miracle-Eaz offices to inform its employees of what to do in the event that Capozzoli showed up at their office (e.g;, ignore him and alert the appropriate authorities}. (A true and correct copy of the Instructions is attached hereto as Exhibit "C" and incorporated herein by reference.) -7- 37. Despite these efforts, Capozzoli has continued to engage in a ongoing course of conduct that is designed to annoy, threaten, harass, and intimidate Ms. Beall-McKelvey and Hearing Instruments' employees, customers, and/or invitees. See Chronology of Events, as documented by Ms. Beall-McKelvey, attached hereto as Exhibit "D" and incorporated herein by reference.) 38. Examples of Capozzoli's annoying, threatening, harassing, and intimidating conduct include: (a) making repeated telephone calls to several Hearing Instruments employees at work, on their cell phones, and at their homes; (b) sitting directly outside Hearing Instruments' Sears-based Miracle-Eaz offices and glaring at the employees inside; (c) attempting to disguise his appearance to avoid detection while waiting outside Hearing Instruments' Sears-based Miracle-Ear offices for an employee to take her lunch break; (d) informing a police officer that he could "get to" Ms. Beall-McKelvey if only he could "get rid of ' Mr. Beall; (e) promising to voluntarily commit himself to a hospital for fear of hurting himself, while at the same time refusing to take the medication prescribed to him by his psychiatrist; (f) calling Miracle-Eaz offices pretending to be a prospective customer; -8- (g) calling Miracle-Ear offices pretending to be an attorney; and (h) calling Ms. Beall-McKelvey at work and on her cell phone to leave disturbing and unintelligible voicemail messages. 39. Capozzoli's conduct, as described above and more fully in the attached Chronology of Events, serves no other purpose than to annoy, threaten, harass, and intimidate Ms. Beall-McKelvey and Hearing Instruments' employees, customers, and/or invitees. 40. Capozzoli's actions have continued to escalate since his termination and, as the attached Chronology of Events makes cleaz, show no signs of stopping anytime soon. Plaintiffs aze concerned that Capozzoli's actions to date aze merely a precursor to imminent violent behavior. 41. Ms. Beall-McKelvey, along with several other Hearing Instruments employees working at various Miracle-Eaz offices, have become frightened for their personal safety and physical and mental well-being. 42. Police departments in several different azeas, including North Franklin, Washington, South Hills Village, Monroeville, Lewisberry, and Camp Hill, have been made aware of Capozzoli's conduct, but the available criminal remedies do not provide Plaintiffs with adequate relief. Currently, criminal harassment charges under 18 Pa.C.S. § 2709 are pending against Capozzoli in Cumberland County. However, a hearing on that matter will not be held until Wednesday, February 28, 2007. Plaintiffs aze in need of immediate relief, which can only come about through the granting of a civil injunction. -9- 43. Capozzoli's disruptive conduct will not cease unless and until a Court Order is issued prohibiting Capozzoli from any further contact with Ms. Beall-McKelvey, Heating Instruments, or Hearing Instruments' employees. EQUITABLE RELIEF 44. Capozzoli's actions constitute impermissible and unlawful entry onto Hearing Instruments' property and violate Hearing Instruments' right to the peaceful use and enjoyment of its properly. Moreover, Capozzoli's actions constitute a cleaz threat to breach the peace, which could result in damage to Hearing Instruments' property and potential injury to Ms. Bea11- McKelvey and Hearing Instruments' employees, customers, and/or invitees. 45. Additionally, Capozzoli's course of conduct, should it continue, will result in irreparable harm to Hearing Instruments' business efforts by, inter alia, diminishing the value of Hearing Instruments' goodwill among its customers and adversely affecting the morale and productivity of its employees. 46. Ms. Beall-McKelvey and Hearing Instruments have a cleaz right to relief, but do not have an adequate remedy at law to prevent Capozzoli's ongoing and unlawful conduct. 47. Because Capozzoli's actions aze continuous and ongoing, the threat of irreparable and immediate harm requires intervention by this Court in order to protect Ms. Beall- McKelvey's and Hearing Instruments' rights, as well as the rights and safety of Hearing Instruments' employees, customers, and/or invitees. 48. Pursuant to the principles of equity recognized in this Commonwealth, Plaintiffs are authorized to seek injunctive relief from this Court to prevent Capozzoli's continuing and -10- defiant trespasses, to prevent Capozzoli from interfering with Plaintiffs' use and enjoyment of their property, and to prevent Capozzoli's annoying, threatening, harassing, and intimidating conduct directed towards Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. COUNTI ~IIED (Julia C. Beall-McKelvey v. Canozzoli) 49. Plaintiffs incorporate the above allegations as though fully set forth herein. 50. Capozzoli's intentional conduct, as described above, is extreme, outrageous, and clearly goes beyond all possible bounds of decency. Moreover, such conduct was carried out with the intent to cause Ms. Beall-McKelvey to suffer severe emotional distress. 51. Ms. Beall-McKelvey has, in fact, suffered, and continues to suffer, severe emotional distress as a result of Capozzoli's extreme and outrageous behavior. 52. Specifically, the continuous and intense nature of Capozzoli's conduct has placed Ms. Beall-McKelvey in a ongoing state of fear and has caused her to suffer from heightened and intolerable levels of anxiety, fright, nervousness, and sleeplessness. 53. Damages may be assessed to compensate Ms. Beall-McKelvey for her emotional distress, and Capozzoli's actions are subject to punitive damages. 54. However, the continuous and ongoing nature Capozzoli's extreme and outrageous conduct will result in a multiplicity of lawsuits, and thus, Ieaves Ms. Beall-McKelvey without an adequate remedy at law. -11- 55. Equitable relief is, therefore, the best remedy to prevent Capozzoli's continuous and ongoing extreme and outrageous conduct. 56. In addition to equitable relief, Ms. Beall-McKelvey reserves the right to seek damages, both compensatory and punitive, for Capozzoli's extreme and outrageous conduct. COUNT R CONTINUING TRESPASS (Hearing Instruments v. Canozzoli) 57. Plaintiffs incorporate the above allegations as though fully set forth herein. 58. Capozzoli's conduct, as described above, constitutes actionable trespass in that he (1) intended to; and (2) did, in fact, enter upon Hearing Instruments' Miracle-Ear offices, contrary to the express instructions of the "No Contact/No Trespass" Notice that was sent on January 2, 2007. 59. Moreover, the continuous and ongoing nature of Capozzoli's trespasses involve the likelihood of a multiplicity of actions to obtain redress in damages, any one instance of which may produce only nominal damages. 60. Equitable relief is, therefore, the best remedy to prevent Capozzoli's continuous and ongoing trespasses. 61. In addition to equitable relief, Hearing Instruments reserves the right to seek damages, both compensatory and punitive, for Capozzoli's trespasses. -12- COUNT III NUISANCE EAU Plaintiffs v. Capozzoli) b2. Plaintiffs incorporate the above allegations as though fully set forth herein. 63. Capozzoli's conduct, as described above, constitutes an actionable nuisance in that he made repeated, continuous, and harassing telephone calls to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees. 64. The number, frequency, and nature of these calls that Capozzoli has made and continues to make to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees has reached a highly offensive and intolerable level, one by which a person of ordinary sensibilities would surely be annoyed and offended. 65. Capozzoli's incessant telephone calls to Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees (both at work, at home, and on their cell phones) constitute a deprivation of Ms. Beall-McKelvey's and Hearing Instruments' peaceful enjoyment of their property, tantamount to a nuisance. 66. Equitable relief is, therefore, the best remedy to prevent Capozzoli's repeated, continuous, and harassing telephone calls. 67. In addition to equitable relief, Plaintiffs reserve the right to seek damages, both compensatory and punitive, for Capozzoli's harassing telephone calls. -13- COUNT IV HARASSMENT OF EMPLOYEES earin Instruments on behalf of its employees. customers. and/or invitees v Canozzoli) 68. Plaintiffs incorporate the above allegations as though fully set forth herein. 69. Capozzoli's actions, as described above, constitutes actionable harassment in that his conduct was designed to annoy, threaten, harass, and intimidate Hearing Instruments' employees, customers, and/or invitees. 70. Hearing Instruments, as an employer and as a business, has a duty to ensure the safety of its employees, customers, and/or invitees. 71. Capozzoli, by his actions, which aze continuous and ongoing, has demonstrated that he poses a significant threat to the safety and well-being of Hearing Instruments' employees, customers, and/or invitees. 72. Indeed, Hearing Instruments' employees have become fearful for their own safety in light of Capozzoli's conduct, which comes within the definition of "harassment" under 18 Pa.C.S. § 2709. 73. A reasonable person would be seriously alarmed and annoyed, and/or feel threatened by Capozzoli's conduct. 74. Moreover, it is likely that, given Capozzoli's volatile condition, there is a very real possibility that his actions may escalate to physical violence, placing Hearing Instruments' employees, customers, and/or invitees in danger of being harmed - 14- 75. Consequently, Hearing Instruments should be entitled to seek injunctive relief, on behalf of its employees, customers, and/or invitees, to prevent Capozzoli from engaging in the above-mentioned conduct. 76. In addition to equitable relief, Hearing Instruments reserves the right to seek damages, both compensatory and punitive, for Capozzoli's annoying, harassing, threatening, and intimidating conduct. PRAYER FOR RELIEF WHEREFORE, Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc., on behalf of itself, its employees, and its customers and/or invitees, respectfully request: (1) An injunction which enjoins Defendant. James R Capozzoli, both preliminarily and permanently, from engaging in the following conduct: (a) Calling, or otherwise contacting in any way, Hearing Instruments' main office located in Camp Hill, Pennsylvania; (b) Visiting or coming within 100 feet of Hearing Instruments' main office located in Camp Hill, Pennsylvania; (c) Calling, or otherwise contacting in any way, .any or all of Hearing Instruments' Miracle-Ear and/or Amplifon offices; (d) Visiting or coming within 100 feet of Hearing Instruments' standalone Miracle-Ear and/or Amplifon offices; -15- (e) Visiting or coming within 30 feet of Hearing Instruments' Sears-based Miracle-Ear offices; (f) Calling, or otherwise contacting in any way, Hearing Instruments' employees, managers, and owners: (i) at their places of work; (ii) at their homes; andJor (iii) on their cell phones; (g) Visiting or coming within 100 feet of the residences of Hearing Instruments' employees, managers, or owners; (h) Calling, or otherwise contacting in any way, Julia C. Beall-McKelvey (i) at work; (ii) at her home; and/or (iii) on her cell phone; (i) Visiting or coming within 100 feet of the residence of Julia C. Beall- McKelvey; (j) Coming within 30 feet of Julia C. Beall-McKelvey anywhere outside her residence or place of work; (k) Calling or otherwise contacting in any way, John Beall (i) at work; (ii) at his home; and/or (iii) on his cell phone; (1) Visiting or coming within 100 fee of the residence of John Beall; (m) Coming within 30 feet of John Beall anywhere outside his residence or place of work; (2) Compensatory and punitive damages in an amount to be determined at the time of trial; and -16- (3) Such other relief as this Court deems just and appropriate. Respectfully submitted, BROADS & SINON LLP By: -~ l"~ Todd J. Shill John R Martin BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -17- Exhibit "B" Todd J. Shill Attorney I.D. No. 69225 John R Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, -_ c, 4:.1 _ '~".7 - -: , _~' . - .-• .r _~ c-.: ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -EQUITY v _ ~ JAMES R. CAPOZZOLI, Defendant. PETITION FOR SPECIAL RELIEF IN THE NATURE OF AN EX PARTS SPECIAL INJUNCTION AND A PRELIlVIINARY INJUNCTION NOW COME, Plaintiffs/Petitioners Julia C. Beall-McKelvey and Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and Petition this Court for the issuance an Ex Parte Special Injunction and Preliminary Injunction pursuant to Pa.RC.P. No. -1531, and in support state the following: 1. Plaintiffs Julia C. Beall-McKelvey ("Ms. Beall-McKelvey' and Hearing Instruments, Inc. ("Hearing Instruments' (collectively referred to as "Plaintiffs' filed, contemporaneously with this Petition, a verified Complaint in Equity with the Prothonotary of this Court. (A true and correct copy of the Complaint is attached hereto as Exhibit "A" incorporated herein by reference.) 637522.1 2. Plaintiffs' Complaint seeks injunctive relief to prevent Defendant/Respondent James R. Capozzoli ("Capozzoli'~ from fiu-ther trespassing upon Hearing Instruments' property, from further interfering with the peaceful enjoyment of their property, from further interfering with the operation of Hearing Instruments' business, and from further harassing Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees, the detailed circumstances of which are set forth in Plaintiffs' Complaint. 3. Capozzoli's actions constitute impermissible and unlawful entry onto Hearing Instruments' property and violate Hearing Instruments' right to the peaceful use and enjoyment of its property. Moreover, Capozzoli's actions constitute a cleaz threat to breach the peace, which could result in damage to Hearing Instruments' property and potential injury to Ms. Beall- McKelvey and Hearing Instruments' employees, customers, and/or invitees. 4. Additionally, Capozzoli's course of conduct, should it continue, will result in irrepazable hams to Hearing Instruments' business efforts by, inter alia, diminishing the value of Hearing Instruments' goodwill among its customers and adversely affecting the morale and productivity of its employees. 5. Ms. Beall-McKelvey and Hearing Instruments have a clear right to relief, but do not have an adequate remedy at law to prevent Capozzoli's ongoing and unlawful conduct. 6. Because Capozzoli's actions are continuous and ongoing, the threat of irreparable and immediate harm requires intervention by this Court in order to protect Ms. Beall- McKelvey's and Hearing Instruments' rights- and the rights and safety of Hearing Instruments' employees, customers, and/or invitees. -2- 7. Pursuant to the principles of equity recognized in this Commonwealth, Plaintiffs aze authorized to seek injunctive relief from this Court to prevent Capozzoli's continuing and defiant trespasses, to prevent Capozzoli from interfering with Plaintiffs' use and enjoyment of their property, and to prevent Capozzoli's annoying, threatening, harassing, and intimidating conduct directed towazds Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. 8. Capozzoli will suffer no harm as a result of the issuance of the injunction. 9. Plaintiffs' requested injunctive relief is not contrary to the public interest. Rather, an injunction will fiuther the public interest in that an employer, i.e. Hearing Instruments, has a duty to ensure the safety of its employees, customers, and/or invitees from the very real threat of physical harm posed by Capozzoli and his outlandish behavior. 10. The injunction sought is limited in scope to address the imminent and immediate threats to the rights of Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees, as set forth in Plaintiffs' Complaint. 11. Plaintiffs are likely to succeed on the merits of their claims and aze willing to post a reasonable bond in an amount to be determined by the Court. 12. This Court is best suited to grant the requested injunctive relief because Hearing Instruments' main office is located in Cumberland County, and many, if not most, of the harassing phone calls made by Defendant have been and continue to be directed to Hearing Instruments' main office and to the cell phone of Ms. Beall-McKelvey, who works primarily in the main office. -3- 13. Moreover, Hearing Instruments operates several Miracle-Eaz and Amplifon offices throughout Pennsylvania (Western Pennsylvania, Central Pennsylvania, and Northeast Pennsylvania). Capozzoli's conduct adversely impacts all of these locations, yet it would be both cumbersome and impractical to seek injunctive relief in each of those counties. 14. To that end, the Order entered by this Court and imposed upon Capozzoli could be transferred and enforced against Capozzoli in each county where Hearing Instruments operates its Miracle-Eaz and Amplifon franchises, thus eliminating the need for duplicative equitable actions. WHEREFORE, Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, respectfully requests that this Court: (a) immediately issue a special injunction, ex pane, in form of the Proposed Order (attached hereto) to preserve the status quo and protect the rights and interests of Plaintiffs as set forth herein and in Plaintiffs' Complaint; (b) issue a Rule upon Capozzoli (attached hereto) to show cause why Plaintiffs are not entitled to the injunctive relief that they seek; (c) set a date for s hearing to continue the special ex pane injunction, and a date for a hearing to determine the propriety of the preliminary injunctive relief requested herein, to continue during the pendency of the proceeding and until a final determination can be made on Plaintiffs' claims; -4- (d) issue a preliminary injunction in the form of the Proposed Order (attached hereto) following a hearing; and (e) grant such other relief that this Court deems just and appropriate. Respectfully submitted, BROADS & SINON LLP By: Todd J. Shill John R Martin BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs -5- G1. L7: iGG ~ lo. uu r 1 ( f Ul U1 ~~ VERTJr'XCA'x'ION Julia C. Beall-McKelvey, president~ead Part Owner of Hearing Instruments, Inc., deposes and says, subject to the penalties of l $ Pa.C.S. § ~9a4, relating to unswom falsification to authorities, that the facts Set forth in the f~regoizag document arz true and correct to the best of her knowledge, infarmatian, and belief. Date: / ~ 9 _.~~ 7 Julia C. Beal l-McKelvey, President and Part Owner Hearing Instruments, Inc. a,~ta.t Exhibit "C" ~V JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself; its employees, and its customers and/or invitees, Plaintiffs, v. . JAMES R. CAPO Z I, Defendant. JAN 31 2007+ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY NO. d7` L03 ~lutlr~~-''''J ORDER -SPECIAL INJUNCTION AND NOW, this ~ ''t day of f~.Grv~ 2007, upon application of Plaintiff Julia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, it is hereby ORDERED that a special injunction is granted ex parte, immediately enjoining Defendant James R. Capozzoli from any of the following activities until further Order of this Court: (1) Calling, or otherwise contacting in any way, Plaintiff Hearing Instruments, Inc.'s main office located in Camp Hill, Pennsylvania. (2) Visiting or coming within 100 feet of Plaintiff Hearing Instruments, Inc.'s main office located in Camp Hill, Pennsylvania. (3) Calling, or otherwise contacting in any way, any or all of Plaintiff Hearing Instruments, Inc.'s Miracle-Ear and/or Amplifon franchise locations. (4) Visiting or coming within 100 feet of Plaintiff Hearing Instruments, Inc.'s standalone Miracle-Eaz and/or Amplifon franchise locations. 637860.1 (S) Visiting or coming within 30 feet of Plaintiff Hearing Instruments, Inc.'s Sears- based Miracle-Ear franchise locations. (6) Calling, or otherwise contacting in any way, Plaintiff Hearing Instruments, Inc.'s employees, managers, and owners: (i) at their places of work; (ii) at their homes; and/or (iii) on their cell phones. (7) Visiting or coming within 100 feet of the residences of Plaintiff Hearing Instruments, Inc.'s employees, managers, or owners. (8) Calling, or otherwise contacting in any way, Plaintiff Julia C. Beall-McKelvey (i) at work; (ii) at her home; and/or (iii) on her cell phone. (9) Visiting or coming within 100 feet of the residence of Plaintiff Julia C. Beall- McKelvey. (10) Coming within 30 feet of Plaintiff Julia C. Beall-McKelvey anywhere outside her residence or place of work. (11) Calling or otherwise contacting in any way, John Beall, CEO and Part Owner of Plaintiff Hearing Instruments, Inc., (i) at work; (ii) at his home; and/or (iii) on his cell phone. (12) Visiting or coming within 100 fee of the residence of John Beall, CEO and Part Owner of Plaintiff Hearing Instruments, Inc. (13) Coming within 30 feet of John Beall, CEO and Part Owner of Plaintiff Hearing Instruments, Inc., anywhere outside his residence or place of work. -2- Failure to abide by this Order will result in sanctions upon further application to this Court. A hearing on the continuation of this injunction shall be held on the G ~ day of fu , 2007, in Courtroom ~ of the Cumberland County Courthouse at // a, R .m. •f~,~ .-c~ ~ ~,:,,.,.+,.,, ~.. ~,,~ /a,ry,~ J 6t ,tea.. d ~ c~. a ~v.:e! . BY THE COURT: ~/~f~- J. Copies to: Todd J. Shill, Esq., John R. Martin, Esq., Rhoads & iron LLP, P.O. Box 1146, Harrisburg, PA 17108-1146 James R. Capozzoli, 30 Forest Glen Drive, Imperial, PA 15126 -3- Exhibit "D" ILIA C_ $E~4.EL-McKEI.Z'~'Y, and ' ,~tE`Ai2J[I~G INSTRUlv1ENTS, r.NC. on behalf of itself, its employees, and its cust~-n~ers and/or invitees, 1N THE CQU''T OF CQN~Mt?N PLEAS f~E CUBE~AND ~O~NTY, . PENNSYL'iTANIt~. - Plaintiffs, v. ~A~~s ~. cAP~zzc~L~, Defendant. CIt~`iL ~4.CTI~QN - EQUITY' NO.4?-bfl3 civil Term A-~'~'IDA'~'~T ~~' S~~~ICE: Qz€ the ~ ~ day of February ~Qtl7, at ~. ~~ man., I, _ ~~ L~ Sit r ~ _ a competent adult, served Defendant Janr~es R. 'CapQZZOIi with {I) the Gaurt-Ordered especial Iz~jurtction; ("~) the Petition for Special Relief in the Nature of an - Pane Special junction and a Preliminary Injuuetion; and ~3~ the complaint, as f~allaws: /~ ~L.% ~ c` TZ S""t/ -v ~- ~' l~ 1 J' 1 Z E Y'd~J ~' .rte C C` ¢ ~"' 3 C1' ~G r4!"7t~r ~E' w !~ r; I state that this Affidavit is tnie and ~cane~ct based ugan the best of my infarmarion, ltnowledge, and belief I understand that false statements herein are made subject to the penalties of I S Pa.C.S. § 4944 relating to unsworn falsifieatiar~ to authari#aes. t~.:a~d subscribed before me this ~~ day of February 2fl47. ~~ t~ '~~-- No Al~.~ uB~,zc ~ co~r~ss~aN IwxPZRES: Address: ~~~ „s`.r'~ City, state Zap: ~-Y-~-Nx c,7 ~ ~'.~. ~ ~ ~~~ s~ ~~~ ~ ~~6~ Notc~tyr PubEc G~ERRY TWP, 6UTLER GOUNTY My Comtnu~on Expiros Jan 15, 201 l Exhibit "E" JULIA C. BEALL-MCKELVEY, and HEARING INSTRUMENTS, INC., on behalf of itself,: its employees, and its customers and/or invitees,: Plaintiffs V JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY N0. 07-603 CIVIL TERM IN RE: PETITION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 6th day of February, 2007, after hearing, and following a conference with counsel in chambers, our preliminary injunction in this case is continued in the following respects: It is ordered and directed that the defendant under penalty of contempt shall not: 1. Visit or come within one hundred (100) feet of the residence of the plaintiff, Hearing Instruments, Inc.'s, employees, managers or owners. 2. Call or otherwise contact the plaintiff, Julia C. Beall-McKelvey, at work, at home, and/or on her cell phone. 3. Visit or come within one hundred (100) feet of the residence of the plaintiff, Julia C. Beall-McKelvey. 4. Call or otherwise contact in anyway John Beall, CEO and part owner of plaintiff, Hearing Instruments, Inc., at work, at home and/or on his cell phone. 5. Visit or come within one hundred (100) feet of the residence of John Beall, CEO and part owner of plaintiff, Hearing Instruments, Inc. N0. 07-603 CIVIL TERM 6. Harass, annoy, alarm or intimidate any employee working at any Miracle-Ear and/or Amplifon franchise location (Sears-based) . The court being satisfied that the defendant is in willful violation of paragraph eight of our ex parte preliminary injunction heretofore issued, in that he has, notwithstanding a directive to the contrary, telephoned the plaintiff, Julia Beall-McKelvey, on numerous occasions, h? is herewith cited in contempt. An adjudicatory hearing is deferred pending further order of the court and on condition that the defendant otherwise comply with the preliminary injunction entered this date. By the Court, John R. Martin, Esquire For the Plaintiffs Kevin D. Rauch, Esquire For the Defendant bg TRUE C'am'°'~ ~"~'"~"! R~~ORD !n Testim~ '^ set my hand an he s 3 . ~'e, Pa. T ........,.. u,}; .~ .....,n Exhibit "F" Revised Chronolo~v of Events (as documented by Julia C. Beall-McKelvey) Tuesday 2/6/07 1:20 p.m. Jim calls Gary Heagy's cell phone and leaves a message saying he won and he is allowed to call anyone and go anywhere he wants, and all Gary has to do if he doesn't want Jim to call him anymore is to let him know and he won't. 1:40 p.m. Call from Jim to Ross Park office; receptionist Barb answers and Jim starts yelling, "I won, I won, I won, I beat Julie & John and I can call anyone I want and go anywhere I want." Friday 2/9/07 8:10 a.m. Jim calls David at the Corporate office and tells David that he (Jim) is allowed to call him (David) whenever he wants to and that he has permission to call. David says, "That's not what I heard" and hangs up. 8:30 a.m. Jim calls the Washington store and leaves a message for Elaine Romano. In the message, Jim goes on and on about how he is suing her and everyone in the company. The Washington City Police Department is called and goes to the store. The police say that the message is not harassing and that the injunction is not enforceable in that county because three months ago, a ruling was passed in that county that says you cannot bar anyone from a place of business. The police say that Jim is allowed to call or visit that store, and unless he is acting violently, there is nothing that can be done. Elaine became upset because she was told that Jim cannot call the offices anymore. 10:21 p.m. Call from Jim (restricted number) to Julie's Cell with music/radio/TV playing in the background. Jim is breathing into phone. (1:10) 10:46 p.m. Call from Jim (restricted number) to Julie's Cell. He is breathing into the phone and making disturbing noises. Then it sounds like he is gargling -possibly to scare me into thinking he is getting ready to come to the banquet. (0:37) Saturday 2/10/07 (day of the Awards Banquet) 8:14 a.m. Call from Jim (restricted number) to Julie's Cell, marked as an urgent message. Jim is breathing into the phone and making strange noises. (1:17) 8:28 a.m. Call from Jim (restricted number) to Julie's Cell. Music playing. (0:03) 8:39 a.m. Call from Jim (restricted number) to Julie's Cell, marked as an urgent message. The song playing is "Everybody Plays the Fool." (1:03) 640285.1 1:07 p.m. Call from Jim (restricted number) to Julie's Cell, marked as an urgent message. Music and disturbing sounds playing; cannot make anything out. (2:42) 2:57 p.m. Call from Jim (restricted number) to Julie's Cell, marked as an urgent message. The song playing is "Hurts So Good." (1:40) 3:19 p.m. Jim calls Beth at the Corporate office (restricted number) and leaves a message saying that this is the last time he is going to call her. Jim says that he has filed criminal charges in Washington County and Allegheny County and that she is going to have to come out there to testify under oath. Jim also says that Julie was crying about her son in court at the hearing and "what is she going to do when her son has to come visit her in jail?" 3:23 p.m. Jim calls Beth at the Corporate office (restricted number) and leaves a message saying "what is Julie's little boy going to do when he has to visit Julie in jail? These people think they can do anything. You're supposed to be good friends with Julie and you have to advise her that this is wrong what they did to me. I couldn't be bought off and I won't be bought off ... all I ever wanted to do was work ... I need to work. I never did anything wrong ... maybe you can talk some sense into her ... you have to advise them. I don't care about John. I'll drop everything if Julie says to. It's going to come here and everyone is coming here to testify and I don't believe you would lie under oath. Everyone is going to have to testify to these comments made in the injunction. I don't want to bring you into this but I have no choice. All I wanted to do was the best job. I am not going to stop just because of Julie. Try to advise her ..." 4:04 p.m. Jim calls Beth at the Corporate office (restricted number) and leaves a message saying "One more thing -did you eat the taffy I gave you or were you laughing at me? Enjoy yourself at the banquet." 4:30 p.m. Call from Jim (restricted number) to Julie's Cell. The song playing is "Let's Give Them Something to Talk About" -probably referring to me talking at the banquet that night. 5:51 p.m. Call from Jim (restricted number) to Julie's Cell. Cannot make out the song. 6:04 p.m. Call from Jim from 412-302-7910 to Julie's Cell. Cannot make out the song. (0:10) 6:28 p.m. Call from Jim (restricted number) to Julie's Cell. The song playing is "Let's Groove Tonight." (0:28) 6:33 p.m. Call from Jim (restricted number) to Julie's Cell. The song playing is "Complicated." (4:20) 2 C ~ Monday 2/12/07 7:30 a.m. Call from Jim (restricted number) to Julie's Cell. The song playing is "We've got to Get Right Back to Where We Started From." 11:25 a.m. Call from Jim (restricted number) to Julie's voice mailbox at the office. Jim is breathing into the phone; says nothing. 11:45 a.m. Call to Beth from Jim (private number). Jim does not say anything; Beth hangs up. 12:00 p.m. Call from Jim (restricted number) to Julie's voice mailbox at the office. Jim is breathing into the phone; says nothing. 12:40 p.m. Call to Beth from Jim (private number). Jim does not say anything; Beth hangs up. 12:50 p.m. Call to Beth from Jim (private number). Jim does not say anything; Beth hangs up. 12:53 p.m. Call from Jim (restricted number) to Julie's voice mailbox at the office. Jim is breathing into the phone; says nothing. 1:37 p.m. Call from (412) 302-7910 to Julie's Cell. The song playing is "Every Breath You Take, I'll Be Watching You." (4:55) 1:46 p.m. Call from Jim (restricted number) to Julie's Cell. The song playing is "Waiting on the World to Change." (2:24) 1:53 p.m. Call from Jim (restricted number) to Julie's Cell. Cannot make out the song. 2:04 p.m. Call from (412) 302-7910 to Julie's Cell. The song playing is "Can You Feel the Love Tonight." (1:47) 2:20 p.m. Call from Jim to Julie's voice mailbox at the office. Jim is blowing into the phone and making disturbing sounds. 2:31 p.m. Call from Jim to Julie's voice mailbox at the office. Cannot make out the song, but Jim is also blowing into the phone. 2:44 p.m. Call from Jim to Julie's voice mailbox at the office. The song playing is "You and Me." 2:47 p.m. Call to Beth from Jim (private number}. Jim does not say anything; Beth hangs up. 3 02/12/2007 19:43 2:48 p.m. 3:08 p.m. 3:15 p.~na. 3:50 p.~n. 7177618148 BELL HEARING AID CEN PAGE 02/02 Call to Beth from Jim (private number). Jim does nat say anything; Beth hangs up. Call from (4l2) 302-7910 to Julie's Cell. Cannot make out the song. Call t:rom Jim to Dad's voice mai.l.box at the office. Cannot make out the song. Call from J'un (restricted number) to Julie's Cell. Cannot make out the song. Jd~ia C. Beall-McKelvey President and Part Owner Hearing Jnstruments, Tnc. 4 Exhibit "G" }1212607 15'27 • . :f~y ~~. .f\ .4 ~\ty,, •• t i ~. +==~r~'~ ~ G ~~ n a>, tR ~~',N Q ~ ~ {!~ . 6• ~.~~ .~--.^ M S~ a ~.. fi. ~ ~ c,~u ~ ~ g ~ coo -~~~. ~ spa x ~ ' ~ ~+ '. ~ ~ C~'q ~ ~'i' c~a ~?, ~ ~ 4 LS b ~`- Cq SL ~' Sl `-i., 5,^ C~V ~ ~` A ~ V ~. ~~ ~ ~` ~ ~ ~ • ^~ ~S' O CO ~+ ~. ~' LV '"C, ~ h ~ CV a `° ID GEN HEARING A BELL . .H ~~. }"''~ ~, ~ *-' ~ re- x- o „•i, `° c~+ a ~' ~ ~. ~ ~ ~ "CEO 6 6 ~ ~ ~ Si. ~..~ rr cb Sa.. , ~.. cti ~'' es a "'h ,+ Rv ~ .~ SS '~~ ~ ~'4` D w hS *tya` .. G^a ~b3„ A l .'~. d SSO r ~ O ~ S!l R.. ~~1,. ...~„~ 4 $l. ~ --•. 4 5t.. ~ 1"., 5+... ~A 7^ tw ~ ^ ~f~ ~~ 7 m ~ C~' 4 7^ ~~'4 h. • . ~ r 4 4 .. S1 ~, ~'- ~ t 1 _'l SL.. ~ ~ ~ ~ S. ~" "'f+ ~ ~ ~ ^ cam" ~--~ "' 7r CEO ~ ~ ~ 4 a ~ H o^ 7r-~ c~v ~ o `S $~ Z ~° N CS^ ~ ~ '. ~ ~ N Q 'd Si. ~~„'' w•. . `~; BELL ~..~ARING AID CEN 7177618148 1212007 15:27 Y~~.. ~ ~ `~~ ~ ~ C? ~. ~ fi ~. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ , 1 ~v ~ ~. ~ ~~ `~ ~ `.~ ~. ~ ~ ~ ~. ~ ~' .. c ~"' }- ~ ~ . ^C?~ ~~s '; ~' c~ ~ _ ~" {~~ ~ -< ~ _ ~. JULIA C. BEALL-MCKELVEY, and HEARING INSTRUMENTS, INC., on behalf of itself,: its employees, and its customers and/or invitees,: Plaintiffs V . JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY N0. 07-603 CIVIL TERM IN RE: PETITION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 6th day of February, 2007, after hearing, and following a conference with counsel in chambers, our preliminary injunction in this case is continued in the following respects: It is ordered and directed that the defendant under penalty of contempt shall not: 1. Visit or come within one hundred (100) feet of the residence of the plaintiff, Hearing Instruments, Inc.'s, employees, managers or owners. 2. Call or otherwise contact the plaintiff, Julia C. Beall-McKelvey, at work, at home, and/or on her cell phone. 3. Visit or come within one hundred (100) feet of the residence of the plaintiff, Julia C. Beall-McKelvey. 4. Call or otherwise contact in anyway John Beall, CEO and part owner of plaintiff, Hearing Instruments, Inc., at work, at home and/or on his cell phone. 5. Visit or come within one hundred (100) feet of the residence of John Beall, CEO and part owner of plaintiff, Hearing Instruments, Inc. ~_ , ~~..~...f #,t ~ elm f 4-V ~ f 2~,'v __ ~~ ~~ ..~ ~ , . ~. N0. 07-603 CIVIL TERM 6. Harass, annoy, alarm or intimidate any employee working at any Miracle-Ear and/or Amplifon franchise location (Sears-based) . The court being satisfied that the defendant is in willful violation of paragraph eight of our ex parte preliminary injunction heretofore issued, in that he has, notwithstanding a directive to the contrary, telephoned the plaintiff, Julia Beall-McKelvey, on numerous occasions, he is herewith cited in contempt. An adjudicatory hearing is deferred pending further order of the court and on condition that the defendant otherwise comply with the preliminary injunction entered this date. By the Court, ~hn R. Martin, Esquire For the Plaintiffs ~evin D. Rauch, Esquire For the Defendant , b J . g ~ ti ~e i~ pare g~~ JULIA C. BEALL-McKELVEY, and IN THE COURT OF COMMON PLEAS HEARING INSTRUMENTS, INC. OF CUMBERLAND COUNTY, on behalf of itself, its employees, PENNSYLVANIA and its customers and/or invitees, Plaintiffs, CIVIL ACTION -EQUITY v. N0.07-60~ Civil Term JAMES R. CAPOZZOLI, Defendant. ORDER: RULE TO SHOW CAUSE AND NOW, this ~ day of ~~ , 2007, upon consideration of the foregoing Petition, it is hereby ordered that: (1) a rule is issued upon the Respondent to show cause why the Petitioners are not entitled to the relief requested; sw~ >~, (2) the Respondent shall file an answer to the petition within /~' days of ~; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; ( p i s a leted 'thi a; (5) a hearing shall be held on the ~ day of ~ 2007, in Courtroom ~ of the Cumberland County Courthouse at / ~ :~ C~.m.; and (6) notice of the entry of this Order shall be provided to all parties by the Petitioner. 640248.1 c ~\/ 0 BY THE COURT: / ., `~ , ~ ~ ' f :~ ~/7 s~ .. ~ ~ ps ~''"" LtJ~'D ` ° -. ~ `.~ ` 1 LL -^~" t - y ~ ; Lar ~ ~ G . Copies to: Todd J. Shill, Esq., John R. Martin, Esq., Rhoads & Sinon LLP, P.O. Box 1146, Harrisburg, PA 17108-1146 Anthony C. Mengine, Esq., Chiurazzi and Mengine, LLC, Allegheny Building, Suite 1000, 429 Forbes Avenue, Pittsburgh, PA 15219 Kevin D. Rauch, Esq., Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P 1017 Mumma Road, Lemoyne, PA 17043 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA C. BEALL-McKELVEY and HEARING INSTRUMENTS, INC., on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, v. CIVIL ACTION -EQUITY NO. 07-603 ANSWER TO PETITION FOR ADJUDICATION OF CIVIL CONTEMPT JAMES R. CAPOZZOLI, Defendant. (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #15251 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA C. BEALL-McKELVEY and HEARING INSTRUMENTS, INC., on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, CIVIL ACTION -EQUITY NO. 07-603 (Jury Trial Demanded) v. JAMES R. CAPOZZOLI, Defendant. ANSWER TO PETITION FOR ADJUDICATION OF CIVIL CONTEMPT AND NOW, comes Defendant, James R. Capozzoli, by and through his counsel, Kevin D. Rauch, Esquire, and Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and files the following Answer to Petition for Adjudication of Civil Contempt averring as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. The averments of paragraph 4 reference a document, which speaks for itself. 5. The averments of paragraph 5 reference a document, which speaks for itself. 6. The averments of paragraph 6 reference a document, which speaks for itself. 7. Admitted in part, denied in part. It is admitted that the Defendant made phone calls to Ms. Beall-McKelvey's cell phone. The exact number of calls is not known by the Defendant. As a result, the said averments are denied. 8. The averments of paragraph 8 reference a document, which speaks for itself. 9. The averments of paragraph 9 reference a document, which speaks for itself. 10. Admitted in part, denied in part. It is admitted that Mr. Capozzoli has contacted employees of Hearing Instruments, Inc., including Ms. Beall-McKelvey. It is denied that said contact was in violation of the preliminary injunction. 11. Admitted in part, denied in part. It is admitted that Mr. Capozzoli sent a card to Ms. Beall-McKelvey. It is further admitted that the text of the card is contained in Exhibit "G" of Plaintiffs Petition. It is further averred that contained within the card was a return of a monetary gift in the amount of $50.00 to Ms. Beall-McKelvey. 12. Denied. Although the Defendant admits that he has contacted employees of the Plaintiff since the entry of the Order on February 6, 2007, it is specifically denied that his actions have escalated. It is believed, and therefore averred, that the last contact between Mr. Capozzoli and Ms. Beall-McKelvey was the card received on Monday, February 12, 2007. 13. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 14. Denied. It is specifically denied that Mr. Capozzoli's conduct has violated the preliminary injunction order. By way of further answer, Mr. Capozzoli has ceased all contact with employees of Hearing Instruments, Inc., including Ms. Beall-McKelvey, since February 12, 2007. WHEREFORE, Defendant, James Capozzoli, respectfully requests this Honorable Court deny the relief requested by the Petitioner. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: Kevin D. Rauch, Esquire Counsel for Defendant reo t~ u/ Ub:41p CHIURA7~1 AND P.~ENGfNE 4^2-434-0776 p.3 ._ ti ~~ ~ ~~.. ,_. _ ~, . .~...... ~~...~ . ~.....~.~ .~ 4~.~ r i...uti..~r~ ..:av i ~ti i c ~ 1•a 1, G•ti.~v c~ ~ r o ~YIJ. 41b tlF7tf VER1 CATION aefendarn verifies that he is the Deyfendant in the faregning action; that tl~e farsgoing ANSWER 74 PE'i'lTI~ON FOa AWUDiCATi4N t3F C{YIL. CaNTEMPT is based upon information which he has furnisher! to his counsel and information which has been gathered by his counsel in the preparation of the lawsuit. The language of the ANS3l1FER TC) PEYITIOtrI F4R AU.)UDlCATtON OF C{V{L CONTEMPT is that of cflunsel and not of the Oefenda~nt. Defendant has read tha ANSWER TQ PETITION FOR AD,1tJDlCAT{ON OF Gt'V{L CQNTEN{f'T and to the extent that the ANSWER TO t'ETITlt]N FOR At3JUQ{CATION OF CIVIL CQNTEMPT is based upon information which he has given to his counsel, it is true and correct to the hest of his knowledge, information and belief. To the exter?t that the content of the ANSWER TO PETITION FDR At~J{~01CATIQN Ol: CIVIL COh1Ti:MP1' is that of counsel, he has relied upon counsel in making this Affidavit. Defendant understands that faire statements herein are made subject to the penalties of 1 t3 Pa.G.S. §4904, relating tc unswatn falsificatian~uthorities. Date: ~ - ~i~-G~ James R. ~~525~ CERTIFICATE OF SERVICE i HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER TO PETITION FOR ADJUDICATION OF CIVIL CONTEMPT has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this ~ day of February, 2007. Todd J. Shill, Esquire John R. Martin, Esquire Rhoads & Sinon, LLP One South Market Square P.O. box 1146 Harrisburg, PA 17108-1146 (Attorneys for Plaintiffs) Anthony C. Mengine, Esquire Chiurazzi and Mengine, LLC Allegheny Building, Suite 1000 429 Forbes Avenue Pittsburgh, PA 15219 SUMMERS, McDONNELL, HUDOCK, GUTHRIE ~ SKEEL, L.L.P. B ~~~~ ~a~ Y• Kevin D. Rauch, Esquire Counsel for Defendant n c'~ ~ .--t ~ ~ -Lj i ' t"'r1 ~Z t" ""~%'- ' ~ a.~ () ' i" i r x;- (Tl _i C31 .{ JULIA C. BEALL-MCKELVEY, and HEARING INSTRUMENTS, INC., on behalf of itself,: its employees, and its customers and/or invitees,: Plaintiffs V . JAMES R. CAPOZZOLI, . Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY N0. 07-603 CIVIL TERM IN RE: PETITION FOR CONTEMPT OF COURT ORDER OF COURT AND NOW, this 27th day of February, 2007, after hearing, the court being satisfied that the defendant is in willful contempt of our previous order in this case, he is cited in contempt and ordered to show cause why he should not be adjudicated. This rule returnable this date at 3:00 p.m. It appearing that there is an outstanding warrant from District Justice Manlove, and in light of the scheduling of our 3:00 hearing, he is remanded to the custody of the Sheriff pending further proceeding. ~n R. Martin, Esquire For the Plaintiffs J Kevin D. Rauch, Esquire For the Defendant ca ~ She r i f f a• -f_ . L _:-f1'o .~~ :bg By the Court, _~ Kevi A. Hess, J. 4'i4`vJt~+``~ ;~~Ia ~1 ! ~ ~ ~~'~ i ~- k~v~ LG~Z ~. :zf ~ i~ JULIA C. BEALL-MCKELVEY, and HEARING INSTRUMENTS, INC., on behalf of itself,: its employees, and its customers and/or invitees,: Plaintiffs V JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY N0. 07-603 CIVIL TERM IN RE: ADJUDICATORY HEARING ORDER OF COURT AND NOW, this 27th day of February, 2007, the defendant having been cited in contempt, this matter having been called for further hearing on the question of adjudication, and the court being satisfied that the defendant is in willful contempt of our prior order in this case, he is thus adjudged, Sentence of the court is that he undergo imprisonment in the Cumberland County Prison for a period of six months. He will be released on condition of purge that he forward to the court a letter, in which he promises that he will not violate the existing court order in any way. It is further ordered and directed that any subsequent violation will entail the assessment of a fine against the defendant in the amount of $100.00 per violation. And that upon a violation of the existing order, reasonable attorney's fees incurred from and after February 6, 2007, will become due and payable by the defendant to the plaintiff. By the Court, ¢¢ r~E ~ ~ ~ ~ l - ~'aY,~ ~~ LC~Q~ -;t-~y ~~ t , M.;~. ~' ~ .~~ E N0. 07-603 CIVIL TERM ~hn R. Martin, Esquire For the Plaintiffs Kevin D. Rauch, Esquire For the Defendant Sheriff ~.~}~ C C P ~~~~~. :bg JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS,: INC., on behalf of itself, its Employees, and its customers And/or invitees, Plaintiffs v. JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.07-503 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of March, 2007, the defendant having corresponded with the court in accordance with our prior order, he is released from the Cumberland County Prison on condition that he abide by our order of February 27t", 2007. Nothing herein shall affect his incarceration on pending criminal charges nor any bail conditions thereof. BY THE COURT, ~hn R. Martin, Esq. For the Plaintiffs vin D. Rauch, Esq. vv For the Defendant Sheriff ccP _~;Q,~d ~' 31,Io~ ~ :rc / A A. Hess, J. -•n,. ,n r,-~. Todd J. Shill Attorney I.D. No. 69225 John R. Martin Attorney I.D. No. 204125 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY v. N0.07-603 Civil Term JAMES R. CAPOZZOLI, Defendant. SECOND PETITION FOR ADJUDICATION OF CIVIL CONTEMPT: VIOLATION OF PRELIMINARY INJUNCTION ORDER AND CONTEMPT ADJUDICATION ORDER NOW COME, Plaintiffs/Petitioners Julia C. Beall-McKelvey and Hearing Instruments, Inc. on behalf of itself, its employees, and its customers and/or invitees, through their attorneys, Rhoads & Sinon LLP, and Petition this Court to adjudicate Defendant James R. Capozzoli in civil contempt of this Court, and in support state the following: 1. Plaintiff Hearing Instruments, Inc. ("Hearing Instruments") is a Pennsylvania corporation with its principal place of business at 1501 Market Street, Camp Hill, PA 17011. Hearing Instruments is a franchisee of Miracle-Ear and Amplifon, manufacturers and distributors of hearing aids and hearing aid accessories. Hearing Instruments owns and operates numerous Miracle-Ear and Amplifon offices in and around Pennsylvania. 2. Plaintiff Julia C. Beall-McKelvey ("Ms. Beall-McKelvey") is an adult individual residing in Lewisberry, Pennsylvania. Ms. Beall-McKelvey is the President and Part Owner of Hearing Instruments. 3. Defendant James R. Capozzoli ("Capozzoli") is an adult individual residing at 30 Forest Glen Drive, Imperial, Pennsylvania 1512b. Capozzoli is a former employee of Hearing Instruments. 4. On January 30, 2007, Plaintiffs filed a verified Complaint in equity and a corresponding Petition for Ex Parte and Preliminary Injunctive Relief against Capozzoli to enjoin him from, inter alia, annoying, threatening, harassing, and intimidating Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. 5. Thereafter, on February 2, 2007, this Court issued a Special Injunction, Ex Parte, enjoining Capozzoli from, inter alia, annoying, threatening, harassing, and intimidating Ms. Beall-McKelvey, Hearing Instruments, and Hearing Instruments' employees, customers, and/or invitees. 6. Immediately upon being served with the Ex Parte Special Injunction, on February 3, 2007, Capozzoli proceeded to make over twenty telephone calls to Ms. Beall-McKelvey's cell phone. 7. On February 6, 2007, after a hearing, this Court entered a Preliminary Injunction, enjoining Capozzoli from, inter alia, calling or contacting Ms. Beall-McKelvey or her father, John Beall, and harassing, annoying, alarming, or intimidating Hearing Instruments' employees. -2- (A true and correct copy of the Preliminary Injunction Order is attached hereto as Exhibit "A" and incorporated herein by reference.) S. Also on February 6, 2007, Capozzoli was cited in contempt for his flagrant violation of the Ex Parte Special Injunction. 9. Alarmingly, despite the issuance of the Preliminary Injunction Order, Capozzoli continued with his incessant harassing, annoying, alarming, and/or intimidating conduct. 10. Consequently, Plaintiffs filed a Petition with this Court to adjudicate Capozzoli's contempt. The corresponding Contempt Hearing was held on February 27, 2007. 11. At the Contempt Hearing, Capozzoli was cited in contempt and was adjudged, in pertinent part, as follows: [Capozzoli shall] undergo imprisonment in the Cumberland County Prison for a period of six months. He will be released on condition of purge that he forward to the court a letter, in which he promises that he will not violate the existing court order in any way. It is further ordered and directed that any subsequent violation will entail the assessment of a fine against the defendant in the amount of $100.00 per violation. And that upon a violation of the existing order, reasonable attorney's fees incurred from and after February 6, 2007, will become due and payable by the defendant to the plaintiff. (A true and correct copy of the Contempt Adjudication Order is attached hereto as Exhibit "B" and incorporated herein by reference.) 12. That same day, February 27, 2007, Capozzoli was charged with two counts of criminal harassment and stalking. Bail was set at $300,000.00. (A true and correct copy of the Bail Bond is attached hereto as Exhibit "C" and incorporated herein by reference.) -3- 13. Thereafter, on March 5, 2007, this Court entered an Order releasing Capozzoli from the Cumberland County Prison "on condition that he abide by our order of February 27, 2007. Nothing herein shall affect his incarceration on pending criminal charges nor any bail conditions thereof." (A true and correct copy of the Order releasing Capozzoli from civil incarceration is attached hereto as Exhibit "D" and incorporated herein by reference.) 14. On or about March 13, 2007, Capozzoli was released from the Cumberland County Prison on reduced bail, subject to additional bail conditions. These conditions of bail incorporated the terms of the Preliminary Injunction Order (Exhibit "A") and, inter alia, also required that Capozzoli immediately obtain psychiatric treatment for his condition of bipolar disorder. (A true and correct copy of the Bail Conditions is attached hereto as Exhibit "E" and incorporated herein by reference.) 15. Capozzoli has failed and refused to obtain psychiatric treatment and has, once again, started a pattern of annoying, tlrreatening, harassing, and/or intimidating conduct. 16. To that end, Capozzoli attended the 2007 Mid-Atlantic Hearing Aid Expo in Gettysburg, PA, which took place on March 29, 30, and 31, 2007, despite the fact that he is not currently affiliated with the hearing aid industry. 17.. Capozzoli arrived at the Expo on March 30, 2007. 18. Ms. Beall-McKelvey, who is a board member of the association responsible for organizing the Expo, was also in attendance at the Expo on March 30, 2007. 19. Once Ms. Beall-McKelvey became aware that Capozzoli was in attendance, she made sure to surround herself with people so that Capozzoli could not approach her. -4- 20. Even though Capozzoli did not speak to Ms. Beall-McKelvey, he followed her and would make sure to stay within a very close proximity to her wherever she went. 21.. For example, when it came time to eat, Ms. Beall-McKelvey tried to sit so that her back was facing Capozzoli, but he moved to another table so that he could face Ms. Beall- McKelvey and continue staring at her in an effort to intimidate her. 22. In addition, during the Expo, Capozzoli made bizarre and outlandish comments relating to Ms. Beall-McKelvey and her father, John Beall. For example, Capozzoli told Ms. Beall-McKelvey's fellow board members that he was going to take over the Hearing Instruments business from Ms. Beall-McKelvey and Mr. Beall and "run it all." Moreover, after being told that Mr. Beall was planning a trip to Mount Everest, Capozzoli remarked, "I hope he falls off." 23. Due to Capozzoli's intimidating and obstructive conduct, Ms. Beall-McKelvey decided to leave the Expo early. 24. True to form, on Saturday, March 31, 2007, Ms. Beall-McKelvey began receiving disturbing voicemail messages on her work telephone. A few days later, she began receiving these messages on her personal cell phone. 25. Ms. Beall-McKelvey has, once again, prepared a chronology of contacts and telephone calls/messages made by Capozzoli in violation of this Court's Preliminary Injunction Order and Civil Contempt Order. (A true and correct copy of this Chronology is attached here to as Exhibit "F" and incorporated herein by reference.) 26. Although the calls were made from a restricted number, and although the caller did not speak and/or identify himself in these messages, the calls now being made are identical to -5- the disturbing messages that were, by Capozzoli's own admission, left by him prior to his incarceration. (It should further be noted that neither Ms. Beall-McKelvey nor any Hearing Instruments employee received these types of disturbing voice messages while Capozzoli was incarcerated in the Cumberland County Prison.) 27. To date, Capozzoli has made a total of nine (9) telephone calls to Ms. Beall- McKelvey since his release from the Cumberland County Prison on March 13, 2007. 28. These calls are being made by Capozzoli in an attempt to annoy, threaten, harass, and/or intimidate Ms. Beall-McKelvey, and such calls clearly violate this Court's Order(s) prohibiting Capozzoli from contacting her in any way. 29. Capozzoli's annoying, threatening, harassing, and/or intimidating conduct will not cease without further intervention from this Court in the form of a second contempt adjudication. WHEREFORE, Plaintiff 3ulia C. Beall-McKelvey and Plaintiff Hearing Instruments, Inc. respectfully request the immediate entry of a Rule to Show Cause why Defendant James R. Capozzoli's contempt should not be adjudicated, and, upon subsequent hearing, an adjudication that Capozzoli is, once again, in civil contempt of the Preliminary Injunction Order, and that the following sanctions be imposed upon him pursuant to this Court's Civil Contempt Order of February 27, 2007: (a) An unconditional fine be imposed upon Capozzoli, payable to Plaintiffs, in the following amounts: -6- (i) $900.00, representing $100.00 multiplied by the number of calls (9} made by Capozzoli in violation of the Preliminary Injunction Order and the Civil Contempt Order; and (ii) $25,000.00, representing the reasonable attorneys' fees and costs incurred by Plaintiffs from and after February 6, 2007. (b) Reinstatement of Capozzoli's six (6) month prison sentence. (c) Such additional relief as this Court may deem just and proper under the circumstances. Respectfully submitted, BROADS & SINON LLP By. ~~ odd J. Shill John R. Martin BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs -7- 0410212007 18:00 7177618148 BELL HEARING AID CEN PAGE 02/02 VERIFIC,c~~ION Julia C. Beall-McKelvey, President and Part Owner oPHearirtg instruments, Inc., deposes and says, subject tv the penalties of 18 Pa.C.S. § 4904, relatittg to unsworn falsification to autharitics, that the facts set forth in the foregoing document are true and eomrect to th.e best of her knowledge, information, and belief.. i~ Date: ~G ~ ~ - ,~ Julia C_ .(3eall-1VIc a ,vey, President and Part Owner Idearing Tnstrurr~ents, inc. CERTIFICATE OF SERVICE I hereby certify that on this ~~ day of , 2007, a true and correct copy of the foregoing Petition was served by means of United States mail, first class, postage prepaid, upon the following: Anthony C. Mengine, Esq. Chiurazzi and Mengine, LLC Allegheny Building, Suite 1000 429 Forbes Avenue Pittsburgh, PA 15219 Kevin D. Rauch, Esq. Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. 1017 Mumma Road Lemoyne, PA 17043 Douglas K. Marsico, Esq. Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 C ~~~9 Exhibit "A" JULIA C. BEALL-MCKELVEY, and HEARING INSTRUMENTS, INC., on behalf of itself,: its employees, and its customers and/or invitees,: Plaintiffs V JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY N0. 07-603 CIVIL TERM IN RE: PETITION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 6th day of February, 2007, after hearing, and following a conference with counsel in chambers, our preliminary injunction in this case is continued in the following respects: It is ordered and directed that the defendant under penalty of contempt shall not: 1. Visit or come within one hundred (100) feet of the residence of the plaintiff, Hearing Instruments, Inc.'s, employees, managers or owners. 2. Call or otherwise contact the plaintiff, Julia C. Beall-McKelvey, at work, at home, and/or on her cell phone. 3. Visit or come within one hundred (100) feet of the residence of the plaintiff, Julia C. Beall-McKelvey. 4. Call or otherwise contact in anyway John Beall, CEO and part owner of plaintiff, Hearing Instruments, Inc., at work, at home and/or on his cell phone. 5. Visit or come within one hundred (100) feet of the residence of John Beall, CEO and part owner of plaintiff, Hearing Instruments, Inc. N0. 07-603 CIVIL TERM 6. Harass, annoy, alarm or intimidate any employee working at any Miracle-Ear and/or Amplifon franchise location `~ (Sears-based). The court being satisfied that the defendant is in willful violation of paragraph eight of our ex parte preliminary injunction heretofore issued, in that he has, notwithstanding a directive to the contrary, telephoned the plaintiff, Julia Beall-McKelvey, on numerous occasions, he is herewith cited in contempt. An adjudicatory hearing is deferred pending further order of the court and on condition that the defendant otherwise comply with the preliminary injunction entered this date. By the Court, ~ ~/ Kevin;%A. Hess, J. John R. Martin, Esquire For the Plaintiffs Kevin D. Rauch, Esquire For the Defendant :bg In Testy m ' ^ set my hand anc',~he sea:.. - _,, ;e, Pa. Exhibit "B" JULIA C. BEP>LL-N1Cl•:E`LVEY, and HEARING INSThUMrI'JTS, .INC., on behalf of itself, its employees, and its Ci2StomerS and/or invitees, Plaintiffs V J~I~iES F;. CAPOZZOLI, Defendant IIJ THE COUF,T OF COMIvTON PLEAS OF CUMBERLAND COUNTY, PEI~TNSYLVAI~]IA CIVIL ACTION] - EQUITY N0. 07-603 CIVIL TERi~ IN RE : ADJUDICATORY HEARII~]G ORDER OF COURT AND NO"vJ, this 27th clay of February, 2007, the defendant having been cued in contempt, this matter having been Called for further hearing on the question of adjudication, and the court being satis~ied that the defendant is in willful contempt o= our prio?` or_de?° in this case, he i s thus acl jj edged, Sentence of the court is that he undergo imprisonment in the Cumberland County ??'ison Tor a period of sir months. He wi1_1_ be released on condition of purge that he forward to the court a letter, in which he promises that he FTi7l not violate the e~.isting court ordeT~ in any way. It is further ordered and directed that any subsequent violation will entail the assessment of a fine against the derenclant in the amount of 5100.00 per violation. And that upon 2 v1.Qlat? on o~^ the eXi sting Order, reasonable atto3-ney`s lees incu?-red from and after February 6, 2007, will become due and payable by the defendant to the plaintiff. By the Court, Exhibit "C" BAIL BOND OTN ~ 321596-2 MDJ No: 09-1-02 Date of Charge(s): 1/02/07 CC No: MDJ Docket No: Cx-0000071-07 Commonwealth vs. Defendant Name and Address) NEXT C0~lRT ACTION Date/ Time/ Location CAPOZZOLI, S ROB$~T 3//07/07 10:00AM 3 Q ~'QP.BST GL~ BH 2901 STATS ST IMP$HIAL, PA 15126 CAMP HILL, PA 17011-0000 CHARGE(S): S 18 X2709 ~~A7 u~nQ>RnSSM$N'T (COb1'~SIINICATION OTH$R MANNZR) S 18 §2709.1 ~gA2 STALKING ADDITIONAL CHARGES MAY EXIST. PLEASE SEE ADDITIONAL CHARGES PAGE. TYPE(S) OF RELEASE: ^ ROR ^ Unsecured Bail ^ Nonmonetary Condition(s) (see additional page(s)) ^ Nominal.Baii ®Monetary Condition(s) in the amount of $ 300, 000.00 STRAIGHT THE CONDITIONS OF THIS BAIL'BOND ARE AS FOLLOWS: 1. The defendant must appear at all times required until full and final disposition of the case. 2. The defendant must obey a!I further orders of the bail authority. . 3. The defendant must give written notice to the bail authority, the clerk of courts, the district attorney, and the court bail agency or other designated court bai( officer, of any change of address within 48 hours of the date of the change. 4. The defendant must neither do, nor cause to be done, nor permit to be done on his/her behalf, any act as proscribed by Section 4952 of the Crimes Code (relating to intimidation of witnesses or victims) or by Section 4953 (relating to retaliation against witnesses or victims), 18 Pa.C.S. §§ 4952,4953. 5. The defendant must refrain from criminal activity. i verity that the above conditions of bail have been imposed. 3 --7~0 ~7 ~ Signature. fd~~j ~ ~ My commission expires first Mo day of January, 2012 .Cash/Equivalent ^ Gov't Bearer Bonds ~ % Cash ^ Surety Bond AL AMOUNT BAIL SET (IF ANY): $ BAIL DEPOSITOR(S): Depositor Name ^ Realty w/in Commonwealth ^ Realty outside Commonwealth (see sureties page) Amount This bond is valid for the entire proceedings and until full and final disposition of the case including alf avenues of direct appeal to the Supreme Court of Pennsylvania. ! ACaREE THAT 1 WILL APP AR AT LL SUBSEQUENT ROCEEDINGS AS REQUIRED.AND COMPLY WITH ALL THE CONDITIONS OF THE BAIL BOND. THIS BOND SIGNED Off! al ! ~° ! v ~ /~ ,PENNSYLVANIA ~~l ~ (Signature °t Defendant) Signature of Witness (Surety) PLEASE SEE ATTACHED PAGES FOR ADDITIONAL INFORMATION. (Surety) a~l=c aiaa~-ne PRINTED: 2/27/07 12 :48 z 50 PM Exhibit "D" JULIA C. BEALL-YIcICELVEY, and HEARING INSTRUMENTS,: INC., on behalf of itself, its Employees; and its customers And/or invitees, Plaintiffs v. JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYZ,VANIA CIVIL ACTION - LA W N0.07-d03 CIVIL TERM ORDER OF COURT AND NOW, this S`'' day of March, 2007, the defendant having corresponded with the court in accordance with our prior order, he is released from the Cumberland County Prison on condition that he abide by our order of February 27''', 2007. Nothing herein shall affect his incarceration an pending criminal charges nor any bail conditions thereof. BY THE COURT, J n R. Martin, Esq. or the Plaintiffs Kevin D. Rauch, Esq. For the Defendant Sheriff CCP --1c~ I~fJ~ '~e`'u~ 3l, la ~ rum :rc /~ A. Hess, J. Exhibit "E" ~OMMONUJEALTH V JAMES R. GAPOZ20I,I IN THE COURT OF COMMON PLEAS OF CUMBERLAND C{JUNTi', PENNS"LVANIA CP-21--MD-~. 6I. --2 0 0 7 IN RE: EMERGENCY PETITION FOR MCDTFIGATZON OF BAIL ORDER OF CdrJRT At~D NOW, this 13th day of March, 2007, upon consideration of Defendant's Emergency Petition for Modification of Bail., and following a hearing, the petition is granted to the extent that bail in this matter is reduced to $35,004. Special. conditions of bail shall include all. of the conditions contained ir. the order of ttte Honorable Kevin A. Hess dated February 6, 2007, at No. 07 -603 Civil Term; in addition, and to the extent not otherwise covered by Judge Hess's order, special conditions . of bail shall include the fo:~l.owing: 3. Defendant shall 'nave no contact, direct or indirect, personally or thxough third persons, and in any form whatsoever with Julia C, Beall-McKelvey, John Heali, or any employee of Miracle-Ear and/or Arnplifon; 2. rurtherr~ore, a special condition of bail shall be that the Defendant immediately obtain psychia~ric treatment far his condition of bipolar disorder and take any medication prescribed by the psychiatrist for the condition pending further Order of Court; and 3. Defendant's counsel shall notify the Distract Attorney's office of the Defendant's initiation of psychiatric treatment. ~ • d Xdd 1BC~I~Sd1 dH WdLE = t L00~ Sz -~eW By the Court, ~--? J We s ey r, Jr . , J . ,~hristyl.ee Peck, Esquire Assistant ~i.strict Attorney Dougias K. Marsico, Esquire 3n31 North ~"ront Stxeet Harrisburg, PA 17I].0-1533 For Defendant Sheriff CCP Md E-: ~•d Xd~ 13t~13Sd1 dH WdGE~Y GDD2 B~ JeW EXhlbit ~~F~~ Jim Capozzoli calls since his release from jail 3/13/07: Friday-3/30/07 Mid-Atlantic Hearing Expo (PA State Convention) Jim showed up at the convention. I had someone with me at all times. Everywhere that I went Jim seemed to follow or be very close by. During meals I tried to sit with my back towards him and he would get up and move to another chair so that he could sit facing me. He said nothing to me the entire time -there were too many people aware of the situation and he couldn't get near me. Jim wore his sunglasses on during most of the events where he knew I could see him. Jim sat at same table as other board members as well as the Dept of Health Hearing division representative Jennifer Falbush during lunch. Out of nowhere Jim started bad mouthing me and my father and others -going on and on about how I put him in jail with $300,000 bail and that he almost lost his life in jail. Said that he is going to take over the company from me and Dad and run it all. My father's trip to Mt. Everest was mentioned and Jim said... "I hope he falls off." Everyone at the table was stunned at Jim's behavior and it was obvious to everyone there that there was something wrong with him. At 5 a.m. that morning, fellow board member Debbie Swift (hearing aid practice in Pittsburgh and former employer of Jim) received 4 threatening phone calls at her office in Pittsburgh from Jim. He kept saying "Judgment day is coming" and about her "meeting her maker" etc. Bail conditions and Judge Hess's orders faxed to police in Pittsburgh. Police went to Debbie's office and heard the messages and then called Jim on his cell phone while he was at the convention and warned him that 1 more call will result in his arrest. Saturday 3/31/07 I decided not to put myself through another day dealing with Jim so I did not attend the convention even though I am a board member and a key person for planning the convention. I just couldn't deal with it. 12:40pm Call from Jim to Julie's VM at office (restricted #) -music playing -sounded like love songs... he said nothing. 4:47pm Call from Jim to Julie's VM at office (restricted #) -making strange noises... coughing and moaning? He said nothing. These calls are EXACTLY like the ones before he went to jail. It is definitely him calling. Sunday 4/1/07 12:54pm Call from Jim to Julie's VM at office (restricted #) -music playing and Jim making strange sounds - he said nothing. 645784.1 3:1 Spm Call from Jim to Julie's VM at office (restricted #) -music playing and Jim making strange sounds -moaning and coughing - he said nothing. 4/ 1 /2007 Monday 4/2/07 I1:OOam Call from Jim to Julie's Office (restricted #) - I picked up the phone and someone was there making noises into the phone... he said nothing but the sounds were just like last night. 12:03pm Call from Jim to Julie's Cell Phone (restricted #) -Making strange noises. 3:12pm (during meeting with Detective Kristin Mertz) Call from Jim to Julie's Cell Phone (restricted #) -Per Kristin I answered the call. Again Jim making strange noises.. . moaning - 6 seconds. 4:llpm Call from Jim to Julie's Cell Phone (restricted #) -Laughing and making noises - same as before. Tuesday 413107 6:25am Call from Jim to Julie's Cell Phone (restricted #) -Music playing, coughing and making noises. r -'_~ ,' ~ ~, __a k. _~ ~• ~. I .APR 04 2001 JULIA C. BEALL-McKELVEY, and HEARING INSTRUMENTS, INC. on behalf of itself, its employees, and its customers andlor invitees, IN THE COURT OF COMMO PLEAS OF CUMBERLAND COUN , PENNSYLVANIA ~I Plaintiffs, CIVIL ACTION -EQUITY v. N0.07-603 Civil Term JAMES R. CAPOZZOLI, Defendant. ORDER: RULE TO SHOW CAUSE AND NOW, this 9 ' day of /-l~ a,~~l , 2007, upon foregoing Petition, it is hereby ordered that: (1) a rule is issued upon the Respondent to show cause why the Petiti entitled to the relief requested; of the are not (2) the Respondent shall file an answer to the petition within r ~ days of this date; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; (4) depositions shall be completed within days of this date; (5) a hearing shall be held on the 3'1 day of ~^+ 2007, in i Courtroom ~ of the Cumberland County Courthouse at ! : 30 ~.m.; and I~ (6} notice of the entry of this Order shall be provided to all parties by the P~,titi BY THE COURT: _ ~ ~ ,~ J. ~' },n- ~Li ~ i . ~. ~ c ~'_~ ' ` ~ ~ i~a-- , r~ LL ~ r..::... .ems ~ .."7_ <"~3 ~. Copies to: Todd J. Shill, Esq. and John R. Martin, Esq., Rhoads & Sinon LLP, ~ ~~ y_ v g. 0 7 P.O. Box 1146, Harrisburg, PA 17108-1146 .~ ~rn"` Anthony C. Mengine, Esq., Chiurazzi and Mengine, LLC, ~, Allegheny Building, Suite 1000, 429 Forbes Avenue, Pittsburgh, PA 15219 i Kevin D. Rauch, Es ., Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.~., q 1017 Mumma Road, Lemoyne, PA 17043 ~~ Douglas K. Marsico, Esq., Caldwell & Kearns, P.C. 3631 North Front Street, Harrisburg, PA 17110-1533 ~~ 2 JULIA C. BEALL-MCKELVEY and HEARING INSTRUMENTS, INC., on behalf of itself, its employees, and its customers and/or invitees, Plaintiffs vs. JAMES R. CAPOZZOLI, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-603 CIVIL ORDER AND NOW, this Z"''~ day of May, 2007, it appearing that there is a pending criminal prosecution in this case, that the defendant is incarcerated, and that there are conditions of bail, hearing herein is continued generally. Should there be a dismissal of the criminal charges or should the defendant be released from incarceration, this matter may be relisted at the request of the plaintiffs. If this matter is not relisted for hearing within 180 days, the pending contempt petition will be deemed dismissed without further order of court. BY THE COURT, Shill, Esquire Martin, Esquire Forth Plaintiffs ouglas Marsico, Esquire For the Defendant ,~ :rlm J ~ ~~~ ~^ S.~L~jty ~.