HomeMy WebLinkAbout97-00564
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AMY a 8 »I
GARY L. JAMES
MAX J. SMITH, JR.
KAREN DURKIN
JOHN J. CONNELLY, JR.
STUART J. MAGDULE
FRANK P. CLARK
SUSAN E. LEDERER
STEVEN A. STINE
JOI IN1. MCNALLY, III
GREGORY K. RICHARDS
SCOTT A. DIETTERICK
LAW OFFICES
James, Smith, Durkin & Connelly Lt.P
P.O. BOX 650
HERSHEY, PENNSYLVANIA 17033
Street address:
134 SIPE AVENUE
HUMMELSTOWN. PENNSYLVANIA 17036
E-mail addmss: inWgsjsdlegal.cum
(717) 537.3280
(711)238.9780
FAX (717) 533.2795
Harrisburg oalce:
108.112 Walnut Street
Hartisburg. PA 17101
(717) 238-1776
FAX (717) 2384793
May 14, 1998
Richard Pierce
Court Administrator
1 courthouse Square
Carlisle, PA 17013-3387
RE Tennant v. Frazier
Claim No.1552682138
Dear Mr. Pierce:
Enclosed you will my Certificate of Concurrence which I have filed in the above referenced
matter. Pursuant to the Order of Judge Hess dated May 7, 1998 this matter shall proceed in
Courtroom No. 4 on June 4, 1998 at 4:00 p.m.
Thank you for your attention to this matter.
Sincerely,
JAMES, SMIfN,.,DURIUN & CONNELLY, LLP
i
J hn J. McNally, III
JMCN:md
cc: Pat Hickey, Claim No. 155268153
f,?JUN U 2 1998
LAW OFFICES
JOHNSON, DUFFLE, STEWART & WEIDNER
A Professional Corporation
JERRY R. DUFFIE
RICHARD W. STEWART
C. ROY WEIDNER. JR.
EDMUND G. MYERS
DAVID W. DELUCE
RALPH H. WRIGHT, IR
DAVID I. LANZA
JOSEPH L. HITCHINGS
MARK C. DUFFIE
KEIKSTEN L. WAISH
301 MARKET STREET
P. O. BOX 109
LEMOYNE, PENNSYLVANIA 17043.0109
TELEPHONE 717.761.4540
FACSIMILE 717.761.3015
EMAIL mrll®Id..tom
June 1, 1998
Richard J. Pierce, Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013-3387
Re: Tennant, et al. v. Frazier, et al.
No. 97-564 Civil Term
Dear Mr. Pierce:
HORACE A. JOHN5ON
Or COUNSEL
Enclosed herewith please find the original and one copy of a Brief on behalf of Sporting
Hill Family Health Center in opposition to the Defendant's Motion for Issuance of a Subpoena
filed in the above case. The Honorable Kevin A. Hess has scheduled Argument on this Motion
for June 4, 1998 at 4:00 p.m. Accordingly, would you please forward this Brief to Judge Hess
as set forth in his Order of May 7, 1998.
Very truly yours,
SON, D FF TEW RT & WEIDNER
u?W ( _
David W. eLuce
DWD:kkm:111021
Enclosures
cc: Joey A. Storaska, Esquire (w/encl.)
John A. Steller, Esquire (w/encl.)
John J. McNally, III, Esquire (w/encl.)
John A. Swtler, Empire
Atlomcy 1.1). No. 43812
GOLDBERG. KATZMAN & SHIPMAN I1 C.
320 Market Street
P.O. Box 1268
1larrisburg. PA 17108.1268
Telephone: (717) 2344161
Attorney for Plaintiff
DIANNE C. TENNANT, individually IN THE COURT OF COMMON PLEAS
and as parent and natural guardian of CUMBERLAND COUNTY, PENNSYLVANIA
April N. Brown, a minor,
Plaintiff : CIVIL ACTION - LAW
V. : NO. 97-564 CIVIL TERM
RALPH A. FRAZIER and
ELEANORA M. FRAZIER, : JURY TRIAL DEMANDED
Defendants
ORDER
AND NOW, this day of June, 1998, it is hereby ORDERED that the
Defendants' Motion to Compel the subpoena of the Plaintiff's psychological records is DENIED.
BY THE COURT:
J.
John A. Stotler,1*uirc
Altomcy 1. D. No. 43812
GOLIMERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
1larrishurg, PA 17108.1268
Telephone: (717)234.4161
Attorney for Plaintiff
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACfION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIFF'S BRIEF IN OPPOSITION
TO DEFENDANTS' MOTION TO COMPEL
ISSUANCE OF SUBPOENA OF PSYCHOLOGICAL RECORDS
1. FACTUAL BACKGROUND
In June and July 1994, April N. Brown, a 13 year old girl, was fondled, touched and
penetrated digitally by Ralph A. Frazier. Mr. Frazier was the father of a one of April Brown's
friends, Angela Frazier. When these assaults occurred April was an overnight guest in the Frazier
home in Lemoyne.
Ralph Frazier pleaded nolo contenders to aggravated indecent assault and was sentenced
by Judge Bayley to undergo a period of imprisonment in a State correctional institution for not
less than 32 months nor more than 84 months. Mr. Frazier is presently incarcerated at the State
Correctional Institution at Camp Hill.
Discovery in this case has revealed that in 1977 Ralph Frazier also sexually assaulted
another young girl in York County. Further evidence has been uncovered which proves that
Eleanora Frazier, Ralph Frazier's wife, was aware of this prior sexual assault but failed to warn
April Brown or her mother of this potential danger.
Following these sexual assaults April Brown received psychological counseling and
treatment from a number of mental health practitioners include Dr. Kenneth Small. The
Defendants have attempted to subpoena the minor Plaintiff's psychological and counseling
records. Plaintiff has objected to the Defendants' request for these records.
If. SHOULD THE COURT DENY, AT THIS STAGE, THE
DEFENDANTS' REQUEST TO SUBPOENA THE MINOR
PLAINTIFF'S PSYCHOLOGICAL RECORDS?
(Suggested Answer: Yes)
111. ARGUMENT
The Defendants contend that because the minor Plaintiff has claimed psychological
damages as a result of Ralph Frazier's sexual assaults they should automatically be entitled to all
of her psychological and counseling records. However, the Plaintiff' has not yet determined
whether Dr. Kenneth Small or Dr. Valentine M. Osborn or any other mental health practitioner
will be called as a witness in this case. 'f'ile Plaintiff has not answered any expert witness
interrogatories or otherwise identified her trial experts. Accordingly, the Defendants' request for
psychological records is premature.
This exact same issue was decided by this Court in Shertzer v. Institute of pastoral Care.
Inc., 5 D & CAth 662 (1990) (attached). In the Shertzer case Judge Hess ruled that even though
the plaintiff was seeking damages for psychological distress, the defendants were still not entitled
to subpoena or otherwise obtain copies of her therapist's notes or other counseling records. The
court aptly noted that to compel production of the plaintiff's psychological records would be
clearly violative of 42 Ila. C.S. §5944. Shertzer, 5 D & CAth at 664. Thus, a plaintiff does not
automatically waive the psychologist-patient privilege merely because her lawsuit includes a claim
for psychological damages.
Until such time as the Plaintiff identifies Dr. Kenneth Small or any other mental health
expert as a trial expert, the Defendants are not entitled to obtain copies of the Plaintiff's mental
health records. Moreover, when the Plaintiff identifies expert trial witnesses, Plaintiff' requests
the Court to conduct an in camera inspection of the records before they arc produced to the
Defendants. Plaintilf will highlight any portions of those records which should be redacted before
production
IV. CONCLUSION
In light of the foregoing, the Defendants' Motion to Compel production of the Plaintiffs
psychological records should be denied.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A. atler, Esquire
Attorney I. D. No. 43812
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
I Attorneys for Plaintiff
DATE: S I .2 ? 9 8
4
Exhibit A
662 Shertzer v. Institute of Pastoral Care Inc. 5 D. & C. 41h
client. It is foreseeable, and, in fact, probable that as
counsel for the plaintiff the law firm would not
pursue the claim against the additional defendants
because it would be challenging the activities of
itself. The law firm may ultimately be liable to
plaintiff for money damages.
The court finds that these facts create a "materi-
ally limiting conflict" as defined in rule 1.7(b); that
Drier could not reasonably believe that his repre-
sentation would not be adversely affected under rule
1.7(b)(1); and that the facts create an impermissi-
ble conflict of interest which cannot be waived
under rule 1.7(b)(2).
ORDER
And now, June 7, 1989, the motion of Peat,
Marwick, Main & Company to disqualify counsel is
granted. It is ordered and directed that Marc S.
Drier, Esq. be disqualified from representing the
estate of Donald R. Shearer, deceased, in this ac-
tion.
Shertzer v. Institute of Pastoral Care Inc.
Discovery - btot ion to compel production of documents-
Therapy notes of psychologist - Psychologist-patient privi.
lege - 42 Pa.C.S. §5944-Privilege not waived-Records not
discoverable
In an action against a marriage counselor for the infliction
of psychological damage, the therapy notes of plaintiff's present
psychologist are barred from discovery under 42 Pa.C.S.
§5944 in the absence of an express or implied waiver of the
psychologist-patient privilege.
Motion to compel. C.P. of Cumberland County,
no. 1439 Civil 1988.
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Robert F. Claraval, fo daintiff. I tl
th 662(1990) Shertzer v. Institute of Pastoral Care Inc. 663
is Jeffrey Rettig, for defendant Christ United Pres-
ot byterian Church.
is F. Lee Shipman, for defendant St. Mark's Evan-
of gelical Lutheran Church.
to Darrell N. VanOrmer Jr., for defendant Gerald I.
Gingrich.
ti- HESS, J., January 5, 1990 - This action was
at initiated by plaintiff, Brenda Shertzer, by complaint
'e- on March 12, 1988. Therein, she alleges that Gerald
:le Gingrich, her marriage counselor, had sexual rela-
ii- lions with her beginning in 1978 and lasting for a
ad period of almost 10 years. She claims that she has
suffered psychological damage due to Dr. Gingrich's
alleged manipulation of her in the context of a
confidential relationship. Following her treatment
at, by defendant, Gerald Gingrich, and because of it,
is plaintiff' began psychological treatment with Dr.
S. James Knestrick. She has been involved in exten-
he sive psychological counselling with him and we are
:o- led to understand that their relationship as doctor
and patient is continuing during the course of this
lawsuit.
On April 12, 1989, a subpoena was issued to Dr.
Knestrick seeking all of his business records and
office notes relating to his treatment of plaintiff. Dr.
Knestrick's office manager responded by forwarding
of all the office records except the treating psycholo-
gist's therapy notes, with respect to which Dr.
3n Knestrick asserts a psychologist-patient privilege.
:tn Following these developments, defendants, Christ
S. United Presbyterian Church and First United
he Church of Christ of Carlisle, filed a motion to
compel the production of plaintiff's psychological
:y, records including the therapy notes.
Dr. Knestrick is licensed to practice psychology in
the Commonwealth of Pennsylvania. Plaintiff' re-
664 Shertzer v. Institute of Pastoral Care Inc. 5 D. & C. 4th
fuses to consent to the release of Dr. Knestrick's
therapy notes for any reason. With respect to the
confidentiality thereof, Dr. Knestrick and the plain-
tiff rely upon the following statutory language:
"§5944. Confidential communications to licensed
psychologists -
"No person who has been licensed under the act
of March 23, 1972 (P.L. 136, no. 52), to practice
psychology shall be, without the written consent of
his client, examined in any civil or criminal matter
as to any information acquired in the course of his
professional services in behalf of such client. The
confidential relations and communications between
a psychologist and his client shall be on the same
basis as those provided or prescribed by law be-
tween an attorney and client." 42 Pa.C.S. §5944.
Because plaintiff seeks damages for adverse psy-
chological effects of her relationship with Dr. Ging-
rich and because of the likelihood that Dr. Knestrick
will be called as a witness, defendants assert that
they are entitled to review Dr. Knestrick's notes.
They contend that this is so notwithstanding the
fact that the notes contain evidence of confidential
communications between plaintiff and Dr. Knestrick
which are, in accordance with the terms of 42
Pa.C.S. §5944, clearly privileged.
To compel production of Dr. Knestrick's notes, at
this stage in the litigation, would be clearly violative
of the judicial code. By the clear wording of the
statute, third parties may not cause psychologists to
be examined without the written consent of their
patients. Inasmuch as the statute analogizes the
privilege to the one which exists between attorneys
and clients, it is equally clear that the disclosure of
confidential communications is impermissible un-
less the privilege is waived by the patient or client.
It will, no doubt, be asserted that by calling Dr.
G65(1990) Greenwood Estate 665
Knestrick to testify in this case, plaintiff will waive
any privilege concerning communications with her
psychologist. It may perhaps even be suggested
that by' signing an expert interrogatory, wherein
she names Dr: Knestrick as a psychological expert,
she may be deemed to have waived "in writing" the
confidentiality which is otherwise conferred by
statute. However, no expert interrogatories have as
yet been filed in this case. Nor, inasmuch as the
trial of the matter has yet to begin, can it be said
that any privilege has been "waived upon the trial
by the client?" 42 Pa.C.S. §5928. Whether plaintiff
can even be compelled to produce the records of
her conversations with her psychologist is a
question which must await another day. At this
juncture the request is clearly premature.
ORDER
And now, January 5, 1990, defendant's motion to
compel is denied.
Greenwood Estate
Decedents' estates - Intestate - Paternity at issue -
Child born out of wedlock - Statutes of limitation - 18-year
limitation applicable to support action is not a defense
The 18-year statute of limitations which is applicable to
determinations of patemity for support actions on behalf of
children born out of wedlock, 23 Pa.C.S. §4343(b), is not a
defense to a intestate probate proceeding in which paternity is
at issue.
Petition for blood samples. O.C. of Greene County,
no. 7 of 1990.
Linda Chambers, for petitioner.
James Hook, for respondent.
CF.RTIFICATF. OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the Z01 day of /14
1998, addressed to the following:
HONORABLE KEVIN A. HESS
Court of Common Pleas of Cumberland Co.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
JOAN J. McNALLY, 111, ESQUIRE
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033-0650
JOEY ALAN STORASKA, ESQUIRE
Rice, Boop & Storaska
106 Market Street
P 0. Box 470
Sunbury, PA 17801
DAVID W. DeLUCE, ESQUIRE
Johnson, Dufic, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A. Sta r, Esquire
Attorney 1. D. No. 43812
320 Market Street
11.0. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
Johnson, Duffle, Stewart & Weidner
By: David W. DeLucc
I.D. No. 41687
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
DIANNE C. TENNANT, Individually and
as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
d JUN 0 1 1998
Attorneys for Sporting Hill Family Health Center
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
JURY TRIAL DEMANDED
AND NOW, comes the Sporting Hill Family Health Center, by and through its attorneys, Johnson,
Duffle, Stewart & Weidner, and files this Brief in Opposition to Defendant Ralph A. Frazier's Motion for
Issuance of a Subpoena.
L FACTS AND PROCEDURAL HISTORY
Sporting Hill Family Health Center is not a party to this litigation and takes no position regarding the
issues of this case except as it pertains to the subpoena served upon it. Sporting Hill Family Health Center
through its employed physician, Valentine M. Osborne, M.D., provided professional services to April N.
Brown, a minor. On or about March 17, 1998, Sporting Hill Family Health Center was served with a
subpoena in this case to produce any and all medical records pertaining to April N. Brown from January 1,
1984 to the present. The subpoena was issued by counsel for Defendant, Ralph A. Frazier, Sporting Hill
Family Health Center through its attorneys, the undersigned, responded via correspondence dated March
23, 1998 objecting to the release of all such records on the basis of those being privileged under
Pennsylvania law, and citing Section 111 of the Mental Health Procedures Act. See 50 P.S. §7111.
Subsequently, the Defendant Ralph A. Frazier through his counsel filed the within Motion for Issuance of a
Subpoena and Directing Plaintiffs to Execute Authorization which is the subject of this Brief.
As to the other facts alleged in Defendant Ralph A. Frazier's Bri:., the responding non-party has no
information concerning these facts and takes no position regarding them.
I/. DISCUSSION
Sporting Hill Family Health Center (hereinafter "Sporting Hill") takes no position regarding this
litigation. Sporting Hill in asserting an objection to the release of this information is protecting privileged
information under the Mental Health Procedures Act sought by Defendant.
Section 111 of the Mental Health Procedures Act provides that:
(a) All documents concerning persons in treatment shall be kept
confidential and without the person's written consent, may not be
released or their contents disclosed to anyone except:
(1) Those engaged in providing treatment for the person;
(2) The County Administrator, pursuant to Section 110;
(3) A court in the course of legal proceedings authorized by this
Act; and
(4) Pursuant to federal rules, statutes and regulations governing
disclosure of patient information where treatment is undertaken
in a federal agency.
2
In no event, however, shall privileged communications, whether written or
oral, be disclosed to anyone without such written consent. 50 P.S. §7111.
Treatment is defined in Section 104 of the Mental Health Procedures Act to Include diagnosis,
evaluation, therapy, or rehabilitation needed to alleviate pain and distress and to facilitate the recovery of a
person from mental illness and shall also include care and other services that supplement treatment and aid
or promote such recovery. See 50 P.S. §7104. Sporting Hill asserts that based upon these definitions, the
records contained at its facility fall within this definition and cannot be disclosed under these circumstances.
For Sporting Hill to provide any further information regarding these records may violate that privilege
and therefore Sporting Hill is willing to allow the records to be reviewed by the Judge "in camera" to allow
an independent review of the documents.
In taking this position Sporting Hill is protecting the physician-patient relationship and the privilege
created by law. In the event the Court believes that these records should be disclosed because of this
litigation, Sporting Hill will certainly comply with any court ordered directive.
JOHNSON, DUFF If. STEW T & WEIDNER
Date: June 1, 1998 g?
Devi uce
:111008
3
AND NOW, this 1" day of June, 1998, the undersigned does hereby certify that he did this date serve a
copy of the foregoing Brief upon the other parties of record by causing same to be deposited In the United
Slates Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Joey A. Storaska, Esquire
Rice, Boop & Storaska
100 Market Street
P.O. Box 470
Sunbury, PA 17801
John A. Slatler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esquire
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033-0650
JO T :',7
ID
NER
HBy: DUFF David . De uce
4
Johnson, Duffle, Stewart & Weidner
By: David W. DeLuce
I.D. No. 41687
301 Market Street
P. 0. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
DIANNE C. TENNANT, Individually and
as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
(JUN 6 :498
Attorneys for Sporting Hill Family Health Center
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
AND NOW, comes the Sporting Hill Family Health Center, by and through its attorneys, Johnson,
Duffle, Stewart & Weidner, and files this Brief in Opposition to Defendant Ralph A. Frazier's Motion for
Issuance of a Subpoena.
1. FACTS AND PROCEDURAL HISTORY
Sporting Hill Family Health Center Is not a party to this litigation and lakes no position regarding the
issues of this case except as it pertains to the subpoena served upon it. Sporting Hill Family Health Center
through its employed physician, Valentine M. Osborne, M.D., provided professional services to April N.
Brown, a minor. On or about March 17, 1998, Sporting Hill Family Health Center was served with a
subpoena in this case to produce any and all medical records pertaining to April N. Brown from January 1,
1984 to the present. The subpoena was issued by counsel for Defendant, Ralph A. Frazier. Sporting Hill
Family Health Center through Its attorneys, the undersigned, responded via correspondence dated March
23, 1998 objecting to the release of all such records on the basis of those being privileged under
Pennsylvania law, and citing Section 111 of the Mental Health Procedures Act. See 50 P.S. §7111.
Subsequently, the Defendant Ralph A. Frazier through his counsel filed the within Motion for Issuance of a
Subpoena and Directing Plaintiffs to Execute Authorization which is the subject of this Brief.
As to the other facts alleged in Defendant Ralph A. Frazier's Brief, the responding non-party has no
information concerning these facts and takes no position regarding them.
I/. DISCUSSION
Sporting Hill Family Health Center (hereinafter "Sporting Hill") takes no position regarding this
litigation. Sporting Hill in asserting an objection to the release of this information is protecting privileged
information under the Mental Health Procedures Act sought by Defendant.
Section 111 of the Mental Health Procedures Act provides that:
(a) All documents concerning persons in treatment shall be kept
confidential and without the person's written consent, may not be
released or their contents disclosed to anyone except:
(1) Those engaged in providing treatment for the person;
(2) The County Administrator, pursuant to Section 110;
(3) A court in the course of legal proceedings authorized by this
Act; and
(4) Pursuant to federal rules, statutes and regulations governing
disclosure of patient information where treatment Is undertaken
in a federal agency.
2
In no event, however, shall privileged communications, whether written or
oral, be disclosed to anyone without such written consent. 50 P.S. §7111.
Treatment is defined in Section 104 of the Mental Health Procedures Act to include diagnosis,
evaluation, therapy, or rehabilitation needed to alleviate pain and distress and to facilitate the recovery of a
person from mental Illness and shall also include care and other services that supplement treatment and aid
or promote such recovery. See 50 P.S. §7104. Sporting Hill asserts that based upon these definitions, the
records contained at Its facility fall within this definition and cannot be disclosed under these circumstances.
For Sporting Hill to provide any further information regarding these records may violate that privilege
and therefore Sporting Hill is willing to allow the records to be reviewed by the Judge "in camera" to allow
an independent review of the documents.
In taking this position Sporting Hill is protecting the physician-patient relationship and the privilege
created by law. In the event the Court believes that these records should be disclosed because of this
litigation, Sporting Hill will certainly comply with any court ordered directive.
JOHN 6N, DU F , TEW T & WEIDNER
Date: June 1, 1998 B
Davi uce
:111008
3
AND NOW, this 1" day of June, 1998, the undersigned does hereby certify that he did this date serve a
copy of the foregoing Brief upon the other parties of record by causing same to be deposited in the United
States Mall, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Joey A. Storaska, Esquire
Rice, Boop & Storaska
100 Market Street
P.O. Box 470
Sunbury, PA 17801
John A. Statler, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esquire
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033-0650
JOH DUFF T WAR & WEIDNER
_
By..
David W. De uce
4
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF MOTION FOR
ISSUANCE OF SUBPOENA AND DIRECTING
PLAINTIFFS TO EXECUTE AUTHORIZATIONS
Facts and Procedural History
This action arises out of the alleged improper sexual contact between Defendant,
Ralph A. Frazier, and the minor Plaintiff, April N. Brown. In her Complaint, Plaintiff, Dianne C.
Tennant, alleges that her daughter was sexually assaulted by Ralph Frazier in June and July of
1994. The Complaint includes a Count against Defendant, Eleanora M. Frazier, grounded in
negligence alleging, inter alia, that Eleanora M. Frazier knew of a prior incident involving Ralph
A. Frazier and failed to report that to Dianne Tennant. The Defendants filed an Answer with
New Matter to the Complaint, and Ralph A. Frazier separately filed an Amended Answer
admitting an improper physical contact between himself and April N. Brown, but stating that the
contact occurred in June, 1993, rather than in June of 1994. Ralph Frazier also denied any
recollection of an improper contact with the minor in July of 1994.
This action was initiated by a Writ of Summons following which a Complaint was
filed in May, 1997. Plaintiffs claim that as a result of the conduct of Ralph Frazier, April N.
Brown has suffered and will continue in the future to suffer "great emotional distress, fear,
depression, anxiety, embarrassment, and humiliation and other mental suffering...." Plaintiffs
Complaint at paragraph eleven. The Complaint also seeks recovery of medical and
psychological costs for past and future care, as well as an impairment of future eaming capacity.
Although a claim is made for "medical and psychological care," no physical injuries to the minor
arc alleged in the Complaint.
The depositions of Plaintiff, Dianne C. Tennant, and Defendants, Ralph A. Frazier l
and Elcanora M. Frazier, have been conducted. Interrogatories have been propounded by
Plaintiffs as well as a Request for Production of Documents, to which responses have been
served. Prior to the deposition of April Brown, Defendant, Ralph Frazier, by his counsel, served
Notices of Intent to Issue Subpoenas Pursuant to Pa.R.C.P. No. 4009.21 to the following persons
or entities: (1) Mechanicsburg Area School District for educational and disciplinary records; (2)
Dr. Kenneth G. Small for psychological records and test results; (3) Dr. Valentine M. Osborn,
for medical records; and (4) Cumberland Valley School District, for school and disciplinary
records. Counsel for Plaintiffs interposed an objection to the issuance of the subpoena to Dr.
Small advancing the privilege set forth in 42 Pa.C.S.A. §5944. Counsel for Ralph Frazier
received a separate letter from an attorney representing Dr. Valentine M. Osborn objecting to the
issuance of the subpoena grounded upon a privilege set forth in the Mental Health Procedures
Act, 50 P.S. §7111. Relative to the subpoena directed to Dr. Osborn, the request sought only
"medical records," with the intent being to secure medical records of the physical condition of
the minor. Defendant thereafter filed a Motion for Issuance of Subpoena pursuant to Pa.R.C.P.
No. 4009.21(d)(1), and further requested the Court order Plaintiff, April N. Brown, and her
mother, Dianne Tennant, to execute authorizations for release of all psychological records. It is
this Motion which is before the Court for disposition.
Discussion
The thrust of Plaintiffs' action is that she sustained psychological damage as a
result of the alleged conduct of Ralph Frazier. True, various claims arc made for past and future
medical and psychological care as well as impairment of caming capacity, but clearly the focus
of the suit is the alleged psychic injury sustained by April N. Brown. Plaintiffs' Complaint at
paragraphs 11-14. Without full disclosure of psychological records, Defendant is not able to
analyze or determine the degree of damage that the Plaintiff has sustained, if any, as a result of
the admitted and alleged acts. More significantly, the absence of psychological records prohibits
Defendant from determining whether any current problems of April Brown stem from causes
other than the subject of Plaintiffs' Complaint. School records which were returned from
Mechanicsburg Area School District indicate that a fourth grade psychological evaluation of
April Brown suggested that while special education was not recommended, other resources for
this child were. Defendants need to know why. What problems existed? There is also an
indication of frequent moves from various school districts. Defendant is precluded from
independently determining the merits and strength of Plaintiffs' claim, and thereby fully and
fairly evaluating the nature of the damages, in the face of Plaintiffs' refusal to consent to the
release of psychological records.
Section 5944 of Title 42 does provide a shield supporting Plaintiffs' claim of
protection. That statute reads:
No psychiatrist or person who has been licensed under the Act of March
23, 1972, to practice psychology shall be, without the written consent of
his client, examined in any civil or criminal matter as to any inliirnuuion
acquired in the course of his professional services on behalf ol'such client.
The confidential relations and communications between a psychologist or
psychiatrist and his client shall be on the same basis as those provided or
prescribed by law between an attorney and client. 42 Pa.C.S.A. §5944.
Defendant appreciates that the privacy rights of the minor Plaintiff and the policy consideration
of fostering confidence in confidential communications are significant issues. In the criminal
sphere, our Courts have turned back efforts to secure the psychological or psychiatric records of
a crime victim by the assailant even where balanced against such important concepts as
confrontation and due process. Commonwealth v..Patosky, 440 Pa.Super. 535, 656 A.2d 499
(1995), app. den. 542 Pa. 664, 668 A.2d 1128 (1995). Similarly, corresponding privileges under
the Protection from Abuse Act and in favor of sexual assault counsellors have been held to be
absolute shields against the release of documents or information where the party seeking the
records is asserting claims against the person whose records are protected by these enactments.
V.B.T. and C.E.T. v. Family Services of Western Pennsylvania, 706 A.2d 1325 (Pa.Super.
1998). But these same considerations do not apply in the instant case.
Plaintiffs seek to protect the minor Plaintiffs psychological records in the context
of a lawsuit in which the minor is claiming damages as a result of her alleged psychological
injury. The very matter which is placed in issue by Plaintiffs is whether and the extent to which
the Plaintiff has suffered psychic injury, and her claims rise or fall on the information disclosed
in Court before a jury on the degree of this alleged psychological injury. Defendant submits that
the privilege held by April Brown and Dianne Tennant on her behalf, weighty as it is, may
clearly be waived, and that waiver is said to occur "where the client places the confidential
information at issue in the case. Rost v. State Board of Psychology, Pa.Cmwlth.
659 A.2d 626 (1995), app. den. 670 A.2d 145 (1995); Premack v. J. C. J. Ogar, Inc„
148 F.R.D. 140 (E.D. Pa. 1993); and see Sarko v. Penn-Del Directory Company, 170 F.R.D.
127, 129-130 (E.D. Pa. 1997).
This statutory privilege was considered in the context of a request to depose the
psychologist of a party seeking damages for emotional stress and mental anguish in Loftus v.
Consolidated Rail Corporation, 12 D & C 4th 357 (1991). In Loftus, the Court noted that the
parties were in agreement it was the mental condition of the Plaintiff that was the crux of the
case. Defendant argued it would "defy justice" to permit Plaintiff to assert a claim for emotional
and mental injury and yet forbid an examination of the nature of those allegations. The
Cumberland County Court concluded: "We agree. We do not mean to suggest, by this, that the
statements of the Plaintiff to his psychologist are not privileged. To the contrary, they arc. By
the same token, however, the privilege can be waived, and must be if the Plaintiff intends to
pursue claims for psychological damages." 12 D & C 4th 357 at 359.
The Loftus Court cited with approval the decision of Judge Wettick in
NIcholaides v. Webber, 133 Pitts. L. J. 260 (1985), where the Court stated:
In conclusion, we agree with Plaintiff that she has a statutory and possibly
a constitutional right to protect her psychiatric records from voluntary
disclosure. But she also has the right to release these records to a third
party. We leave this choice to Plaintiff. But unless she chooses to release
her psychiatric records, she will not be permitted to pursue her claim for
emotional damages requiring psychiatric care. Id at 262. (And see Ulizzi
v. Trellis, 20 D & C 4th 300 (1993) where no waiver of the privilege
under 42 Pa.C.S.A. §5944 was found where the focus of the third party
action was not emotional distress.).
Defendant believes that he is and will be substantially prejudiced in his ability to
defend the claims asserted by Plaintiffs unless he has access to and the ability to analyze the
protected material. Plaintiffs cannot have it both ways. They cannot make claims for emotional
distress and then prevent the release of any information by which those claims can be fairly
measured and considered. In order to comply fully with the statutory provisions of 42 Pa..C.S.A.
§5944, Defendant respectfully requests the Honorable Court to direct that Plaintiffs execute full
and complete authorizations for the release of psychological and psychiatric records related to the
incidents that are the subject of Plaintiffs Complaint. A written authorization from Plaintiffs
would also resolve the objection raised by Dr. Osborn and Holy Spirit Hospital. 50 P.S. §7111
permits the release of records upon "written consent."
In addition, such authorizations should require the release of psychological
information that predated the subject events. For example, the school records which Defendants
received from Mechanicsburg Area School District, and which included records going back
through the elementary grades for the minor Plaintiff, April N. Brown, made reference to
psychological reports or letters written at that time. However, the records that were received by
counsel for Defendant did not contain the psychological reports. Defendant can only surmise
that these records were extirpated from the school records prior to being released to Defendant.
The authorization which Plaintiffs must be urged to execute should provide for the release of all
psychological records including those which predated the subject events. Only then can
Defendant determine whether other factors influenced or had an impact on any current problems
from which the minor Plaintiff claims she suffers. Further, an examination of all premorbid
psychological records will permit an independent psychological evaluation to be conducted,
should Defendants seek such an expert examination.
An Order can provide appropriate safeguards to prevent the dissemination of the
material beyond that required for purposes of defending this case. But absent the execution of a
6
full and complete authorization for release of psychological and psychiatric records, the Court
should entertain a motion to dismiss any and all claims asserted by Plaintiffs for emotional or
psychological injury or damage. Premack v. J.C.J. Ogur, Inc., 148 F.R.D. 140, 143-145 (E.D.
Pa. 1993); Loftus v. Consolidated Rail Corporation, 12 D & C 4th, 357 (1991); Nicholaides v.
Webber, 133 Pitts. L.J. 260(1985).
All of which is respectfully submitted,
RICE, BOOP & STORASKA
By:
Joey . to ska,
Atto for efendant,
Ralph A. .1cr
106 Market Street
P.O. Box 470
Sunbury, PA 17801
(717) 286-6701
I.D. #24931
Date: May 28, 1998
CERTIFICATE OF SERVICE
1, Joey A. Storaska, do herchy certify that I served a true and correct copy of the
foregoing Brief in Support of Motion for Issuance of Subpoena and Directing Plaintiffs to
Execute Authorizations upon the counsel named below via facsimile and by placing same in the
United States Mails, First Class, Postage Prepaid, this -&e day of May, 1998.
John A. Statler, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
David W. DeLuce, Esq.
JOHNSON, DUFFLE, STEWART & WEIDNER
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
DIANNE C. TENNANT.
individually and as parent
and natural guardian of April
N. Brown, a minor.
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER.
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
DEFENDANT ELEANORA FRAZIER'S BRIEF IN SUPPORT OF
MOTION FOR ISSUANCE OF SUBPOENA
I. STATEMENT OF FACTS:
On or about May 3. 1997 Plaintiff. Dianne C. Tennant individually and as parent and
suardian of April N. Brown. a minor (hereinafter "Plaintiff") filed a Complaint against Ralph A.
Frazier (hereinafter "Defendant Ralph Frazier") and his wife Eleanora Frazier (hereinafter
"Defendant Eleanora Frazier") wherein she alleges that on two separate occasions Defendant
Ralph Frazier had improper physical contact with the minor April N. Brown while an overnight
guest at the Frazier home. The Plaintiff has alleged that as a result of these incidents the minor
Plaintiff has suffered emotional distress and mental suffering for which she has, and will
continue to require psychological care and treatment. Plaintiff seeks recovery of past and future
bills for such treatment as well as compensatory and punitive damages.
On or about December 12. 1997 Defendant Eleanora Frazier served the Plaintiff with
Interrogatories wherein she sought the identity of Plaintiffs trial witnesses and expert witnesses
and a Request for Production of Documents seeking documents in the custody of such persons
related to the losses alleged. To date. Plaintiff has not responded to these discovery requests.
On February 13. 1998 Defendant Ralph A. Frazier served upon Plaintiffs counsel a
Notice of Intent to Serve Subpoena's to Produce Documents and Things for Discovery pursuant
to Rule 4009.21 attaching a Subpoena by which to obtain any all psychological records and
reports and psychological tests in the possession of Dr. Kenneth G. Small pertaining to the minor
April N. Brown. In the course of the PlaintilTs deposition on October 14. 1997, Dr. Small had
been identified by the Plaintiff as the only psychologist with whom the minor Plaintiff April N.
Brown has treated for her psychological injuries. Plaintiff now seeks to invoke the protections of
the shield law (42 Pa. C.S. § 5944) to prevent the Defendants from obtaining the information
sought from Dr. Small. The present Motion for the Issuance of Subpoena for Dr. Small's records
followed.
11. ISSUE PRESENTED
Whether the Court should grant Defendant Ralph Frazier's Motion for Issuance of a
Subpoena of psychological records?
(Suggested answer in the affirmative)
III. ARGUMENT
Plaintiff has brought the minor Plaintiff s psychological treatment with Dr. Kenneth G.
Small at issue as the Plaintiff seeks to recover for the minor's psychological injury as well as past
and future bills for such treatment. The Plaintiff has identified Dr. Small as the only
psychologist that has treated and continues to treat the minor for these injuries. As the Plaintiff
has placed the confidential information in Dr. Small's possession at issue, this information
otherwise protected by the statutory psychologist-client privilege is relevant and the
aforementioned protections are waived. Rost v. State Board of Psvchologv, _ Pa.
Commonwealth ,659 A .2d 626 (1995). appealed denied 670 A .2d 145 (1995); Loftus v.
Consolidated Rail Corporation. 12 D. & C. 4ih 357 (1991). To not allow the Defendants to
review the records and bills of the minor Plaintiffs treating psychologist will result in prejudice
to the Defendants as they will not be permitted to verify if the treatment is related to the
incidence in question and cannot substantiate the basis for the medical bills for which recovery is
sought.
In Rost, supra. the Court held that the privilege between a psychologist and client is
waived, "... where the client places the confidential information at issue in the case." Rost v.
State Board of Psychology, _ Pa. Commonwealth Ct. _. 659 A.2d 626, 629 (1995) (citing,
Premack v. J.C.J Ogar. Inc., 148 F.R.D. 140 (E.D. Pa. 1993)). The Rost Court also held that the
privilege is waived were, as in the content of the attorney client privilege, the Plaintiff no longer
has an expectation of privacy as the information has been made known to third parties. Rost v.
State Board of Psvchology, supra, citing, Commonwealth v. Goldblum, 498 Pa. 455, 447 A .2d
234 (1982). Presently, Plaintiff placed the information sought at issue when she filed the
Complaint herein and further waived the privilege when, in the course of her deposition. Plaintiff
stated that, "Dr. Small wrote a prescription after a psychological evaluation, deemed it necessary
for medical reasons for April to stay at home" (deposition of Dianne C. Tennant at page 52, lines
I I through 13) and that she was treating with Dr. Small because, "[April N. Brown] says this is
like reliving everything:' (See attached deposition of Dianne C. Tennant at page 54, line 19).
Plaintiff states that it would be improper to release the records of Dr. Small at this time as
he is yet to be identified as an expert witness in this matter. It is true that Dr. Small has not been
identified as an expert witness as Plaintiff has not provided a timely response to Defendant
Eleanora Frazier's Interrogatories and Request for Production of Documents. The Defendant
Eleanora Frazier asserts, however, that a determination of whether the privilege is waived is not
made when the psychologist is identified as an expert witness, but when the information he has
perhaps provided in the course of the relationship comes at issue or the privilege is otherwise
waived. In the present matter, the latter incidents apply.
While Defendant Eleanora Frazier acknowledges that in Shertzer v. Institute of Pastoral
Care. Inc., 5 D. & C. 4" 663 (1990) this Court found the issuance of a Subpoena for records such
as those sought herein premature, this same Court subsequently denied a similar protective order
sought by the Plaintiff in Loftus v. Consolidated Rail Coro.. 12 D.& C. 4" 357 (1991). As in the
present, in Loftus the mental condition of the Plaintiff and attendant alleged damage thereto were
at issue. The Defendant sought to subpoena the Plaintiffs treating psychologist and the Plaintiff
sought a protective order. This Court found that the psychologist- client privilege must be
waived if the Plaintiff intends to pursue claims for psychological damages. Citing Nicholaides
v. Weber, 133 Pitts. L.J. 260 (1985) the Court noted the prejudicial effect of allowing the
Plaintiff to make such a claim while attempting to block the Defendant from access to
information upon which the claim is based. The Court held that should the Plaintiff continue to
pursue the protective order by asserting the statutory privilege, their claim for mental and
emotional injury would be dismissed. To require that the psychologist actually be identified as
an expert witness before allowing examination of his records could result in great prejudice to
the Defendants such as those in the present matter in the event that the Plaintiff does not identify
the treating psychologist as a witness whose testimony will be introduced at time trial.
IV. CONCLUSION:
In light of the foregoing, the Defendant Eleanora Frazier respectfully requests that this
Honorable Court grant the Motion for the Issuance of Subpoenas of Defendant Ralph Frazier.
Respectfully submitted,
SMITH, PCWZ K&: CONNELLY, LLP
Dated: l? By:
JOHN J. MC`NALLY. III. ESQUIRE
Attorney I.D. #52661
P.O. Box 650
Hershey. PA 17033-0650
(717) 533-3280
Attorneys for Defendants
CERTIFICATE. OF SERVICE
1. JOHN J. MCNALLY, III. ESQUIRE, do hereby certify that I served a true and correct
copy of the foregoing upon the following below-named individual(s) by depositing same in the
U. S. Mail. postage pre-paid at Hershey, Dauphin County. Pennsylvania this `"dav of
June, 1998.
SERVED UPON:
John A. Statler, Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg, PA 17101
Joey Alan Storaska. Esquire
Rice, Boop & Storaska
106 Market Street
P.O. Box 470
Sunbury, PA 17801
John J jPlb3fally, II
& CONNELLY, LLP
IANNE C. TENNANT,
INDIVIDUALLY AND AS
PARENT AND NATURAL
UARDIAN OF APRIL N. BROWN,:
% MINOR,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
V NO. 97-564
A. FRAZIER AND
RA M. FRAZIER,
DEFENDANTS JURY TRIAL DEMANDED
DEPOSITION OF: DIANNE C. TENNANT
TAKEN BY: DEFENDANTS
BEFORE: MARIA N. O'DONNELL, RPR
NOTARY PUBLIC
DATE: OCTOBER 14, 1997, 1:30 P.M.
PLACE: GOLDBERG, KATZMAN & SHIPMAN,
P.C.
320 MARKET STREET
HARRISBURG, PENNSYLVANIA
GOLDBERG, KATZMAN 6 SHIPMAN, P.C.
BY: JOHN A. STATLER, ESQUIRE
FOR - PLAINTIFF
JAMES, SMITH & DURKIN
BY: JOHN J. MCNALLY, ESQUIRE
FOR - DEFENDANTS
ALSO PRESENT:
PAT HICKEY, ALLSTATE
ELEANORA FRAZIER
I'm
Hugk ANngk'Foltz &jVaide .`Reporting c *rke, J`nc.
115 PINE STREET . HARRISBURG, PA 17101
Harrisburg 717232.5644 Fa. 717.232.9637 Lancaster 717.3935101
1 S.ITJ1d:ION
a bntby st:pulattd by Lou oetween coat:
a. for the respectlve parties the: sealing, :e:tificanen u:
S filing art Mary W6111M At. that 11.1 tX:tp: if
f to the fo : o: the question are reserved to the ti:t o!
( :rill.
7
E CIWE C. TWAA', Called as a ratters, oil*;
S duly sworn, testified is follows:
10 U)XNATICR
11 D/ IfA. 1R:1_:,Y:
12 0 Could you please Stitt your han 'fa: fee
13 A D:ant Tenant.
li 0 Dianne, asy aim Is John Kdally. I c here coda;
15 with Ilean: frauer and fit Eickey fro: Allstate.
if Wit here for the purpose of tattng your
17 deposition It the octet that you yourself Individually and
IE as guardian hive Instated against Ralph and Ileanora
19 Inner.
20 Bait you net beet •• green a aepossaon oeInt;
21 A No.
22 C Yet firs: rule is to relax. : guess s,1 you can':
23 follow the,.. follow the following rules.
24 : as going in be asking yon a series o!
2! questions.
I
I If at nay tin, you don't heat :; question,
2 please ask u to speak up. If you don't understand e
7 question, please ask of to rephrase it.
i 3! you give at c answer today, : c gc:t; to
S assio t that you, first, heard cy question, that secondly,
f you understand sy question; Sod thirdly, : a: going to
7 assuat the: you are uswtritg it to the best of you.,
D knowledge.
E You are here today with you: attorney, rho: you
10 can consult with at any point it tile.
1: If you want to tale a break a: nay rise, please
12 lost and :ate to of the, you want to tilt a break. We :a:
13 go off the record for any purpose and take a :it:lt bit of a
11 break.
:f i::h that it Hind, : rave to ask you, ate You
'.f under tae ::!iuence of try a:ligs c: aleotc: tnlyl
i1 A No.
If C Cily. Ate you ready :r proceed?
Ig A Sift.
8 C Diav. PEit is your nau, for the :e:o:d?
A ]lure Tenant.
22 C Diane, where do you live?
2? A 220 West Coove: Street. Xechani:sburg.
2i C Wha::s Vow so::a: secunty onto?
2f A 1gtF•I671,
Q A -drat other riles. We havt a atetograpAtr
ISIS, sc wce: you till, we mat that yo'. '.&.'i clearly aid It
i at aec spate and that Al::opome w: be um+1 because
is g:::, :o be tiktc nor. It aso bead cods and
this
! uh-tint do:': really triu-:ibe real we::. Oily?
E A Ouv.
Q W:a: is you, date of birth?
E A '•'.E-St.
S Q 2se you urritd"
A Lowed.
Bnec Witt you widowed?
A December god o! 19BS.
0 W.at was your husband's tames?
J.-m.
:E Q Bmen welt you and John muried?
if A Dctober 2od of 1999.
Wes this your first and Cray ma:riage?
3s. A No.
1S Q ;c who were Re previously Caried?
is rhos?
Q io whom, yes, : ai sorry.
A Boar does that have to do Witt this?
q Wtll, it's lost background i?o aauoc, please,
21 if you could.
;; E. ST90: for cu answer att.
1 we! : married tc Aya:'s lather.
2 C okay. M. art toe natura: mine: c: 4:::'
3 A yes, I am.
t D What WAS her date o1 bttth?
E-S•Bl.
Who IS April's father.,
Clayton Alma Brown.
Did you and April ever live with April's !athe:?
S A Its.
10 C Volt we! that?
I! A Well. it -• l WAS with his until April was about
12 six maths old.
13 0 Bow long bad you lived with bra:?
lE A we Wert together for almost two years.
1S Q Do you have sole physical custody o! Apr::?
I( A Yes, I do.
11 0 You do?
16 A yes.
IS Q Does April's father -- natura: father have any
20 rights o.1 visitation o: custody?
21 A None that he has ever exercised.
22 Q But he does have rights?
23 A If he chose to see her, yes.
24 Q Does he have those tights pursuant tc a tint:
2t, order or to in agreement!
I
i_ NIINESS: Decal! Batter.
1 !
A No, be's never bothered with her.
By 16„ IG$}:-•Y: 2 Q Have yon eve: sough: to have his parental ::glts
? Q W-, c did you ma:rr Daniel Ea::e:" 3 terminated?
No.
Q Ea long were I" married to Daniel? 9 Q 1 guess to get back to ri question. Do yon have
i A We divorced in -- I think it was 'BE or 'BS, 1, f a written agreement with his for custody Or visitation at
was final. ? all?
E Q Any other marriages? I A No.
S A Yes. S Q Has he participated in her upbringing at all?
.. Q ;: who? 10 A No.
A Ntllram Hazard to 1912. 11 Q Do you recare support from his it any way:
Eiw did that ea::,age end? 12 A No.
A Iaotce. 13 Q When was the last time that you saw April's
Q A --y other ma:ra:es? 14 father?
A N:. 1S A Whet she was six months old.
Cttp. Do you But any cbad:!:? if Q Do you know his whereabouts?
A :rave three. 11 A Nope. I have no idea.
„ Q FIE: art you: CGIdreZS' name!" le Q Has April ever seen her father since she we! six
.. A i.:11im. April Ltd Ryan. 15 maths old?
Q ::t: are their ales? 20 A No. She has spoken to her grandparents, his
A f:31y' is twecty-seven, April ,! sixteen, and Ryan 21 patents, but we have tried to, you know, contact hit, but
is twelve. 22 he's never bothered retuning any of the phone calls.
Q B:o are their lathers? 23 Q other that the husband who you have mentioned
A E:ay`s father ,! William Ea:E:d, my first 21 previously and April's father, have you ever lived wutb a
.. husband. /::::'s father : was not ma::,r to. And neither 2! mu to whom you were not married!
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] A Tw: years. A Ur-tut.
i G Describe your boost !o: at, 1.1 yo. weld. Q hive you eve: Win -rugs or alcohol:
3 10.. STATLER: I ca:': heal the ques%ou- ? A I have used alcohc., yes.
4 MF.. KNALLY: Nell, ate you hale » :::t o!! tit S Q Other that for re::ec:onal purpose c: Soria:
S air •• !;urposes?
f TEE WITNESS: Describe ri home he says. My hose, f A No.
7 ! hue a three bedroom home. 7 Q I! you could brleCy describe for mt your
I BY MJ.. CALLT: E eamcatlona! barkground begins:"; with biqt scncp:.
9 0 Okay. Who lives Witt you there? 9 A Btgiu:ng with big*' scbool; from theft, : halt
10 A Right now, me. 10 two years at EA::. I have M assoaate it. business
11 Q yes. 11 adsnistratia:. And I also hilt •• I went to %cipsot and
12 A Me, lust me. 12 e a certified medical assuta-t.
13 Q Just you? 13 Q What ace you doing :zfently ar etpioyment?
14 A Right DOW, yes. 14 A ! u at office stage: for a doctor. I run front
is Q RU April ever lived at that home? 1.1 and back office.
16 A Yes. it Q What doctor is that?
17 Q Wben was the last tin April lived It that borci 17 A Dr. Michael Bartell.
It A About a moth ago. It Q What kind of doctor is he?
19 Q Where is April Iiv1t; now? 19 A Be's a chiropractor.
20 A April is with a mend. IE Q Bow lo:q hale You hear- Witt. him:
21 Q What is her friend's name? 2i A Alms: sues years.
22 A That 13 not import:=:. 22 Q Before that, what did you do?
23 MR. STATLER: You hue to answer that. 23 A Before that, I worked recovery too: at Plantatio:
24 BY Mi.. M]IALLY: 24 General Bospita!. I was there !o: two years. l.d ! Worked
25 Q What is April's friend's tan? IS a: Polyclinic Eosp.tal for it. years. I Woutd w: c! at
1 A She is with her child's father. Matthew Bea..
2 Q Matthew Bear.
3 What is their address?
4 A I don't bate it here. F hale to 3ooi It up it
S the phone book.
6 Q Is she local?
7 A New Cumberland.
Du they live with his parents?
No.
10 Q Is this the first tie that you hate not lived
Il with April?
12 A U11-huh.
13 MP.. STATLER: You need to answer laically.
14 TEE WITNESS: Yes.
15 BY N;. M3ALLY:
16 Q Where did you live e:.= to your rr:ent home?
17 A On Triadle Road, we had a townhouse.
16 Q Okay. Wbc lived wig you there?
19 A April and I lived there.
2D Q So did you not live with Ryan?
21 A Ryan is living Witt L's father and grandmother
22 Florida.
23 Q Thank you.
24 1 asked you earlier tf you were u:dt: the
25 itflue:ce of drugs or alcohol.
1 float pool.
2 Q Did you stay at home with April whet, you raised
1 her, or was she is daycare!
4 A 1 had a lady that rare into the house.
S Q What was that lady's tame!
6 A On, m gosh. I nor". know.
! Q Only if you remember. If you can't remember --
E A I don't remember.
9 0 -- )ust say I don't remember. That is not --
10 A 1 don't remember, c gosh.
11 Q It was always the sapt person?
12 A fro: the time that she was little, the., she went
11 to school.
14 Q While she was to s;tno:, did she hart a regular
1! --
1f A Nc, be.acse my bouts ace such that : was able It
17 be hone When she got off the $.-DO! Dili. That's the cal D:.
It Eartell and I worked my hours o.:, and to date they're still
19 the sane hours that I have.
20 Q Did April experience any developmental problems
21 growing up?
22 A No. She was your pe:!ectly healthy, happy child.
23 She was involved with school activities. She's a straight A
24 honor roll student.
2S Q Did yoc have at usti: babysitter?
A : s sorry?
4 Die you have sr Ursa: babys:tce:?
A Ee: •-
i Q its April? Die yo: ever use a tcys:tte: for
S April?
E A 1 have bad friend that would We= bet,
7 gulfrlends Ltd that if 1 would go anywhart.
E but seat of the time I a usually boat, outsmt
5 0! work, and my work hours, like I said earlier, correlatec
10 with school. That's a varies o! record.
1! Q Yno was April's pediatrician?
12 A Sae goes to Dr. Osborne.
13 Q vure is Dr. Osborne located?
11 A Sporting Bill Rose.
11 Q BoV long has she been going to D:. Osborne?
16 A She has beta with D:. Osborne fo: years.
11 Q To, how Any years?
1E A Oi, gosh, I could:'t even begin to tell- yon.
19 Q Did April havraey significant health problem
20 growing up oche: than colds, flu, mules?
23 A No. Tonsillitis. She had a ? i A dont, trails
2: aid adenoids. Bar adenoids vase very cut enlarged, the
23 size of golf balls, so that would be the only real thmtg
24 teat was unusual.
21 Q I understand the: April went to the hospital
3 today!
2 A She wasn't feeling well. SC •• 2 u sure a ]r:
3 0! that was p:0bably lust canes.
t Q Wiilt April was growing up, did you have any
S disciplinary problem with be:?
E A well, 1 never had any problem u2 until lust the
7 last few years.
E Q Woe: you say the list few years, are you
9 referring to the years since the lncldenc of Jose of 1996?
IC A Yes, and that's wee: she ended up in counseling,
1: from that day ot. That's a ratter of record.
12 Q Die she ever have any problem it school?
32 A No, she sure did r:. Bye: slate this imidw.
14 she has beta hone taught.
1: Q 1'oc indicated ste was a straight A student,
li co:rect?
17 A Yes, she is.
IE Q Witt grade was she it whet the lnment happened
19 0! June o! 199"?
20 A She was it elgbtt g:ade -- sere::t.
21 C Dc you know who te: teachers were at that time?
22 A Bt: s;Cool coumele: at that t:tt was Barbara
22 Stank out at Cu Berland Valley. Auld Barbera Stank is very
24 each aware of :t, so was Ch:leen and Youth and so are tae
! police departnmt.
Ira that tat c:, due::iy a!it: tut, .. W:et
2 sot stetted going to D:. henneti See'.'. wale was at:
3 psychologs:.
f ( Bow Iraq cad Bwdri Snarl beer. het count.:: a:
! school?
( A well, hire was Vitt her fro: -- wt:,, Set L::ItC
1 over with the kids, she bad her for like three us fez:
E years.
9 Q Ouy. What sccool district is that, Cusee::uc
K valley!
11 A Cgmerland Valley.
12 C wait school specifically was biretta Saint a:?
13 A Sot was out a: the saddle school and the t:qt
li school on the Carlisle flit.
1`- C It the Year imechately preceding tills lair-:,
It were you aware of April's -- who April's frleods were?
17 A ut-huh.
lE Q Yoe het closest friends were?
19 A Its.
20 C Who were they:
21 A April was always with Amcda Ritchie. Bu.:ally
22 that's Ube she was with. She was always vita Angela
23 Trusts.
24 Q were these neighborhood klas?
2! A Angela and he: grew up together. A:anda R:::hu
1 and he: wen: to school together.
2 And cast there was just a whole group o! rte
3 that were all at the cbee:lead:ng squad because they we::
t through cbeerleading.
5 !het they bad socler and they wen: into ut::
i tournanetts. So the group of them were always tone,-,t:.
1 50 that's Vat she associated Witt,. The 0..:,; Let
6 outside of tee school d act that she associated ctrl Was
9 Angela.
1C Q That's because see movec fro: the school
11 district?
12 A Yes.
13 Q You acted from the school district?
li A But be., and Angela have always been real
IS really close.
if Q You mentioned that April was a -- was It
P cheerltad:ag?
if A Yes.
19 Q Walt other school act:vlues did sht pat::::gait
2C in?
21 A She was it balm. She was it chorus. ?hes d:d
22 -- she go: levelled Witt sociu. Well, !laid hcciey,
23 wnateve: It is called.
21 Q Does she still participate in any of :hest
2! activities?
I A Ac, bluest she does note schooling ter sleet
2 ttis happened.
3 Q Are YOU and April a temet of any particular
4 mulch,,
E A Victory Tabem ell it Earrisourg.
1 Q How iomg base you been going to that church?
1 A Algost two years.
6 pastor They Sweet is our sinister. 23(-602:.
9 Q okay. before 301mng that thumb, did you gt to
10 any other church?
Il A St. Joe's.
12 Q Is that a Catholic --
13 A Catholic.
14 Q wben is that located?
19 A It's on Simpsca Ferry Road, Mecb+nicsburq.
16 Q Row long had you beet going there?
17 A I had been a mehel of that church for years. I
16 don't know. My gosh. I don't know. I bad beet a member. I
15 wast't practicing. I don'F punnet C+thOllc'st any longer.
20 Q careful. I do.
21 Row long base you known Ralph end Eleanon
22 Fraser?
23 A Since 1969.
24 Q How did you first over this?
2s. A into I carried Joht and they lived across the
1 street frog us.
2 Q So you married Joht, and John owned the house
3 before --
4 A No, his dad and him bad rented At, and his father
9 gated out and we stayed there.
6 Q So you mved in there it 1969 you say?
1 A Uh-huh. I met his; through his sister.
6 Q Few did you know his sister?
9 A Through school, nursing school.
10 Q Describe you., box, if you could, down it Lemoyne
11 I guess at 1s. Describe the home that you meld late.
12 A It was met.
13 Q okay. Is it three bedrooaul
14 A yes, it was a three bedlam living foot, dinlag
IS room, kitchen, patio, yard, come: house, single brick
if fireplace.
)] Q whet you lived there, was it )cast you, Joht. and
16 April or --
19 A Atd F.yan, IT youngest sot war there.
2C. Q How long did you lire then?
21 A I rayed out after he d1ed. I couldn't afford I-
2,1 1 was still It school. I had to give up the house. I
23 couldn't afford it because after he passed away, I ended up
24 haying to go ct assistance utt.,1 I f:mshed school.
2S Q before this lands; of June ISM, pleast
1 aimbe fc: me your relitictsnp Witt tte lust's.
2 A we were good fruus.
1 Q Did VOL somllart mgethet, eutiot togetat:?
4 3. No. I mesa the kin., weft always, you LeW,
'. togetae: sao that, and we wen would )use go hilt led fo:tt.
( Q Eow :lose 1s you: mist it rtlatior, -- WAS Vol.*:
1 boost :t rtlatson to the In:se:s
( A ;tat is that, abn. + half + block, tllckey.
5 ELEAMDRA. IRAIIEF: : think sc.
If TEE w:TNES: Sout::tg Iskt ttit, +c:us tat
II street.
12 1 teat yet could walk to the cult and yell come
13 of hoist. I mesa that's about 1:.
14 ET MA. M]IA:J T:
15 Q would you say that you were frienos Witt Ralpt
If and Eleamia, both Ralph aid Eleahora?
11 A I was sort friends Witt Rickey because of the
16 girls.
15 Q Dc you know -- you say their girls, do VOL LOW
20 their girls :heal
2'. A Yes.
22 Mr.. SAILER.: it stould identify for the :lion
23 tut Hickey's Mrs. Fraser.
24 TE w1TNESS: Yes.
29 FATF.ICIA 11CNEY: As opposed to Me.
1 EI MF.. II:NA::Y:
2 Q Jas: so tappets Fa: E.-ity IS 51".1ae at ant ego
3 of tat :able.
4 A I saw that. I r yst so used t: calling he:
S Rickey, that's all I Law her by. Ttat's -• we have always
f -- that's al'. I have ever called her.
1 3 don't know anych:ng else to •• you mow, for L-
E to call he: Eleanore is amt '.1ke....
9 EI 10. M]tALLy:
10 Q before this msont, if y04 could )t6: des:abt
11 you: Ap:a's relitionst:F Witt Angela and at Inner$
12 A Ap:.,l was close to :tem. 2 Meat Hickey. Sit
i3 used to always go me. to Eitatora's, I tear tat gills Wert
14 always, }':: Low, like .. we::, like he: 9:rls Witt. M. an:
lE of diulne: Watt her. ht':t L. lust - art g::3s Wino
IE cox tote, buggies and kisses, eat, come eye: arc get
17 stacks, you Low, o: whatever, )cast back and fetch.
1E i guess basically -• level rand, : was go:q :t
19 say was lilt your typical Deco aid Feed boat. But to, Ex
20 the kids welt always -- evtn-:aJy, tae kids weft :lest, tat
21 kids were close.
22 3 teat I Low that she, you Low, 2 Mesa Am:
23 weft eye: titre. If April Wastez scathing to tar. no let
24 kids welt ea::ng a snack. slut World dive :... at:. Stt y-
2`. CL tea:.
Was Angela eta A: otertig:: ques: at you:
::e?
Its, Sure.
Was April as cimigh: guts: a: the tune: fox?
1 A Sure.
S 0 When did the overnight :taps rt;tn?
f A OD, sia, what -- frog the time : think the q::is
1 hooked up in school together. 1 mean ya:: typical bids.
I Girls are girls.
9 0 low often did that happen, sleepoveri?
10 A Oh, man. That was a lot. They were back too
11 forth,
12 0 Do you think it was equally weighed, they stayed
11 at your home --
14 A Its. Tel.
1S Q Row were the arrargtm aas not for the mer_'q:
If sletpoTen?
11 A Well, Rickey And I would always agree at that. I
It mean like she would -- either became, you know, she would
19 come and drop Angela off."
20 1 would rid he: back or I wt ld go and drop Ap.i!
21 off and she would run April back home, teat type of thin;.
22 Q Did you ever sale the arrangements with Aslpt!
23 A No. Because lest, you know, : was Always -- if
24 the girls would make the arriagesea s, tit: we always
2.1 cleared this with each other.
1 0 So the girls side the arrangements and that you
2lOlt coordinated!
3 A Either the girls would say hey, let's get
4 together Friday night or get together Saturday or, you cow,
S let's go to the movies, let's do this o: whatever. I nee
f cost parents generally do call the otbe: parent And catch it
1 out.
F Q were you aware at that time Of LIMA'S Wait
9 schedule?
le A A: that time of her work schedule?
11 Q well, at the flat you lived 1: Lemoyne Add the
12 girls stayed back and forth, did she always work for the
13 same coqany?
14 A Yes, to my knowledge, any way.
IS Q Did you know what her hours c! wort were?
if A She worked it the evening, ¢ knowledge.
11 Q when the girls stayed at the ?ri:isr house, w!!
IF there ever times, to your knowledge, tea: Eltsdora was:':
19 theft, that Ralph was there?
20 A Yes.
21 Q Row often did that occur?
22 A Ot, it wasn't all -- I don't cow. I don't cow.
23 Q More than --
24 A Generally Witt April was over were, it wow it
25 the weekends. And the only time usually ttat Anybody was
1 ove: theft is whet Friday t:ght if Italy worked, : wet: 1
2 over add pined up Angela &to Angela stayed at jr, noun. cu:
i then Angela would Call Ricsel at wots.
4 April asked if sit could cox over and spec :tt
! eight o: far a to go fill there and get of:.
f Q Nett you :wife that there wale any times wte:e
she was At wall, Ralph was a: box with the children, ed
f the girls stayed overnight?
9 A Lvery lime that Aril was there, list I sax.
10 before, 11 will, Rickey was that. And on nights whet Et;sty
11 would work, if she welt worttnq on a Friday tight, Angt:a
12 was always to NY house.
13 Q So it -- there was Ease: a time that Ralph tad
it the girls by himself overnight?
1! A No, to my knowledge.
it Q Other than oversight stays, was Ebert eve: a time
11 prior to June of 1994 teal. you placed April in the care o:
It Ralph alone?
19 A No.
20 0 Fay is that?
21 A Well, I always correlated things with Mrs.
22 Frazier, being a mother to a mother. The sax as 1 dic with
23 anybody else. If April went with Amanda Ricchic's, it was
24 always done through Deride, Amanda's mother, not Dtalti's
21 husband.
1 Q Why is that?
2 A Tait's 3ust the way I was raised. The Antis: is
3 the mother of the children.
4 Q Prior to June of 1994, was there ever a
S circumstance where Eleamri or Ralph proved they were no:
f able to care for your child overnight?
1 A No.
E Q So April was never st3ured while at their acme?
S A No.
10 0 For as overnight stay?
11 A No.
12 Q She was always fed and cared for Cate: there?
13 A Yes.
14 0 Describe Ralph Frazier for me, if you could,
15 generally, general observation.
1f Would you describe his as a personable pe:so:, a
11 quiet person! Eow would you aescribe his to a strange:?
IF A To A stranger!
19 0 Well, I am a stranger.
2C A Ralph Frasier. Nacho an. Packing a gut, :o.
21 and arrow. Out bunting, boating. That woodsy-type.
22 Q Other chat that, would you describe any bebaner
23 that he exhibited before June of 1994, that you would
24 describe as unusual, ptnlli:?
2! A I was never around him that much.
I Q Bow would you des::toe Ralph aid Eltuari as
2 parlors?
? A : hive only -- Witt Hickey, Like-. Diver done
4 anything that : bow a! Witt the kids.
Q fine you tier sent talpt of Elesnan ittoxuited?
E A Its.
1 Q Bctt Ralph said Eleanore?
E !. tit.
9 Q Were you dricksog with thee?
10 A No, not always. Tenn war a couple of ties, but
11 Dot always, an, no.
12 Q Did this cause co:cen to you?
13 A As far as that: behavior?
16 Q Correa.
19 A Toe last whiz I saw this was July 4th whet you
16 guys had that big panic and April was Litz. You guys had a
11 lot of people there. And that's --
lE Q Was April ever it their cue at a rte wbeie you
19 inn they were ntoxicatedor dtutl?
20 A No.
21 Q Describe your relationship with Eleanore Ereue:.
22 A Well, I thought we were really good frieDds. 1
23 eat I did.
24 Q Describe your relationship with Ralph.
29 A Vast relationship; Lone. We was Mania's
1 husband I guess is about the bear way to put It.
2 Q Bate you evil dated Ralph?
3 A No.
4 Q Bait you ever had sexual contact with Ralph?
S A No.
E Q Before this incident, before June of 1994, bow
1 old was April at that trace?
E A She was twelve -- well, she had lost tuned
9 thirteen. Be., birthday was June 9tt.
10 Q Do you know whether she bad any sex education at
11 school p:101 to this tie?
i2 A its, they did.
13 Q Whiz did they star: that?
14 A That's like at, what, fourth, fifth grade they
19 start that. : don't know. I have to clue. You would have
16 to check with Barb Shank of that.
11 Q Bait you had a talk with April about the birds
16 and bees 0: sex educatiot!
19 A I had a talk with be, about the birds and bees,
20 tot anything in length or detail.
2: Q Sc you didn't use diagram, pictures?
22 A No.
23 Q bnoks or anything?
24 A Nt.
2! Q Dc you know whether prior to June 1E, :994,
1 wAttbe: April had ever played cocco- Witt the zeightc: toy?
2 A If yo: are Asking if eq Daughter was sexually
3 active, the answer was to.
4 Q how do Rot know that?
1 A because my daughter we., so upset wilt a:: of this
E and from What the psychological report -LdiuttS, ltd fro:
1 what the do-tore ILdicatt, there war tic prior sexual
E activity. saauve n plain words, ri daughter is out toff.
9 0: anything.
10 Q pardot e?
11 A She Was tot tort.
12 Q Okay. Okay.
13 A Is the way the medical field puts it. lo: art
14 asking, you watt to know, I as telling you.
19 Q 1 appreciate that. You lust saved my a page and
lE a half perhaps.
11 A Great.
16 MR. STMER: Notice he's not tuning the page.
19 TIE WITNESS: I notice be's not turning the page,
26 be's ailing a questions.
21 MR. S.TLER: You answered it.
22 TIE WITNESS: That are obvious.
23 MR. STATIER: You answered it.
24 BY MR. MC WAIN:
2; Q That's flat.
I You have to understand, I have to ask these
2 questions. As 3 explained earlier, I don't enjoy asking
3 these questions. I would rather be any place. I as sure Joht
4 would also.
9 but this is -- do you know whether before the
E ncidett of Jost 1E, 1994, April had ever witnessed persons
1 in the as of sexual contact?
E A Not to ry knowledge.
9 Q She never asked you about it!
10 A No.
11 Q Was she curious about it, sex?
12 A No. because By daughter was raised with it a
13 tang school and everything, so : mean as far is, ycL
14 know, the biology and che:sstry and everything, it was 3ust
19 basically, you Low.
IE Q Was it a clinical --
11 A Yes.
Is Q It is mre clinical?
19 A 1 guess that's the best way to put it.
20 Q ?hit social?
21 A Thanl you, thick you.
12 Q So you used the right anatomical term?
23 A Its. And you can put my daughter in here ngtt
24 ON, aid it would be the sae. Bet medical term nGlogy is
26 Tt:y extensive.
I?
I Q Do you know whether she was eve: exposed to
2 pornography?
3 A Not to very knowledge.
4 Q ToL filed a complaint it this matter. In
9 particular in paragraph seven, you iodi:ate that you spoke
f with Fleanora regarding the June IBtb end the Juae -- or
7 rather the July 3rd and 4th overnights.
B A U11-hub. That's true.
9 Q Did you speak with Eleanore before each of tbest
10 incidents or --
11 A The girls would call each other on the phone.
12 Then it was asked if April could come over. like I
13 indicated before, that -- we would each tale nor way. One
14 would take over, oar would bring back.
15 Q Olay. Let at ask specifically with regard to the
16 June 18th incident. Do you recall what day of the week that
17 was?
IB A Bad to bait been a Saturday for April to have
19 beet over there.
20 Q Were the kids it school at that time?
21 A Not at that tilt. No, not of a Saturday.
22 Q Well, I swan were they Is school during -- was
23 Friday a school day?
2; A Ob. I have no idea. They had to have been out o:
25 school by then because usually the list they go to school is
1 like June --
2 Q Why do you assume it was a Saturday!
3 A Because the only tilt that April -- like I said
4 before, Friday nights Eleanore would work and usually that's
S when Angela would stay at my house if the girls were getting
6 together, and then Saturdays April would go over to her
7 house.
6 Q So the girls when they had sleepovers --
9 A It was lust on the weekends.
10 Q Even to the suesertlme?
11 A Uh-huh, because we both work. That Angela was
12 responsible for taking care of Jacqueline, her younger
13 sister during the day.
14 Q Regarding the Jut 1Btb incident, that
15 occurrence --
16 A Uh-huh.
17 Q Du you recall specifically bow that overnight was
16 se: up?
19 A Like I said the girls would rooted each othe:.
20 The only thing I would say would be okay. I would talk tc
21 Rickey. And we would have, like I said, that was how it
22 always went.
23 Q Do you remember specifically talking to Eleanore
24 p:to: to --
25 A I have always talked to her. Every time my
1 ciaugc:t: has gone stay, it has beet approved.
1 So are pcL telling lt that you did speai wit:
3 he:?
f A yes, : c telling you that.
Do yoL wall any specifics of :he converse::: ?
E A Just the same thing we have always talked abou:,
7 is it okay with yoL if April stays over. Then Hickey wn:!c
6 go a:, like sbe usually does. being the typical parents
9likt ester you wo:k all week, that the text thing you L•o:,
Not, Lds.
11 Q Did other kids stay at the Fraziers that yoL kntw
12 of?
13 A Not offhand. There was always kids running
14 arou d. but -- that's not true, Tayoa stayed over, dick':
15 set? Yes.
16 Q Did you have other children stay at your hoer-?
12 A There was always kids it the house.
16 Q Now, before the June 16 incident, you didt't !.vt
19 in Lemyte any more, correct, at that time?
20 A No.
21 ; Wbere did you live at that time?
22 A. 1 was living on Trindle Road.
23 lVitness confers with M:. Statler of! the
24 reco:d.i
IDu:ussiot held off the record.
1 THE WITNISS: It was Berkshire Lane.
2 By F- MMT:
3 Q Waere is Eerksbire Lane?
4 A In Meniziesburg. I was living of Berkshire
5 Lint.
f L Who we., living with you at that time?
1 A Me and April.
6 Q April?
9 A M-huh.
10 Q The June 16, 1994 overnight, was this the firs:
11 rise fat April had stayed at the Fraziers since you: move
12 to Me:baniesbuig?
13 A OL, gee:, the girls were always ore:.
14 Q So theta were a lot of times?
15 A Its. The girls were always beet. I can't....
if ( You indicated that there were -- arrangements
I7 were Made with regard to Moronrtauoh. D:d yoL drift
16 Apri::c the Frac:ers?
19 A. yes.
20 ; Wu that your practice?
21 A Usually is a rule that's how it would go, this:
22 woulc drive her beet, yes.
23 Then like if Angela was coming over to my hogst,
24 Hickey would bring Angela over. or like if she was work;:.
:`, on fricay, I would go and pick Angela up and bring bet ore:
1
I to sly boost. Than Etctey would rune and plot be: I; the
2 next day o: Sunday, whenever she was gc:tq hon. S: we
3 would always go oat way o: the other with be tads.
4 C But usually you dropped you: kid off or all
dropped her kid off?
f A Yes. That whichever oat, that the other oat
7 would go aid retrieve and whatever. That's how we varied
P It.
S Q Do you reiw:sber bow that arrangesen: varied out
10 on June loth?
11 A I took April over.
12 Q You specifically resesber that?
13 A Its. Ballast the ask as with the other date
14 too, 1 tool her over both days.
15 Q Now, when you took bar over, did you walk be: to
16 the door or did you drop her in the driveway?
17 A Their driveway runs up to their back door. And 1
to would pull up, toot the hon. Usually Rickey and tht girls
19 were all outside running iround, Jackie would cow over to
20 the car all of the time.
21 Q Do You Masher if that happened on the June loth
22 incident?
23 A Its, Rickey was hose.
24 C Row did you know that she was bow?
25 A because I talked to bit whet I dropped April off
1 that day.
2 Q Okay. So you did have time to get out of the ca:
3 and talk to her?
4 A Yes.
5 Q What did you talk about, do you recall?
f A I have no clue.
7 Q What time was this about?
E A Probably around let or eleven It the morning.
5 Q On June loth?
10 A Usually it was it the mortmg whet April wen:
11 over.
12 Q So then what was the plat for that overnight
13 stay?
14 A Just that she was going to spend the day and
15 spend the Light. There was no plan, lust kids spending --
It staying overnight together.
17 Q I don't mean to mer-cosplicate this, but we need
It to get Into some specifics.
19 A Do you have teenage daughters by chance?
IO Q No, I as not fat out of err teenagt years tyself
23 so....
22 A You wait.
23 Q lack forward to it actually.
24 A You will learn all about overnight stays, beline
25 w.
You wouldn't be sittitg -• then you would,-, be
2 sit:in9 over there asking all o: best stupid questions, n
? off ease.
E cleaning,
5 weekends.
10 Q
11 A
II Q
13 children?
14 A
15 Q
It A
17 Q
11 A
15
20
21
2211 14A. KWALLY:
Eleanora.
2? Q What time was that?
24 A Usually she brought be, over It the evenings. I:
25 usually would be, what, sty usually got the kids, around sty.
1 or so, son thing like that.
Q Du you recall talking to April about the
3 overnight visit it all?
4 A Just asked how things went. She didn't say too
S such of anything.
f Q Dc you remeser what she did say?
1 A No, no: offhand.
E Q Did you notice anything unusual about her mod or
5 behavior?
lC A. She lust vent straight to her root.
ll Q Do you bow when she next left he: root?
12 A When she vent to -- she vent with me the next day
13 to the office. She viol raid ny office that day. When she
14 can back that Monday, she vent to work with x.
l5 Q Did she late a shove: in the mining or at night
If before she vent to bed?
17 A Both.
IE Q Both. Whet she got how?
15 A yes.
20 Q So whet she got box, she went light to he:
2'. bedr00:, then took a shover?
22 A Thet sht got a shower, then she wen: straight to
23 bed, then she vent to work with at the next day and she
24 stayed it the office with me.
2'. C No yes notice anything unusual about her
No offense tdkeL.
Thank YOU.
What watt you 00109 0: toe loth?
I was probably At hone, as far as I bow,
the sax thing that Eicaey and I always did or bt
Dc you know if Ralph was hose of the weekends?
1 have no idea.
Did you see bill whet you dropped off the
No.
What is tht next tilt that you saw April?
The next day.
Okay. And you picked her up?
No, von brought bet over that day.
SIGNORA IAAZIER: I don't remember.
NF. STATLM Yon brought be., over'
THE WITNESS: Hickey did. I at sorry,
I behavior?
2 A She Was lust guar, sullen.
3 Q Did this cause you any concern?
4 A I )ust asked her what -- what was the mette:. She
E dia't say anything. She said ootbsng, oothrag.
f Why do we ask teenagers, you know, girls read it
1 get a whole lot sandy.
6 Q Watt is the text tilt after June I guess it Would
9 be 19th that you -- wbtn Bleanora dropped off April, whet is
10 the next time that you saw any of tat Braziers?
11 A I don't know. It could have beet the following
12 weekend, for all 1 know, that Angels came over. The girls
13 were always, you know, back aid forth. It was constantly.
14 Q Do you know whether there were any overnight
15 stays in between Joe 18th and July 3rd end 4th?
.
16 A With April then, no
17 Q You are sure of that?
If A I am pretty sure of that, yes.
19 Q Were there say ileepovers at your place?
20 A Yes, that's what I said I am sure Angela was
21 over to my house. But....
22 Q But you know that April hadn't been back?
23 A She didn't go over until she went over then on
24 this day. I didn't think Anything about it.
25 Q When you say this day, you mein July 31d?
1 A Yes.
2 Q How were the arrangements made for July 3rd?
3 A Angela was at the house. That the next day they
4 called and Hickey wanted Angela to come home because -- to
S get things ready, they were going to bait a family picric
f for the holiday.
7 And she wanted Angela to go home. Well, Angela
E wanted April to go along. So Angela and April both went
5 over.
10 Q Saw did they get there?
11 A We.
12 Then she stayed the tight. And the text day, it
13 was 3ut her and I. And she asked if she could stay for the
14 picnic. So I didn't think anything about it other than I --
15 tat only thing she would do is come hoar and sit at home
16 with me.
11 Q So she stayed ove: the third?
it A 11-huh.
19 Q Into the fourth?
20 A Right.
11 Q And then it was -- when was the party? Do you
22 know when the party was?
23 A It was on the 4th. it was on )bnday.
24 Q Was at Ntaday. Sc --
25 A Because they had tht party. And she had asked --
1 1 called about her coming home. She asked -- asked :f she
2 could stay and go to the fireworks because the way tber:
3 house is laid out, if you walk out the back, It's ::gbt
4 there at the end of tae -- you ut see all of the Lreworks
5 ad everything right from their property.
f Q So sae asked you if she could stay.
This was or tae telephoat o: -•
E A Yes.
9 Q And then did she stay over on the fourth
10 A Sae stayed ovezught the third.
11 Q Ot the third.
12 A Thet tae fourth came.
13 Q Okay.
14 A Then I called about going to pick her up.
IS Q what time did you call, do you renembe:?
16 A It was around -- oh, Bad, what, four o: free, 1
17 don't know, something like that.
lE Q And did you speak with Dleanora or Ralph at that
19 time?
20 A No, I spoke with my daughter.
21 Q She 3ust asked if she could stay for the
22 fireworks!
23 A rught. Because Angela wanted to be: it stay.
24 And the[ after that, I got a phone call. And Apr:! was at
25 the phone asking me to come and pick her up.
I Q What time was that? Was that after the
2 fireworks?
3 A No, that was before the fireworks. Because at
4 8:30 that night, we were walking down Berkshire Lane and she
s- said saz, I have something that I have to tell you.
E Q This is of July 4th?
1 A Wb•huh.
8 Q At 8:30?
9 A At 8:30 it night. Then from there she told me
10 what happened. I went and 1 called Crisis IntervectIn.
11 Rape Crisis or whatever.
12 The next day a an can to the house from
13 Children and Youth, took a report, and the police took a
14 report. And then we ended up it the police, that's a couple
IS of times.
it Q Okay.
11 2 3ust want to back you up a little bit so I can
1E put this in a proper timeframe.
19 You bad actually spoken to her around you said
20 about 5:00?
A Yes, it was around four or five.
22 Q She asked if she could stay for the fireworks?
23 A She said Angela wanted her to stay and watch the
24 fireworks.
Q But did she specifically ask you if she could
I stay?
2 A its. She caked if she could stay w:tt Angela.
3 She -- she wanted bet to watch the fire"ski Witt het. I
4 said, yes, 1 didn't think anything about it.
S Q Than you received the nest phone ail: three and t
6 half -- three hours later?
1 A No. No. It Wasn't even that. Because Wt were
6 it home walking doer. the street parked in the boot and back
9 out again.
10 So it had to have been around sever of so that I
11 Went Orel aid 1 picked bar up.
12 C Did you notice anything whet she called you? Did
13 you notice anything stranlt about be: speed?
14 A Her voice was just -- she :tamed distaat I guess.
15 like lost, 1 don't know.
it 0 Rod when you picked her up, did you notice --
11 A She just threw her pack it the cat end said let's
18 go. I said what is the ntLet. Nothing, just let's go.
19 She didn't talk the whole way hoe. We pulled to
20 my driveway. She got out of the oar. She went it the
21 house. She got a shower. Everything was -- Went Into the
22 wash. I am sitting in the living room.
23 She came domstalrs. And she was lot real
24 agitated. I said what is the utter. Nothing, nothing,
25 nothing, nothing. Printing.
1 I said let's go for a walk. And we went for a
2 walk and started walking down the street. Wt got about half
3 a block from boor. She stopped in the middle of the street.
4 She said toot I need to tell you something.
S Q What did she tell you?
E A She told me what Kr. Prazltr did. That she was
1 in bed and that be had come Into the bedroom. And he had
8 put his bands into her panties and was fondling, et cetera.
9 0 When did she tell you that happened?
10 A When we were walking dove the street.
11 0 When did that Incident that she reported to you,
12 did she tell you when the incident that she --
13 A She said it was it the middle of the night around
14 two or three. Be told her to bt quiet so that she wuldn't
15 wake IT Angela because Angela was right in the same toom and
lE In the save bed. They were it a double or queen size bed c:
11 something, sharing the same bed.
18 0 Was it you: understanding that that incident
19 happened the night -- the night immediately before you
20 picked bet up?
21 A She said it happened it the middle of the bight,
22 arcund two or three.
23 Q That would have beet July 3rd and 4th?
24 A It would have beet the coming of July 4th.
25 0 Now, you went to pick her up, correct?
r
1 A yes. : did go and pick he, up.
2 Q Woo was it tot fratse: boot whet you plckec be.
7 up?
E A Title Wert a let of people there. Tot utolt
S family.
E C Did you set Eleanore there?
1 A Tel.
E C Did you spell with bet?
5 A Briefly.
10 Q Do you sentinel what you talked about?
11 A No, lust typical hi, how are you, what's going
12 on. And the whole family, he: Whole family was there.
13 Q Wert their other cbildren there?
14 A yes. They Wert running around playing of the
1S swing art and everything. They were having a barbecue.
16 Q Where was April when you got there?
11 A She was standing of the porch Witt her bag and
18 pulled up and she got it the car.
19 Q Was anybody with het?
20 A Angela.
21 Q Did You see Ralph Twit: there?
22 A Not until 2 Went into the back of the boost. ;
23 saw Hickey and the told Hickey 2 had April and we were
21 leaving.
21 Tire -- well, Hickey did ask me if 3 wanted to
1 stay and have a cheeseburger to eat. But she had het family
2 there.
Where was Ralph?
I don't know.
Whet did yet first learn of the June 18th, 1954
E incident?
? A At the police department.
8 Q When was that, was that the evening of July 4th?
5 A July Ott I called Pape Crisis. Rape Crisis :n
10 tun called the police, sod everything happened then on July
11 Sit. the tuning of July Sth.
12 The initial call was placed July 4th when I
13 brought her home after -- it was about 9:00 o'clock or
14 whatever I had called.
IS Q What did April tell you about the June 18th
if incident?
11 A Initially nothing, not until this all came cat
16 with this otht- incident.
15 0 What did she tell you happened?
20 A She had said that when she -- we were down, thert
21 and all of this came out, lust that be had told he., no:
22 say anything, and the: he would hurt her if she did.
23 C Did she tell you what he did?
24 A Just the same thing that he did an this day.
25 C Do the July 4th day?
I A Except that happened on the court it the on.
2 Aagtla had left the root and Jackie was it the back it the
3 bathroom Lad he grabbed be., ad pulled her over on top o:
f hit.
S C Did she say where Eleanore was at this flax?
E A No.
7 Q Did you know where Elcanora was it this tin?
6 A me.
S C wben is the first time that you sought medical
10 attention for April?
11 A I called Rape Crisis that night. Toey said slant
12 she bad a shower and verytbiog that they called the police.
13 I called flit doctor.
11 Rod Rape Crisis, people from Children and youth
15 can, and she was checked out on July Sth at flit doctors it
lE the Doming.
11 Q That was Dr. Osborne?
1E A Yes.
1S Q Whet was the first time that you spoke with Ralph
20 or Eleanore?
21 A After learning of these incidetts that ? --
22 Q Yes.
23 A I called Eleaton up.
21 Q When was that, do you recall?
2S A That was right afterwards, after the fifth, after
1 April said what happened, because we ended up at the police
2 department.
3 Q You called Elemora before you went to the police
S department or after?
S A I called Eleanore, I talked to Eleanore before,
E to ask bar what was going on and what happened.
7 Q What did she say?
E A She lust said she didn't know What 1 was talking
S about.
IC Q Did you have any reason to daub: that -- bet
11 statement, that she didn't know what you weft talking about?
12 A I'd like to say Do.
1? Q why would you like to say to?
li A Because I have always considered ter a friend
15 until lust everything has happened.
lE Q it your complaint you make some allegations o:
r how this incident his chanted April.
iE A Yes, very muck $o.
IS A To the point she was not able to go back to
2^ nbool, because --
21 Q why was she not able to go back to school?
23 A Because of the ales and everything being around.
23 sht would go and every time she would get even to the
21 classroom ad have at adult ale figure gyve he: son
25 dire:tioc, o: tell ben that sht has -- this is ahatr.', sht
1 his to a this, she would just not no it. She just, 1 dot':
2 have to i:area to what BY man says, blab, blab, blot, atd I
3 don't hive to do what any RD says.
i So she's gone from mat too of the spectrum clam:
`- to the et.-t:.
f C Bow did sit charge? Did bit personality change?
} Agq:essive. Ste just -- there for along time
E she went ftom bting a straight A student, she wen: down to
S almost fa:ling.
ID And so we tab to -- because a! everything, wt
11 lust started doing home school three days a week watt be,
12 ad )cast witching Witt her with tot counseling three days a
13 week Witt Dr. Sall.
IS And just -- we lust did everything to keep April
iS ae the straight and narrow. I seat she just -- her
IE behavior, her whole dispontitt lust Damaged.
11 C You said D:. Small. Yon is Dr. Small?
lE A Dr. Kenneth Small. Be's a psychologist that
15 deals with women lad children's issues.
20 C watt did you start seeing -- whet did April start
21 seeing D:. Small?
22 A Directly after this happened.
23 C How did you find Dr. Sall?
24 A Do. Sall -- there was a lady that was seeing --
25 oat o: out pati ents was seeing It associate o: his.
1 Q How long did April stay at s:pool? Did sot
2 complete that school yea:?
3 A Yes, Ap:fl has been doing home school for thret
i years.
S C But I meat, was she it the -- did she staff
f public school back tben in the fall?
1 A She tried go to back for a month.
6 C So --
S A And it didn't work.
to Q so --
ll A Dr. Sall wrote a peescriptiot after a
12 psychological evaluation, deemed it necessary fo: medical
13 reasons fo: April to stay home.
IS And theft is prescriptions oo record ongoing w:tt
1! re•evaluatiou and everything else.
lE C Bow is 4:0 doing •• how did April do with the
11 home stud}?
it A. Good.
IS C So she was able to •-
20 A She's able to maintain honor role.
21 C Okay. I know -- she's greet this prescription,
22 out is she still pas o: the school d:stuct?
23 A She's still part of the school district, yes.
C She takes the same curriculum as the other
24
2`. students and takes its same tests?
I A Yes. Kid tent and finals, exactly the scut
2 thing.
3 Q But she's last taught at bme?
4 A She's taught a,. bme.
S 0 Is it's always it your hme?
6 A Qh-huh.
7 C ew does that work with your schedule?
6 A Well, April is it home, that Cathy Pattersot
9 would come it to the bouse.
10 Q Cathy Pattersot is the in-borne teacher?
11 A Yes.
12 Q Its she always been?
13 A Yes.
14 Q You said that this strident happened I guess whet
15 April Was in eighth grade, correct?
16 A April was going into eighth,
17 Q She was going Into eighth, it the fall she begat
le eighth grade?
19 A Right.
20 Q Has she kissed a grade at all?
21 A No.
22 Q She's of schedule?
23 A Oh-huh.
24 Q What year will she graduate?
25 A She has two mare years of school. She's it tenth
1 grade mw.
2 Q She's a sophomore?
3 A Right. No, she's a junior, I at lying to you.
4 Q She is in 11th grade?
S A Yes.
f NR. STATLER: Two years counting this year.
1 THE WITNESS: Yes, counting this year.
6 By HR. XNALLY:
5 Q Two years. So •• okay.
10 Has she sought -• other than the in-house into.,,
11 is she currently treating with anybody, any physicist, any
12 counselor?
13 A She sees Dr. Small on an as-Deeded basis Dow.
14 But about two maths ago she was back in counseling though.
15 She had bar going back three days a week.
16 Q Okay. Why is that, do you know?
17 A She lust -• when we -- with this situation it's
16 like right now today she's having a hard time because she
19 says this is like reliving everything. It lust really
20 upsets her. I think that's why she called aw at ten of
21 eleven at work and indicated that she was deathly sick.
22 Q Other than Dr. Small, is she treating with
23 anybody else?
24 A She was seeing Dr. Osbone and she had beet of
25 Plain, she had given her some medication to help bar.
Is she currently of any medicatict?
No. No. She stopped that or he: own.
Hoc oil she responded it treatuen:7
4 A Good. food.
S Q You indsated erlse: that April has a child oas,
E correct?
7 A Yes.
6 Q Baby boy of girl?
5 A Boy.
If Q Baby boy. How old is her baby boy?
Il A Well, she placed bit for adoption, so he's say.
12 moths.
He his been placed it at adopted home?
l9 A Yes.
1S Q What ate April's plans for the future? Ices sae
16 will to go to college?
17 A That's what her iatentiom are. She wanted to be
If at attorney.
i5 Q You have list to talk her out of that.
20 A Yes, I will do everything it my power to
21 discourage her.
22 Q I hope not frost anything that I have demonstrated
23 today but....
24 It paragraph It of your corpla:nt, you have
23 alleged that Ralph had a prior simile: incidect that
1 happened is New York.
2 Watt did you first lean of this?
3 A After he was arrested and whatnot and the police
4 report.
0 So it was the police that told you?
E A No. It was lust paperwork that happened tc care
7 been laying it front of me.
E Q Do you know recall when you leaned that:
5 A This is after he was already incarcerated. I
10 didn't know anything about it before.
11 Q Du you know whet the,. incident occurred?
12 A No. Which one what are you talking about?
13 Q The prior one in New York?
14 A No, I bait no idea.
?S Q What do know about that prior incidentl
if A It was that he was arrested for sodomy oc a ter.
17 year old little girl.
16 Q Wbat is the buss for your statement that
15 Eleanore bev about the prior incident?
20 A Just that sbe bad admitted it.
21 Q Whet did you lean that?
22 A 1 didn't -- I leaned of that until --
23 Q Dctil this action was initiated?
24 A Yes.
2'- 0 Have you ever spoken to Eleanore since July Sth?
I A I haven't talked to Eleamort stnct all o` ass.
2 The girls had gotten together. But we just -• after !.ling
3 this and whatnot, the 4:.113 weren't test permitted tc be
4 together any longer-
0 Under whose L -talon?
6 A cell, Eleamra hunt left Angela come owe:
1 because of it. So the girls baeet't bed By contact I
fi u aware V.
9 Q You indicated in paragraph 22 1 of ynnr
ID complaint, that Ralph lrariet is a pedophile.
11 A Tilt is the way I feel became Of the pedoptilsc
12 behavior that be his exhibited toward a daughter and which
13 is also a r+tter of record, and 10 paragraph No. 16 1, so I
14 think that that pretty cu:h warrants being a pedophile,
IS don't you?
16 Q That's Lot my job to answer that question today.
11 The basis -- you don't know whether he's ever beet
le clinically diagnosed as a,ptdophile?
19 A No.
20 Q That's your tem, correct!
21 1R. sTATLER: That's actually her lawyers tem.
22 a. M(MY: Okay.
23 BY 1R. 1c71ADDY:
24 Q In paragraph twenty-one you List indicate, it
26 particular subparagraph E, that Ele+nort failed to we:aft
l
I and advise Diamt Tennant and April Brow- of Ralph ltann's
2 sexual preference for young girls.
3 What is the buss for that statement?
4 A Just that Eleanore should have vatted me because
s she had prior knowledge of what he did before.
E Q Okay.
1 A Aid apptreDtly it is quite evident that he does
e have a preference for young girls.
9 Q what is the --
10 A The basis fo: it is the fact o: what he did to m
11 daughter and what the prior record that he has indicates.
12 Q Olay.
13 And then in tht following paragraph, let's Lc to
14 paragraph I, in which you indicate sht :rested and/or
1s penmtted and unreasonable ask of hart to April Brown code:
1( the ciroutstetces then aid there exist:to.
li A well, if I would have know: tits, April viscid
It have Lever been over there. she would have test: bee: -- T
19 would have never permitted -- Angela Woad hive been ebit tc
20 cots to the house all she wanted. And :h e1.• eves, ttat'e
21 just leaving It open. She stould have told at. She stculd
22 have told me. That's why I said I tho.,t that we Wrre
23 friends.
24 Q Dc you have sty aisot in believe that she tear
2! to bide that from you?
1 A Yell, I tbitk she did trot It frog It be:a:st
2 otherwise this situatiot wouldn't be going on nqt: aw. sae
3 knew. sat new wait happened before.
4 If she would have told Lt. coot o: to:.' woad he
S going of right DOw became none of cs would bt hert. Font
( cur m would bt here and my daughter wculm': be whets sot
is.
E Q to you tilt any reason Deileee its: Ste P*4:
9 your child a: 113i purposefully?
10 A I believe that, yes, If m would Last tole me,
11 that this would bast never beet.
12 Q Do you bile any reason in believe that sat wanted
1) your child to be harmed?
14 A I as not saying that she wanted my child to be
IS harmed, but by not telling me, she has left the list there,
16 which did occur.
11 NR. 1CNAI.1I: I hive m further questions. Thank
It you.
19 Iwhereupon, the deposin- was concludec i:4:
20 p.m.'i
21
22
23
24
26
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1972 111 „4.11 Afterwards it
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22123 2,111 2114.23 610
4914.x1 3:4 31)49 401 Agitated 111 49:
;
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19th 111 4119 Agree 111 31117
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2
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220 111 41:3 Alcohol (41 u14
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2:42 111 still Allegations
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9
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3 Ill :,4 Alleging 111 923
3rd is nn 4111s. Allow [)I MILL
23 4212 41123 Allstate 111 3,15
4 Almost 141 1:14
4th 1401 19-25 3323 %$111 2111 S31
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5 25 x1,)1
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9 21.21
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April 131 1:15,3
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23 311 Arrangements
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141 31 It.:2.:4 :31 :?
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14 141, 2111 $1.0
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Babysitter is) 14
11,3 11:2.4 Carried n; 1,:.
Background 141 Case 3;
$123 9.4.1] 1514 40,4
Bag 111 4,60, Catholic 121 Is:
Balls 111 17::3 12-3
Catholicism
111 :0:3 11 21:19
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Barbara ul 1s: Certification
:2.23 1+,4.1: 231 3J
Barbecue 111 4,I Certified 401
is 15:12
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it 11,19 4.1).15.20
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11 5123, $9:1,10 Chance 111 It,3+
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Change I:; 91,1
Bear Its i4''-: Changed I:: su:
Bed 141 40:16:) 4,: 11 $1,34
7.16-27 Check 1.! :41 lo:
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22:14 4012: ,61 Checked 111 41115
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1)
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131 24:3.4.11
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11 49:1
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1 3114
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15.1.1 1011.1-1 It,:: 29,1
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22 MI) 1019 4113 $1, Child- s :21 1:11
3 5113 14,1
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311.3.4 44:4 14 19124 111 2333 35:
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3x,11 41,34
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41:15 $1,11
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Billy 11) 4:.1 4.10
Chiropractor
Billy's 111 4-24 m 15,3
Biology nl 32,14 Choose it: 10:24
Birds 121 3o:s1,19 Chorus 231 N:21
Birth 123 so 234 Chose 11: ,160
Birthday 111 )o:+ Church r-1
Bit 121 4:40 4117 LL-t0. 11
Circumstance
Blah 31 sill
111 2111
Block 121 :at 49:3 Circumstances
Boating 111 xs:a 111 59:3
Book III ills Classroom 31
Books I3 30:23 $0:24
Clayton 2311:-
Bothered 31 et.
Cloning ul »,1 Data 1,1 1:- a4
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Cleared 111 tills Dated 111 nl:
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10 11,9.11 12,3.4 .1 N,{
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11.14 41:11
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1+.14 Daycare 1:. 14:3
Close ul 2200 23, Days 141 31:1. !1:
6 24,12.20-21 11.1: 14.11
Closest 111 31.11 Deals 111 silt.
Clue 121 30,11 21.4 Deathly :l: 24.21
Colds 111 1+.20 December I:; 1.
College 131 1/.13 1: 10.2)
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131 11,20-1 Demonstrated
Coming 131 2131) III 11.23
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Commonwealth Denim In 24114
ul 400.1 Denine's Ill n:
Company (1) 21813 74
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1314 10.11 11124 11110 1101 41.+ 10,:.1
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concluded 111 Describe ::s :3
51,11 :.6 310 22.10.11 23:
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Diagnosed ::I
11,31
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311 10120
2
1
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11) 31,9 Dining 1,l ::lt.
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111 2412 silts "! 1011:
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Counsel III 312 Discussion I:I
10116.11 10,13 15,25
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11:110 51,12 $4.1. 111 11,11
Counselor I3) Disservice III
10123 1314 54.3: 11.11
Counting III sa Distant it: 45a4
4.+ District I1: :.:
COUNTY 211 toll 1 20,1.11.0
Couple 131 3.1 29: Divorce it- tin
10 4311' Divorced I:. 4:1
Court 121 +,11 lo: Doctor is) :s:1,.
23
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Doctors I-! I::•
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11 .1.. Willis Done is) 311:: ::.
Cumberland 141 s 1+.21 21:24 2.0
14:7 11:23 11:1.11 Donna 111 :4:1•
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25 14:14
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Down 1,l 5:4 ::ac
52:24 44:1d5:1 R,:. sC 40-
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111 11.1
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Employment 111
13:13
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14 0,9
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EXAMINATION
1.1 2,: ):10
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1
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n
Exhibited I:1
29:x) s,1,:
Existing 111 so:
11
Experience 311
11:20
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22:14 31:2
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tore 1,a
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24-.3 lea
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Fancily it: 43,5
11U.t} 40 ;
Far n; lolls
32.13 31,31 M,
Father nil 1:}s-
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Fathers n; 1.21
Fed Ili 31.1:
Ferry III n.1,
Few III n:,-9
Field 111 20,3:)11
13
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If
Figure Ise $0.24
Filed III lilt
Filing III ),4 5I:
2
Final Ill a:+
Finals it. silt
Financially
,11 40,11
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1s 11::!
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11 x}.14
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21 11,1
First rn11
5 5.11 4:21 ICIC a:
21 31:10 41,! Md.H
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a
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Florida 1,1 11::2
Flu III P::c
Follow In )::)
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23 41.11 51: 13
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Foregoing Ill
sold
Form 1:1 ),1
Forth isl :):s 24:
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Four I3: %,o 4):
31 11.21
Fourth 141 )0:11
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21:11,
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run 111 11:) ]4.11 .10 laNl )hl.
11.4 11,3111 u„ of
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Coax Ill 39:13 Hide its 11::4 5,:1
General ui is: High t; tit-, t.
24 11,t
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Hill nI nit
11.1.)111.11 Himself it, 2+,14
Girl 131 it., sits, Hockey 111 20:22
Girlfriends Holiday 12, u,s
111 17.1 Home 141;
Girls Ilol 11,15. 36.11 14,16 1412,11
20 21,11-11 39, a. 6.24 11]6 11,11 210 52:10•
161, ), ILts ts,1, 11 11 S).ll 2.:11.1+21:
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11 11,16 41.1.11 13:2- 1. 11.2.1)-21110.10
1.7 694.6 MILK Ot.,.tS 431
Given 141 1.201]. 1 0:1,4 4,21 41r:
1111,21 60.21 41,13 61,11
4
God 1,53,3-). 6.41 11.11
11113,1 Honor 111 11.14 Sit
Golf 111 11,23 10
Gosh 141 11.610 Hooked tit 160
11.11 21.11 Hope 161 t.2:
Grabbed 131 4113 Horn
11
1 37
Grade In 1/.11.20 _ ,
13
Hospital 131 Is,
30.14 5).11.1620 162
1.1 ]1-2) tat
Graduate tit S.. Hours 111 It.tt.tf-
14 It 17,9 MIS 4S,1
Grandmother HOUee 1251 16.2 4,
111 54,11 4 131:. 315. t: 231e-,
Grand
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111 1r
1 41:2
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at 14 nal It 11,6.x1 Ifi I: Strip
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Group 141 Sierra 13 lot
Growing 112 14: Huggles nl 24,16
:1 17120 16,1 Hunting 111 21,:2
Guardian tit Ito Hurt 131 u:t:
Guess 41 1.22 I,6 Husband 161 441
22,11 24,10
19 41,1 45,14 S)al
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Guest 131 „317 21, Husband's 13I 1:
1.] 13
Gun pl 21.20 I
Guys 121 29,14
Idea 141 Sri, H,
H 24 39,11 SIa4
Identify ul 4.
HACC 111 15,10 .2
Half 141 :he It. Immediately
It 15,611.2 121 ISIS 464
Halt 14 Is Important 111
Hand it) to.r. 13,22
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Harrisburg 111 , 11».13,1! 4,15 2::
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3 14 34.1. not 37:22
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Heard III Its Indicated 251
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is 21 St;5 51;1
Help 131 s4,39 Indicates t"1
Hereby 161 1]:.1 It's 50:11
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Hereof tit 1o:i4 tort.
Individually
Hereunto 131 so: 111 1,11
22 Influence I?I Or
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21:8,11,2s M-6.12 1:1 Y:1 to::.
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Initiated 111 h
11 4022
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Instruct 111 ,:.
10,12 wu.1,
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to 11,10
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III MCI,
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2) 10,52
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11:2
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39,12
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Joe's lit 21.11
John 11x11,111,
11.1) hl: 10:11 ll.i
1110 431x6 23 16.1, 13:
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July 116) :grit ]l:
I 11,1!.315 1:,: 11.1
41,33-xl 4111-12.21
41.11 11,21
June 114
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14,15
Lady III l4,. flNb
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Lane 41 361.1.!
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5 56:. n
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24 511::1
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1.1 6:11 :1:1! 164,1:
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Molested 4,l tots October OI s:1, $1,11
121 Mom 44,W "" offense ill 00- Pennsylvania
Monday 111 CoW 4 Ill 10:1.6
4203x4 offhand ill )s People 1,1 4,14
Month Ill I3'11 sx: 11 wn 1x:1111,11 H:. Is:H
1 Office In .1:1,- Perfectly ill
Months 4,1 1311 I: 38 40t11.24 14,22
It'll $4.14 14112 Often 121 :s:. 26 Perhaps ill to
Hood Ill iota Il 11.11
Moody 4,1 411' Old 161 1,4, still. Permitted 4,1
Morning ill 31,6. 11 301, 5s11o s4,0 $I0 11.11.11
10 10.15 44.1. 41,11 One 1111 so., ]1,12. Person 14; .:3 IC
0:11 H 1,:1.4 604.2$ t6: II 21,14-11
Most 111 11,6 21:4 1:.12 Personable 111
Mother 161 14, 111 Ongoing ill sx Ol 3811,
22.24 26,2•1 Open ill 381st Personality
Have 111 36.11 opposed Ill 22121 14, 61,6
Persons ill n'4
Moved Iq 20.1o.12 Order 4,1 ,it w: Pertinent 141 +,
22,s-611'21 23
4.11.11.22
Movies 111 21'$ Osborne 141 P: Phone 141 112: 1.:
Must Ill 5.3 ID11'15x4 0:1, tit 1 21,11 0,2.4s 0's
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Otherwise 4,l Physical 111 Ills
$+12 Physician 4,1
Nuns III 238 1:4,. Outside ill 1111 $4'11
14 4S:0 1311.21 Ills 2016 2111+ Pick 161 2412t 37:
Names 121 1111 611 _ Over-complicat 1 43.14.21 011 .Lt
Narrow l4, Sills a nI 11.11 Picked 161 2,12
Natural 4,1 112' overnight u+; 11:11 4,:4,.16 4.:242
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John A. Studer, Esquire
Attorney 1. U. No. 43812
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
11.0. Box 1268
1larrisburg, PA 17108.1268
TelLphonc: (717) 2344161
Attorney for Plaintiff
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
AND NOW, this
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
ORDER
day of June, 1998, it is hereby ORDERED that the
Defendants' Motion to Compel the subpoena of the Plaintiffs psychological records is DENIED.
BY THE COURT:
J.
Jolty A. SWtler, Esquire
Atlontcy I. D. No. 43811
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Mwket Street
1'.0. Box 1268
I Imisburg, PA 17108.1268
'Iblephone: (717) 234.4161
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
Attorney for Plaintiff'
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
RALPH A. FRAZIER and .
ELEANORA M. FRAZIER, : JURY TRIAL DEMANDED
Defendants
PLAINTIFF'S BRIEF IN OPPOSITION
TO DEFENDANTS' MOTION TO COMPEL
ISSIIANrv nc oar.n...... I __
1. FACTUAL BACKGROUND
In June and July 1994, April N. Brown, a 13 year old girl, was fondled, touched and
penetrated digitally by Ralph A. Frazier. Mr. Frazier was the father of a one of April Brown's
friends, Angela Frazier. When these assaults occurred April was an overnight guest in the Frazier
home in Lemoyne.
Ralph Frazier pleaded nolo contendere to aggravated indecent assault and was sentenced
by Judge Bayley to undergo a period of imprisonment in a State correctional institution for not
less than 32 months nor more than 84 months. Mr. Frazier is presently incarcerated at the State
Correctional institution at Camp [fill.
Discovery in this case has revealed that in 1977 Ralph Frazier also sexually assaulted
another young girl in York County. Further evidence has been uncovered which proves that
Eleanora Frazier, Ralph Frazier's wife, was aware of this prior sexual assault but failed to warn
April Brown or her mother of this potential danger.
Following these sexual assaults April Brown received psychological counseling and
treatment from a number of mental health practitioners include Dr. Kenneth Small. The
Defendants have attempted to subpoena the minor Plaintiffs psychological and counseling
records. Plaintiff has objected to the Defendants' request for these records.
If. SHOULD THE COURT DENY, AT THIS STAGE, THE
DEFENDANTS' REQUEST TO SUBPOENA THE MINOR
PLAINTIFF'S PSYCHOLOGICAL RECORDS?
(Suggested Answer: Yes)
111. ARGUMENT
The Defendants contend that because the minor Plaintiff has claimed psychological
damages as a result of Ralph Frazier's sexual assaults they should automatically be entitled to all
of her psychological and counseling records. However, the Plaintiff has not yet determined
whether Dr. Kenneth Small or Dr. Valentine M. Osborn or any other mental health practitioner
will be called as a witness in this case. The Plaintiff has not answered any expert witness
interrogatories or otherwise identified her trial experts. Accordingly, the Defendants' request for
psychological records is premature.
This exact same issue was decided by this Court in Shertzer v. Institute of Pastoral Care.
Inc., 5 D & C.4th 662 (1990) (attached). In the Shertzer case Judge Hess ruled that even though
the plaintiff was seeking damages for psychological distress, the defendants were still not entitled
to subpoena or otherwise obtain copies of her therapist's notes or other counseling records. The
court aptly noted that to compel production of the plaintiffs psychological records would be
clearly violative of 42 Ila. C.S. §5944. Shertzer, 5 D & CAth at 664. Thus, a plaintiff does not
automatically waive the psychologist-patient privilege merely because her lawsuit includes a claim
for psychological damages.
Until such time as the Plaintiff identifies Dr. Kenneth Small or any other mental health
expert as a trial expert, the Defendants are not entitled to obtain copies of the Plaintiffs mental
health records. Moreover, when the Plaintiff identifies expert trial witnesses, Plaintiff requests
the Court to conduct an in camera inspection of the records before they are produced to the
Defendants. Plaintiff will highlight any portions of those records which should be redacted before
production.
IV. CONCLUSION
In light of the foregoing, the Defendants' Motion to Compel production of the Plaintiffs
psychological records should be denied.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A. atler, Esquire
Attorney I. D. No. 43812
320 Market Street
P. 0. Box 1268
Harrisburg, PA 17108-1268
DATE: S I ;- 9 19 E Attorneys for Plaintiff
24231
4
Exhibit A
662 Shertzer v. Institute of Pastoral Care Inc. 5 1). & C. •1111
client. It is foreseeable, and, in fact, probable that as
counsel for the plaintiff the law firm would not
pursue the claim against the additional defendants
because it would be challenging the activities of
itself. The law firm may ultimately be liable to
plaintiff for money damages.
The court finds that these facts create a "mated-
ally limiting conflict" as defined in rule 1,7(b); that
Drier could not reasonably believe that his repre-
sentation would not be adversely affected under rule
1.7(b)(1); and that the facts create an impermissi-
ble conflict of interest which cannot be waived
under rule 1.7(b)(2).
ORDER
And now, June 7, 1989, the motion of Peat,
Marwick, Main & Company to disqualify counsel is
granted. It is ordered and directed that Marc S.
Drier, Esq. be disqualified from representing the
estate of Donald R. Shearer, deceased, in this ac-
tion.
Shertzer v. Institute of Pastoral Care Inc.
Discovery - Motion to compel production of docurnents -
Therapy notes of psychologist - Psychologist-patient privi-
lege - 42 Pa.C.S. §5944-Privilege not waived-Records not
discoverable
In an action against a marriage counselor for the infliction
of psychological damage, the therapy notes of plaintiffs present
psychologist are barred from discovery under 42 Pa.C.S.
§5944 in the absence of an express or implied waiver of the
psychologist-patient privilege.
Motion to compel. C.P. of Cumberland County,
no. 1439 Civil 1988.
C
is
0
C
ti
p
st
al
ct
b,
pi
Jr
si
le
ai
la
K.
of
K
al
gi
K
F
U
C
ci
n
Robert F. Claraval, for plaintiff.
li 1
1 G62 (1990) Shertzer v. Institute of Pastoral Care Inc. 663
is Jeffrey Rettig, for defendant Christ United Pres-
ot byterian Church,
is F. Lee Shipman, for defendant St. Mark's Evan-
of gelical Lutheran Church.
to Darrell N. VanOrrner Jr., for defendant Gerald 1
.
Gingrich.
n
,at HESS, J., January 5, 1990 - This action was
e initiated by plaintiff, Brenda Shertzer, by complaint
.le on March 12, 1988. Therein, she alleges that Gerald
i1 Gingrich, her marriage counselor, had sexual rela-
_d bons with her beginning in 1978 and lasting for a
period of almost 10 years. She claims that she has
suffered psychological damage due to Dr. Gingrich's
alleged manipulation of her in the context of a
at confidential relationship. Following her treatment
,
is by defendant, Gerald Gingrich, and because of it
S ,
plaintiff began psychological treatment with Dr
.
fle .
James Knestrick. She has been involved in exten-
tc- sive psychological counselling with him and we are
led to understand that their relationship as doctor
and patient is continuing during the course of this
lawsuit.
On April 12, 1989, a subpoena was issued to Dr
.
Knestrick seeking all of his business records and
_ office notes relating to his treatment of plaintiff'. Dr
;- .
Knestrick's office manager responded by forwarding
,ot all the office records except the treating psycholo-
'
on gist
s therapy notes, with respect to which Dr.
Knest
i
k
?nt r
c
asserts a psychologist-patient privilege.
Following these developments, defendants
Christ
. S.
he ,
United Presbyterian Church and First United
Church of Christ of Carlisle, filed a motion to
=Y compel the production of plaintiff's psychological
, records including the therapy notes.
Dr. Knestrick is licensed to practice psycholo
in
gy
the Commonwealth of Pennsylvania. Plaintiff re-
664 Shertzer v. Institute W Pastoral Care Inc. .3 1). & (;, ,lth
fuses to consent to the release of Dr. Knestrick's
therapy notes for any reason. With respect to the
confidentiality thereof', Dr. Knestrick and the plain-
titl'rely upon the following statutory language:
"§5944. Confidential communications to licensed
psychologists -
"No person who has been licensed under the act
of March 23, 1972 (P.L. 136, no. 52), to practice
psychology shall be, without the written consent of
his client, examined in any civil or criminal matter
as to any information acquired in the course of his
professional services in behalf of such client. The
confidential relations and communications between
a psychologist and his client shall be on the same
basis as those provided or prescribed by law be-
tween an attorney and client." 42 Pa.C.S. §5944.
Because plaintill 'seeks damages for adverse psy-
chological effects of her relationship with Dr. Ging-
rich and because of the likelihood that Dr. Knestrick
will be called as a witness, defendants assert that
they are entitled to review Dr. Knestrick's notes.
T
hey contend that this is so notwithstanding the
fact that the notes contain evidence of confidential
communications between laintiff and Dr. Kne trik
which are, in accordance with the terns of 42
Pa.C.S. §5944, clearly privileged.
To compel production of Dr. Knestrick's notes, at I
this stage in the litigation, would be clearly violative
of the judicial code. By the clear wording of the I
statute, third parties may not cause psychologists to
be examined without the written consent of their
patients. Inasmuch as the statute analogizes the
privilege to the one which exists between attorneys
and clients, it is equally clear that the disclosure of
confidential communications is impermissible un-
less the privilege is waived by the patient or client.
It will, no doubt, be asserted that by calling Dr.
665 (1990) Greenw(K)d Estate 665
Knestrick to testily in this case, plaintiff will waive
any privilege concerning communications with her
psychologist. It may perhaps even be suggested
that by' signing an expert interrogatory, wherein
she names Dr: Knestrick as a psychological expert,
she may be deemed to have waived "in writing" the
confidentiality which is otherwise conferred by
statute. However, no expert interrogatories have as
yet been filed in this case. Nor, inasmuch as the
trial of the matter has yet to begin, can it be said
that any privilege has been "waived upon the trial
by the client?" 92 Pa.C.S. §5928. Whether plaintiff
can even be compelled to produce the records of
her conversations with her psychologist is a
question which must await another day. At this
juncture the request is clearly premature.
ORDER
And now, January 5, 1990, defendant's motion to
compel is denied.
Greenwood Estate
Decedents' estates - Intestate - Paternity at issue -
Child born out of wedlock - Statutes of limitation - 18-dear
limitation applicable to support action is not a defense
The 18-year statute of limitations which is applicable to
determinations of paternity for support actions on behalf of
children born out of wedlock, 23 Pa.C.S. §4343(6), is not a
defense to a intestate probate proceeding in which paternity is
at issue.
Petition for blood samples. O.C. of Greene County,
no. 7 of 1990.
Linda Chambers, for petitioner.
James Hook, for respondent.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that 1 served a true and correct copy of the foregoing document
upon all panics or counsel of record by depositing a copy of same in the United States Mail at
-tvt
Harrisburg, Pennsylvania, with first-class postage prepaid on the day of
1998, addressed to the following:
HONORABLE KEVIN A. HESS
Court of Common Pleas of Cumberland Co.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
JOAN J. McNALLY, 111, ESQUIRE
James, Smith & Durkin
1'.O. Box 650
Hershey, PA 17033-0650
JOEY ALAN STORASKA, ESQUIRE
Rice, Boop & Storaska
106 Market Street
P.O. Box 470
Sunbury, PA 17801
DAVID W. DeLUCE, ESQUIRE
Johnson, Duffle, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A. Stal# r, Esquire
Attorney 1. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor. Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION -LAW
CERTIFICATE OF CONCURRENCE
AND NOW, this 14i° day of May, 1998 comes Eleanora M. Frazier by her attorneys in fact
James, Smith. Durkin & Connelly to concur in defendant Ralph A. Frazier's Motion for lssl,:,nce
of Subpoena pursuant to Pa. R.C.P. 4009.21 (d)(1) as follows:
On May 2. 1997 Plaintiff, Diane C. Tennant, individually and as parent and natural guardian
of April M. Brown, a minor, filed a Complaint against Ralph A. Frazier and Eleanora M.
Frazier in which she has alleged that by the action, or inaction of the Fraziers on June 18,
1994 and July 3-4. 1994 the minor suffered great emotional distress. fear, depression,
anxiety, embarrassment and humiliation and other mental suffering and will continue to
suffer from same into the future.
In said Complaint. the Plaintiff has alleged that as a result of the incidents of June 18. 1994
and July 3-4. 1994 Plaintiff has incurred bills and expenses for the psychological care and
treatment of the minor. April M. Brown and will continue to incur such bills and expenses
into the future.
3. Plaintiff alleges that as approximate result of the June 18, 1994 and July 3-4, 1994 incidents
the minor, April M. Brown may continue to require psychological treatment and counseling
in the future and made a demand of said costs of said future treatment.
4. By Notice of intent to serve subpoenas to produce documents pursuant of Pa. R.C.P. 4009.21
dated February 13, 1998, counsel for Defendant Ralph A. Frazier informed Plaintiff's
counsel of their intention to subpoena the records of Dr. Kenneth G. Small and Dr. Valentine
M. Osborn.
5. On February 20, 1998 Plaintiffs counsel filed an objection to defense counsel's subpoena of
the records of Dr. Small.
6. Defense counsel for Eleanora M. Frazier believes, and therefore avers, the cause and extent
of any psychological injury have been put at issue by the Plaintiff and that the Defendant will
suffer extreme prejudice if not permitted to verify and explore the nature and extent of the
minor Plaintiffs psychological state, injuries and expenses.
CERTIFICATE OF SERVICE
I, JOHN J. MCNALLY, III, ESQUIRE, do hereby certify that I served a true and correct
copy of the foregoing upon the following below-named individual(s) by depositing same in the
U. S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this I G delay of
May, 1998.
SERVED UPON:
John A. Statler, Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg, PA 17101
Joey Alan Storaska, Esquire
Rice, Boop & Storaska
106 Market Street
P.O. Box 470
Sunbury, PA 17801
John J. McNally. III, Esq 're
JAMS, SNOTH & DURKIN
DIANNE C. TENNANT.
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
RALPI I A. FRAZIER and
ELEANORA M. FRAZIER.
Defendants
IN TI Ili COURT OF COMMON PLEAS
CUMBERLAND COUNTY. IIENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
CFRTIFICATF OF CONCURRENCE
AND NOW, this 14" day of May. 1998 conics Eleanora M. Frazier by her attorneys in fact
James, Smith. Durkin & Connelly to concur in defendant Ralph A. Frazier's Motion for Issuance
ol'Subpoena pursuant to Pa. R.C.P. 4009.21 (d)(I) as follows:
1. On May 2. 1997 Plaintiff, Diane C. Tennant. individually and as parent and natural guardian
of April M. Brown, a minor, filed a Complaint against Ralph A. Frazier and Fleanora M.
Frazier in %Nhich she has alleged that by the action, or inaction of the Fraziers on .tune 18,
1994 and.luly 1-4. 1994 the minor suffered great ennrtional distress. Isar. depression,
anxiety, embarrassment and humiliation and other mental suffering and will continue to
suffer from same into the future.
2. In said Complaint. the Plaintiff has alleged that as a result of the incidents of June 18. 1994
and Juh 3-4. 1994 Plaintiff has incurred hills and expenses tier the psychological care and
treatment of the minor. April M. Bro%%n and ?? ill continue to incur such hills and expenses
into the future.
3. I Iaintiffalleges that as approximate result of the June 18, 1994 and July 3-4, 1994 incidents
the minor, April M. Brown may continue to require psychological treatment and counseling
in the future and made a demand of' said costs of said future treatment.
4. By Notice of intent to serve subpoenas to produce documents pursuant of I'a. R.C.P. 4009.21
dated February 13. 1998, counsel fir Defendant Ralph A. Frazier informed Plaintil7's
counsel of their intention to subpoena the records of Dr. Kenneth G. Small and Dr. Valentine
M. Osborn.
5. On February 20. 1998 Plaintiff-s counsel tiled an abjection to defense counsel's subpoena of
the records of Dr. Small.
6. Defense counsel fir I.Ieanora M. Frazier believes. and therefore avers. the cause and extent
ofany psychological injury have been put at issue by the Plaintiffand that the Defendant will
sufler extreme prejudice if not permitted to verify and explore the nature and extent of the
minor Plaintiffs psychological state, injuries and expenses.
CERTIFICATE OF SERVICE
1, JOHN J. MCNALLY. 111, ESQUIRE, do hereby certify that 1 served a true and correct
copy of the foregoing upon the following below-named individual(s) by depositing same in the
U. S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this day of
May, 1998.
SERVED UPON:
John A. Statler. Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg. PA 17101
Joey Alan Storaska, Esquire
Rice, Boop & Storaska
106 Market Street
P.O. Box 470
Sunbury, PA 17801
John ?. McNally, III, I'sy 'rc
JAMka, SMITH & DURKIN
,:
.,,' ..
,.
,, _ .
?. ? ;;?.
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE
TO: LAWRENCE E. WELKER, PROTHONOTARY
Dear Sir:
The Prothonotary will kindly note the appearance of the undersigned as counsel of
record for Defendant, Ralph A. Frazier, in the above captioned matter. All papers, pleadings, and
other documents should be served upon counsel at their offices set forth below:
RICE, BOOP & STORASKA
106 Market Street
P.O. Box 470
Sunbury, PA 17801
(717) 286-6701
By:
RICE, BOOP & STORASKA
Joey A. Soi
AttoFncy of
Ralph-A. Fr
I.D. #24931
Date: November 28, 1997
CERTIFICATE OF SERVICE
I, Joey A. Storaska, do hereby certify that 1 served a true and correct copy of the
foregoing Praccipe for Entry of Appearance upon the counsel of record named below by placing
same in the United States Mails, First Class, Postage Prepaid, this Z5 ^day of November,
1997.
John A. Statler, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, 111, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
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DIANNE C.TENNANT, Individually
and as parent and natural
guardian of April N. Brown,
a minor,
Plaintiffs
IN THE COURT OF COMMON
PLEAS, CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - AT LAW
VS.
NO. 917- tic, Y C('?a -T-".n
RALPH A. FRAZIER, and
ELEANORA M. FRAZIER,
his wife,
Defendants
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please issue a writ of summons in the above captioned matter, on
Defendant, Ralph A. Frazier, Inmate I.D. Number CT4786, at S.C.I. Camp Hill,
P.O. Box 200, Camp Hill, PA 17101; and Defendant, Eleanora M. Frazier, at 100
Clarkton Court, Lemoyne, PA 17043, telephone number 774-2300..
Please forward the Writ of Summons to the Cumberland County Sheriffs
Department for service of process.
rian W. Perry, Esqui
Attorney I.D #75647
NEALON & GOVER
301 Market Street, 9ht Fl.
P.O. Box 865
Harrisburg, PA 17108-0865
(717) 232-9900
r
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Commonwealth of Pennsylvania
County of Cumberland
Dianne C. Tennant, Individually
and as parent and natural guardian
of April N. Brown, a minor
Court of Common Pleas
va
No. __97--564 -_ CIVIL TE{3I _____________ 1g
Ralph A. Frazier and
Inmate I.D. Number CT4786 In __Civil-Action-Law -----------___----_____
------------
S.C.I. Camp Hill P.O. Box 200
Camp Hill, Pa. 17101
Eleanora M. Frazier
100 Clarkton Court, Lemoyne, Pa. 17043
To RalQh_A.__Frazier arad_E3e@nq;d_M,_Frs3zier
You are hereby notified that
Dianne C. Tennant-_ind. idually_ and_es_parent_agd_natllFai_st!d>S7}?n_gf
Brown, a minor
the Plaintiff has commenced an action in ___Mil_Gs"Mf__________________________________________
against you which you are required to defend or a default judgment may be entered against you.
(SEAL)
Lawrence E. Welker
-------------------------
Prothonotary
DatPe.t u KY-! -------------------- 19- 97 By ---! (2•---hILAS- 4 ---------------
Deputy
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SHERIFF'S RETURN - REGULAR
CASE: NU: 1097-00561 P
CUMMONWE:ALTH UF PI':NNSYLVANIA:
COUNTY OF CUMHE:RLAND
TENNAN'r DIANNE; C
VS.
F I?A'/.II•:R RALPH A PT AL
DAWN L. KELL , Sheriff or Doputy Sheriff of
CUMDEHLANU County, Pennsylvania, who being duly sworn according
to law, says, the within WRI'r OF SIMMONS was served
upon FRAZIER E:LEANURA M the
defendant, at 2007:00 HOURS, on the 12th day of February
1997 at 100 CLARKTON COURT
LEMOYNE., PA 17043 ,CUMBERLAND
County, Pennsyl.vania, by handing to F:LEANURA FRAZIER
a true and attested copy of the WRIT OF SUMMONS
and at the same time directing Her attention to the contents thereof.
'
Shoriff
s Costs: So answers
,
Docketing 6.00 "
-
-
Service 9.'32
_
7 i
Affidavit .00
Surcharge 2.00 H. Thomas Kline, Sherif f
r777977 NE:AL0N AND GOVER
02/13/1997
by
- 1, -
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K-?-L( -
epu.y erii
Sworn and subscribed to before me
this J L day of
19 A. D. -C ltl. )h LQr1Z
Y-T-Pro. o??ry' ?
SHE'RIFF'S RETURN - REGULAR
CASH: NO: 1997-00561 P
COMMOW?ALTH OF PENNSYLVANIA:
COUNTY OF CUMHI•TLAND
'rKNNAN'r DIANNK C
VS.
FRA'LII•;R RALPH A ET AL
M WIIAKI HARR if K
Sheriff or Deputy Sherz£f of
GLIMIVO.ANU County, Pennsylvania, who being duly sworn according
to law, says, the within WRIT' OF SUMMONS was served
upon FRA'/.IL•:R RAI.PH A
the
defendant, at 144'5:00 HOURS, on the 6th day of February
1997 at ID NCT4785 SCI CAMP HILL P 0 HOX 200
CAMP II I1.I., PA 17101 , CUMBERLAND
County, Pennsylvania, by handing to RALPH A. FRAZIER
a true and attested copy of the WRIT OF SUMMONS
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: 5o answers:
Docketing 1A.00
Service 8.68 /
Affidavit .00 rrse??.+aQ
Surcharge 2.00 K. omas ine, ?zlierill
r18-.G6-NEALON b GOVLR
02/13/1997
by
Deputy Sheriff-
--Sworn and subsl;ribed to before me
this JL u. ,ioy of J
19 91 , A. D.
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DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
v.
RALPH A. FRAZIER and
ELFANORA M. FRAZIER,
Defendants
. IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
PRAECIPE FOR RULE FOR
PLAINTIFF TO FILE A COMPLAINT
TO: The Prothonotary
Please issue a Rule directing Plaintiff DIANNE C. TENNANT, to
file a Complaint against Defendants RALPH A. FRAZIER and ELEANORA
M. FRAZIER within twenty (20) days or suffer judgment of non pros.
Respectfully submitted,
JAMES, SMITH 4"DURKIN
Dated: ?3' L (?C( Bp; 'I.
torney I.D. 429563
J HN J. MCNALLY, III, ESQUIRE
Attorney I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants
DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-569 CIVIL TERM
CIVIL ACTION - LAW
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
RULE FOR PLAINTIFF
TO FILE A COMPLAINT
TO: Dianne C. Tennant
and her attorney, John A. Statler, Esquire
You are hereby directed to file a Complaint in the above-
captioned matter within twenty (20) days or suffer judgment of non
pros.
P oth' f o Lnotarry? /o J
-AD -c 1? ?/ /?G22czc T- ?P j
DATED: 3/cw (lb7
CERTIFICATE OF SERVICE
I, JOHN J. MCNALLY, III, ESQUIRE, do hereby certify that I
served a true and correct copy of the foregoing Praecipe and Rule
upon the following below-named individual(s) by depositing same in
the U. S. Mail, postage pre-paid at Hershey, Dauphin County,
Pennsylvania this ? k1N_ day of March, 1997.
SERVED UPON:
John A. Statler, Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg, PA 17101
jofth . McN , jI Esquire
J ES, MI & DURKIN
John A. Stader, Esquire
Attorney 1. D. No. 43812
GOLDBERG, KATZMAN S SHIPMAN, P.C.
320 Merkel Street
P.O. Box 1268
1(ar ieburg, PA 17108.1268
Telephone: (717) 234A 161
Attorney for Plaintiff
DIANNE C. TENNANT,
Individually and as Parent and Natural
Guardian of APRIL N. BROWN, a Minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
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 may be 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.
THOMAS E. CHEFFINS, COURT ADMINISTRATOR
Cumberland County Courthouse
One Courthouse Square
Fourth Floor
Carlisle, PA 17013-3387
(717) 240-6200
Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de
la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por
abogado y archivar en la torte en forma escrita sus defensas o sus objectiones a las demandas en
contra de su persona. Sea adisado que si usted no se defrende, la sin previo aviso o notificacion
y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para
usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Courthouse
One Courthouse Square
Fourth Floor
Carlisle, PA 17013-3387
(717) 240-6200
John A. Slaller, Esquire
Attorney 1. D. No. 43812
GOLDBERG. KATZMAN & SHIPMAN, P.C.
320 Market Street
11.0. Box 1268
1larrirburg,PA 17108.1268
Telephone: (717) 2344161
Attorney for Plaintiff
DIANNE C. TENNANT,
Individually and as Parent and Natural
Guardian of APRIL N. BROWN, a Minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
AND NOW, comes the Plaintiff, by her attorneys, Goldberg, Katzman and Shipman, P.C.,
who file this Complaint against the Defendants based on the following:
Dianne C. Tennant is an adult individual who resides at 220 West Coover Street,
Mechanicsburg, Cumberland County, Pennsylvania.
2. Dianne C. Tennant is the mother and natural guardian of April N. Brown, a minor.
Defendant Ralph A. Frazier is an adult individual currently incarcerated in the
State Correctional Institution at Camp Hill, Cumberland County, Pennsylvania.
4. Defendant Eleanora M. Frazier is an adult individual who resides at 100 Clarkton
Court, Lemoyne, Cumberland County, Pennsylvania.
5. At all times material hereto, Defendants Ralph A. Frazier and Eleanora M. Frazier
were husband and wife residing at 100 Clarkton Court, Lemoyne, Cumberland County,
Pennsylvania.
6. On or about June 18, 1994 and July 3-4, 1994, the minor Plaintiff, April N. Brown,
was an overnight guest in the Defendants' home.
7. Prior to April N. Brown coming to visit and stay overnight at the residence at 100
Clarkton Court, Lemoyne, Dianne C. Tennant spoke with Eleanora Frazier to obtain permission
from Eleanor Frazier for April N. Brown to visit and stay overnight with the Defendants' minor
daughter, Angela Frazier.
8. Prior to the visits of June 18, 1994 and July 3-4, 1994, Defendant Eleanora Frazier
was aware that April N. Brown was coming to stay overnight and Eleanor Frazier specifically
consented and gave permission to Dianne C. Tennant for April Brown to come to the Defendants'
residence and stay overnight.
2
9. As a result of Eleanora Frazices specific consent and grant of permission, Dianne
C. Tennant entrusted the custody of her minor daughter, April N. Brown, to Eleanor Frazier.
10. On or about June 18, 1994 and July 3-4, 1994, while she was a guest at 100
Clarkton Court, Lemoyne, Pennsylvania, April N. Brown, a minor, was sexually fondled, touched,
penetrated, rubbed and/or otherwise improperly physically contacted by Defendant Ralph A.
Frazier in and about the area of her vagina and buttocks.
11. As a direct and proximate result of the incidents of June 18, 1994 and July 34,
1994, the minor Plaintiff, April N. Brown has suffered great emotional distress, fear, depression,
anxiety, embarrassment and humiliation and other mental suffering and she will continue to so
suffer in the future all to her great detriment and loss.
12. As a direct and proximate result of the incidents of June 18, 1994 and July 3-4,
1994, Dianne C. Tennant has incurred bills and expenses for the medical and psychological care
and treatment of April N. Brown and she will continue to incur such bills and expenses in the
future.
13. As a direct and proximate result of the incidents of June 18, 1994 and July 3-4,
1994, April N. Brown may continue to require medical and/or psychological treatment and
counseling in the future and a demand is made for the cost of that future treatment.
14. As a direct and proximate result of the incidents of June 18, 1994 and July 3-4,
1994, April N. Brown has suffered a diminution and impairment of her future earning capacity.
Dianne C. Tennant, Individually and as
Parent and Natural Guardian of April N. Brown
V.
Ralph A. Frazier
15. The averments in paragraphs 1 through 14 of the foregoing Complaint are
incorporated by reference as if set forth at length.
16. The incidents of June 18, 1994 and July 3-4, 1994 were caused by the negligent,
unreasonable, reckless, outrageous and/or intentional conduct of Ralph A. Frazier.
WHEREFORE, Plaintiffs demand judgment against Ralph A. Frazier for compensatory
and punitive damages in an amount in excess of $35,000.00 together with delay damages and
costs of suit.
Dianne C. Tennant, Individually and as
Parent and Natural Guardian of April N. Brown
V.
Eleanora M. Frazier
17. The averments in paragraphs 1 through 14 of the foregoing Complaint are
incorporated by reference as if set forth at length.
18. Prior to the incidents of June 18, 1994 and July 34, 1994, Ralph A. Frazier had
sexually assaulted, fondled, touched, penetrated, rubbed and/or otherwise improperly physically
contacted another minor girl in York County, Pennsylvania.
19. Prior to the incidents of June 18, 1994 and July 34, 1994, Eleanora M. Frazier
was aware that Ralph A. Frazier had admitted to sexually assaulting, fondling, touching,
penetrating, rubbing and/or otherwise improperly physically contacting a minor girl in York
County and that he had been criminally prosecuted and served time in prison for that conduct.
20. Despite having specific knowledge and awareness of Ralph A. Frazier's prior
criminal record and sexual assault and/or improper contact with a minor girl in York County,
Eleanora M. Frazier did not warn or advise either Dianne C. Tennant or April N. Brown of this
information.
21. Eleanora M. Frazier was negligent and careless in that she:
a) failed to advise Dianne C. Tennant and April N. Brown of Ralph A.
Fraziees prior criminal conduct and activity;
b) failed to warn Dianne C. Tennant and April N. Brown that Ralph A.
Frazier had previously sexually molested, assaulted, fondled,
touched and/or otherwise physically contacted a minor girl;
c) failed to protect April N. Brown from the known and foreseeable
danger of Ralph A. Frazier after voluntarily assuming custody and
responsibility for the minor's care;
d) permitted Ralph A. Frazier, a convicted child molester, to be alone
with or otherwise have access to April N. Brown, a minor, at times
when Dianne C. Tennant could not protect her minor child;
e) failed to warn and advise Dianne C. Tennant and April N. Brown of
Ralph A. Frazier's sexual preference for young girls;
0 failed to warn and advise Dianne C. Tennant and April N. Brown
that Ralph A. Frazier was or may be a pedophile;
6
g) deprived April N. Brown of her normal power of self-protection, to
wit: her mother, Dianne C. Tennant;
h) subjected April N. Brown, a minor in her custody, to association
with a person likely to do her harm;
i) created and/or permitted an unreasonable risk of harm to April N.
Brown under the circumstances then and there existing; and
j) failed to supervise and control the conduct of Ralph A. Frazier so
as to create an increased risk of harm to April N. Brown, a minor in
her custody.
22. The negligence and carelessness of Eleanora M. Frazier as aforesaid was a substantial
factor in the happening of the incidents of June 18, 1994 and July 34, 1994 and the resulting
harm to April N. Brown.
7
WHEREFORE, Plaintiffs demand judgment against Eleanora M. Frazier in an amount in
excess of $35,000.00 together with delay damages and costs of suit.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By: -
John A. Statler, Esquire
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
DATE: S/a/97
I, DUNNE C. TENNANT, Individually and as Parent and Natural Guardian of APRIL N.
BROWN, a Minor, hereby certify that I am the Plaintiff in this action; that I have read the foregoing
document and that the facts stated therein are true and correct to the best of my knowledge,
information and belief.
I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.
§ 4904 relating to unsworn falsification to authorities.
DUNNE C. TENNANT,
Individually and as Parent and Natural Guardian
of APRIL N. BROWN, a Minor
DATE:
u. r
L m :J
!?i
John A. Staller, Esquire
Attorney I. D. No. 43812
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
1 tarrisburg, PA 17108-1268
Telephone: (717) 2344161
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please note that the Plaintiffs Complaint has been served on Defendant Eleanora M.
Frazier pursuant to the attached acceptance of service.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A. tier, Esquire
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
DATE: / 9 Attorney for Plaintiff
S//1
John A. StMer, [inquire
Attorney 1. D. No. 43812
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
1lurisburg, PA 17108.1268
Telephone: (717) 2344161
Attorney for Plaintiff
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
I accept service of the Plaintiffs Complaint on behalf of Defendant Eleanora M. Frazier
and certify that I am authorized to do so.
JOHN / c Y, III, ESQUIRE
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033
DATE: j
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the 12- day of MF `1 ,
1997, addressed to the following:
JOHN J. McNALLY, III, ESQUIRE
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By: A
John A. Stat , Esquire
Attorney 1. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
C. I
C-1
SHERIFF'S RETURN - REGULAR
CASE NO: 1997-00564 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
TENNANT DIANNE C
VS.
FRAZIER RALPH A ET AL
WESLEY COOK . Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT AND NOTICE was served
upon FRAZIER RALPH A the
defendant, at 1453:00 HOURS, on the „81h day of flay
1997 at ID •CT4786 SCI CAMP HILL P 0 BOX 200
CAMP HILL. PA 17101 CUMBERLAND
County, Pennsylvania, by handing to RALPH A. FRAZIER
a true and attested copy of the COMPLAINT AND NOTICE
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So answers:
Docketing 18.00
Service 9.30
Affidavit .00
Surcharge 2.00 R' mae 5 eri
W297SO-GOLDBERG KATZMAN 6 SHIPMAN
05/09/by
by
epu y er
Sworn and subscribed to before me
this 9 '?- day of hell
19?L A. D.
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Pro-thonotar??ppl,
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DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-569 CIVIL TERM
CIVIL ACTION - LAW
NOTICE TO PLEAD
To: Dianne C. Tennant, April N. Brown, and their attorney,
John Statler, Esquire
YOU ARE HEREBY NOTIFIED to file a written response to the
enclosed Preliminary Objections within twenty (20) days from
service hereof or a judgment may be entered against you.
M
Dated:
Respectfully submitted,
JAMES, SMITH
By:
KAREN D K ESQUIIR
At tor I .D. )12956 1
JOHN MCNALLY, 11 1 , t RE
Attorney I.D. 1152661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants,
DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaint?.ff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
. IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
DEFENDANT ELEANORA M. FRAZIER'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
AND NOW, come the Defendant, Eleanora M. Frazier, by and
through her attorneys, James, Smith & Durkin, to file the within
Preliminary objections to Plaintiff's Complaint based on the
following:
I. DEMURRER PURSUANT TO PA.R.C.P. 1028(a)(4)
1. On or about May 2, 1997, Plaintiff filed a Complaint
against Ralph A. Frazier and Eleanora M. Frazier, a copy of which
is attached hereto as Exhibit "A"
2. The Plaintiff's Complaint is based upon two occasions in
which Defendant Ralph A. Frazier allegedly molested the Plaintiff's
minor child.
3. In Count II of said Complaint, the Plaintiff has alleged
that Defendant Eleanora M. Frazier knew about a previous instance
in which Defendant Ralph A. Frazier sexually assaulted a minor
child in York County.
4. The Plaintiff has alleged that Defendant Eleanora M.
Frazier was negligent and careless for failing to warn Plaintiff
and her minor child of Ralph A. Frazier's prior conduct before the
alleged incidents involving Defendant Ralph A. Frazier and the
Plaintiff's minor child occurred.
5. The Plaintiff has alleged that Defendant Eleanora M.
Frazier failed to protect her daughter from the tortious acts of
Defendant Ralph A. Frazier.
6. The Plaintiff has alleged that Defendant Eleanora M.
Frazier was negligent for failing to supervise and control the
Defendant Ralph A. Frazier's conduct.
7. The Plaintiff has not alleged that Defendant Eleanora M.
Frazier participated in or was present during either alleged
incident and has not alleged that Defendant Eleanora M. Frazier had
actual knowledge of the incidents at the time they occurred.
8. The Plaintiff fails to state the nature c:l the
relationship under which Defendant Eleanora M. Frazier owod the
Plaintiff and her minor child a duty to warn and protect the minor
child from the intentional tortious act of Defendant Ralph A.
Frazier.
9. The Plaintiff fails, as a matter of law, to state- a i'laim
in negligence against Defendant Eleanora M. Frazier upon whi,!h
relief may be granted.
10. Defendant Eleanora M. Frazi-i :should be dinminsed from
this action.
WHEREFORE, Defendant Eleanora M. ,;mith respectfully requests
that this Honorable Court grant this: U.-emit i u and dismiss her from
this case with prejudice on the ba:ti:; (,t the Plaintiff's failure to
state a claim against her upon which t.•liot can be granted.
I¦
4
II. INSUFFICIENT SPECIFICITY PURSUANT TO PA R C P 1028(a)(3)
11. The averments in paragraphs one (1) through ten (1) are
incorporated herein by reference.
12. The Plaintiff has failed to allege the nature of the
relationship between the Plaintiff or Plaintiff's minor child and
Defendant Eleanora M. Frazier pursuant to which she had a duty to
warn the Plaintiff of, or to protect the Plaintiff or her minor
child from the intentional tortious conduct of Defendant Ralph A.
Frazier.
13. Without knowing the nature of the relationship under
which Defendant Eleanora M. Frazier became duty bound to protect
the Plaintiff's minor child, the Defendant Eleanora M. Frazier will
be prejudiced if she muss respond to Plaintiff's Complaint.
WHEREFORE, Defendant Eleanora M. Frazier respectfully requests
that this Honorable Court direct Plaintiff to specifically plead
the nature of the relationship upon which they base their assertion
that the Defendant Eleanora M. Frazier had a duty to warn or
protect Plaintiff's minor child.
Respectfully submitted,
JAMES,
Dated: 7 l? By:
+/ yY/Q V 11L Li
At rney I.D. #29563
J N J. MCNALLY, III, ESQUIRE
Attorney I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants
CERTIFICATE OF SERVICE
I, JOHN J. MCNALLY, III, ESQUIRE, do hereby certify that I
served a true and correct copy of the foregoing Preliminary
objections upon the following below-named individual(s) by
depositing same in the U. S. Mail, postage pre-paid at Hershey,
Dauphin County, Pennsylvania this _? day of May, 1997.
SERVED UPON:
John A. Statler, Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg, PA 17101
PRAECIPE FOR LISTING CASE FOR .ARGUNIEN'T
Must be typewritten and submitted in duplicates
TO THE PROTHONOTARY, OF CUMBERLA.`D COLNTY:
Please 1st the within :matter for :he nes::
P:e•Tnm Argument Ccun
X' Argument Cour:
'CAPTION OF CASE
(entire caption must be stated in W)
DIANNE C. TENNANT, individually and as parent and
natural guardian of April N. Brown, a minor
(Plautuff)
vs.
RALPH A. FRAZIER and ELEANORA M. FRAZIER
(Defendant)
VL
-o, 97-564
r
Ch l :9 _
1. State matter to be argued (L e., plauttiffs motion for new =21.
defendant's demurer to comoisint, etc.):
Preliminary Objections of Defendant Eleanora M. Frazier
2. Identify counsei who wiil argue case:
(a) forplainal'. John A. Statler, Esquire
Address: 320 East Market Street, Harrisburg, PA 17101
(b) fardefendant: John J. McNally, III, Esquire
Address: P.O. Box 650, Hershey, PA 17033
3.
4
I will notify all parses in wrting •n•.Sitt mo days that lus case sus Se•_r.
Listed for argument.
Argument Court Date: August 13, 1997
Call of Argument List D4trt,
fendant
Dated: ' , t "I 'I I
John A. Staaer, Esquire
Altomey 1. D. No. 43812
GOLDBERG, KATZMAN 6 SHIPMAN. P.C.
320 Market Street
P.O. Box 1268
1lsrrisburg,PA 17108-1268
Telephone: (717) 2344161
Attorney for Plaintiff
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLhAJ
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO
DEFENDANT ELEANORA M. FRAZIER'S
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
AND NOW, comes the Plaintiff, by her attorneys, Goldberg, Katzman and Shipman, P.C.,
who file the following responses to the Preliminary Objections of Defendant Eleanora M. Frazier:
1. DEMURRER PURSUANT TO RULE 1028(x)(4)
Admitted with clarification. The Plaintiffs Complaint was filed on May 5, 1997.
2. Admitted with clarification. It is admitted that paragraph 10 specifically references
Ralph A. Fraziers molestation of the Plaintiffs minor child. By way of further answer, however,
the Complaint is also based upon Eleanora Frazier's taking custody of the minor Plaintiff and
failing to protect her.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied. The Plaintiffhas specifically alleged that
Prior visit and stay overni8ht at wn coming
the Defendants residence, Dianne C. to April N. Bro
Frazier to obtain permission from Tennant spoke with Eleanore
Eleanora Frazier for A
With the Defendants' p4I N. Brown to visit and stay daughter. (Com taint Y overnight
alleged that prior to the visits of June 18, 1994 p and July addition, the Plaintiff has specifically
was aware that A Y 34, 1994, Defendant Eleanora Fr
Pril N. Brown was comin azier
g to stay Overnight and that Eleanora Frazier
specifically consented and
gave permission to Dianne C.
Defendants' residence and stay overnight. (Complaint, ¶8). By way of further answer, the
Plaintiff has specifically alleged
that as a result of Eleanora Frazier's specific consent and grant of
permission, Dianne C. Tennant entrusted the custod
Eleanora Y other minor daughter, April N Brown to
Frazier. (Complaint, ¶9), Having taken custody of the minor child, Defendant
Eleanora
2
Frazier owed the Plaintiff and her minor child a duty to warn and protect the minor child.
9. Denied.
10. Denied.
WHEREFORE, Plaintiff Dianne C. Tennant, individually and as parent and natural
guardian of April N. Brown, a minor, respectfully requests that this Honorable Court dismiss the
Defendant's Preliminary Objections.
H. INSUFFICIENT SPECIFICITY PURSUANT RULE 1028(a)Q)
11. Plaintiff incorporates by reference her answers to the averments in paragraphs 1
through 10 of the Plaintiffs Preliminary Objections as if set forth at length.
12. Denied. Paragraphs 7 through 9 of the Plaintiffs Complaint specifically allege the
nature of the relationship between the Plaintiff and the Plaintiffs minor child and Defendant
Eleanora M. Frazier which created the duty on the part of Eleanora M. Frazier to wam the
Plaintiff and to protect the Plaintiff from harm. Specifically, the Complaint alleges that Defendant
Eleanora Frazier specifically consented to April N. Brown coming to stay overnight at her home
and granted permission for these overnight visits. In addition, the Complaint specifically alleges
that as a result of Eleanora Frazier's specific consent and grant of permission, Dianne C. Tennant
entrusted the custody of her minor daughter, April N. Brown, to Eleanora Frazier.
13. Denied. The Complaint specifically alleges that Dianne C. Tennant entrusted the
custody of her minor daughter, April N. Brown, to Eleanora Frazier as a result of Eleanora
Frazier's specific consent and grant of permission for April N. Brown to stay overnight at her
home. Therefore, Defendant Eleanora M. Frazier will not be prejudiced in any way by responding
to the specific allegations in the Complaint.
WHEREFORE, Plaintiff Dianne C. Tennant, individually and as parent and natural
guardian of April N. Brown, a minor, respectfully requests that this Honorable Court dismiss the
Defendant's Preliminary Objections. In the alternative, if this Court determines that the Plaintiffs
Complaint requires more specificity, Plaintiff requests the opportunity to so plead.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By: 1
John A. Statler, Esquire
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 2344161
Attorney for Plaintiff
DATE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the ` day of h' f`,1
1997, addressed to the following:
JOHN J. McNALLY, 111, ESQUIRE
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A. Statlef, Esquire
Attorney I./D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
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DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
PRAECIPE
TO THE PROTHONOTARY:
Kindly withdraw the Preliminary Objections of Defendant
Eleanora Frazier.
Dated: By:
Respectfully submitted,
SMITH &
Atto ney I.D. #29363
JOHN J. MCNALLY, III, ESQUIRE
Attorney I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants
CERTIFICATE OF SERVICE
I, JOHN J. MCNALLY, III, ESQUIRE, do hereby certify that I
served a true and correct copy of the foregoing upon the following
below-named individual(s) by depositing same in the U. S. Mail,
postage pre-paid at Hershey, Dauphin County, Pennsylvania this
t.
\? day of June, 1997.
SERVED UPON:
John A. Statler, Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg, PA 17101
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John McNally, III, Esquire
JAMES, SMITH & DURKIN
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DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
v.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned on behalf of
the Defendants, with respect to the above-captioned action.
Respectfully submitted,
JAMES, SMITH &,b KIN
Dated: l`'. By:
KARE DURK N,'ESQUIRE
Att ney I.D. #29563
JOH J. MCNALLY, III, ESQUIRE
Attorney I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants
CERTIFICATE OF SERVICE
I, JOHN J. MCNALLY, III, ESQUIRE, do hereby certify that I
served a true and correct copy of the foregoing Entry of Appearance
upon the following below-named individual(s) by depositing same in
the U. S. Mail, postage pre-paid at Hershey, Dauphin County,
Pennsylvania this day of July, 1997.
SERVED UPON:
John A. Statler, Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg, PA 17101
John J.114cNally, III, Esquire
JAMES,tSMITH & DURKIN
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DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
NOTICE TO PLEAD
To: Dianne C. Tennant, April N. Brown, and their attorney,
John Statler, Esquire
YOU ARE HEREBY NOTIFIED to file a written response to the
enclosed Answer with New Matter within twenty (20) days from
service hereof or a judgment may be entered against you.
Respectfully,submitted,
Dated: By:
JAMES, SMITH &
At orney I.D. 42956 -
J N J. MCNALLY, III, ESQUIRE
Attorney I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants
DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
DEFENDANTS' ANSWER WITH NEW MATTER
TO PLAINTIFF'S COMPLAINT
AND NOW, come the Defendants, Ralph A. Frazier and Eleanora M.
Frazier, by and through their attorneys, James, Smith & Durkin, to
Answer Plaintiff's Complaint and aver New Matter as follow:
1. Admitted.
2. Denied. After reasonable investigation, the Defendants
are without knowledge or information sufficient to form a belief as
to the truth of the averments of paragraph two (2) and strict proof
of the same is demanded at trial.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Denied. It is specifically denied that Plaintiff Dianne
C. Tennant spoke with Eleanora Frazier to obtain permission for
April Brown to stay overnight and visit on either June 18, 1994 or
July 3, 1994 and strict proof thereof is demanded at trial.
8. Denied. After reasonable inv,?stigation, the Defendant
Eleanora Frazier is unable to confirm nr deny when she first became
aware that April Brown would stay overnight. It is specifically
denied that Eleanora Frazier consented and gave permission to
Dianne C. 'Pennant for April Brown to stay overnight and strict
proof thereof is demanded at trial.
9. Denied. It is specifically denied that Eleanora Frazier
provided the specific consent and granted permission alleged, and
strict proof thereof is demanded at trial. Further, it is
specifically denied that Defendant Eleanora Frazier took custody of
the Plaintiff's minor daughter, April Brown.
10. Admitted in part. It is admitted that the minor, April
Brown, was touched and improperly physically contacted by Defendant
Ralph A. Frazier on June 18, 1994. After reasonable investigation,
the Defendant Eleanora Frazier is unable to admit or deny the
allegations with regard to July 3-4, 1994, and Defendant Ralph A.
Frazier has no recollection of this event, and strict proof thereof
is demanded at trial.
11. Denied. The averments in paragraph eleven (11) as to
causation are conclusions of law to which no responsive pleading is
required and strict proof thereof is demanded at trial.
12. Denied. The averments in paragraph twelve (12) as to
causation are conclusions of law to which no responsive pleading is
required and strict proof thereof is demanded at trial.
13. Denied. The averments in paragraph thirteen (13) as to
causation are conclusions of law to which no responsive pleading is
required and strict proof thereof is demanded at trial.
1.4. Denied. The averm-ants in paragraph fourteen (14) as to
causation are conclusions ,,t law to which no responsive pleading is
required and strict proof thereof is demanded at trial.
WHEREFORE, Defendants Ralph and Eleanora Frazier respectfully
request judgment in their favor and against the Plaintiff, together
with costs.
COUNT I
DIANNE TENNANT, Individually and as Parent and Natural Guardian
of April N. Brown v. RALPH FRAZIER
15. The answers in paragraphs one (1) through fourteen (14)
are incorporated herein by reference.
16. Denied. The averments in paragraph sixteen (16) as to
causation are conclusions of law to which no responsive pleading is
required and strict proof thereof is demanded at trial.
WHEREFORE, Defendant Ralph Frazier respectfully requests
judgment in his favor and against the Plaintiff, together with
costs.
COUNT II
DIANNE TENNANT, Individually and as Parent and Natural Guardian
of April N. Brown v. RALPH FRAZIER
17. The answers in paragraphs one (1) through sixteen (16)
are incorporated herein by reference.
18. Denied as stated. The answering Defendants are aware
that the Defendant Ralph A. Frazier had improper physical contact
with a minor chi Id prior to the incidents alleged, but after
reasonable investigation, the answering Defendant cannot confirm or
deny the Plaintit!'s characterization of this; contact and strict
proof thereof is demanded at trial.
19. Denied as stated. The answering Defendants are aware
that Defendant Ralph A. Frazier was criminally prosecuted and
served time in prison prior to the incidents alleged related to
improper contact with a minor child in York County, but after
reasonable, the answering Defendant cannot confirm or deny the
circumstances surrounding the nature of said contact and strict
proof thereof is demanded at trial.
20. Admitted.
21. Denied. The averments in paragraph twenty-one (21) as to
negligence and carelessness are conclusions of law to which no
responsive pleading is required and strict proof thereof is
demanded at trial. To the extent that an answer is required:
(a) It is specifically denied that Eleanora Frazier had a
duty to advise Dianne C. Tennant and April Brown of Ralph
A. Frazier's prior criminal conduct or activity;
(b) It is specifically denied that Eleanora Frazier had a
duty to warn Dianne C. Tennant and April Brown that Ralph
A. Frazier had allegedly had improper physical contact
with a minor girl prior to the date of the incidents
alleged;
(c) It is specifically denied that Eleanora Frazier failed to
protect April Brown from a known and foreseeable danger
and further denied that she voluntarily assumed custody
and responsibility for the minor's care;
(d) It is specifically denied that Eleanora Frazier permitted
Ralph A. Frazier to have access or be alone with April
Brown at times when Di.uine C. Tennant could not protect
her minor child;
(e) It is specifically (1-niod that Eleanora Frazier had
knowledge of Ralph A. Fi.izier's alleged sexual preference
for young girls;
(f? It is specifically d-ni-d that Eleanora Frazier knew or
should have known that the Defendant Ralph A. Frazier was
a pedophile and had a iuty to warn the Plaintiff of such;
(g) It is specifically denied that Eleanora Frazier deprived
April Brown of her normal power of self-protection in the
form of Dianne C. Tennant;
(h) It is specifically denied that Eleanora Frazier subjected
April Brown to a person likely to do her harm;
(i) It is specifically denied that Eleanora Frazier created
and/or permitted an unreasonable risk of harm to April
Brown; and
(j) It is specifically denied that Eleanora Frazier had a
duty to supervise and control the conduct of Ralph A.
Frazier and that her failure to do so created an
increased risk of harm to the minor child.
22. Denied. The averments in paragraph twenty-two (22) as to
negligence, carelessness and causation are conclusions of law to
which no responsive pleading is required and strict proof thereof
is demanded at trial.
WHEREFORE, Defendant Eleanora Frazier respectfully requests
judgment in her favor and against the Plaintiff, together with
costs.
NEW MATTER
23. The answers in paragraphs one (1) through twenty-two (22)
are incorporated herein by reference.
24. Prior to the alleged incident of June 18, 1994 involving
Plaintiff's minor chiLd and Defendant Ralph A. Frazier, Plaintiff
Dianne C. Tennant educated her daughter as to the difference
between appropriate and inappropriate physical c,Ontact such as that
alleged in Plaintiff':: Complaint.
25. Prior to th.? alleged incident of June 18, 1994 as alleged
in Plaintiff's Complaint, Plaintiff Dianne C. Tennant instructed
the minor, April Brown, to inform her if anyone attempted to or had
physical contact with her such as alleged in Plaintiff's Complaint.
26. Prior to June 18, 1994, the Plaintiff's minor child,
April Brown, had been an overnight guest at the Frazier home at
times when Defendant Ralph A. Frazier was present and Eleanora M.
Frazier was not.
27. Plaintiff Dianne C. Tennant knew that Plaintiff's minor
daughter, April Brown, had been an overnight guest in the Frazier
home at such times as Eleanora M. Frazier was at work.
28. Prior to the alleged incident of June 18, 1994, there
were no instances wherein the Defendant Ralph A. Frazier had
improper physical contact with Plaintiff's minor child, April
Brown.
29. The Plaintiff's minor child, April Brown, did not report
the incident of June 18, 1994 to the Plaintiff Dianne C. Tennant or
to Defendant Eleanora M. Frazier prior to the incident of July 3-4,
1994.
30. The Plaintiff's minor child, April Brown, assumed the
risk of her injuries.
31. The Defendant Eleanora Frazier was not present at the
Frazier home when Plaintiff Dianne C. Tennant dropped off
Plaintiff's minor child, April Brown, on June 18, 1994.
32. Defendant Eleanore Frazier was not present when the
incident alleged to have happened on June 18, 1994 occurred.
33. PLaintiff's minor child, April Brown, did not report the
July 3-4, L994 alleged incident a: set forth in Plaintiff's
Complaint to Defendant Eleanora Frazier.
WHEREFORE, Defendants Ralph and Eleanora Frazier respectfully
request judgment in their favor and against the Plaintiff, together
with costs.
Dated: By:`-
Respectfully submitted,
JAMES,
KAREN q?WIN-,ESQUIRE
Attorn I.D. 429563
JOHN J. MCNALLY, III,
Attorney I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants
VERIFICATION
The undersigned, RALPH A. FRAZIER and ELEANORA FRAZIER, hereby
verify that the facts set forth in the Answer with New Matter are
true and correct to the best of their knowledge, information and
belief and further state that false statements herein are made
subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unsworn falsification to authorities.
LP FRAZIER /
el,
ELEANORA FRAZIER
CERTIFICATE OF SERVICE
I, JOHN J. MCNALLY, III, ESQUIRE, do hereby certify that I
served a true and correct copy of the foregoing Answer with New
Matter upon the following below-named individual(s) by depositing
same in the U. S. Mail, postage pre-paid at Hershey, Dauphin
County, Pennsylvania this day of July, 1997.
SERVED UPON:
John A. Statler, Esquire
Goldberg, Katzman & Shipman
320 East Market Street
Harrisburg, PA 17101
n J.--McNally, II, Esquire
ES, SMITH & DUR&W
John A. Suaer, Esquire
Attorney I. D. No. 43812
GOLDBERG. KATZMAN A SHIPMAN, P.C.
320 Mudd Street
P.O. Box 1268
1tutieburg, PA 17108.1268
Telephone: (717) 2344161
Defendants
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIFF'S REPLY TO
DEFENDANTS' NEW MATTER
AND NOW, comes the Plaintiff, Dianne C. Tennant, by her attorneys, Goldberg,
Katzman and Shipman, P.C., who file the following reply to the Defendants' New Matter:
23. No response is required. In the event a response is deemed to be required, Plaintiff
incorporates the allegations in paragraphs 1 through 22 of her Complaint.
24. Admitted.
25. Admitted.
26. Admitted with clarification. Based upon information and belief, Plaintiff states that
on those occasions when April Brown was an overnight guest at the Frazices home, there was
never a time when during the entire night Ralph A. Frazier was present and Eleanora M. Frazier
was not.
27. Admitted with clarification. Based upon information and belief, Plaintiff states that
on those occasions when April Brown was an overnight guest at the Frazices home, there was
never a time when during the entire night Ralph A. Frazier was present and Eleanora M. Frazier
was not.
28. Admitted.
29. Admitted.
30. Denied.
31. Denied.
32. After reasonable investigation, Plaintiff is without information sufficient to form a
belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same
and demands strict proof at time of trial if deemed material.
2
33. Admitted.
WHEREFORE, Plaintiff Dianne C. Tennant respectfully requests that the Defendants'
New Matter be dismissed and that judgment be entered in favor of the Plaintiff and against the
Defendants.
Respectfully submitted,
TZMAN & SIIIPMA , P.C.
e
By:
DATE:
John eStatler, Esquire
Attorney 1. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
3
I, DIANNE C. TENNANT, Individually and as Parent and Natural Guardian of APRIL
N. BROWN, a Minor, hereby certify that I am the Plaintiff in this action; that I have read the
foregoing document and that the facts stated therein are true and correct to the best of my
knowledge, information and belief.
I understand that any false statements herein are made subject to the penalties of IS
Pa.C.S. § 4904 relating to unsworn falsification to authorities.
DIANNE C. TENNANT,
Individually and as Parent and Natural Guardian
of APRIL N. BROWN, a Minor
DATE:
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the day of
1997, addressed to the following:
JOHN J. McNALLY, Ill, ESQUIRE
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033-0650
KATZMAN & SHIPMAN, P.C.
A, glq?
By:
John QeStatler, Esquire
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
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John A. Staaer, Esquire
Altomey I. D. No. 43812
GOLDBERG, KATZMAN A SHIPMAN, P.C.
320 Maket Street
P.O. Box 1268
1tarrisburg,PA 17108.1268
Telephone: (717) 2344161
DIANNE C. TENN
ANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
Defendants
AND NOW, this .. -?
=9 day of O CAVQ,
1997,
upon motion of the Plaintiff, IT IS HEREBY ORDERED that the Plaintiff shall be permitted to
take the deposition
o?fRalph A. Frazier at the State Correctional Institute at Camp Hill1CW1)W IJ124? -
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cc: John A. Statler, Esquire (Counsel for Plaintiff)
John J. McNally, III, Esquire (Counsel for Defendants)
...a..c..IX3 ,
I..ltw a.-..C
John A. Stager, Inquire
Attorney 1. D. No. 43812
GOLDBERG, KATZMAN d SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
I larritburg, PA 17108.1268
Telephone: (717) 2344161
DIANNE C. TENNANT,individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION FOR LEAVE OF COURT
TO TAKF DEPOCITION OF PERCON nnslN n m pRlcnly
AND NOW, comes the Plaintiff, by her attorneys, Goldberg, Katzman and Shipman, P.C.,
who file this Motion seeking leave of court to take the deposition of a person confined in prison
based on the following:
I. This civil lawsuit arises Out of two incidents that occurred in 1994 in which the
minor Plaintiff, April Brown, was sexually assaulted, touched and/or improperly physically
contacted by Defendant Ralph A. Frazier.
2. At the time of these incidents, April Brown was 13 years old.
3. Defendant Ralph A. Frazier is currently incarcerated at the State Correctional
Institute at Camp Hill.
4. Pursuant to Rule 4007.2(d) of the Pennsylvania Rules of Civil Procedure, Plaintiff
seeks leave of court to take the deposition of Ralph A. Frazier as part of this civil lawsuit.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant leave of
court to permit the Plaintiff to conduct the deposition of Ralph A. Frazier at the State
Correctional Institute at Camp Hill.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A. PCatler, Esquire
Attorney I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
DATE: 10 /20/97 Attorney for Plaintiff
2
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the :: ` t day of ?.' • J`
1997, addressed to the following:
JOHN J. McNALLY, III, ESQUIRE
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033-0650
GOLDBERG, KATZMAN & SHIPMAN, P.C.
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By:
John A. S atler, Esquire
Attorney 1. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 2344161
Attorney for Plaintiff
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA
TO PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
Defendant, Ralph A. Frazier, intends to serve a subpoena identical to the one that
is attached to this Notice. You have twenty (20) days from the date listed below in which to file
of record and serve upon the undersigned an objection to the subpoena. If no objection is made,
the subpoena may be served.
Date: February 13, 1998,{
Attorn y r D end,
Ralph ;F azier
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT, Individually and as
Parent and Natural Guardian of April N.
Brown, a minor,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
vs.
RALPH A. FRAZIER and ELEANORA M
FRAZIER,
Defendants
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009,22
TO: CUMBERLAND VALLEY SCHOOL DISTRICT, 6746 CARLISLE PIKE,
MECHANICSBURG, PA 17055
Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents
or things: Any-andall-school-educational records, including psychological tests, l.Q..tests,.grades.andiecords of disciplinary
action _pertaining-to April N. Brow"o.b._619/81, from January 1,19841o.the present to 106 Market Street, Sunbury, PA 17801
(Add:ess)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
Certificate of Compliance, to the parry making this request at the address listed above. You have the right to seek in advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the
parry serving this subpena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Joey.A. Storaska, Esq-
Address: 106 Market Street_ .
Sunbury,PA_17801__
Telephone: (717).286.6701
Supreme Court I.D. #24931___ _
Attorney for Defendant, Ralph A. Frazier
BY THE COURT:
Date: Prothonotary
SEAL OF THE COURT Deputy
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
Vs.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21
(party) objects to the proposed subpoena
that is attached to these objections for the following reasons:
Date:
Attorney for
CERTIFICATE OF SERVICE
1, Joey A. Storaska, do hereby certify that I served a true and correct copy of the
foregoing Notice of Intent to Serve a Subpoena to Produced Documents and Things for
Discovery Pursuant to Rule 4009.21 upon the counsel of record named below by placing same in
the United States Mails, First Class, Postage Prepaid, this 1 day of February, 1998.
John A. Statlcr, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
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DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
vs.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA JURY TRIAL DEMANDED
M. FRAZIER,
Defendants
NOTICE TO PLEAD
TO: DIANNE C. TENANNT, Plaintiff and JOHN A. STATI.ER, ESQ., her Atty.
YOU ARE HEREBY notified to plead to the enclosed New Matter within twenty
(20) days from service hereof or a default judgment may be entered against you.
RICE, BOOP & STORASKA
By:
Jo A St aska,
Atom - b Defendant,
Ralph A. Frazier
106 Market Street
P.O. Box 470
Sunbury, PA 17801
(717) 286-6701
I.D. 1124931
Date: December 20, 1997
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA JURY TRIAL DEMANDED
M. FRAZIER,
Defendants
AMENDED ANSWER WITH NEW
MATTER TO PLAINTIFF'S COMPLAINT
COMES NOW, Defendant, Ralph A. Frazier, by his counsel, Rice, Boop &
Storaska, to respond ?o Plaintiffs Complaint as set forth in this Amended Answer and New
Matter:
I. Admitted.
2. Alter reasonable investigation, the answering Defendant, Ralph A. Frazier,
is without knowledge or information sufficient to form a belief as to the truth of the statements
set forth in this paragraph and they are accordingly denied. Where other paragraphs or portions
thereof are answered in this fashion, same will be by the designation "Denied, no knowledge or
information," and the statements of this paragraph shall be included therein by reference.
1-5. Admitted.
6. Admitted in part. It is admitted that the minor Plaintiff, April N. Brown,
was an overnight guest in the Defendant's home on July 3-4, 1994. As to whether Plaintiff, April
N. Brown, was an overnight guest in the Defendant's home on June 18, 1994, answering
Defendant has no knowledge or information. However, by way of further answer, the answering
Defendant believes that the incidents which are the subject of Plaintiffs action occurred in June,
1993 rather than on June 18, 1994.
Denied. It is specifically denied that Plaintiff, Dianne C. Tennant, spoke
with Elcanom Frazier to obtain permission for April Brown to stay overnight and visit on either
June 18, 1994 or July 3, 1994 and strict proof thereof is demanded at trial. To the contrary, and
by way of further answer, the answering Defendant states that Dianne C. Tennant spoke with
Defendant, Ralph Frazier, relative to April N. Brown being an overnight guest at Defendant's
residence.
8. Answering Defendant incorporates herein and makes a part hereof
paragraph eight of Defendant's Answer with New Matter to Plaintiffs Complaint dated July 7,
1997.
9. The statements of paragraph nine of Defendant's Answer with New Matter
dated July 7, 1997 are incorporated herein by reference and made a part hereof as though set
forth in full.
10. Admitted in part. It is admitted that the minor, April N. Brown, was
touched and improperly physically contacted by Defendant, Ralph A. Frazier, but said contact
occurred in June, 1993, and it is specifically denied that such contact occurred on June 18, 1994.
Answering Defendant, Ralph A. Frazier, has no recollection of an improper touching of April N.
Brown said to have occurred on July 3-4, 1994 and this allegation of Plaintiffs Complaint is
denied, and strict proof thereof is demanded at trial.
11.-14 As to the nature of the incidents which occurred and the dates of same, the
statements of paragraph ten of this Amended Answer arc incorporated herein by reference and
made a part hereof. As to the remaining statements set forth in paragraph eleven, same are
denied, no knowledge or information.
COUNTI
Dianne C. Tennant, Individually and as Parent and
Natural Guardian of April N. Brown v. Ralph A. Frazier
The statements of paragraphs one through and including fourteen of the foregoing
Amended Answer are incorporated herein by reference and made a part hereof as though set forth
in full.
15. As to the incidents alleged in Plaintiffs Complaint and the dates when
those incidents occurred, the statements of paragraph ten of this Amended Answer are
incorporated herein by reference and made a part hereof as though set forth in full. The
remaining statements of paragraph sixteen constitute conclusions of law to which no response is
required.
16. To the extent it is deemed necessary to reply to the allegations of
paragraph sixteen, same arc denied, no knowledge or information.
WHEREFORE, Defendant, Ralph A. Frazier, requests that Plaintiffs Complaint
be dismissed and that judgment be entered in favor of the said Defendant, together with costs of
suit.
COUNT 11
Dianne Tennant, Individually and as Parent and
Natural Guardian of April N. Brown v. Eleanora M. Frazier
17. The statements of paragraphs one through and including sixteen of the
foregoing Amended Answer are incorporated herein by reference and made a part hereof as
though set forth in full.
18. As to the incidents and the dates of same described in Plaintiffs
Complaint, the statements of paragraph ten of this Amended Answer are incorporated herein by
reference and made a part hereof as though set forth in full. It is admitted that Ralph A. Frazier
prior to any of the matters involving April N. Brown had improper physical contact with a minor
child in York County, Pennsylvania.
19.-22. The statements of paragraphs nineteen through twenty-two of Plaintiff's
Complaint are directed to another Defendant and answering Defendant, Ralph A. Frazier, has no
duty to respond to same. To the extent it is deemed necessary to respond to the allegations of
paragraphs nineteen through twenty-two, then the statements of paragraphs nineteen through
twenty-two of Defendant's Answer with New Matter dated July 7, 1997 are incorporated herein
by reference and made a part hereof as though set forth in full.
WHEREFORE, Defendant, Ralph A. Frazier, requests that Plaintiffs Complaint
be dismissed and that judgment be entered in favor of the said Defendant, together with costs of
suit.
NEW MATTER
By way of further answer, answering Defendant, Ralph A. Frazier, states:
23. The statements of paragraphs one through ten of the foregoing Amended
Answer to Plaintifl's Complaint are incorporated herein by reference and made a part hereof as
though set forth in full.
24. Prior to the incident described in paragraph ten of this Answer, Plaintiff,
4
Dianne C. Tennant, educated her daughter, April N. Brown, what constitutes inappropriate
physical contact.
25. Prior to the incident as described in paragraph ten of this Amended
Answer, Dianne C. Tennant instructed her daughter, April N. Brown, to inform her mother if
anyone attempted to or did have inappropriate physical contact with her.
26. Prior to the incident described in paragraph ten of this Amended Answer,
Plaintiffs minor child, April Brown, had been an overnight guest at the Frazier home at times
when Ralph A. Frazier was present and Eleanora M. Frazier was not.
27. Plaintiff, Dianne C. Tennant, knew that April N. Brown had been an
overnight guest in the Frazier home under the supervisory care of Ralph A. Frazier and while
Eleanora M. Frazier was at work.
28. Prior to the incident described in paragraph ten of this Amended Answer,
there were no instances wherein the answering Defendant, Ralph A. Frazier, had improper
physical contact with April N. Brown.
29. April N. Brown did not report the incident as described in paragraph ten of
this Amended Answer to Dianne C. Tennant or any other person until the mid-summer of 1994.
30. April N. Brown assumed the risk of her injuries.
31. At the time of the incident described in paragraph ten of this Amended
Answer, Defendant, Eleanora Frazier, was not present or in Defendant's residence, and Dianne C.
Tennant left her daughter, April N. Brown, in the supervisory care of Ralph A. Frazier.
32. Prior to the incident described in paragraph ten of this Amended Answer,
answering Defendant, Ralph A. Frazier, had given back nibs to April N. Brown while she was in
the Frazier residence.
33. Prior to the incident described in paragraph ten of this Amended Answer,
April N. Brown told her mother, Dianne C. Tennant, that Ralph A. Frazier had given tier a back
rub and Plaintiff, Dianne C. Tennant, at no time protested or otherwise discussed this with Ralph
A. Frazier.
34. Plaintiffs' claims are barred by the applicable statute of limitations.
35. The individual claims of Plaintiff, Dianne C. Tennant, are barred by the
applicable statute of limitations.
WHEREFORE, Defendant, Ralph A. Frazier, requests that Plaintiffs Complaint
be dismissed and that judgment be entered in his favor, together with costs of suit.
By:
Date: December _,?Q_, 1997
RICE, BOOP & STORASKA
Joey A:E
Attor cy
Ralph A-
106 Market Street
P.O. Box 470
Sunbury, PA 17801
(717) 286-6701
I.D. #24931
6
VERIFICATION
I, Ralph A. Frazier, hereby affirm that the statements made in the foregoing
Amended Answer with New Matter to Plaintiffs Complaint arc true and correct to the best of my
knowledge, information and belief. I understand that false statements herein arc made subject to
the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities.
Date:
Ralph A. razier
LAW OFFICES
GOLDBERG. KATZMAN 8C SHIPMAN, P.C.
URO MARKET tlTRCCT
RONALD M. KATZMAN ARTHUR L. GOLDBERG
HARRY B. GOLDBERG STRAWBERRY SgUAHH OF COUNSEL
F. LEE SHIPMAN P.O. BOX 1900
PAUL J. ESPOSITO RABRISDURO. PENNSYLVANIA 17100•IUOn HERSHEY OFFICE:
NEIL HENDERSHOT 523 WEST CHOCOLATE AVENUE
J. JAY COOPER TELEPHONH: (717) L'04.4101 P. 0. BOK 555
THOMAS L BRENNER PAX: (717) R04.0000 HERSHEY. PA. 170]]
JOHN A. STATLER
PIRH EMAIL: OHS®OH9 LAW.CON 17171 530.4049
APRIL L. STRAND-KUTAT
GUY H. BROOMS CARLISLE OFFICE:
JEFFERSON J. SHIPMAN 50 WEST POMFRET STREET
KAREN S. FEUCNTENBERGER CARLISLC. PA. 17013
JERRY J. RUSSO December 15
1997 17171 245-059'
MICHAEL J. . CRO CROCENrI ,
ARNOLD S. KOGAN YORK OFFICE.
THOMAS J. WEBER 2 WEST MARKET STREET
EVAN J. KLINE. III YORK. PA. 17401
JOIN DELORENZO 17171 840-7912
STEVEN C. GRUBS
DIANA WOODSIDE ICORRESPOND TO
JOIN R. NINOSKY HARRISBURG OFFICEI
Joey Alan Storaska, Esquire
Rice, Boop & Storaska
106 Market Street
P.O. Box 470
Sunbury, PA 17801
Re: Tennant v. Frazier
Dear Joey:
In response to your letter of December 11, 1997, please be advised that I have
no objection to your filing of an Amended Answer in this case. Please keep in mind,
however, that my clients contest the date referenced by Mr. Frazier.
John
JAS:gkd
cc: John J. McNally, III, Esquire
\bTDwn\1t0n1"1tr
CERTIFICATE OF SERVICE
1, Joey A. Storaska, do hereby certify that 1 served a true and correct copy of the
foregoing Amended Answer with New Matter to Plaintiffs Complaint upon the counsel of record
named below by placing same in the United States Mails, First Class, Postage Prepaid, this
-day of February, 1998.
John A. Statlcr, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
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John A. Settler, Esquire
Attorney 1. D. No. 43812
GOLDBERG. KATZMAN & SHIPMAN, P.C.
320 Market Street
11.0. Box 1268
1larrisburg, PA 17108.1268
Telephone: (717) 234.4161
Attorney for Plaintiff
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
: NO. 97-564 CIVIL TERM
JURY TRIAL DEMANDED
Plaintiff objects to the proposed subpoena that is attached to these objections for the
following reasons: The defendant is seeking to subpoena psychological records of the minor
plaintiff in violation of 42 Pa. C.S.A. § 5944.
Date: Z ILO /9f 1 - _
John A. St er, Esquire
Attorney I.D. No. 43812
Goldberg, Katzman & Shipman, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT, Individually and as
Parent and Natural Guardian of April N.
Brown, a minor,
Plaintiff
vs.
RALPH A. FRAZIER and ELEANORA M.
FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCT: DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: DR. KENNETH G. SMALL, 410 EAST MAIN STREET, MECHANICSBURG, PA 17055
Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents
or things: Any ansychologicaUccords.andreports-and_psychologicallesttesults_pertainingtoAprilN.Drown._d o.b_&9aI
from January t, 199; to the present to 1061darketStrcet..Sunbury.PA_17801
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the
reasonable cost of preparing the topics or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days alter its service, the
party serving this subpena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Joey A. Stotaska F.sq.-
Address: 106 Mr.&=t
Sunbury.PA_1 01
-
Telephone: -
(712)2M-6701
Supreme Court I.D. #24931_
Attorney for Defendant Ralph.-A- Frazier
BY THE COURT:
Date:
Prothonotary
SEAL OF THE COURT Deputy
I HEREBY CERTIFY that 1 served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the 20_r?day of --P iM iuj
1998, addressed to the following:
JOHN J. McNALLY, III, ESQUIRE
James, Smith & Durkin
P.O. Box 650
Hershey, PA 17033-0650
JOEY ALAN STORASKA, ESQUIRE
Rice, Boop & Storaska
106 Market Street
P.O. Box 470
Sunbury, PA 17801
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
John A? tier, Esquire
Attorn I. D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 2344161
Attorney for Plaintiff
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DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN ]'HE COURTOF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
CERTIFICATE PRE-REQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Defendant, Ralph A. Frazier, certifies that:
(1) a notice of intent to serve the subpoena with a copy of the
subpoena attached thereto was mailed or delivered to each party at
least twenty (20) days prior to the date on which the subpoena is
sought to be served;
(2) a copy of the notice of intent, including the proposed subpoena, is
attached to this certificate,
(3) no objection to the subpoena has been received, and
(4) the subpoena which will be served is identical to the subpoena
which is attached to the notice of intent to serve the subpoena.
Date: March 16, 1998
Jocy A.Sto ska,
Att a or cfendant,
Ralph A. Frazier
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown. a minor,
Plaintiff
vs.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DENIAM)ED
NOTICE OF INTENT TO SERVE A SUBPOENA
TO PRODUCE DOCUMENTS AND THINGS FOR
DISCO VERYPURS.UALNTTO-RULE-44D9 21
Defendant, Ralph A. Frazier, intends to serve a subpoena identical to the one that
is attached to this Notice. You have twenty (20) days from the date listed below in which to file
of record and serve upon the undersigned an objection to the subpoena. If no objection is made,
the subpoena may be served. /
Date: February 13, 1998 /may Q
Attomey r D fendant,
Ralph (A. F azie
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT. Individually and as
Parent and Natural Guardian of April N.
Brown, a minor.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY.
PENNSYLVANIA
Plaintiff
VS.
RALPH A. FRAZIER and ELErLNIORA M.
FRAZIER,
Defendants
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DENIAN-DED
SL'BPOEN'A TO PRODUCE DOCt-AiE \-TS OR THING`
FOR DISCOZTR3' PL-RSL'AN7 TO RL-LE 411,09.22
TO: VALENTINE NI.OSBORN, M.D., 350 S. SPORTING HILL ROAD. MECHANICSBURG. PA
17055
Within twenty (20) days after service of this subpoena. you are ordered by the Court to produce :=e following documents
or things: Any_andallmedical records pertaimn.to ApnlN. Dro%vri-d.u.b. 6.9.,Sl.fromJanuar,_1.A9S4.:e:he present to
106 *vIarketStreet-Sunbury.P.L.17301
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this sub;.•oena. together with the
Certificate of Compliance, to the parry making this request at the address listed above. You have the right :o seek ul advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the
party serving this subpena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Joey A-Staraska.Fsq._
Address: 106 1arketStreet .. _
Sunbury. P_-k-1780 L _
Telephone: (717)186.-6701 -
Supreme Court I.D. =?49? L_
Attomey for Detendant.Ralph A.-tauer
BY THE COURT:
?Protb lotar2/ r
Date. Lr'1-7-1 1'ic _ %? "/.';ir•),1„ t-
SEAL OF THE COURT / Deputyt
CERTIFICATE.-OF-SERVICE
I, Joey A. Storaska, do hereby certify that I served a true and correct copy of the
foregoing Notice of Intent to Serve a Subpoena to Produced Documents and Things for
Discovery Pursuant to Rule 1009.21 upon the counsel of record named below by placing same in
the United States Mails, First Class, Postage Prepaid, this1 day of February, 1993.
John A. Statler. Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
`J
CERTIFICATE OF SERVICE
1, Joey A. Storaska, do hereby certify that I served a true and correct copy of the
foregoing Certificate Prc-Requisite to Service of a Subpoena Pursuant to Rule 4009.22 upon the
counsel of record named below by placing same in the United States Mails, First Class, Postage
Prepaid, this TH day of March, 1998.
John A. Statlcr, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, 111, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
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DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
CERTIFICATE PRE-REQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Defendant, Ralph A. Frazier, certifies that:
(1) a notice of intent to serve the subpoena with a copy of the
subpoena attached thereto was mailed or delivered to each party at
least twenty (20) days prior to the date on which the subpoena is
sought to be served;
(2) a copy of the notice of intent, including the proposed subpoena, is
attached to this certificate,
(3) no objection to the subpoena has been received, and
(4) the subpoena which will be served is identical to the subpoena
which is attached to the notice of intent to serve the subpoena.
Date: March 16, 1998 -
Joey torn a,
Atto sy f De ' ndant,
Ralph A. Frazier
DIANNE C. TENNANT, Individually
and as Farent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
Vs.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER.
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVA-MA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA
TO PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT_TO_RULEA009.21
Defendant, Ralph A. Frazier, intends to serve a subpoena identical to the one that
is attached to this Notice. You have twenty (20) days from the date listed below in «hich to file
of record and serve upon the undersigned an objection to the subpoena. If no objection is made,
the subpoena may be served
Date: February 13, 1998 `- . ' -
Attorngqy r D endant,
Ralph A.. azier
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT. Individually and as IN THE COURT OF COMMON PLEAS OF
Parent and Natural Guardian of April N. CUMBERLAND COUNTY.
Brown, a minor, PENNSYLVANIA
Plaintiff
V5.
RALPH A. FRAZIER and ELEANORA M
FRAZIER,
CIVIL ACTION - LAW
NO. 97.564
JURY TRIAL DENIANDED
Defendants
SLTBPOENA TO PRODUCT? DOCUMENTS OR THIN[=S
FOR DIS('OZ ER)' Pt RSt'A\'T TO RULE -1009.22
TO: CUMBERLAND VALLEY SCHOOL DISTRICT. 6746 CARLISLE PIKE.
NIECHANICSBURG. PA 17055
Within mcrity (20) days after service of'thts subpoena, you ate ordered by the Court to produce :he foliootng documents
or things: Any and all school educational records. Including psychulogical tests. 1.0. tests. grades and records of disciplinary
action pertaining-to April V. Drown, d.o.b. 61R St. from January 1. 1954 to the present to 106 Market Knee:. Sunbury•..EA _17501
iAddress)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena. together with the
Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek to advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the
party serving this subpena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: lacy A. Storaska.Esq.
Address: l06 .%IarketStreet_
Sunbury-
PA-17801--Telephone: (717)256.6701
Supreme Court I.D. #24921_ _
Attorney for Defendam. Ralph A. Frazier
BY THE C01;RT:
//1
Date: '., )., / / / `I
SEAL OF THE COURT
Prodynylary
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Deput%
CERTIFICATE -OF-SERVICE
I, Joey A. Storaska. do hereby certify that I served a true and correct copy of the
foregoing Notice of Intent to Serve a Subpoena to Produced Documents and Things for
Discovery Pursuant to Rule 4009.21 upon the counsel of record named below by placing same in
the United States Mails, First Class. Postage Prepaid, this i -day of February, 1998.
John A. Statler, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
CERTIFICATE OF SERVICE
I, Joey A. Storaska, do hereby certify that I served a true and correct copy of the
foregoing Certificate Prc-Requisite to Service of a Subpoena Pursuant to Rule 4009.22 upon the
counsel of record named below by placing same in the United States Mails, First Class, Postage
Prepaid, this A
day of March, 1998.
John A. Statler, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, 111, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
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DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
Defendant, Ralph A. Frazier, intends to serve a subpoena identical to the one that
is attached to this Notice. You have twenty (20) days from the date listed below in which to file
of record and serve upon the undersigned an objection to the subpoena. If no objection is made
the subpoena may be served.
Date: March 23, 1998 Q-'Q5;FW"
At ey r Defendant,
Ra p . lazier
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT, Individually and as IN THE COURT OF COMMON PLEAS OF
Parent and Natural Guardian of April N. CUMBERLAND COUNTY,
Brown, a minor,
Plaintiff
vs.
RALPH A. FRAZIER and ELEANORA M.
FRAZIER,
Defendants
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DIS .OVERY PURSUANT TO RULE 4009.22
TO: MECHANICSBURG AREA SCHOOL DISTRICT, 500 SOUTH BROAD STREET,
MECHANICSBURG, PA 17055
Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents
or things: Any and all school educational records, including objective standardized educatioaal.testing. I.Q. tests, grades.and
records.of disciplinary-action pertaining toAprd N. Brown, d.o.b. 619181.1kom January 1. 1984 to the present to
106 Nhrkct Street. Sunbury.-PA-17801
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the
parry serving this subpena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Joey A. Storaska.-Esq. _
Address: 106 MarketSheet__.
Sunbury. PA_.17801_
Telephone: (717)286.670L_.
Supreme Court I.D. #24931 _
Attorney for Defcndaat..Ralph A. Frazier
BY THE COURT:
Prothonotary
Date:
SEAL OF THE COURT Deputy
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21
(party) objects to the proposed subpoena
that is attached to these objections for the following reasons:
Date:
Attorney for
CERTIFICATE OF SERVICE
1, Joey A. Storaska, do hereby certify that 1 served a true and correct copy of the
foregoing Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery
Pursuant to Rule 4009.21 upon the counsel of record named below by placing same in the United
States Mails, First Class, Postage Prepaid, thisz? day of March, 1998.
John A. Statler, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, 111. Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
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DIANNE C. TENNANT, Individually
and as parent and natural
guardian of April N. Brown, a minor,
PLAINTIFFS
V.
RALPH A. FRAZIER, and
ELEANORA M. FRAZIER,
his wife,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97.0564 CIVIL TERM
ORDER OF COURT
AND NOW, this 11th day of March, 1997, based upon the reasons set forth by
plaintiffs seeking to take the deposition of an incarcerated defendant in aid of filing a
complaint, the motion of plaintiffs, IS DENIED.
By the
Edgar B. Bayley,
Brian W. Perry, Esquire
For Plaintiffs
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DIANNE C.TENNANT, Individually
and as parent and natural
guardian of April N. Brown,
a minor,
Plaintiffs
VS.
RALPH A. FRAZIER, and
ELEANORA M. FRAZIER,
his wife,
Defendants
IN THE COURT OF COMMON
PLEAS, CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - AT LAW
NO. ('VA ?1:'? l!.?<<a
MOTION OF PLAINTIFFS TO PERMIT DEPOSITION OF INCARCERATED
DEFENDANT. RALPH A. FRAZIER
1. The instant law suit arises out of an incident of sexual molestation
committed by Defendant, Ralph A. Frazier, against Plaintiff, April N. Brown on
June 18, 1994.
2. Specifically, on the aforementioned date, Defendant, Ralph A.
Frazier, then 44 years of age, penetrated the vagina of Plaintiff, April N. Brown,
then 13 years of age, with his finger(s).
3. On February 28, 1995, Defendant, Ralph A. Frazier, pleaded nolo
contendere to one count of Indecent Assault before the Honorable Edgar B.
Bayley, and sentencing was deferred pending a pre-sentence investigation.
4. On March 7, 1995, the Honorable Harold E. Sheeley issued an
Order that recognized the mutual mistake made by the assistant district attorney
and defense counsel and allowed Defendant to enter a plea of nolo contendere
to one count of Aggravated Indecent Assault.
5. On April 25, 1995, Judge Bayley sentenced Defendant to thirty-two
(32) to eighty-four (84) months of incarceration in a state correctional institution.
6. Plaintiff commenced this cause of action against Defendant, Ralph
A. Frazier, for damages sustained to Plaintiff, April N. Brown, due to the act of
sexual molestation on the minor victim.
7. Defendant, Ralph A. Frazier, inmate number CT4786, is presently
housed at the State Correctional Institution, Camp Hill, Pennsylvania.
8. Plaintiffs intend to inquire into the facts, circumstances, and events
surrounding the incident regarding the victim.
9. Plaintiffs request this deposition for the purpose of preparing a
Complaint against Defendants, pursuant to Pa.R.C.P. 4007(c).
Respectfully submitted,
NEALON & GOVER
ZA
By:
Brian W. Perry, Esquir
Attorney I.D.#75647
Matthew R. Gover, Esquire
Attorney I.D #47593
301 Market Street, 91h Fl.
P.O. Box 865
Harrisburg, PA 17108-0865
(717) 232-9900
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DIANNE C.TENNANT, Individually
and as parent and natural
guardian of April N. Brown,
a minor,
Plaintiffs
VS.
RALPH A. FRAZIER, and
ELEANORA M. FRAZIER,
his wife,
Defendants
IN THE COURT OF COMMON
PLEAS, CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - AT LAW
NO. 97-0564
TO THE HONORABLE EDGAR B. BAYLEY, JUDGE OF SAID COURT:
PLANTIFF'S MEMORANDUM OF LAW
1. PROCEDURAL HISTORY
Plaintiffs, Dianne C. Tennant on behalf of her minor daughter, April N.
Brown, commenced the above-captioned action by requesting the issuance of a
Writ of Summons on February 4, 1997. On February 12, 1997, Plaintiffs filed a
Motion to Permit Deposition of Incarcerated Defendant, Ralph A. Frazier. This
Court, by letter dated February 20, 1997, directed that Plaintiffs submit a
memorandum outlining the following issues: (1) the reasons that Plaintiffs
believe they are entitled to take Ralph A. Frazier's deposition prior to filing the
complaint; (2) the information sought to discover that is necessary prior to filing
the complaint; (3) the Court's authority for entering such an order. This
memorandum is submitted in response to the Court's request.
II. FACTUAL HISTORY
On June 18, 1994 and July 4, 1994, Defendant Ralph A. Frazier, sexually
abused Plaintiff, April N. Brown, who was then thirteen years old. Frazier
pleaded no contest to one count of Aggravated Indecent Assault, a felony of the
second degree. On April 25, 1995, this Honorable Court sentenced Frazier to
thirty-two (32) to eighty-four (84) months of incarceration in a state correctional
institution.
Since the assault, Plaintiff Brown has suffered severe psychological and
emotional complications. Plaintiff Brown has undergone extensive counseling
and treatment and Plaintiffs have incurred considerable medical expenses as a
result of the attacks.
III. ARGUMENT
Plaintiffs will address the three issues listed under "Procedural History"
collectively, in that each are interrelated. The deposition of an incarcerated
party may only be taken by leave of Court and only on such terms as the Court
prescribes. Pa.R.Civ.P. 4007.2(d). In the instant case, Plaintiffs not only seek
the deposition of an incarcerated party, Frazier, but also seek to do so in aid of
filing a complaint.
Authority for the Court to allow a deposition in preparation of pleadings is
found in the Pennsylvania Rules of Civil Procedure. Plaintiffs must prepare a
brief statement of the cause of action and matters to be inquired into when the
deposition is sought in aid of filing a complaint. Pa.R.Civ.P. 4007.1(c). Various
courts have addressed validity of pre-complaint depositions. The Superior
Court, for example, in Lombardo v. DeMarco, 350 Pa. Super. 490, 504 A.2d
1256 (1985), stated, "Discovery is even available early in the case if necessary
to enable a party to prepare his pleadings, assuming the action has been
commenced and that the party can show that the requested information is
relevant." Id., 504 A.2d at 1259. Further, a plaintiff who issues a summons may
seek discovery to assist in filing the complaint, if knowledge of more facts
becomes necessary. Cole v. Wells, 406 Pa. 81, _, 177 A2d 77, 81 (1962).
See also, Reisinger v. Tomlinson, 51 Somerset Leg. J. 159, 161 (1992) )"When
a pre-complaint deposition is requested... the requesting party must show that
the deposition is needed in order to prepare the pleading"), Gray v Oech, 49 D
& C. 2d 358 (1970).
The present case has been commenced by a Writ of Summons. The
Court's inquiry then becomes two-fold: (1) what are the causes of action and
matters to be inquired to in the present case; and (2) is the information
necessary to assist Plaintiffs in preparing the complaint Relating to the first
issue, possible causes of action against Mr Frazier include battery, intentional
infliction of emotional distress, and negligent infliction of emotional distress.
However, the instant action also involves Eleanore M Frazier, Mr Frazier's wife.
The deposition of Mr. Frazier is necessary in order for Plaintiffs to determine
whether the causes of action outlined above are appropriate against Mrs.
Frazier. Plaintiffs intend to question Mr Frazier on his knowledge of her
involvement in this case. Clearly, additional causes of action against Mrs.
Frazier may be brought into focus through deposing Mr. Frazier prior to filing a
complaint.
Regarding the second area of inquiry, Plaintiffs submit that this
information is essential in preparing a complaint against both Mr. And Mrs.
Frazier. Specifically, a deposition prior to the filing of a complaint would narrow
the issues involved and most importantly, avoid the averment of multiple,
inapplicable causes of action. Plaintiffs submit that the marital relationship
between the parties necessitates pre-complaint depositions.
IV. CONCLUSION
WHEREFORE, based upon the foregoing, Plaintiffs request that this
Honorable Court grant Plaintiffs request for the pre-complaint deposition of
Defendant, Ralph A. Frazier.
Respectfully submitted,
NEALON & GOVER
Ae,
Brian W. Perry, Esquire
Attorney I.D.#75647
301 Market Street, 9ht Fl.
P.O. Box 865
Harrisburg, PA 17108-0865
(717) 232-9900
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DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
PRAECIPE FOR RULE FOR
PLAINTIFF TO FILE A COMPLAINT
TO: The Prothonotary
Please issue a Rule directing Plaintiff DIANNE C. TENNANT, to
file a Complaint against Defendants RALPH A. FRAZIER and ELEANORA
M. FRAZIER within twenty (20) days or suffer judgment of non pros.
Respectfully submitted,
JAMES, SMITH
Dated: By:
Attor y I.D 29563
JOHN MCNALLY, III, ESQUIRE
Attor ev I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendants
DIANNE C. TENNANT,
individually and as parent
and natural guardian of April
N. Brown, a minor,
Plaintiff
v.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
RULE FOR PLAINTIFF
TO FILE A COMPLAINT
TO: Dianne C. Tennant
and her attorney, John Glace, Esquire
You are hereby directed to file a Complaint in the above-
captioned matter within twenty (20) days or suffer judgment of non
pros.
DATED: ?"l C 4-. ??. /?? 7
CERTIFICATE OF SERVICE
I, JOHN J. MCNALLY, III, ESQUIRE, do hereby certify that I
served a true and correct copy of the foregoing Praecipe and Rule
upon the following below-named individual(s) by depositing same in
the U. S. Mail, postage pre-paid at Hershey, Dauphin County,
Pennsylvania this ! day of March, 1997.
SERVED UPON:
John Glace, Esquire
Stefanon & Glace
P.O. Box 12027
Harrisburg, PA 17108-2027
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiffs
VS.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA JURY TRIAL DEMANDED
M.FRAZIER,
Defendants
ORDER
AND NOW, this day of ) [ _ , 1998, upon consideration of the
Motion for Issuance of Subpoena Pursuant to Pa.R.C.P. No. 4009.21(d)(1), said Motion is
scheduled for disposition by Argument on the yth day of
at 41, 021 o'clock --,o m., in Court Room No. -/ , Cumberland County
Courthouse, Carlisle, Pennsylvania. The moving party shall submit a Brief on or before
1998, with the responding party to file a Brief on or before
1998.
BY THE COURT:
By:
J.
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DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiffs
VS.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA JURY TRIAL DEMANDED
M. FRAZIER,
Defendants
MOTION FOR ISSUANCE OF SUBPOENA
PURSUANT TO Pa.R.C.P. NO. 4009.21(d)(1)
COMES NOW, Defendant, Ralph A. Frazier, by his counsel, Rice, Boop &
Storaska, to request relief as follows:
This action was initiated by a Writ of Summons following which a
Complaint was filed in May, 1997.
The Complaint alleges that the minor Plaintiff, April N. Brown, was
sexually assaulted by Defendant, Ralph A. Frazier, in June and July, 1994.
3. The Complaint includes a count against Defendant, Eleanora M. Frazier,
grounded in negligence alleging, inter alia, that Eleanora M. Frazier knew of a prior incident
involving Ralph A. Frazier and failed to report that to the minor's mother, Plaintiff, Dianne C.
Tennant.
4. The Defendants have filed an Answer with New Matter to the Complaint
and Defendant, Ralph A. Frazier, separately filed an Amended Answer admitting an improper
physical contact between himself and the minor, April N. Brown, but urging that the contact
occurred in June, 1993, rather than in June, 1994, and denying any recollection of an improper
contact with April N. Brown in July of 1994.
5. As a result of the conduct alleged and in part admitted, Plaintiffs' represent
in their Complaint that April N. Brown has suffered "great emotional distress, fear, depression,
anxiety, embarrassment, and humiliation and other mental suffering...," and advancing claims for
this psychic injury as well as medical and psychological costs. Plaintiffs' Complaint at
paragraphs eleven, twelve and thirteen. A true and correct copy of Plaintiffs' Complaint is
attached hereto and made a part hereof as Exhibit "A."
6. The depositions of Plaintiff, Dianne C. Tennant, and Defendants, Ralph A.
Frazier and Eleanora M. Frazier, have been conducted.
7. The deposition of Plaintiff, April N. Brown, the minor who is the subject
of the Complaint, was scheduled but postponed in order to permit counsel for Defendant, Ralph
A. Frazier, to secure various psychological and medical records.
8. Defendant, Ralph A. Frazier, by his counsel, thereafter served Notices of
Intent to Serve a Subpoena Pursuant to Pa. R.C.P. No. 4009.21 to the following persons or
entities: (1) Mechanicsburg Area School District for educational and disciplinary records; (2)
Dr. Kenneth G. Small for psychological records and test results; (3) Valentine M. Osborn, for
medical records; and (4) Cumberland Valley School District, for school and disciplinary records.
True and correct copies of the subpoenas which accompanied the Notices of Intent to Serve
Subpoena are attached hereto and made a part hereof as Exhibits "B" - "E."
9. Defendant received an objection to the issuance of the subpoena to Dr.
Kenneth G. Small advancing the privilege set forth in 42 Pa.C.S.A. §5944; a true and correct
copy of which objection is attached hereto and made a part hereof as Exhibit T."
10. Counsel for Defendant, Ralph A. Frazier, also received correspondence
from an attorney representing Dr. Valentine M. Osbom, objecting to the issuance of the
subpoena grounded upon a privilege set forth in the Mental Health Procedures Act. 50 P.S.
§7111; a true and correct copy of which objection is attached hereto and made a part hereof as
Exhibit "G."
11. It should be noted that the subpoena to Dr. Osborn requested only medical
records, and Defendant sought only the medical records of physical condition of the minor, April
N. Brown, and not any psychological or psychiatric records of the said Dr. Valentine M. Osbom.
12. Plaintiffs' counsel has taken the position that all of the minor Plaintiffs
psychological records are privileged pursuant to Pennsylvania law and refused to permit the
release of same.
13. Defendant believes and therefore states that Plaintiff has waived or
impliedly waived any privileges he has relative to the release of the otherwise confidential
information by placing the subject matter of the privilege directly at issue in the case against
Defendant. Rost v. State Board of Psychology, Pa.Cmwlth. , 659 A.2d 626
(1995), app. den. at 670 A.2d 145 (1995); Premack v. J. C. J. Ogar, Inc., 148 F.R.D. 140
(E.D.Pa. 1993).
14. Defendant believes and therefore states that he is and will be substantially
prejudiced in his ability to defend the claims asserted by Plaintiff unless he has access to and the
ability to analyze the protected material. Defendant recognizes that the Court may impose
additional safeguards following the release of the records to prevent their dissemination, ensure
their use solely with respect to Defendant's legitimate inquiry regarding damages, and otherwise
protect the rights of privacy of the minor Plaintiff, and Defendant believes an Order may be
fashioned that would accommodate these goals.
15. Defendant also believes that in order to ensure the release of all relevant
records, Plaintiff should be directed to sign an Authorization for Release of Psychological
Records which also is endorsed by Plaintiff, Dianne C. Tennant.
WHEREFORE, Defendant, Ralph A. Frazier, requests that the Honorable Court
dismiss the objections to the Notices of Intent to Serve Subpoenas, authorize the issuance of
subpoenas to the psychologists and medical record custodian, and further direct Plaintiffs to
execute Authorizations for the Release of Psychological Records.
Respectfully submitted,
RICE, BOOP & STORASKA
By:
Joey ?. S ora a,
Yr De ndant,
Ralph A. Frazier
106 Market Street
P.O. Box 470
Sunbury, PA 17801
(717) 286-6701
I.D. #24931
Date: April __Lj, 1998
EXHIBIT A
John A. Statler. Esquirc
Anomry 1. D. No. 43811
GOLDBERG, KATZMAN & SHIMAN, P.C.
320 Nfarket Strcet
P 0. Box 1268
Harrisburg, PA 17108.1268
Telephone: (717) 2344161
Attorney for Plaintiff
DIANNE C. TENNANT,
Individually and as Parent and Natural
Guardian of APRIL, N. BROWN, a Minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
: JURY TRIAL DEMANDED
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 may be 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.
h
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.
THOMAS E. CHEFFINS, COURT ADMINISTRATOR
Cumberland County Courthouse
One Courthouse Square
Fourth Floor
Carlisle, PA 17013-3387
(717) 240-6200
Le han demandado a usted en la torte. Si usted quiere defenderse de estas demandas
expuestas en ]as paginas siguientes, usted tiene viente (20) dial de plazo al partir de la fecha de
la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por
abogado y archivar en la torte en forma escrita sus defensas o sus objecdones a las demandas en
contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notification
y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importances pars
usted.
LLEVE ESTA DEMANDA A UN ABOGADO MAEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Courthouse
One Courthouse Square
Fourth Floor
Carlisle, PA 17013-3387
(717) 240-6200
John A. Stiller, Esquire
Attorney I. D. No. 43812
GOLDBERG. KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108.1268
Telephone: (717) 234-1161
Attorney for Plaintiff
DIANNE C. TENNANT,
Individually and as Parent and Natural
Guardian of APRIL N. BROWN, a Minor,
Plaintiff
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
: NO. 97-564 CFVM TERM
JURY TRIAL DEMANDED
AND NOW, comes the Plaintiff, by her attorneys, Goldberg, Katzman and Shipman, P.C.,
who file this Complaint against the Defendants based on the following:
1. Dianne C. Tennant is an adult individual who resides at 220 West Coover Street,
b
Mechanicsburg, Cumberland County, Pennsylvania.
2. Dianne C. Tennant is the mother and natural guardian of April N. Brown, a minor.
3. Defendant Ralph A. Frazier is an adult individual currently incarcerated in the
State Correctional Institution at Camp I-Ell, Cumberland County, Pennsylvania.
4. Defendant Elcanora M. Frazier is an adult individual who resides at 100 Clarkton
Court, Lemoyne, Cumberland County, Pennsylvania.
5. At all times material hereto, Defendants Ralph A. Frazier and Eleanora M. Frazier
were husband and wife residing at 100 Clarkton Court, Lemoyne, Cumberland County,
Pennsylvania.
6. On or about June 18, 1994 and July 3-4, 1994, the minor Plaintiff, April N. Brown,
was an overnight guest in the Defendants' home.
Prior to April N. Brown coming to visit and stay overnight at the residence at 100
Clarkton Court, Lemoyne, Dianne C. Tennant spoke with Eleanora Frazier to obtain permission
from Eleanor Frazier for April N. Brown to visit and stay overnight with the Defendants' minor
daughter, Angela Frazier.
8. Prior to the visits of June 18, 1994 and July 3-4, 1994, Defendant Eleanora Frazier
was aware that April N. Brown was coming to stay overnight and Eleanor Frazier specifically
consented and gave permission to Dianne C. Tennant for April Brown to come to the Defendants'
residence and stay overnight.
2
9. As a result of Eleanora Frazier's specific consent and grant of permission, Dianne
C. Tennant entrusted the custody of her minor daughter, April N. Brown, to Eleanor Frazier.
10. On or about June 18, 1994 and July 3-4, 1994, while she was a guest at 100
Clarkton Court, Lemoyne, Pennsylvania, April N. Brown, a minor, was sexually fondled, touched,
penetrated, rubbed and/or otherwise improperly physically contacted by Defendant Ralph A.
Frazier in and about the area of her vagina and buttocks.
11. As a direct and proximate result of the incidents of June 18, 1994 and July 34,
1994, the minor Plaintiff, April N. Brown has suffered great emotional distress, fear, depression,
anxiety, embarrassment and humiliation and other mental suffering and she will continue to so
suffer in the future all to her great detriment and loss.
12. As a direct and proximate result of the incidents of June 18, 1994 and July 3-4,
1994, Dianne C. Tennant has incurred bills andhexpenses for the medical and psychological care
and treatment of April N. Brown and she will continue to incur such bills and expenses in the
future.
13. As a direct and proximate result of the incidents of June 18, 1994 and July 3-4,
1994, April N. Brown may continue to require medical and/or psychological treatment and
counseling in the future and a demand is made for the cost of that future treatment.
14. As a direct and proximate result of the incidents of June 18, 1994 and July 3-4,
1994, April N. Brown has suffered a diminution and impairment of her future earning capacity.
Dianne C. Tennant, Individually and as
Parent and Natural Guardian of April N. Brown
V.
Ralph A. Frazier
15. The averments in paragraphs 1 through 14 of the foregoing Complaint are
incorporated by reference as if set forth at length.
16. The incidents of June 18, 1994 and July 3-4, 1994 were caused by the negligent,
unreasonable, reckless, outrageous and/or intentional conduct of Ralph A. Frazier.
WHEREFORE, Plaintiffs demand judgment against Ralph A. Frazier for compensatory
and punitive damages in an amount in excess of 535,000.00 together with delay damages and
costs of suit.
Dianne C. Tennant, Individually and as
Parent and Natural Guardian or April N. Brown
V.
Eleanora M. Frazier
17. The averments in paragraphs 1 through 14 of the foregoing Complaint are
incorporated by reference as if set forth at length.
18. Prior to the incidents of June 18, 1994 and July 34, 1994, Ralph A. Frazier had
sexually assaulted, fondled, touched, penetrated, rubbed and/or otherwise improperly physically
contacted another minor girl in York County, Pennsylvania.
19. Prior to the incidents of June 18, 1994 and July 3-4, 1994, Eleanora M. Frazier
was aware that Ralph Al Frazier had admitted to sexually assaulting, fondling, touching,
penetrating, rubbing and/or otherwise improperly physically contacting a minor girl in York
County and that he had been criminally prosecuted and served time in prison for that conduct.
20. Despite having specific knowledge and awareness of Ralph A. Fraziees prior
criminal record and sexual assault and/or improper contact with a minor girl in York County,
Eleanora M. Frazier did not warn or advise either Dianne C. Tennant or April N. Brown of this
information.
21. Eleanora Nf. Frazier was negligent and careless in that she:
a) failed to advise Dianne C. Tennant and April N. Brown of Ralph A.
Frazier's prior criminal conduct and activity;
b) failed to warn Dianne C. Tennant and April N. Brown that Ralph A.
Frazier had previously sexually molested, assaulted, fondled,
touched and/or otherwise physically contacted a minor girl;
c) failed to protect April N. Brown from the known and foreseeable
danger of Ralph A. Frazier after voluntarily assuming custody and
responsibility for the minor's care;
d) permitted Ralph A. Frazier, a convicted child molester, to be alone
with or otherwise have access to April N. Brown, a minor, at times
when Dianne C. Tennant c ould not protect her minor child;
e) failed to wam and advise Dianne C. Tennant and April N. Brown of
Ralph A. Frazier's sexual preference for young girls;
0 failed to warn and advise Dianne C. Tennant and April N. Brown
that Ralph A. Frazier was or may be a pedophile;
6
g) deprived April N. Brown of her normal power of self-protection, to
wit: her mother, Dianne C. Tennant;
h) subjected April N. Brown, a minor in her custody, to association
with a person likely to do her harm;
i) created and/or permitted an unreasonable risk of harm to April N.
Brown under the circumstances then and there existing; and
j) failed to supervise and control the conduct of Ralph A. Frazier so
as to create an increased risk of harm to April N. Brown, a minor in
her custody.
22. The negligence and carelessness of Eleanora M Frazier as aforesaid was a substantial
factor in the happening of the incidents of June 18, 1994 and July 3-4, 1994 and the resulting
harm to April N. Brown.
wBEREFORE, Plaintiffs demand judgment against Eleanora M. Frazier in an amount in
excess of 535,000.00 together with delay damages and costs of suit.
Respectfully submitted,
GOLDBERG, KATZMAN & SffiPMAN' P.C.
By:
John K Statler, Esquire
Attorney L D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiff
D ATE: 151 y 19 7
8
I, DIANNE C. TENNANT, Individually and as Parent and Natural Guardian of APRIL N.
BROWN, a Mnor, hereby certify that I am the Plaintiff in this action; that I have read the foregoing
document and that the facts stated therein are true and correct to the best of my knowledge,
information and belief.
I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.
§ 4904 relating to unswom falsification to authorities.
DIANNE C. TENNANT,
Individually and as Parent and Natural Guardian
of APRIL N. BROWN, a Mnor
DATE:
EXHIBIT B
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT, Individually and as IN THE COURT OF COMMON PLEAS OF
Parent and Natural Guardian of April N. CUMBERLAND COUNTY.
Brown, a minor, PENNSYLVANIA
Plaintiff
RALPH A. FRAZIER and ELEANORA M. JURY TRIAL DEMANDED
FRAZIER,
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOiTRY PURSUAN"r TO RULE 1002.22
TO: MECHANICSBURG AREA SCHOOL DISTRICT, 500 SOUTH BROAD STREET,
MECHANICSBURG, PA 17055
Within twenty (20) days after service of this subpoena, you are ordered by the Coun to produce the following documents
or things: Any_andaUschooUducationaLrecords..including9bjectihx_standardized educational.testing.LQ_tests..grades.and
records ofdiscinlinarv-actioaoertaininglo-Apnl-*.Bmhtim-d.o.b._6:9/3Lfromlanuary_l..19S4 to-the present to
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the
party serving this subpena may seek a court order compelling you to comply with it.
VS.
CIVIL ACTION - LAW
NO. 97-564
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: logy-A.Storaska Esq-
Address: L06-MarketStrcet
Sunbury-PA-17801_
Telephone: (7171286_6741-
Supreme Court I.D. #2493L-
Attorney for Defendant..Ralphc-Eraziet
BY THE COURT:
Date.
SEAL OF THE COURT
Prothonotary
Deputy
EXHIBIT C
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT, Individually and as IN THE COURT OF COMMON PLEAS OF
Parent and Natural Guardian of April N. CUMBERLAND COUNTY,
Brown, a minor, PENNSYLVANIA
Plaintiff
vs.
RALPH A. FRAZIER and ELEANORA M
FRAZIER,
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVTRY PC?RSLTANi 7 TO RULE 4009.22
TO: DR. KENNETH G. SMALL, 410 EAST MAIN STREET, MECHANICSBURG, PA 17055
Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents
or things: Any and all psychological records and reports and psychological.test results pertaining to April N. Brown, d.o.b..6:9181.
from January-I._1993_to_the-present to 106 Market Street,.Sunbury.PA 17801
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the
party serving this subpcna may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Joey A._StoraAa.Esq-
Address: 106 Market Street
Sunbury. PA_17801.
Telephone: (717)286-6701_
Supreme Court I.D. #24931 .
Attomev fo; Defendant. Ralph A. Frazier
BY THE COURT:
Date: 1. ! 7 l 9 1 7,
rSEAL OF THE COURT
'Deputy
EXHIBIT D
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT, Individually and as IN THE COURT OF COMMON PLEAS OF
Parent and Natural Guardian of April N. CUMBERLAND COUNTY,
Brown, a minor, PENNSYLVANIA
Plaintiff
VS.
CIVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA M. JURY TRIAL DEMANDED
FRAZIER,
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUAINT TO RULE 4009.22
TO: VALENTINE M. OSBORN, M.D., 350 S. SPORTING HILL ROAD, MECHANICSBURG, PA
17055
Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents
or things: Any-and all me dicaLremids_peuainingto-ApriLN.Brow-n d.o.b-619/ 1.Iromlanuary-1.128lto.the present to
106ujN1a[kntStreet Sunbnry_ PA 17801
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the
parry serving this subpena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Joey A. Storaska.Fsq-
Address: L05Market Street-
Sunbury_ PA 17801_
Telephone: (217)296-6701
Supreme Court I.D. #24911
Attorney for Dtfend=LRalph A Brazier
BY THE COURT:
Prothonotary
Date:
SEAL OF THE COURT Deputy
EXHIBIT E
COMMONWEAL'CII OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DIANNE C. TENNANT, Individually and as
Parent and Natural Guardian of April N.
Brown, a minor,
IN THE COURT OF CO\IMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
vs.
RALPH A. FRAZIER and ELEANORA M.
FRAZIER,
Defendants
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
SUBPOE,\A TO PRODUCE D0(7UMEN7S OR THTN(70
FOR DISCO'k"ERY PUR91:AN 7 TO RULE -1009.22
TO: CUMBERLAND VALLEY SCHOOL DISTRICT, 6746 CARLISLE PIKE.
MECHANICSBURG. PA 17055
Within twenty (20) days after service of this subpoena. you are ordered by the Court to produce the following documents
or things: Any-and all schoul.educationalrecords. including psychological_icsts-Lb. tests, grades and.records of-disciplinary
action.pertaining to_AprilN. Droan_d.u.b. 6t9.81.1romlanuary 1.1984.to the present to 106 Niarket3treei..Sunbury-I!A-l-SQ1
i Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
Certificate of Compliance, to the party making this request at the address listed above. You have the nght to seek in advance the
reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days alter its service, the
party serving this subpena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name: Joey:a..Storaska.J:sq-
Address: I06 `larket_Street_ ._.
Sunbury-PA-177801-
Telephone: U.17)286-0701
__ _
Supreme Court I.D. 424931 __
Attorney for Defendant. RalplLl.Frazter
B1' THE COURT:
Date:
SEAL OF THE COURT
P(o t notary
Depun
EXHIBIT F
LAW OrrICEN
GOLDDERO. KATZMAN 8: SHIPMAN. P.C.
IIL•O MAIIEr.T HTUEET
RONALDM KATZMAN
NTIIAWHIMIl ItY HOUANE
HARRYB GOLDBERG
F. LEE SHIPMAN 1. 0 110E 11JOR
PAUL J ESPOSITO 11ARRINDUNO. PENNHYI.VANIA 171011.19110
NEIL HENDERSHOT
J JAY COOPER TELEP 11081: (717) 201.41111
THOMAS C BRENNER rAE: 1717) L'f14.011011
JOHN A STATLER FIRM E•KAIL' (1EN90ENLAW . CON
APRIL L BTRANG-KUTAT
GUT h BROOKS
JEFFERSON J SHIPMAN
KAREN S. FEUCHTENBERGER
JERRY J. RUSSO
February 20, 1998
MICHAEL J CROCENEI
ARNOLDS KOGAN
THOMASJ WEBER
EVAN J KLINE. III
JOHN DELORENEO ^ r r !,? 1r
STEVEN E DRUBS ?` ^' V r • vl
DIANA WOODSIDE
JOMI R. NINOSKY
Joey Alan Storaska, Esquire
Rice, Boop S Storaska
106 Market Street
P.O. Box 470
Sunbury, PA 17801
Re: Tennant v. Frazier
Dear Jocy:
ARTHUR L GOLDBERG
Or COUNSEL
HERSHEY OFFICE
523 WEST CHOCOLATE AVENUE
P.O. BOY 555
HERSHEY. PA 17033
17171 5]0. 4048
CARLISLE OFFICE.
53 WEST POMFRET STREET
CARLISLE. PA 17013
17171 245.0587
YORK OFFICE
2 WEST MARKET STRICT
YORK. PA. 17401
17171 043-7912
CORRESPOND TO
HARRISBURG OFFICEI
I have received and reviewed your letter of February 13, 1998 and the enclosed Notices of
Intent to serve subpoenas on Valentine M. Osborn, M.D., the Cumberland Valley School District
and Dr. Kenneth G. Small.
Please be advised that I do not object to your subpoenaing records from Dr. Osborn and
the Cumberland Valley School District so long as you provide me with copies of all records you
receive in response to those subpoenas.
With regard to Dr. Small's records, I do object to your request to obtain copies of any and
all psychological records and reports and psychological tests pertaining to April Brown. I do not
believe that you are permitted to subpoena this minor's psychological records under
Pennsylvania Law. Accordingly, l enclose a copy of the Objections I have filed with the Court.
GOLDBERG, KATZMAN 8c SHIPMAN. RC.
Joey Alan Storaska, Esquire
Rice, Boop & Storaska
February 20, 1998
Page 2
If you have any questions, please contact me.
yours,
Statler
JAS/krb
Enclosure
cc: John J. McNally, III, Esquire
EXHIBIT G
JERRY R DUFFIE
RICHARD W. STEWART
C ROY WEIDNER. IR
EDMUND G MYERS
DAVID St' DLLUCE
RALPH H WRIGHT, IR.
DAVID I LANZA
JOSEPH L HITCHINGS
MARK C DUFFIE
KEIRSTEN L. WALSH
LAW OIIICLS
JOHNSON, DUFFIE, STEWART & WEIDNER
A Profeuionul Corporation
301 MARKET STREET
P. O. BOX 109
LEMOYNE, PENNSYLVANIA 17043.0109
TELEPHONE 717.761.4540
FACSIMILE 717.761.3015
E-MAIL mmilaidFw<om
March 23, 1998
Joey A. Storaska, Esquire
Rice, Boop & Sloraska
100 Market Street
P.O. Box 470
Sunbury, PA 17801
Re: Tennant v. Frazier, et al.
Cumberland County Court
No. 97.564
Dear Mr. Sloraska:
i...
HORACE A JOHNSON
OF COUNSEL
Please be advised that we represent the Sporting Hill Medical Practice where Valentine
M. Osborn, M.D. is employed. Your letter dated March 16, 1998 and the accompanying
subpoena to produce any and all medical records pertaining to April N. Brown directed to Dr.
Osborn has been referred to me for response.
Please be advised that all records in my client's possession are confidential and cannot
be produced pursuant to Pennsylvania law. See 50 P.S. §7111. Therefore, you should
consider this as my client's objection to supplying these documents. In the event you can obtain
a specific written authorization pursuant to this Act from the patient, these documents can then
be produced.
If you have any questions regarding this objection, please do not hesitate to contact me.
Very truly yours,
'/'HHNSON, FI , ST ,ART &WEIDNER
C David W. DeL e
DWD:kkm:108251
cc: Holy Spirit Hospital
CERTIFICATE OF SERVICE
1, Joey A. Storaska, do hereby certify that I served a true and correct copy of the
foregoing Motion for Issuance of Subpoena Pursuant to Pa.R.C.P. No. 4009.21(d)(1) upon the
counsel named below by placing same in the United States Mails, First Class, Postage Prepaid,
this ??ay of April, 1998.
John A. Statlcr, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, 111, Esq.
JAMES, SMITH & DURKIN
P.O. Box 650
Hershey, PA 17033-0650
David W. DeLuce, Esq.
JOHNSON, DUFFIE, STEWART & WEIDNER
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
4., 1
ki. °A
M
E1 G.
.
cr,
DIANNE C. TENNANT,
individually and as parent and
natural guardian of April N. Brown,
a minor,
Plaintiff
VS.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN T HE COURT OF COMMON PLEAS 01:
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
97-564 CIVIL
: JURY TRIAL DEMANDED
IN RE: DEFENDANTS' MOTION TO COMPEL IAN OF SUBPOENA
OF PSYCHOLOGICAL RECORDS
ORDER
AND NOW, this .Z 0' day of July, 1998, the court being in agreement with the
plaintiff that the defendants' request for psychological records is premature, the motion to
compel the subpoena of said records is DENIED.
BY THE COURT,
John A. Statler, Esquire
For the Plaintiff
Joey Alan Storaska. Esquire
For Defendant Ralph Frazier
John J. McNally, Ill, Esquire
For Defendant Eleanora Frazier
David DeLuce, Esquire
For Sporting Hill Family Health Center
Arn
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA JURY TRIAL DEMANDED
M. FRAZIER,
Defendants
ORDER
AND NOW, this -7 { day of Qf!29 1999, upon consideration
of the foregoing Motion of Joey A. Storaska, to withdraw as counsel of record for Defendant,
Ralph A. Frazier, and the Court observing that the Defendant, Ralph A. Frazier, has executed a
consent to the withdrawal of Joey A. Storaska as his attorney of record, and that all counsel of
record for the named parties in this action have concurred in the withdrawal of Joey A. Storaska
as counsel for Ralph A. Frazier, and that no prejudice will befall any party in that the matter has
not yet been listed for trial and is still in the discovery stage, it is therefore ORDERED and
DIRECTED that Joey A. Storaska is AUTHORIZED and may execute a Praccipe withdrawing
his appearance as counsel of record for Ralph A. Frazier, Defendant in the above captioned
matter. The said Joey A. Storaska shall thereafter stand ready to forward his file or otherwise
cooperate in the transfer of information to any other counsel who subsequently enters an
appearance on behalf of the said Defendant, Ralph A. Frazier.
BY THE 77T:
J.
?•? ..r
?- ..
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA JURY TRIAL DEMANDED
M. FRAZIER,
Defendants
MOTION TO WITHDRAW AS COUNSEL
FOR DEFENDANT, RALPH A. FRAZIER
COMES NOW, Joey A. Storaska, of the Law Firm of Rice, Boop & Storaska, to
request that the Honorable Court authorize his withdrawal as counsel for Defendant, Ralph A.
Frazier, in the above matter, and in support thereof states the following:
This action was initiated by a Writ of Summons following which a
Complaint was filed in May, 1997.
2. The Complaint alleges that the minor Plaintiff, April N. Brown, was
sexually assaulted by Defendant, Ralph A. Frazier, in June and July, 1994.
3. The Complaint includes a count against Defendant, Eleanora M. Frazier,
grounded in negligence alleging, inter alia, that Eleanora M. Frazier knew of a prior incident
involving Ralph A. Frazier and failed to report that to the minor's mother, Plaintiff, Dianne C.
Tennant.
4. The Defendants have filed an Answer with New Matter to the Complaint
and Defendant, Ralph A. Frazier, separately filed in Amended Answer admitting an improper
physical contact between himself and the minor, April N. Brown, but urging that the contact
occurred in June, 1993, rather than June, 1994, and denying any recollection of an improper
contact with April N. Brown, in July, 1994.
The pleadings are closed and the parties are in the midst of discovery,
having exchanged Interrogatories and Requests for Production of Documents, and the
depositions of Defendants and Plaintiff, Dianne C. Tennant, having been conducted.
G. The undersigned Movent, Joey A. Storaska, entered an appearance on
behalf of Defendant, Ralph A. Frazier, on November 28, 1997.
Movent's Entry of Appearance was at the direct request of Allstate
Insurance Company, which was the homeowners insurance carrier for Defendants at the time of
the incidents alleged in the Complaint.
8. Movent's Entry of Appearance on behalf of Defendant, Ralph A. Frazier,
at the direction of Allstate, was subject to a reservation of rights letter issued by Allstate to Ralph
A. Frazier advising that Allstate reserved all of its rights relative to both indemnification and
defense of Ralph A. Frazier based upon representations of intentional and criminal conduct set
forth in the Complaint.
9. Movent's Entry of Appearance and representation of Ralph A. Frazier, was
pursuant to the reservation of rights letter.
10. Companion to the instant lawsuit, Allstate Insurance Company filed a
separate action in the United States District Court for the Middle District of Pennsylvania
seeking a declaratory judgment that it had no duty to defend or indemnify either Defendant,
Ralph A. Frazier, or Defendant, Elcanora M. Frazier.
11. Auer the close of pleadings and upon cross-motions for summary
judgment, the United States District Court, per William W. Caldwell, Judge, entered all Opinion
and Order dated December 18, 1998 in which the Court determined that Allstate Insurance
Company "has no duty to defend or indemnify either Defendant" (Ralph A. Frazier or Elcanora
M. Frazier), and summaryjudgment was accordingly entered in favor of Allstate. True and
correct copies of the Court's Order and Memorandum Opinion are attached hereto and made a
part hereof as Exhibit "A."
12. The undersigned Movent was subsequently advised by Allstate to
withdraw his appearance on behalf of Ralph A. Frazier as a result of the determination of the
U.S. District Court that Allstate has no duty to either defend or indemnify Ralph A. Frazier.
13. The undersigned Movent directed correspondence dated January 11, 1999
to Ralph Frazier explaining the disposition of the declaratory judgment action by the U.S.
District Court, forwarding a copy of the dcclaratoryjudgmcm Order and Opinion, soliciting
questions from Mr. Frazier regarding the U.S. District Court's disposition of the case and its
impact upon the instant action in Cumberland County, and, following such explanation,
requesting that Defendant, Ralph A. Frazier, acknowledge receipt of the correspondence and
authorize the withdrawal of the undersigned Movent as his attorney in this action.
14. Ralph A. Frazier was advised that in the invent the undersigned Movcnt
was permitted to withdraw as counsel in this case, Mr. Frazier would be required to secure his
own personal attorney. The original correspondence of January 11, 1999 to which is appended
Mr. Frazier's acknowledgment and consent to the withdrawal of the undersigned Movent is
attached hereto and made a part hcrcof as Exhibit "B."
15. 'there is attached hereto and made a part hereof a Certificate of
Concurrence by which till other counsel of record, including Plaintiffs' counsel, concur in the
withdrawal of the undersigned Movent as counsel for Ralph A. Frazier in this action.
IG. The undersigned Movent believes, and therefore represents, the no
prejudice will be suffered to Plaintiff by the withdrawal of the undersigned Movent as counsel
for Ralph A. Frazier in this case.
17. The undersigned counsel believes and therefore represents that Ralph A.
Frazier will not suffer prejudice by his withdrawal in that he will have ample time to secure
private counsel should he so desire, in that this case is only in the discovery phase and is not yet
ready for trial and will not be so for sonic time.
18. The undersigned Movent stands ready to transfer his file at any time at the
request of new counsel on behalf of Ralph A. Frazier, so that Mr. Frazier's representation by
separate counsel may continue should he so desire.
WHEREFORE, Joey A. Storaska, counsel of record for Ralph A Frazier, hereby
requests that the Honorable Court authorize and permit his withdrawal as counsel of record for
Defendant, Ralph A. Frazier, for the reasons set forth in the foregoing Motion.
By:
106 Markct Strcct
P.O. Box 470
Sunbury, PA 17801
(717) 286-6701
I.D. 424931
Datc: January 2 It , 1999
RICE, BOOP & STORASKA
FROM : SMI?HBHALLINGER FAX NO. : 8543290 Dec. 22 1999 10:25AM P11
Ao'W'PM 4131.M9, nA C,.a CAN
UNITED STATES DISTRICT COURT
MTnnrx DISTRICT OF OF?an7CVLVANTA
ALLSTATE INSURANCE COMPANY,
Plaintiff
JUDGMENT IN A CIVIL CASE
V.
RALPH A. FRAZIER, ELEANORA M. FRAZIER
AND DIANE C. TENNANT, Individually CASE NUMBER: 1:CV-97-1714
and as parent and natural guardian Judge Caldwell
-of April N. Brown, a minor Mag. Judge Smyser
Defendants
Jury Verdict. This action came before the Court for a trial by jury. The Issues have been tried and the
jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court The issues have been tried or
heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that summary judgment be and is hereby
entered in favor of the plaintiff, Allstate
Insurance Company, and against the defendants,
Ralph A. Frazier, Eleanore M. Frazier and
Diane C. Tennant, Individually and as parent and
natural guardian of April N. Brown, a minor.
.• - /f A
HARRISBURG. PA
DEC 181998
GARY ? ct? p ^ ,K.. _ -
PfiP p
December 18, 1998 Mary E. D'ANdrea
Date Clerk
7 CC??Ic.Y?X1'?.
(Ay)DeputyC rk George T. Gardner
RECEIVED TNEDEC. 22. 19:27AM PRINT TIMEDEC. 22. 10:35AM
FROM : S111T.H8HALLINGER FAX NO. : 8543290 Dec. 22 1998 10:24AM P10
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALLSTATE INSURANCE COMPANY,
Plaintiff
VS.
RALPH A.
ELEANORA
DIANE C.
and as p
guardian
a minor,
FRAZIER,
M. FRAZIER and
TENNANT, Individually
Brent and natural
of April N. Brown,
Defendants
. CIVIL ACTION NO. 1:CV-97-1714
(Judge Caldwell)
(Magistrate Judge Smyser)
FILED
HARRIP' : • 1, r
O R D L Z DEC l g 1gg8
WARY Ad rwneA. CLERK
AND NOW, December 18, 1998, the report Wd?'Y' c,
recommendation of the Magistrate Judge is adopted in part and
rejected in part. For the reasons set forth in the attached
memorandum, we conclude the Plaintiff has no duty to defend or
indemnify either Defendant, and summary judgment shall be entered
by the Clerk of Court in favor of the Plaintiff and against the
Defendants.
The Clerk of Court shall close the file.
William W. Caldwell
United States District Judge
A0 7$A
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Dec. 22 1998 10:21AM P2
f:
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALLSTATE INSURANCE COMPANY,
Plaintiff
VS.
RALPH A.
ELEANORA
DIANE C.
and as p+
guardian
a minor,
FRAZIER,
M. FRAZIER and
TENNANT, individually
Trent and natural
of April N. Brown,
Defendants
CIVIL ACTION NO. 1:CV-97-1714
(Judge Caldwell)
(Magistrate Judge Smyser)
M E M O R A N D U M
FILED
HARRISBURG, PA
DEC 1 g gag
MARY F.P.*PK6, CLM(
Allstate Insurance Company (nAllstaten) seeks a
declaratory judgment finding that it has no duty to defend or
indemnify defendants Ralph Frazier and Eleanora Frazier in a civil
suit brought against them by Diane Tennant. Cross motions for
summary judgment "
ry j gment were filed and pending now is" the report and
recommendation of the Magistrate Judge. He recommends that we
grant Plaintiff Ia motion as to Ralph Frazier-but deny the motion
as to Eleanora Frazier. ;.
I. Background
Allstate provided homeowners insurance to Ralph and
Eleanora Frazier. In June 1994 Ralph Frazier 'Sexually molested
April Brown, TennantIs thirteen-year-old daughter, while she was a
guest in the Fraziers' home. In March 1995 Mr: Frazier was
AO nA
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V.
convicted of aggravated indecent assault. In May 1997 Tennant
sued the Fraziers in state court, individually and on behalf of
her daughter, for injuries arising from the assault. She assertec
one count against Mr. Frazier for his intentional conduct and
another against Mrs. Frazier for negligence in failing to warn or
protect Brown, and negligent supervision of Mr. Frazier.I
On November 10, 1997, Allstate filed its complaint
seeking a declaration that the it has no duty-to defend or
indemnify the Fraziers. The Defendants filed a cross motion for a
declaration that Allstate does have a duty to defend and indemnify
them.
The Allstate Deluxe Homeowners Insurance Policy
("Policy") provides coverage "for damages which an insured person
becomes legally obligated to pay because of bodily injury .
arising from an accident," (Policy at 23), but excludes coverage
for injuries "resulting from . . . (a)n act or omission intended
or expected to cause bodily injury" and those "resulting from .
. (a] criminal act or omission." (Policy at 23-24.) The Policy
defines "insured person" as the person named iii the Policy and his
or her spouse, that is, Ralph and Eleanora Frazier. (Policy at
3.) The Policy also provides that "the terms of this policy
impose joint obligations on persons defined as an insured person.
'It is alleged Mrs. Frazier was aware of her husband's
criminal history, his sexual preference for young girls and that
he was a pedophile.
2 I®
This means that the responsibilities, acts and failures to act of
a person defined as an insured person will be binding upon another
person defined as an insured person.,, (Policy at 5.)
II. Standard of Review
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56;
.Qelotex Coro. v atr tt , 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986). In reviewing the evidence, facts and inferences
must be viewed in the light most favorable to the nonmoving party.
Matsushita Elec Indus c? *?a Zeni h n ai„ r
475 U.S.
574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986).
Summary judgment must be entered in favor of the moving party
11(w)here the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party. . . ." Id. at 586-
87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).
When considering cross motions for summary judgment, if
there is "no genuine dispute over material facts, then we will
order judgment to be entered in favor of the party deserving
judgment in light of the law and undisputed facts." Iberia Foods
Corp. y. Romeo, 150 F.3d 298, 302 (3d Cir. 1998
(citing
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Ciarlante v. Brown & Williamson Tobacco Co., 143 F.3d 139, 145-46
(3d Cir. 1998)).
III. Discussion
A. Duty to Defend and Indemnify Ralph Tennant
The Magistrate Judge recommended that Plaintiff's moti
be granted as to Ralph Frazier. The Policy provides coverage for
injuries caused by accidents, and Mr. Frazier's intentional sexual
assault was clearly not an accident. See General Accident Ins. Co.
of N. Am. v. Allen, 708 A.2d 828, 831 (Pa. Super. Ct. 1998)
(citing case) (observing that in Pennsylvania child sexual abuse
is considered an intentional act as a matter of law). Defendants
have not objected to this recommendation. Upon consideration of
the Magistrate's Report and an independent review of the record
and of the controlling law, we conclude that the Magistrate is
correct, and adopt his report with regard to Plaintiff's duty to
defend and indemnify Ralph Frazier.
B. Duty to Defend and Indemnify Eleanora Frazier
We must determine whether Allstate has a duty to defend
and indemnify Eleanora Frazier when Brown's injury was caused by
the intentional act of Ralph Frazier, and the Policy contains a
joint obligations provision. Plaintiff contends that these two
factors preclude coverage for Mrs. Frazier. Defendants, on the
other hand, argue that Mrs. Frazier is accused of negligence, and
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not intentional or criminal conduct, and therefore she should be
covered by the Policy.
The duty to defend under an insurance contract is
broader than the duty to indemnify, and encompasses any claim
against the insured which could potentially fall under the Policy.
American Contract Bridge League v Nationwide Mut Fire Ins. Co.,
752 F.2d 71, 75 (3d Cir. 1985); Heffernan & Co. v. Hartford Ins.
Co., 418 Pa. Super. 326, 332, 614 A. 2d 295, 298 (1992). An
insurer has the duty to defend so long as the allegations in the
complaint aver facts that would support a recovery covered by the
policy. Erie Ins. Exchange v. Transamerica Ins. Co., 516 Pa. 574,
583, 533 A.2d 1363, 1368 (Pa. 1984). To determine whether
coverage is provided, an insurance policy
must be read in its entirety and the intent
gathered .rcm a corsideraticr of the ordinary
meaning of the words used in the instrument.
Ambiguous terms should be construed against
the insurer, but a court should not "torture,,
the language to create an ambiguity where none
exists. Only where reasonably intelligent
men, considering the word in the context of
the entire policy, would honestly differ as to
its meaning, will an ambiguity be found.
Consulting Engineers. Inc. v. Insurance Co. of N. Amer., 710 A.2d
82, 84-85 (Pa. Super. Ct. 1998) (citing EZ.L , 352 Pa. Super. At
78, 507 A.2d at 392).
The Fraziers' Allstate Policy provides that the couple
is jointly obligated and that together they constitute "an
person." A joint obligations provision "impose[s)- a duty on any
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policyholder to be responsible for the acts of another
policyholder . . . . Therefore, if the parties interests in the
policy is joint, then the innocent co-insured is denied coverage
if the actions of any insured would preclude coverage.,, Kundahl
v. Erie Ins. Group 703 A.2d 542, 544 (Pa. Super. Ct. 1997)
(citing McAllister v. Millville Mur_ Ina Co-, 433 Pa. Super.
330, 339, 640 A.2d 1283, 1288 (Super Ct. 1994)). In KUadagl11, for
example, a wife could not recover under a homeowners policy
because the loss had been caused by the intentional act of her
husband, who started a fire in their home. A finding of a joint
obligation often turns on the language used in the insurance
policy. A joint obligation exists when the policy contains the
terms "an insured" or "any insured," but not if "the insured" is
used. See Allen, 708 A.2d at 831; McCallister, 433 Pa. Super. at
335-40, 640 A.2d at 1286-88. Allstate used the term "an insured"
and thereby created a joint obligation.2 The effect of the joint
obligations provisions is to treat the co-insureds as one person,
i
=Defendants argue that we should rely on a Tenth Circuit
decision applying Utah law to find the Allstate policy ambiguous.
See Allstate Ins. Co. v. Worthington, 46 F.3d 1005 (10th Cir.
1995) (holding that Allstate had a duty to defend negligence claim
asserted against wife in connection with husbands intentional
killing). However, the law in Pennsylvania construing policy
language for joint obligations is clear. See K31, 703 A.2d at
545 (encouraging the legislature to change the insurance law to
protect the innocent party when another insured commits an act
that precludes coverage).
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so that the intentional act of Ralph Frazier precludes coverage
for Eleanora Frazier for the same injury.
Courts in other jurisdictions have found that the joint
obligations language of an Allstate insurance policy and the
exclusion for acts intended to cause injury, considered together,
preclude coverage under facts similar to those present here. In
Allstate Ins. Co. V. Lobracco, 1992 WL 356270, at *4, (Ohio Ct.
App. Nov. 24, 1992), it was held that Allstate had no duty to
defend or insure the negligence claim asserted against a wife when
her husband assaulted a child because "the insurance contract
precludes coverage for all insureds if the actual damages occur as
a result of one insured's intentional acts." A mother was not
entitled to coverage for negligent supervision of her insured son,
who shot and killed another, in Castro v. Allstate Ins. Co., 855
F. Supp. 1152, 1155 (S.D. Calif. 1994), because the sons criminal
and intentional conduct "preclude(d) coverage of any other insured
under the policy." See also Allstate Ins. Co v MCCranie, 716 F.i
Supp. 1440, 1447-49 (S.D. Fla. 1989), aff'd, 904 F.2d 713 (11th
Cir. 1990) (no coverage for negligence when child molestation
committed by another insured).
The Defendants argue that Nationwide Mut. Fire Ins. Co
v. Pinher, 140 F.3d 222, (3d Cir. 1997), controls. In Pivher the
Third circuit found that when an injury was caused by the
intentional act of a third party, an exclusion for intentional
acts did not preclude coverage for the alleged negligence of the
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insured. Whether an injury is the result of an accident "must be
determined from the perspective of the insured and not from the
viewpoint of the person who committed the injurious act." Id. at
226. Similarly, in Board of Pub Educe V. Nati-„"ll Un'on F rA
Ins. Co. of Pittsburgh, 709 A. 2d 910 (Pa. Super. Ct 1998), it was
held that an insurance company had a duty to defend a negligence
I
claim against a school district where a school volunteer molested
a student, because the act was committed by a person not insured
under the policy.' The Defendants argue that the injuries to
Brown were the result of an accident - Mrs. Frazier's alleged
negligence in not protecting her guest from her husband - and
that she should therefore be covered. However, the intentional
act in Pioher was committed by a person not insured under the
policy, and the Policy lacked a joint obligations provision. Here
the Allstate Policy excludes coverage for the injuries to Brown
because it is the result of the intentional act of an insured, Mr.
Frazier, and the joint obligations provision applies that
exclusion to the other insured, Mrs. Frazier. As the court noted
in _Pj_p er, "it is the intentional act of the insured that
precludes coverage." Pioher, 140 F.3d at 226.
,it was uncertain whether the volunteer was covered by the
policy. Because the policy did not contain a joint obligations
term, an exclusion applicable to the volunteer would not preclude
separate coverage for the district. See Board of Pub. Educ ., 709
A.2d at 915-16.
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Because we conclude that the joint obligations provision
of the Allstate policy precludes coverage for Mrs. Frazier,
Allstate has no duty to defend or indemnify her in the action
brought by Defendant Tennant. Summary judgment will be granted to
the Plaintiff.
We will issue an appropriate order.
az?Lz
William W. Caldwell
United States District Judge
Date: December 18, 1998
9
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B
RICK, 13001'& STORASKA
LWYERS
IV LNCIS A WITMER
IIROIAR&ET STRE17 Ivl! 101
TIIODIAS E, 11001' P.O BOX 470 I'R.1S:IS T RICE
JOEY A. STORASKA >I'NIICRY. PENNSYLVANIA 17',411 VW
17 [,;1 ilk".11-101 CARL RICE
PAN. 171711MJR411 1'1 x.1110
January 11, 1999
Ralph Frazier
CT4786 SCI Camp Hill
Camp Hill, PA 17101
Re: Dianne C. Tennant v. Frazier, et Ed.
No: 97-564
Court of Common Pleas, Cumberland County, Pennsylvania
Dear Mr. Frazier:
As you may already know, the United States District Court for the Middle District of Pennsylvania
has issued an Order and Opinion in the Declaratory Judgment Action filed by Allstate Insurance
Company against you, your wife, and Dianne Tennant, guardian of April N. Brown. The Judgment
of the U.S. District Court is that Allstate Insurance Company has no duty to either defend or
indemnify (that is pay for any loss resulting from the lawsuit) for either yourself or your wife.
Eleanor Frazier.
As you know, I entered an appearance on your behalf to defend your interests in this matter at the
specific request of Allstate Insurance Company and under the terms of the policy, subject to a
reservation of rights letter indicating that Allstate would withdraw its defense should it be
established that they had no duty to defend your interests in this matter. I enclose herewith a copy
of the decision of the U.S. District Court and Opinion finding that Allstate has no duty to indemnify
or defend you in this case filed by Dianne Tennant on behalf of her daughter, April N. Brown.
As a result of the decision reached by the U.S. District Court, I have been directed by Allstate to
withdraw my appearance as your attorney in this matter. I write now to advise of this determination
and direction, and to inform you that I will very shortly be filing a Motion with the Court
authorizing my withdrawal as your attorney in this case. If I withdraw as your attorney, you will be
required to secure your own personal lawyer. I enclose herewith a self-addressed stamped envelope
with a sheet of paper advising that if I may answer any questions for you, please write your
questions legibly and return them to me in the enclosed, stamped, self-addressed envelope. I will
answer your questions to the best of my ability before tiling such a Motion to withdraw as your
attorney.
I also ask that you acknowledge receipt of this letter and consent to my withdrawal as your attorney
Ralph Frazier Page 2 January 11, 1999
by signing the copy which is enclosed.
Sincerely yours, ?D
Joey ora 'a
JAS:bjb
Enclosures
ACKNOWLEDGNIENT AND CONSENT
I acknowledge receipt of the foregoing letter and consent to the withdrawal of Joey
A. Storaska as my attorney in this case. I recognize that if Mr. Storaska is permitted to withdraw as
my attorney, I will be required to get my own personal attorney to represent me.
Ralph razier
Date: / 1999
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Plaintiff CIVIL ACTION - LAW
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
NO. 97-564
JURY TRIAL DEMANDED
CERTIFICATE OF CONCURRENCE
The undersigned, Joey A. Storaska, hereby represents that he did on Wednesday,
January 27, 1999, speak personally by telephone to John A. Statler, Esquire, of Goldberg,
Katzman & Shipman, counsel for Plaintiff, and John J. McNally, 111, Esquire, of James, Smith,
Durkin & Connelly, both of whom concurred in the request of the undersigned to withdraw as
counsel for Defendant, Ralph A. Frazier. There are no other attorneys of record representing the
parties to this action.
RICE, BOOP & STORASKA
By:
Date: January ZZ , 1999
106 Market Street
P.O. Box 470
Sunbury, PA 17801
(717) 286-6701
I.D. #24931
VERIFICATION
1, Joey A. Storaska, hereby affinn that the statements made in the foregoing
Motion to Withdraw as Counsel for Defendant, Ralph A. Frazier, arc true and correct to the best
of my knowledge, information and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities.
Joey /1. Iota ca
Date: January 28, 1999
CERTIFICATE OF SERVICE
1, Joey A. Storaska, do hereby certify that I served a true and correct copy of the
foregoing Motion to Withdraw as Coansel for Defendant, Ralph A. Frazier, upon the counsel of
record and individual named below by placing same in the United States Mails, First Class,
Postage Prepaid, this / R day of January, 1999.
John A. Statler, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, III, Esq.
JAMES, SMITH, DURKIN & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033-0650
Ralph A. Frazier
CT4786 SCI Camp Hill
Camp Hill, PA 17101
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DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
RALPH A. FRAZIER and ELEANORA
M. FRAZIER,
Defendants
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564
JURY TRIAL DEMANDED
PRAECIPE FOR WITHDRAWAL OF COUNSEL
TO: CURT LONG, PROTHONOTARY
Dear Sir:
In accord with the Order of Court entered February 3, 1999 in this action, the
Prothonotary is respectfully to note the withdrawal of the undersigned as counsel of record for
the Defendant, Ralph A. Frazier. A copy of the Court's Order of February 3, 1999 is attached
hereto and made a part hereof as Exhibit "A."
RICE, BOOP & STORASKA
By:
cy-Wr Defendant,
A. Frazier
Date: February q , 1999
DIANNE C. TENNANT, Individually
and as Parent and Natural Guardian of
April N. Brown, a minor,
Plaintiff
VS.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CfVIL ACTION - LAW
NO. 97-564
RALPH A. FRAZIER and ELEANORA JURY TRIAL DEMANDED
M. FRAZIER,
Defendants
QR? DAR
AND NOW, this LvLday of C , 1999, upon consideration
of the foregoing Motion of Joey A. Storaska, to withdraw as counsel of record for Defendant,
Ralph A. Frazier, and the Court observing that the Defendant, Ralph A. Frazier, has executed a
consent to the withdrawal of Joev A. Storaska as his attorney of record, and that all counsel of
record for the named parties in this action have concurred in the withdrawal of Joev A. Storaska
as counsel for Ralph A. Frazier, and that no prejudice will befall any party in that the matter has
not yet been listed for trial and is still in the discovery stage. it is therefore ORDERED and
DIRECTED that Joey A. Storaska is AUTHORIZED and may execute a Praecipe withdrawing
his appearance as counsel of record for Ralph A. Frazier, Defendant in the above captioned
matter. The said Joey A. Storaska shall thereafter stand ready to forward his file or otherwise
cooperate in the transfer of information to any other counsel who subsequently enters an
appearance on behalf of the said Defendant, Ralph A. Frazier.
BY THE COURT:
TRUE COPY FROM RECORD
;n T:zfmony %•hr r:sf, I h?re unto set my hand
and the seal of said Court at Carlisle, Pa.
This ....3. day 19..15
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,0 72r• Prothonotary
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EXHIBIT "A"
CERTIFICATE OF SERVICE
I, Joey A. Sloraska, do hereby certify that 1 served a true and correct copy of the
foregoing Praccipc for Withdrawal of Counsel, upon the counsel of record and individual named
below by placing same in the United States Mails, First Class, Postage Prepaid, this 97M day of
February, 1999.
John A. Statler, Esq.
GOLDBERG, KATZMAN & SHIPMAN
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
John J. McNally, 111, Esq.
JAMES, SMITH, DURKIN & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033-0650
Ralph A. Frazier
CT4786 SCI Camp Hill
Camp Hill, PA 17101
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INANNE C. TENNANT.
individually and as parent
PENNSYLVANIA
and natural guardian ol'April
N. Brown. a minor.
Plaintiff
RALPI I A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN'I'I IF COI IlIT OF COMMON PI.EAS
CUMBERLAND COUNTY,
NO. 97-564 CIVIL. TERM
CIVIL ACTION - LAW
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance ol'the undersigned on behalf of Defendant, Eleanora
Frazier with respect to the above-captioned action.
Respectfully submitted.
q Yoffe & Yoffe, PC
Dated: By:? tl ?.
NORMAi YOFFE, ESQUIRE
Attorney l.D. # 6,' 1 r 3 i
214 Senate Avenue
Camp I lill, PA 17011
(717) 975-1838
Attorney tiff Defendant,
Eleanora Frazier
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DIANNE C. TENNANf .
individually and as parent
PENNSYLVANIA
and natural guardian of April
N. Brown, a minor,
Plaintiff
V.
RALPII A. FRAZIER and
ELEANORA M. FRAZIER,
Defendants
IN TI IE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
: NO. 97-564 CIVII.'TERM
CIVIL ACTION - LAW
WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
Kindly withdraw the appearance of the undersigned on behalf of the Defendant,
Eleanora Frazier with respect to the above-captioned action.
Dated:
Respectfully submitted,
JAMES; SMITH, DURE
& CONNELLY,LLP
.JOHN JtVMCNALLY. III. ESQUIRE
Attorney I.D. #52661
P.O. Box 650
Hershey, PA 17033-0650
(717) 533-3280
Attorneys for Defendant.
Eleanora Frazier
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John It. Nmoskc, Fsyuue
LD. U79000
GOLDBERG, KAT7MAN & SHIPMAN. P.C.
320 Marked Sheet
PU Ito 1269
11amshuyJ'A 17109.1269
(717) 23.1.4161
Counsel for Plaintiffs,
Dianne C 'Pennant, individually and as parent
and Natural Guardian of April N. Brown, a
minor
DIANNE C. TENNANT, individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiffs
V.
RALPH A. FRAZIER and
ELEANORA M. FRAZIER
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 97-564 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I IIEREBY CERTIFY that I served upon all counsel ofrecord a true and correct copy
of all medical records, received Isom Polyclinic I lospital, Valentine Osborn, D.O. and Kenneth G.
Small, Ph.D. which were requested by this uflice on October 13, 3000, by depositing the same in the
United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the __0 1 day
of -?' i,,, U0 1 -' 2001, addressed as follows:
Norman M. Yoffie, Esquire
214 Senate Avenue, Suite 303
Camp Bill, PA 17011
GOLDBERG, KA'rZMAN & SHIPMAN, P.C.
By SK
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JOIi R. NINOSKY, ESQUIRE
I.D. 1178000
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Counsel for Plaintifl's
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GOLDBERG KATZMAN, P.C.
Gup II. Brooks. Inquire
Auomc) I.U. N49672
320 Markel Sired, Sim" hern Squarc
110. Itos 1208
Ilarrishurg.l'A 171OX-1268
17171'-34.4161
Allomess for I'lainlilf
DIANNE C'.'I'FNNANT, Individually
and as parent and natural guardian of
April N. Brown, a minor,
Plaintiff
IN THE COURT 017 COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-564 CIVIL TERM
V.
RALPI I A. FRAZIER, and
ELEANOR M. FRAZIER,
Defendants
JURY'TRIAL DEMANDED
PRAECIPE
TO TI IE PROTHONOTARY:
Please be advised of Plaintiffs Intention to Proceed in this matter.
Respectfully submitted,
GOLDBERG KATZMAN, P.C.
By
Guy 11. Brooks. Esquire
I.D. No. 49672
320 Market Street
P.O. Box 1268
1larrisburg. PA 17108-1368
(717)'-134-4161
Attorney for Plaintiff
Date: ,.?^ /;"/
C'ER'I'IPIC'A'I'h OI' SERVICE
I HEREBY CI:R'1'I1:Y that 1 served upon all counsel ol'record a true and correct copy
ol'the foregoing document by depositing the same in the United States Mail, first class, postage
prepaid, at I larrisburg, Pennsylvania. on the _ 26, A day of 6:61 2004, addressed as
l'ol lows:
Norman M. Yofle. Esquire
214 Senate Avenue. Suite 203
Camp Ifill. PA 17011
GOLDBERG. KATZMAN & SHIPMAN, P.C.
Sra A. Rebcrt
Paralegal
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SANDY LEE MYERS, A/K/A SANDY LEE IN '1'I If COURT OF COMMON FLEAS Of'
VIORAL
PLAINTIFF . CUMIIiiRLANDCOUN'I'Y,PENNSYI.VANIA
V. 97-6915 CIVIL. ACTION LAW
ERIC VIORAL IN CUSTODY
DEFENDANT
ORDER OF COURT
AND NOW, Tuesday, October 26, 2004 . upon consideration of the attached Complaint.
it is hereby directed that parties and their respective counsel appear before Ilubert X. Gilroy, Esq. the conciliator,
at 4th Floor Cumberland County Courthouse, Carlisle on Thursdav, December 02, 2004 at 9:30 AM
for a Pre-Bearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute: or
if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary
order. All children age five or older may also be present at the conference. Failure to appear at the conference may
provide grounds for entry of a temporary or permanent order.
The court hereby directs the parties to furnish any and all existing Protection from Abuse orders,
Special Relief orders, and Custodv orders to the conciliator 48 hours prior to scheduled heurine.
FOR THE COURT.
fly: /s/ HuberrX Gilroy, Esq. mhc
Custody Conciliator
The Court of Common Pleas of Cumberland County is required by law to comply with the Americans
with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations
available to disabled individuals having business before the court, please contact our office. All arrangements
must be made at least 72 hours prior to any hearing or business before the court. You must attend the
scheduled conference or hearing.
YOU SIIOULD TAKE TI IIS PAPER TO YOUR AT FORNEY AT ONCF. IF YOU DO NOT
I IAVE AN ATTORNEY OR CANNOT AFFORD ONE. GO TO OR TFLIAII IONF TIIG OFFICE SET
FORTH BELOW TO FIND OUT WIIERE YOU CAN fit l' LEGAL I IGLP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
'telephone (717) 249-3166
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po.poe
OCT 19 2004 6.
Sandy Lee Myers : IN THE COURT OF COMMON PLEAS
AKA Sandy Lee Vioral : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. : NO. 97-6915 CIVIL TERM
Eric Vioral : CIVIL ACTION - CUSTODY
Defendant
ORDER OF COURT
AND NOW, this day of , 2004, upon consideration
of the attached Complaint, it is hereby directed that the parties and their respective
counsel appear before , Esq., the Conciliator, at
on the day of
2004, at .M., for a Pre-Hearing Custody Conference. At such conference, an
effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to
define and narrow the issues to be heard by the Court, and to enter into a temporary
order. Failure to appear at the Conference may provide grounds for entry of a
temporary or permanent order.
FOR THE COURT,
By
Custody Conciliator
The Court of Common Pleas of Cumberland County is required by law to comply
with the Americans with Disabilities Act of 1990. For information about accessible
facilities and reasonable accommodations available to disabled individuals having
business before the Court, please contact our office. All arrangements must be made at
least 72 hours prior to any hearing or business before the Court. You must attend the
scheduled conference or hearing.
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 Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
Sandy Lee Myers
" AKA Sandy Lee Vioral
Plaintiff
v.
is
Eric Vioral
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-6915 CIVIL TERM
CIVIL ACTION - CUSTODY
MODIFICATION FOR CUSTODY
1. Plaintiff is Sandy Lee Myers, formerly known as Sandy Vioral, an adult
individual whose residence is at 425 Steelstown Road, Newville, Pennsylvania 17241.
2. Defendant is Eric Vioral, an adult individual whose residence is at 3470
Wagoners Gap Road, Carlisle, Pennsylvania 17013.
3. Plaintiff and Defendant have a son, Eric Vioral, who was born October 24,
1994.
4. Since June 22, 1998, the Plaintiff and Defendant have been conducting
themselves in accord with the June 22, 1998 Order filed at # 97-6915 Civil Term.
5. The relationship of the Plaintiff to the child is that of natural mother.
6. The relationship of the Defendant to the child is that of natural father.
7. The Plaintiff has remarried and the natural father status is xxxxxxxxxxxxx.
Plaintiff has filed a Custody Complaint in the Cumberland County Prothonotary's Office
relative to a son, Aaron Walter Myers, born September 31, 2001 during the course of a
remarriage and subject to a custody action during a divorce action filed.
8. Plaintiff is employed at Winemiller Communications, 99 Garden Parkway,
Carlisle, PA.
9. Plaintiff employer shall cease doing business in the Commonwealth of
Pennsylvania on December 1, 2004.
10. Plaintiff has been offered a position in Florida that would result in
substantial benefit and financial gain.
11. A minor child Justin Michael Vioral has bonded with his stepbrother Aaron
Walters Myers; therefore plaintiff and minor children are desirous of remaining together.
'I
12. Plaintiff, Sandy Lee Myers has enjoyed primary physical custody of her
son and shared legal custody with the defendant.
I
13. The best interest and the permanent welfare of the child will be served by
granting the relief requested:
a. Permit the child, Justin Michael Vioral, to relocate with the Plaintiff and
the stepbrother to the state of Florida in order that a improved
economical and educational advantage can occur with the children.
b. The child has a psychological bond with the natural mother and
stepbrother.
c. Visitation with the defendant can occur during extended school year
vacations; telephonic, written and computer generated
communications could flourish between father and son.
d. The father can have daily contact with son during the course of
summer school vacations and extended school year vacations.
WHEREFORE, Plaintiff request your Honorable Court modify its June 22, 1998
Order by first granting Plaintiffs request to relocate with her son Justin Michael Vioral,
to the state of Florida; second that the modification to the June 22, 1998 Custody Order
drafted to permit the father visits/custody of his son during extended school year
vacation and during the course of summer vacation and all other times the parties would
mutually agree.
j Respectfully Submitted
TURO LAW OFFICES
Wre
Date
28 South Pitt Stfe-et
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
VERIFICATION
I verify that the statements made in the foregoing Custody Complaint are true
and correct. I understand that false statements made herein are subject to the penalties
of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities.
Date Sandy Lee M ers
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Modification for
Custody upon Eric Vioral by certified return receipt and also depositing same in the
United States First Class Mail.
Eric Vioral
3470 Wagoners Gap Road
Carlisle, PA 17013
C
28 South Pitt Street-
Carlisle, PA 17013
(717) 245.9688; FAX 717.245.2165
TURO LAW OFFICES
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Curtis R. Long
Prothonotary
(Office of the Protbonotarp
Cumberlanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
- '51a y CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573