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HomeMy WebLinkAbout02-5940LAW OFFICES OF VINCENT B. MANCINI LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 414 E. BALTIMORE PIKE MEDIA, PA 19063 (610)566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM 401 Shippensberg Road Shippensberg, PA 17257 1 - -R /, , ?; ,",` Plaintiff, No. O (? (` ?, V. Township of Shippensburg 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 Defendant, and Steven C. Oldt 206 Chestnut Drive Shippensburg, PA 17257 Defendant, and John E. Bard 5 Bard Road Shippensburg, PA 17257 Defendant, and Galen S. Asper 399 Baltimore Road Shippensburg, PA 17257 Defendant, and Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 Defendant and Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Defendant. PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Issue summons in civil action in the above case Sheriff or ( X ) Attorney. Lee A. Stivale, Esquire 414 E. Baltimore Pike Media, PA 19063 610-566-8064 Date: December 11, 2002 Attorney Supreme Court I.D. Number 46511 ?r+r**?:??:r?*r****r***s******?*:?rst*a**?*??***+tr?*r*s*r*¦r:*a**?*****rs*rs? WRIT OF SUMMONS IN CIVIL ACTION TO: Township of Shippwnsburg, 81 Walnut Bottom Road, P.O. Box 219, Shippensburg, PA 17257 Steven C. Oldt, 206 Chestnut Drive, Shippensburg, PA 17257 John E. Bard, 5 Baard Road, Shippensburg, PA 17257 Galen S. Asper, 399 Baltimore Road, Shippensburg, PA 17257 Borough of Shippensburg, 111 N. Fayette Street, Shippensburg, PA 17257 Jeffrey Shubert, 60 W. Hurd Street, Shippensburg, PA 17257 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. Date: /? - /3 -o? Attested eo die a true and correct copy of the original By: Prothonotary ?yc ? ? r v1 ??\\ cz G/1 v} C n Z7tr (I '1 G' Y t- I'J _i ;J t ?i t TROY A. BEAM, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT, Defendants NO. 02-5940 CIVIL TERM PRAECIPE TO THE PROTHONOTARY OF SAID COURT: Please issue a Rule upon the Plaintiff to file a Complaint pursuant to Rule of Civil Procedure 1037. atej'/ Re pectfully Submitted, Ron Turo, Esquire Attorney for Township of Shippensburg Stephen C. Oldt John E. Bard Galen S. Asper Turo Law Offices 29 South Pitt Street Carlisle, PA 17013 (717) 245-9688 n C ` rz, C--3 -a -0 CK -j rn 7,71 ?..! C.J ,. .....y TROY A. BEAM, Plaintiff V. TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-5940 CIVIL TERM RULE TO THE PLAINTIFF, TROY A. BEAM and LEE A. STIVALE, ESQUIRE 414 East Baltimore Pike Media, PA 19063: A Rule is hereby issued upon the Plaintiff in the above-captioned action to file a Complaint. If a Complaint if not filed within twenty (20) days after service of the Rule, the Prothonotary, upon Praecipe of the Defendants, shall enter a Judgment of non-pros. Date: , Q. 3) d'=C=' ?Z_ Prothonotary -M ASA=e? By: ?%K.L_ SHERIFF'S RETURN - REGULAR CASE NO: 2002-05940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEAM TROY A VS SHIPPENSBURG TOWNSHIP OF ET AL RnNAT,n HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon the SHIPPENSBURG TOWNSHIP OF DEFENDANT , at 1504:00 HOURS, on the 18th day of December , 2002 at 81 WALNUT BOTTOM ROAD gHTPPENSBURG, PA 17257 JOHN E BARD by handing to TOWNSHIP SUPERVISOR a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.49 Affidavit .00 Surcharge 10.00 .00 42.49 Sworn and Subscribed to before me this 3,f,4 day of a.ty A.D. Prothonot a' r? So Answers: R. Thomas Kline 12/19/2002 VINCENT MANCINI & ASSOC By: l Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-05940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PRAM TROY A VS SHIPPENSBURG TOWNSHIP OF ET AL RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS OLDT STEVEN C was served upon the DEFENDANT , at 1504:00 HOURS, on the 18th day of December , 2002 at 81 WALNUT BOTTOM ROAD cuTPPRNSBURG. PA 17257 JOHN E BARD by handing to TOWNSHIP SUPERVISOR a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 3.,zJ- day of ti 2 h A. D. i sProthonotary So Answers: R. Thomas Kline 12/19/2002 VINCENT MANCINI & ASSOC By : Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-05940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEAM TROY A VS SHIPPENSBURG TOWNSHIP OF ET AL PnNAT?D HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS BARD JOHN E was served upon the DEFENDANT at 1504:00 HOURS, on the 18th day of December , 2002 at 81 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 JOHN E BARD by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 So Answers: R. Thomas Kline 12/19/2002 VINCENT MANCINI & ASSOC Sworn and Subscribed to before me this JAA_ day of A. D. 1 Prot onotary By: Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-05940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEAM TROY A VS SHIPPENSBURG TOWNSHIP OF ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS APPRR rALEN S was served upon the DEFENDANT at 1504:00 HOURS, on the 18th day of December , 2002 at 81 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 JOHN E BARD by handing to TOWNSHIP SUPERVISOR a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 So Answers: R. Thomas Kline 12/19/2002 VINCENT MANCICI & ASSOC Sworn and Subscribed to before me this 3.4-A day of A. D. Prothonotary T ' By (:f sdrz"r?- Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-05940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEAM TROY A VS SHIPPENSBURG TOWNSHIP OF ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SHIPPENSBURG BOROUGH OF the DEFENDANT , at 1351:00 HOURS, on the 18th day of December , 2002 at 111 N FAYETTE STREET SHIPPENSBURG, PA 17257 by handing to BILL WOLFE, BOROUGH MANAGER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service 14 .49 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 30.49 12/19/2002 VINCENT MANCINI & ASSOC Sworn and Subscribed to before By: ? / me this 3.2,( day of Deputy Sheriff oy-3 A.D. ,_ ?n<-16-1?J?LtA?J ? P othonotary SHERIFF'S RETURN - REGULAR CASE NO: 2002-05940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BEAM TROY A VS SHIPPENSBURG TOWNSHIP OF ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS AHi7BERT JEFFREY was served upon the DEFENDANT , at 1338:00 HOURS, on the 18th day of December , 2002 at SHIPPENSBURG POLICE DEPARTMENT 60 W BURD STREET SHIPPENSBURG, PA 17257 by handing to SCOTT WOLFE, POLICE OFFICER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 3,Lz( day of o° 3 A. D. P Prothonotary So Answers: R. Thomas Kline 12/19/2002 VINCENT MANCINI & ASSOC By Deputy Sheriff LAW OFFICES OF VINCENT B. MANCINI LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 414 E. BALTIMORE PIKE MEDIA, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM 401 Shippensburg Road Shippensburg, PA 17257 , Plaintiff, , v. TOWNSHIP OF SHIPPENSBURG 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 Defendant, and STEVEN C. OLDT 206 Chestnut Drive Shippensburg, PA 17257 , Defendant, and JOHN E. BARD 5 Bard Road Shippensburg, PA 17257 Defendant, and GALEN S. ASPER 399 Baltimore Road Shippensburg, PA 17257 , Defendant, and No. 02-5940 1 BOROUGH OF SHIPPENSBURG 111 N. Fayette Street Shippensburg, PA 17257 Defendant and JEFFREY SHUBERT 60 W. Burd Street CIVIL RIGHTS, INTENTIONAL TORT, NEGLIGENCE Shippensburg, PA 17257 Defendant. JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS 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 NOT-ICE ARE SERVED, BY ENTERING 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. AVISO LE HAN DEMANDODO A USTED EN LA CORTE, SI ISTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGNIENTES, USTED TIENE VEINTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. HACE FALTA ASEMTAR UNA COMPARENCIS ESCRITA O EN PERSONA O CON UN ABOGADO Y ENTREGAR A LA CORTE EN FPR,A ESCRITA SUS DEFENSAS O SUS OBJECIONES A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NP SE DEFIENDA, LA CORT E TOMARA, MEDIDAS Y PUEDE CONTINUAR LA DEMANDA EN CONTRA SUYA SIN PREVIA AVISO O NOTIFICACION. ADEMAS, A CORTE PUEDE DECIDIR A FAVOR DEL DEMAMDANTE Y REQUIERE QUE ESTED CUMPLA COM TODAS LAS PROVISIONES DE EST DEMANDA. USTED PUEDE PERDER DINERO 0 SUS PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYERS' REFERENCE SERVICE FRONT AND LEMON STREETS MEDIA, PENNSYLVANIA 190,63 (610) 566-6625 LAW OFFICES OF VINCENT B. MANCINI LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 414 E. BALTIMORE PIKE MEDIA, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM 401 Shippensburg Road Shippensburg, PA 17257 Plaintiff, V. TOWNSHIP OF SHIPPENSBURG 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 Defendant, and STEVEN C. OLDT 206 Chestnut Drive Shippensburg, PA 17257 Defendant, and JOHN E. BARD 5 Bard Road Shippensburg, PA 17257 Defendant, and GALEN S. ASPER 399 Baltimore Road Shippensburg, PA 17257 Defendant, and No.,02-5940 BOROUGH OF SHIPPENSBURG 111 N. Fayette Street Shippensburg, PA 17257 Defendant and JEFFREY SHUBERT . 60 W. Burd Street Shippensburg, PA 17257 . Defendant. CIVIL RIGHTS, INTENTIONAL TORT, NEGLIGENCE JURY TRIAL nvwnNnrn COMPLAINT The Plaintiff, by and through its attorney, Lee A. Stivale, Esquire, files this Complaint and pleads as follows: Nature of Action: This action alleges several common law causes of action and a claim under the Civil Rights Act, 42 U.S.C. Section 1983 to recover damages suffered by the Plaintiff and other redress on account of Defendants' unlawful acts which violate the Plaintiff's rights under the Constitution and the laws of the United States and the Commonwealth of Pennsylvania. Parties: 1. The Plaintiff, Troy Beam, (hereinafter "Plaintiff' or "Beam") is an adult individual with a personal residence located at 401 Shippensbur€; Road, Cumberland County, Pennsylvania. 2. The Defendant, Township of Shippensburg (hereinafter "Township" or "Shippensburg Township") is a municipal corporation and political subdivision of the Commonwealth of Pennsylvania, with offices located at 81 Walnut Bottom Road, Shippensburg, Cumberland County, Pennsylvania. The Defendant, Steven C. Oldt, ("Defendant Old") is an adult individual with a personal residence located at 206 Chestnut Drive, Shippensburg Township, Cumberland County, Pennsylvania. At all times relevant, Defendant Oldt was a Members of Township Board of Supervisors, the governing body of the Township. 4. The Defendant, John E. Bard, ("Defendant Bard") is an adult individual with a personal residence located at 5 Bard Road, Shippensburg Township, Cumberland County, Pennsylvania. At all times relevant, Defendant Bard was a Members of Township Board of Supervisors, the governing body of the Township. 5. The Defendant, Galen S. Asper, ("Defendant Asper") is an adult individual with a personal residence located at 399 Baltimore Road, Shippensburg; Township, Cumberland County, Pennsylvania. At all times relevant, Defendant Asper vms a Members of Township Board of Supervisors, the governing body of the Township. 6. The Defendant, Borough of Shippensburg (hereinafter "Borough" or "Shippensburg Borough") is a municipal corporation and political subdivision of the Commonwealth of Pennsylvania, with offices located at 111 N. Fayette Street, Shippensburg, Cumberland County, Pennsylvania. 7. The Defendant, Jeffrey Shubert, ("Defendant Shubert") is an adult individual. Upon information, at all times relevant, Defendant Shubert was employed by Shippensburg Borough as a police officer from the offices located at 111 N. Fayette Street, Shippensburg, Cumberland County, Pennsylvania. Jurisdiction and Venue: 8. All of the acts involved in this matter concern reap property and transactions located in Cumberland County, Pennsylvania. Jurisdiction and venue are proper in the Court of Common Pleas of Cumberland County, Pennsylvania. 9. All of the acts and omissions complained of herein which were performed or not performed by individuals, were performed or not performed by said individuals in their capacities as officers, agents, servants, employees, or representatives of their respective governmental employers, and all said acts and omissions were performed under color of state law. Background: 10. The Rocky Knob development is a community of several residential buildings containing group living quarters of one to four rooming areas, primarily serving students from Shippensburg University. The events that concern this civil action occurred at building 4-2 Sunbeam Court located in the Rocky Knob community, Shippensburg Township, Cumberland County. 11. On June 13, 2002, the Plaintiff, Troy Beam, accompanied a contractor engaged to replace windows in residential dwelling rooming units located in the Rocky Knob community, Sunbeam Court, Shippensburg Township, Cumberland County. 12. At or about 1:30 p.m. on June 13, 2002, the window contractor was replacing a window in rooming unit number one, building 4-2, Sunbeam Court, Shippensburg Township. The door to the residence was unlocked and open. 13. At or about 1:30 p.m. on June 13, 2002, Angela Hock and Roman Bard, employees of Shippensburg Township appeared and entered Building 4-2, rooming unit number one (first floor) and commenced to perform an inspection of the residence for property maintenance purposes. Upon belief, the occupant of rooming unit number one, building 4-2 was not present; and the inspection was without notice to the tenant and consent of the tenant. 14. Upon information, Angela Hock was possessed with search warrants issued by District Judge Bender for entry into all of the residences of Rocky Knob Community, without having been first refused entry by any of the occupants. Upon belief, Angela Hock, an inspector and employee of Shippensburg Township, did not notify the occupants of her desire to inspect on June 13, 2002, and applied for the search warrants without first providing notice to the occupants of the Rocky Knob community affording them the opportunity to permit access. In such event, all of the residents of Rocky Knob were unaware that the Township derived search warrants and were not provided with any notice of the issuance of the warrants and demand of entry under authority of the warrant. The employees of Shippensburg Township simply appeared on June 13, 2002, with search warrants in hand and demanded immediate entry without notice to the residents, most of whom were not present, and out of state on account of the suminer recess. 15. Upon completion of the inspection of rooming unit number one, without prior notice or demand and without consent of the occupants, Angela Hock requested the Plaintiff, Troy Beam, to cause the door to rooming unit number two, building 4-2 to be opened permitting her access to the private residence; again without prior notice and demand upon the resident and without the consent or knowledge of the occupant. In response, Troy Beam informed Ms. Hock that he would not open the door to someone's home without the resident's prior consent, and further that he did not possess the keys to many of the rooming units. 16. At about that time of the demand by Angela Hock; for entry, Pennsylvania State Trooper Hugh appeared with Roman Bard, an employee of Shippensburg Township; and informed Troy Beam that failing to open the door to the resident's personal residence, they (Shippensburg Township employees and police) would break it in. 17. Troy Beam informed the Trooper and Shippensburg Township employees that the occupants were not available, some being out of state; in response to the statement, the Trooper stated that the front doors to the apartments that remained locked would be broken into to gain immediate access. 18. Upon belief, Trooper Hugh or the Shippensburg Township employees called Shippensburg Borough police. In response, the Borough of Shippensburg sent approximately three to four patrol cars and four to six police to the Rocky Knob community. 19. Upon belief, Trooper Hugh and the Shippensburg Borough police were under the direct supervision of Shippensburg Township for purposes of gaining access to resident's private homes and maintaining the peace and order in the Rocky Knob community during said searches. The Township employees identified which rooming unit that they desired access for purposes of inspection and directed the Trooper and Borough police to derive access by forcing the door to the private residence. 20. Using a metal bar, Trooper Hugh and several of the Shippensburg Borough police officers broke into rooming unit 3, building 4-2, Sunbeam Court, at the direction of the Shippensburg Township Employees. 21. As Trooper Hugh and the Borough police officers exited rooming unit 3, building 4-2 after breaking the front door, Troy Beam and one of the workmen were causing the wrongful activities of the Township and the Borough employees to be video taped and photographed from the public areas of the building and the exterior of the building. 22. The Plaintiff, Troy Beam, standing in public areas operated a hand held camera to memorialize the wrongful actions of the employees of Shippensburg Township and Shippensburg Borough. 23. The Plaintiff, Troy Beam, took a picture of the Defendant, Shippensburg Borough police officer Jeffrey Shubert, when the officer exited rooming unit 3, building 4-2 after the front door was forcibly opened permitting the entry of employees of Shippensburg Township and Shippensburg Borough without the knowledge and consent of the occupants of the private residence. 24. Defendant, Jeffrey Schubert, directed Troy Beam not to take his picture; and thereafter, laughed at Troy Beam and demanded that he be given possession of the camera used to photograph him leaving rooming unit 3, building 4-2 after the front door was forcibly opened permitting the entry of employees of Shippensburg Township and Shippensburg Borough without the knowledge and consent of the occupants of the private residence. 25. Troy Beam responded "no" to the demand from Defendant Jeffrey Schubert that he turn over the camera; and then placed the camera in both hands behind his back. 26. Troy Beam was standing in a defenseless position with his hands behind his back holding the camera. 27. In response to Troy Beam's refusal to give Defendant Schubert the camera, Defendant Schubert, grabbed Troy Beam and threw him with great force against the wall of building 4-2 in the public area. Defendant Schubert, then with a closed fist, punched Troy Beam in the area of the stomach with great force causing Troy Beam to bend forward in pain from the force of the blow and bring his hands to his mid section. 28. Defendant Schubert physically grabbed the camera from Troy Beam's hands when he was incapacitated from the blow and then proceeded to the exterior of building 4-2. 29. All of the Shippensburg Borough Police Officers;, including their supervisor Chief Fred Scott, witnessed the physical attack upon Troy Beam by Defendant Schubert; however, none of them acted to physically or verbally stop the attack by Defendant Shubert. 30. At all times, Troy Beam did not resist the Defendants' unlawful breaking of the front doors to the private residences and the aggressive and forceful attack upon himself, acting all times passively standing in a public area to photograph the wrongful acts of the Defendants. 31. At no time did Troy Beam threaten Defendant Shubert with physical harm or pose any sort of threat whatsoever to the safety of the police officers or the employees of the Township as they conducted their unlawful intrusion into the homes of the residents. 32. At no time did Troy Beam act in any way to provoke an attack upon him by Defendant Shubert. 33 Troy Beam did not retaliate after being thrown against the wall and punched by Defendant Shubert. 34. After being attacked by Defendant Shubert and having his camera forcibly removed from his hands, Troy Beam informed Chief Fred Scott that he (Chief Scott) had witnessed all that had occurred. 35. Chief Fred Scott then grabbed Defendant Shubert and the camera and instructed Defendant Schubert to "give the man his camera back." 36. Within feet of the occurrence, two of Troy Beam's very young children watched as their father was physically attacked by Defendant Schubert. The boys stood in close proximity and fully able to view the incident as their father, in a helpless position, was thrown against the wall and punched in the stomach causing him to rive in pain; and thereafter having his camera forcibly taken from his possession as he remained bent from the blow to his body. 37. As a direct and proximate result of the Defendant Shubert's attack, Troy Beam suffered physical pain and injury; and further, great emotional upset having his family and friends watch as he was victimized and humiliated by the wrongful acts of Defendant Shubert. 38. To this day, as a direct and proximate result of the attack by Defendant Shubert, Troy Beam has been caused severe emotional upset, anxiety and embarrassment on account of the attack, all of which continues and may continue permanently. 39. The attack upon Troy Beam was without reasonable cause and beyond all lawful bounds of conduct of the Defendant Schubert. 40. The acts of Defendants were not justified and were not privileged. 41 The Defendants understood that the actions of Defendant Schubert were improper and unlawful, and would cause injury to Beam. 42. At all times relevant, Defendant Shubert was the agent, servant and employee of Defendant Shippensburg Borough and was acting within the scope of his employment as a police officer providing municipal services to secure the peace. 43. At all times relevant herein, Shippensburg Borough employed the police officers, and specifically Defendant Shubert, who assisted in the inspection of the rooming units and were under the direction, control and supervision of Defendant Shippensburg Borough and were acting within the scope of their employment on behalf of Shippen.sburg Borough. 44. At all times relevant herein, the police officers, and specifically Defendant Shubert, who assisted in the inspection of the rooming units and were under the direction, control and supervision of Defendant Shippensburg Township and were acting within the scope of their employment on behalf of Shippensburg Township. 45. The acts of the employees of Shippensburg Borough, under the direct supervision and direction of the Township of Shippensburg were made possible by virtue of the Township employees' authority as public officials; therefore, the acts of the Defendants were under color of law to deny the Plaintiff his fundamental rights under the Fourteenth Amendment to the United States Constitution and the Constitution of the Commonwealth of Pennsylvania when he was unlawfully attacked. 46. The Defendants are not entitled to immunity. COUNTI TROY BEAM v. JEFFREY SHUBERT LIABILTIY FOR INTENTIONAL TORT 47. The Plaintiff incorporates by reference paragraphs one (1) though forty-six (46) as though fully set forth at length. 48. Defendant Shubert is liable to Plaintiff for his intentional, reckless and wanton conduct in inflicting injuries upon the person of Troy Beam. 49. Defendant Shubert is directly responsible to Plaintiff for the intentional infliction upon him of physical and emotional distress, pain and suffering. 50. The conduct of Defendant Shubert is totally unjustified and an excessive use of force against the Plaintiff with specific intent to cause harm to Plaintiff; and is so atrocious and outrageous that Plaintiff is entitled to an award of punitive damages, in addition to compensatory damages, for which he hereby makes claim. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest, punitive damages and such other relief as this Court deems just and proper. COUNT II TROY BEAM v. JEFFREY SHU13ERT LIABILTIY FOR NEGLIGENCE 51. The Plaintiff incorporates by reference paragraphs one (1) though forty-six (46) as though fully set forth at length. 52. In the alternative to allegations set forth in Count I of the within Complaint, Defendant Jeffrey Shubert is liable to Plaintiff for negligently causing physical injury to Plaintiff and negligently inflicting emotional distress upon him. 53. Defendant Shubert owed a duty of acre to members of the public, specifically including the Plaintiff, to refrain from causing injury to them though the careless and negligent performance of his duties on behalf of Shippensburg Borough and Shippensburg Township. 54. Defendant Shubert's negligence consisted of the ifollowing: (a) improperly responding to the presence of the Plaintiff in the public area of building number 4-2; and, (b) utilizing physical force against the Plaintiff under circumstances in which it was not warranted; and, (c) using force that was excessive under the circumstances; and, (d) utilizing his clinched fist as a weapon when it was not warranted and in a fashion, which was improper; (e) being otherwise negligent as may be revealed through discovery. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest and such other relief as this Court deems just and proper. 10 COUNT III TROY BEAM v. SHIPPENSBURG BOROUGH VICARIOUS LIABILTIY 55. The Plaintiff incorporates by reference paragraphs one (1) though fifty-two (52) as though fully set forth at length. 56. Defendant Shippensburg Borough is liable to Plaintiff for the aforesaid intentional, reckless, outrageous, wanton and/or negligent conduct of its agent, servant and employee, Defendant Shubert, which conduct occurred during the scope of Defendant Shubert's employment by Shippensburg Borough. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest, punitive damages and such other relief as this Court deems just and proper. COUNT IV TROY BEAM v. SHIPPENSBURG BOROUGH NEGLIGENT SUPERVISION AND HIRING 57. The Plaintiff incorporates by reference paragraphs one (1) though fifty-four (54) as though fully set forth at length. 58. Shippensburg Borough owes a duty of acre to the members of the public, specifically including the Plaintiff, to protect them from intentional, wanton, reckless and/or negligent conduct of its agents, servants and employees, in the performance of their duties on Defendant Shippensburg Borough's behalf. 59. Defendant Shippensburg Borough's negligence consisted of the following: (a) failing to properly obtain and evaluate references and/or work history with regard to the employment of Defendant Shubert; (b) failing to properly search out, investigate and verify the qualifications and background of Defendant Shubert prior to employment; 11 (c) failing to properly train and supervise its employees, specifically including Defendant Shubert, in the proper manner in which to carry out the functions of a police officer; (d) failing to properly train and supervise the Defendant Shubert in the use of force; (e) failing to properly train and supervise the Defendant Shubert in the use of his hands as a weapon; (f) negligently permitting Defendant Shubert to utilize improper force while carrying out his duties on behalf of Shippensburg Borough; (g) failing to advise and warn members of the public, including the Plaintiff of the dangerous and violent propensities of its agent, servant and employee, Defendant Shubert; (h) being otherwise negligent as may be revealed through discovery. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest and such other relief as this Court deems just and proper. COUNT V TROY BEAM v. SHIPPENSBURG TOWNSHIP NEGLIGENT SUPERVISION 60. The Plaintiff incorporates by reference paragraphs one (1) though fifty-four (54) as though fully set forth at length. 61. Shippensburg Township owes a duty of acre to the members of the public, specifically including the Plaintiff, to protect them from intentional, wanton, reckless and/or 12 negligent conduct of its agents and servants in the performance of their duties on Defendant Shippensburg Township's behalf. 62. Defendant Shippensburg Township's negligence consisted of the following: (a) failing to properly supervise, specifically including Defendant Shubert, in the proper manner in which to carry out the functions of a police officer when he was engaged to assist in the perfz)rmance of inspections in the Township; (b) failing to supervise the Defendant Shubert in the use of force; (c) failing to properly supervise the Defendant Shubert in the use of his hands as a weapon; (d) negligently permitting Defendant Shubert to utilize improper force while carrying out his duties on behalf of Shippensburg Township; (e) failing to advise and warn members of the public, including the Plaintiff of the dangerous and violent propensities of its agent, servant and employee, Defendant Shubert; (f) being otherwise negligent as may be revealed through discovery. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest and such other relief as this Court deems just and proper. 13 COUNT VI TROY BEAM v. SHIPPENSBURG TOWNSHIP, STEVEN C. OLDT, JOHN E. BARD, GALEN ASPER, and SHIPPENSBURG BOROUGH DEPRIVATION OF CONSITUTIONALLY PROTECTED RIGHTS 63. The Plaintiff incorporates by reference paragraphs one (1) though forty-six (46) as though fully set forth at length. 64. The acts of Shippensburg Township, its employees, servants and agents were authorized and directed by the individual supervisors, Steven C. Oldt, John E. Bard, and Galen Asper, in the their capacity as members of the Township governing body. 65. In the attack upon the person of Toy Beam, Defendant Shubert, directly violated the rules and regulations of the Shippensburg Borough police department and federal law governing use of force. 66. Defendant Shubert's actions were made possible by virtue of his authority as a public official; therefore, Defendant Shubert acted under color of law to deny the Plaintiff his fundamental right of substantive and procedural due process of ]law under the Due Process Clause of the Fourteenth Amendment to the United States Constitution the laws of the United States, and in particular 42 U.S.C. Sections 1983, 1986 and 1988, and the Constitution of the Commonwealth of Pennsylvania when he unlawfully attacked the Plaintiff causing him physical pain and emotional injury. 67. Defendant Shubert's attack upon the person of Plaintiff facially violated established statutes and rules. 68. The Defendants are not entitled to immunity. WHEREFORE, the Plaintiff prays that this Honorable Court for redress as follows:: a) For a judgment holding that the actions of Defendants violate the Civil Rights Act of 1871, 42 U.S.C. Section 1983; b) For a judgment for redress compensating Plaintiff for his emotional and physical upset for the wrongful attack upon his person; C) For punitive damages; and 14 d) For costs of this action, including reasonable attorney's fees, pursuant to 42 U.S.C. Section 1988 and general principals of lave, and for such other relief as this Court may deem just and proper. 15 Attorney for Plaintiff 01/28/03 1.5:49 . . No. 091 P03 VERIFICATION 1, TROY BEAM, state that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief: I understand that false statements made therein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: Z a l 0 TroylliK CERTIFICATE OF SERVICE I, LEE A. STIVALE, ESQUIRE, hereby certify that I served a true and correct copy of a Complaint, upon all parties listed below, by placing the same in the United States Mail, First Class Mail, postage pre-paid on February 10, 2003. Ronald Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 Steven C. Oldt 206 Chestnut Drive Shippensburg, PA 17257 Galen S. Asper 399 Baltimore Road Shippensburg, PA 17257 Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Township of Shippensburg 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 John E. Bard 5 Bard Road Shippensburg, PA 17257 Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 Law Offisas-ofd ncent B. Mancini & Associates A. STIVALE, ESQUIRE . _, f"? c.. , ?? _ "r-?' - ' P ?. ??.. ?? S 'S ' ., ??? ? - . _._ _ ?-il j ?? -,? :''i - •t» Z "I1 "C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, Plaintiff NO. 02-5940 V. TOWNSHIP OF SHIPPENSBURG, JURY TRIAL DEMANDED et al., Defendants TO THE CUMBERLAND COUNTY PROTHONOTARY: Please enter my appearance on behalf of Defendants, the Township of Shippensburg, Steven C. Oldt, John E. Bard and Galen S. Asper, only in the above- referenced matter. DATE: J?a-1' bb Respectfully submitted, Lavery, Faherty, YoU6 & Patterson, P.C. By: ., Esquire Frank J. A42370 Atty No225 Marke t Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Attys for Defendants, Township of Shippensburg, Steven C. Oldt, John E. Bard and Galen S. Asper CERTIFICATE OF SERVICE I, Linda L. Gustin, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 21St day of February, 2003, I served a true and correct copy of the foregoing Entry of Appearance via U.S. First Class mail, postage prepaid, addressed as follows: Lee A. Stivale, Esquire Jackson, Cavanagh & Stivale, PC Mill of Victoria, Suite 301 1489 Baltimore Pike Springfield, PA 19064 Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 Linda L. Gustin C ?..^ _, . =?.. 'mo't -n s ? . ?-,? r?. ? ? ? -.-? ._., ... .. - ,. .:_ ?. ? , Cl:i L: -' C-- _ ? _,-, ; ? t. _ _ . C- ? .. J c 1`. ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, Plaintiff NO. 02-5940 JURY TRIAL DEMANDED V. TOWNSHIP OF SHIPPENSBURG, et al., Defendants AND NOW, this ORDER day of 2003, upon consideration of the Preliminary Objections and brief filed by the Shippensburg Township Defendants, and any response thereto, it is hereby ORDERED, ADJUDGED and DECREED that the Preliminary Objections are GRANTED. Plaintiff's complaint is hereby DISMISSED with prejudice. BY THE COURT: j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, Plaintiff NO. 02-5940 V. TOWNSHIP OF SHIPPENSBURG, JURY TRIAL DEMANDED et al., Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS, TOWNSHIP OF SHIPPENSBURG, STEVEN C. OLDT, JOHN E. BARD AND GALEN S. ASPER, TO COMPLAINT AND NOW, come Defendants, Township of Shippensburg, Steven C. Oldt, John E. Bard, and Galen S. Asper (hereinafter, "Township Defendants"), by and through their counsel, Lavery, Faherty, Young & Patterson, P.C., and file their preliminary objections to the complaint filed against them by Troy A. Beam (hereinafter, "Plaintiff') and aver as follows: 1. Plaintiff commenced this action with the filing of a civil complaint, brought pursuant to state law and 42 U.S.C. § 1983. A true and correct copy of the complaint is attached hereto as Exhibit "A." 2. In addition to the Township Defendants, named as Defendants in the complaint are the Borough of Shippensburg (hereinafter, "the Borough") and Jeffrey Shubert, a police officer employed by the Borough. (Complaint, 116-7). 3. The complaint arises from an incident that is alleged to have occurred on June 13, 2002. Specifically, Plaintiff avers that he was unlawfully physically assaulted on this date by Borough Officer Shubert, acting in the course and scope of his employment as a Borough Police Officer. (Complaint, It 11-29). 4. The complaint contains six (6) counts, arising from the alleged assault. Counts I and II purport to assert unspecified tort claims under state law against Borough Police Officer Shubert. Counts III and IV purport to assert claims against the Borough for direct negligence and for the unlawful acts of its employee, Officer Shubert. Count V purports to assert a negligent supervision claim against the Township, for the acts of Borough Police Officer Shubert. Finally, Count VI purports to assert claims against all Township Defendants for the violation of Plaintiff's civil rights, stemming from Borough Officer Shubert's alleged use of excessive force to "attack" Plaintiff. (Complaint, IT 47-68). 5. Counts V and VI of the complaint are the only Counts purportedly directed at the Township Defendants. 6. Rule 1028(a)(4) provides for the filing of preliminary objections to a pleading for its lack of legal sufficiency. 7. Count V of the complaint fails to assert a cognizable claim or cause of action against the Township for negligent supervision, as a matter of law. Plaintiff's "negligent supervision" claim is premised upon the Township's alleged failure to supervise Borough Police Officer Shubert, and failure to warn Plaintiff about the Officer's alleged dangerous and violent propensities. (Complaint, ¶ 62). 8. Based upon Plaintiff's own complaint allegations, it is undisputed that Officer Shubert was not an employee, servant, or agent of the Township at the time of the incident in question. The Officer has been sued in his official capacity as a police officer employed by Defendant Borough. 9. Furthermore, even if Plaintiff could establish that Officer Shubert acted as an agent of the Township at the time of the alleged assault, which is denied, the Township is immune from suit for Plaintiff's negligent supervision claims by operation of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541, et seq. 10. Count VI of the complaint purports to assert a claim or cause of action against the Township for violation of Plaintiff's civil rights, pursuant to 42 U.S.C. § 1983. Plaintiff avers that the Defendant Township Supervisors authorized the acts of Township employees. Plaintiff further avers that, "In the attack upon the person of Toy (sic) Beam, Defendant Shubert, directly violated the rules and regulations of the Shippensburg Borough police department and federal law governing use of force." (Complaint, 1164-65). 11. The averments of Count VI fail to assert a cognizable claim against the Township Defendants for which relief may be granted pursuant to 42 U.S.C. § 1983, as a matter of law. 12. The complaint is devoid of any allegations establishing any personal action by the Defendant Township Supervisors in violation of Plaintiff's rights guaranteed by the Constitution or laws of the United States. 13. The complaint fails to assert an actionable § 1983 claim against the Township or its Supervisors in their official capacities, as a matter of law. WHEREFORE, Defendants, Shippensburg Township, Steve C. Oldt, John E. Bard, and Galen Asper pray that their preliminary objections be granted, and that Plaintiff's complaint be dismissed with prejudice. Respectfully submitted, Lavery, Faherty, Young & By: DATE: ? i / 6 Frank J. Lavery, , Esq Atty No. 42370 225 Market Street, Suite P.O. Box 1245 .C. Harrisburg, PA 17108-1245 Attys for Shippensburg Township Defendants 02/19/03 WED 09:50 FAX 9 1 610 321 1021 IRS LAW 43MCES OF VINCENT B. MANCINI LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 414 E. BALTIMORE PIKE MEDU, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM 401 Shippensburg Road Shippc:nsburg, PA 17257 Plaintiff, V. TOWNSHIP OF SHIPPENSBURG 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 Defendant, and STEVEN C. OLDT 206 Chestnut Drive Shippensburg, PA 17257 Defendant, and JOHN E. BARD 5 Bard Road Shippensburg, PA 17257 Defendant, and GALEN S. ASPER -- 399 Baltimore Road Shippensburg, PA 17257 Defendant, and No. 02-5940 EXHIBIT 0005 02/19/03 WED 09:50 FAX 9 1 610 321 1021 IRM Q006 BOROUGH OF SHIPPENSBURG 111 N. Fayette Street Shippensburg, PA 17257 Defendant and dEFF XY SHUBERT 60 W. Bard Street Shippensburg, PA 17257 Defendant. CIVIL RIGHTS, INTENTIONAL TORT, NEGLIGENCE JURY TRIAL DEYDIMED COMPLAINT The Plaintiff, by and through its attorney, Lee A. Stivale, Esquire, files this Complaint and pleads as follows: Nature of Action: This action alleges several common law causes of action and a claim under the Civil Rights Act, 42 U.S.C. Section 1983 to recover damages suffered by the Plaintiff and other redress on account of Defendants' unlawful acts which violate the Plaintiff's rights under the Constitution and the laws of the United States and the Commonwealth of Pennsylvania. Parties: I. The Plaintiff, Troy Beam, (hereinafter "Plaintiff' or `Beam") is an adult individual with a personal residence located at 401 Shippensburg Road, Cumberland County, Pennsylvania. 2. The Defendant, Township of Shippensburg (hereinafter "Township" or "Shippensburg Township") is a municipal corporation and political subdivision of the Commonwealth of Pennsylvania, with offices located at 81 Walnut Bottom Road, Shippensburg, Cumberland County, Pennsylvania. 02/19/03 WED 09:50 FAX 9 1 610 321 1021 IRM 3. The Defendant, Steven C. Oldt, ("Defendant Old") is an adult individual with a personal residence located at 206 Chestnut Drive, Shippensburg Township, Cumberland County, Pennsylvania. At all times relevant, Defendant Oldt was a Members of Township Board of Supervisors, the governing body of the Township. 4. The Defendant, John E. Bard, ("Defendant Bard') is an adult individual with a personal residence located at 5 Bard Road, Shippensburg Township, Cumberland County, Pennsylvania. At all times relevant, Defendant Bard was a Members of Township Board of Supervisors, the governing body of the Township. 5. The Defendant, Galen S. Asper, ("Defendant Asper") is an adult individual with a personal residence located at 399 Baltimore Road, Shippensburg Township, Cumberland County, Pennsylvania. At all times relevant, Defendant Asper was a Members of Township Board of Supervisors, the governing body of the Township. 6. The Defendant, Borough of Shippensburg (hereinafter "Borough" or la 007 "Shippensburg Borough") is a municipal corporation and political subdivision of the Commonwealth of Pennsylvania, with offices located at 111 N. Fayette Street, Shippensburg, Cumberland County, Pennsylvania. 7. The Defendant, Jeffrey Shubert, ("Defendant Shubert') is an adult individual. Upon information, at all times relevant, Defendant Shubert was employed by Shippensburg Borough as a police officer from the offices located at 111 N Fayette Street, Shippensburg, Cumberland County, Pennsylvania. Jurisdiction and Venue: S. All of the acts involved in this matter concern real property and transactions located in Cumberland County, Pennsylvania. Jurisdiction and venue are proper in the Court of Common Pleas of Cumberland County, Penmsylvania. 3 02/19/03 WED 09:51 FAX 9 1 610 321 1021 IRM 43. All of the acts and omissions complained of herein which were performed or not performed by individuals, were performed or not performed by said individuals in their capacities as officers, agents, servants, employees, or representatives of their respective governraental employers, and all said acts and omissions were performed under color of state law. Background: 10. The Rocky Knob development is a community of several residential buildings containing group living quarters of one to four rooming areas, primarily serving students from Shippensburg University. The events that concern this civil action occurred at building 4-2 Sunbeam Court located in the Rocky Knob community, Shippensburg Township, Cumberland County. 11. On June 13, 2002, the Plaintiff, Troy Beam, accompanied a contractor engaged to Zoos replace windows in residential dwelling rooming units located in the Rocky Knob community, Sunbeam Court, Shippensburg Township, Cumberland County. 12. At or about 1:30 p.m. on June 13, 2002, the window contractor was replacing a window in rooming unit number one, building 4-2, Sunbeam Court, Shippensburg Township. The door to the residence was unlocked and open. '13. At or about 1:30 p_m. on June 13, 2002, Angela Hock and Roman Bard, emplorms of Shippensburg Township appeared and entered Building 4-2, rooming unit number one (first floor) and commenced to perform an inspection of the residence for property maintenance purposes. Upon belief, the occupant of rooming unit number one, building 4-2 was not present; and the inspection was without notice to the tenant and consent of the tenant. 14. Upon information, Angela Hock was possessed with search warrants issued by District Judge Bender for entry into all of the residences of Rocky Knob Community, without having been first refused entry by any of the occupants. 4 02/19/03 WED 09:51 FAX 9 1 610 321 1021 IRM Upon belief, Angela Hock, an inspector and employee of Shippensburg Township, did not noti fy the occupants of her desire to inspect on June 13, 2002, and applied for the search warrants without first providing notice to the occupants of the Rocky Knob community affording them the opportunity to permit access. In such event, all of the residents of Rocky Knob were unaware that the Township derived search warrants and were not provided with any notice of the issuance of the warrants and demand of entry under authority of the warrant. The employees of Shippensburg Township simply appeared on June 13, 2002, with search warrants in hand and demanded immediate entry without notice to the residents, most of whom were not present, and out of state on account of the summer recess. 15. Upon completion of the inspection of rooming unit number one, without prior notice or demand and without consent of the occupants, Angela Hock requested the Plaintiff, Troy Beam, to cause the door to rooming unit number two, building 4-2 to be opened permitting her access to the private residence; again without prior notice and demand upon the resident and without the consent or knowledge of the occupant In response, Troy Beam informed Ms: Hock that he would not open the door to someone's home without the resident's prior consent; and further that he did not possess the keys to many of the rooming units. 16. At about that time of the demand by Angela Hock for entry, Pennsylvania State Trooper Hugh appeared with Roman Bard, an employee of Shippensburg Township; and informcd Troy Beam that failing to open the door to the resident's personal residence, they (Shippensburg Township employees and police) would break it in. 17. Troy Beam informed the Trooper and Shippensburg Township employees that the occupants were not available, some being out of state; in response to the statement, the Trooper stated that the front doors to the apartments that remained locked would be broken into to gain immediate access- 18. Upon belieL Trooper Hugh or the Shippensburg Township employees called 1aoos Shippensburg Borough police. In response,-.the Borough of Shippensburg sent approximately three to four patrol cars and four to six police to the Rocky Knob community- 02/19/03 WED 09:52 FAX 9 1 610 321 1021 IRM 19. Upon belief, Trooper Hugh and the Shippensburg Borough police were under the direct supervision of Shippensburg Township for purposes of gaining access to resident's private homes and maintaining the peace and order in the Rocky Knob community during said searches. The Township employees identified which rooming unit that they desired access for purposes of inspection and directed the Trooper and Borough police to derive access by forcing the door to the private residence. 20. Using a. metal bar, Trooper Hugh and several of the Shippensburg Borough police officers broke into rooming unit 3, building 4-2, Sunbeam Court, at the direction of the Shippensburg Township Employees. 21. As Trooper Hugh and the Borough police officers exited rooming unit 3, building 4-2 after brealdng the front door, Troy Beam and one of the workmen were causing the wrongful activities of the Township and the Borough employees to be video taped and photographed from the public areas of the building and the exterior of the building. 22. The Plaintiff, Troy Beam, standing in public areas operated a hand held camera to memorialize the wrongful actions of the employees'of Shippensburg Township and Shippensburg Borough. 23. The Plaintiff, Troy Beam, took a picture of the Defendant, Shippensburg Borough police officer Jeffrey Shubert, when the officer exited rooming unit 3, building 4-2 after the front door was forcibly opened permitting the entry of employees of Shippensburg Township and Shippensburg Borough without the knowledge and consent of the occupants of the private residence. 24. Defendant, Jeffrey Schubert, directed Troy Beam not to take his picture; and thereafter, laughed at Troy Beam and demanded that he be given possession of the camera used to photograph him leaving rooming unit 3, building 4-2 after the front door was forcibly opened permitting the entry of employees of Shippensburg Township and Shippensburg Borough without the knowledge and consent of the occupants of the private residence. (a 010 02/19/03 WED 09:52 FAX 9 1 610 321 1021 IRM 25. Troy Beam responded "no" to the demand from Defendant Jeffrey Schubert that he turn over the camera; and then placed the camera in both hands behind his back. :26. Troy Beam was standing in a defenseless position with his hands behind his back holding the camera. 27. In response to Troy Beam's refusal to give Defendant Schubert the camera, Defen&mt Schubert, grabbed Troy Beam and threw him with great force against the wall of building 4-2 in the public area. Defendant Schubert, then with a closed fist, punched Troy Beam in the area of the stomach with great force causing Troy Beam to bend forward in pain from the force of the blow and bring his hands to his mid section. 28. Defendant Schubert physically grabbed the camera from Troy Beam's hands when he was incapacitated from the blow and then proceeded to the exterior of building 4-2. 29. All of the Shippensburg Borough Police Officers, including their supervisor Chief Fred Scott, witnessed the physical attack upon Troy Beam by Defendant Schubert; however, none of them acted to physically or verbally stop the attack by Defendant Shubert. 30. At all times, Troy Beam did not resist the Defendants' unlawful breaking of the front doors to the private residences and the aggressive and forceful attack upon himself; acting all times passively standing in a public area to photograph the wrongful acts of the Defendants. 31. At no time did Troy Beam threaten Defendant Shubert with physical harm or pose any sort of threat whatsoever to the safety of the police officers or the employees of the Township as they conducted their unlawful intrusion into the homes of the residents. 32. At no time did Troy Beam act in any way to provoke an attack upon him by Defendant Shubert. 33 Troy Beam did not retaliate after being thrown against the wall and punched by Defendant Shubert. 34. After being attacked by Defendant Shubert and having his camera forcibly removed from his hands, Troy Beam informed Chief Fred Scott that he (Chief Scott) had 8011 witnessed all that had occurred. 02/19/03 WED 09:53 FAX 9 1 610 321 1021 IRAs 35. Chief Fred Scott then grabbed Defendant Shubert and the camera and instructed Defendant Schubert to "give the man his camera back." 36. Within feet of the occurrence, two of Troy Beam's very young children watched as their father was physically attacked by Defendant Schubert. The boys stood, in close proximity and fully able to view the incident as their father, in a helpless position, was thrown against the wall and punched in the stomach causing him to rive in pain; and thereafter having his camera forcibly taken from his possession as he remained bent from the blow to his body. 37. As a direct and proximate result of the Defendant Shubert's attack, Troy Beam suffered physical pain and injury, and further, great emotional upset having his family and friends watch as he was victimized and humiliated by the wrongful acts of Defendant Shubert. 38_ To this day, as a direct and proximate result of the attack by Defendant Shubert, Troy Beam has been caused severe emotional upset, anxiety and embarrassment on account of the attack, all of which continues and may continue permanently. 39.. The attack upon Troy Beam was without reasonable cause and beyond all lawful hounds of conduct of the Defendant Schubert. 40. The acts of Defendants were not justified and were not privileged. 41 The Defendants understood that the actions of Defendant Schubert were improper and unlawful, and would cause injury to Beam. 42. At all times relevant, Defendant Shubert was the agent, servant and employee of Defendant Shippensburg Borough and was acting within the scope of his employment as a police officer providing municipal services to secure the peace. 43. At all times relevant herein, Shippensburg Borough employed the police officers, and specifically Defendant Shubert, who assisted in the inspection of the rooming units and were . under the direction, control and supervision of Defendant Shippensburg Borough and were acting within the scope of.their employment on behalf of Shippensburg Borough. 0 012 8 0.2/19/03 WED 09:53 FAX 9 1 610 321 1021 IRM •44. At all times relevant herein, the police officers, and specifically Defendant Shubert, who assisted in the inspection of the rooming units and were under the direction, control and supervision of Defendant Shippensburg Township and were acting within the scope of their employment on behalf of Shippensburg Township. 45. The acts of the employees of Shippensburg Borough, under the direct supervision and direction of the Township of Shippensburg were made possible by virtue of the Township employ--es' authority as public officials; therefore, the acts of the Defendants were under color of law to deny the Plaintiff his fundamental rights under the Fourteenth Amendment to the United States Constitution and the Constitution of the Commonwealth of Pennsylvania when he was unlawfidly attacked. -46. The Defendants are not entitled to immunity. COUNTI TROY BEAM Y. JEFFREY SHUBERT LIABILTIY FOR INTENTIONAL TORT 47. The Plaintiff incorporates by reference paragraphs one (1) though forty-six (46) as though fully set forth at length. 48. Defendant Shubert is liable to Plaintiff for his intentional, reckless and wanton conduct in inflicting injuries upon the person of Troy Beam. 49. Defendant Shubert is directly responsible to Plaintiff for the intentional infliction upon him of physical and emotional distress, pain and suffering. 50. The conduct of Defendant Shubert is totally unjustified and an excessive use of force against the Plaintiff with specific intent to cause harm to Plaintiff; and is so atrocious and outrageous that Plaintiff is entitled to an award of punitive damages, in addition to compensatory damages, for which he hereby makes claim. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest, punitive damages and such other relief as this Court deems just and proper. Q013 9 02/19/03 WED 09:53 FAR 9 1 610 321 1021 IRM COUNT II TROY BEAM v. JEFFREY SHUBERT LIABILTIY FOR NEGLIGENCE The Plaintiff incorporates by reference paragraphs one (1) though forty-six (46) as 51. though Molly set forth at length 52. In the alternative to allegations set forth in Count I of the within Complaint, Defendant Jeffrey Shubert is liable to Plaintiff for negligently causing physical injury to Plaintiff and negligently inflicting emotional distress upon him. .53. Defendant Shubert owed a duty of acre to members of the public, specifically including the Plaintiff, to refrain from causing injury to them though the careless and negligent perfbrmance of his duties on behalf of Shippensburg Borough and Shippensburg Township. 54. Defendant Shubert's negligence consisted of the following. (a) improperly responding to the presence of the Plaintiff in the public area of building number 4-2; and, (b) " utilizing physical force against the Plaintiff under circumstances in which it was not warranted; and, _ (c) using force that was excessive under the circumstances; and, (d) utilizing his clinched fist as a weapon when it was not warranted and in a fashion, which was improper; (e) being otherwise negligent as maybe revealed through discovery. WHEREFORE. Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest and such other relief as this Court deems just and proper. Z014 10 02/19/03 WED 09:54 FAX 9 1 610 321 1021 IRIt COUNT III TROY BEAM v. SHIPPENSBURG BOROUGH VICARIOUS LIABILTIY 55. The Plaintiff incorporates by reference paragraphs one (1) though fifty-two (52) as though fully set forth at length. :56. Defendant Shippensburg Borough is liable to Plaintiff for the aforesaid intentional, reckless, outrageous, wanton and/or negligent conduct of its agent, servant and employee, Defendant Shubert, which conduct occurred during the scope of Defendant Shubert's employment by Shippensburg Borough. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest, punitive damages and such other relief as this Court deems just and proper. COUNT IV TROY BEAM v. SHIPPENSBURG BOROUGH NEGLIGENT SUPERVISION AND HIRING 57. The Plaintiff incorporates by reference paragraphs one (1) though fifty-four (54) as though fully set forth at length. 58. Shippensburg Borough owes a duty of acre to the members of the public, specifically including the Plaintiff, to protect them from intentional, wanton, reckless and/or negligent conduct of its agents, servants and employees, in the performance of their duties on Defendant Shippensburg Borough's behalf_ 59. Defendant Shippensburg Borough's negligence consisted of the following: (a) failing to properly obtain and evaluate references and/or work history with regard to the employment of Defendant Shubert; (b) failing to properly search out, investigate and verify the qualifications and background of Defendant Shubert prior to employment; Z015 11 02/19/03 WED 09:54 FAX 9 1 610 321 1021 IRM 0 016 (c) failing to properly train and supervise its employees, specifically including Defendant Shubert, in the proper manner in which to carry out the functions of a police officer, (d) failing to properly train and supervise the Defendant Shubert in the use of force; (e) failing to properly train and supervise the Defendant Shubert in the use of his hands as a weapon; (f) negligently permitting Defendant Shubert to utilize improper force while carrying out his duties on behalf of Shippensburg Borough-, (g) failing to advise and warn members of the public, including the Plaintiff of the dangerous and violent propensities of its agent, servant and employee, Defendant Shubert; (h) being otherwise negligent as may be revealed through discovery. WHEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest and such other relief as this Court deems just and proper. COUNT V TROY BEAM v SHIPPENSBURG TOWNSHIP NEGLIGENT SUPERVISION 60. The Plaintiff incorporates by reference paragraphs one (1) though fifty-four (54) as though fully set forth at length. 61. Shippensburg Township owes a duty of acre to the members of the public, specifically including the Plaintiff, to protect them from intentional, wanton, reckless and/or 12 02/19/03 WEED 09:54 FAX 9 1 610 321 1021 IRM negligent conduct of its agents and servants in the performance of their duties on Defendant Shippensburg Township's behalf. 62. Defendant Shippensburg Township's negligence consisted of the following: (a) failing to properly supervise, specifically including Defendant Shubert, in the proper manner in which to carry out the functions of a police officer when he was engaged to assist in the performance of inspections in the Township; (b) failing to supervise the Defendant Shubert in the use of force; (c) failing to properly supervise the Defendant Shubert in the use of his hands as a weapon; (d) negligently permitting Defendant Shubert to utilize improper force while Q017 carrying out his duties on behalf of Shippensburg Township; (e) failing to advise and warn members of the public, including the Plaintiff of the dangerous and violent propensities of its agent, servant and employee, Defendant Shubert; (f) being otherwise negligent as may be revealed through discovery. WBEREFORE, Plaintiff demands judgment against Defendant Jeffrey Shubert in an amount in excess of $50,000.00 together with costs, interest and such other relief as this Court deems just and proper- 13 02/19/03 WED 09:55 FAX 9 1 610 321 1021 IRM COUNT VI TROY BEAM v. SHIPPENSBURG TOWNSHIP, STEVEN C. OLDT, JOHN E. BARD, GALEN ASPER, and SHIPPENSBURG BOROUGH DEPRIVATION OF CONSITUTIONALLY PROTECTED RIGHTS 63. The Plaintiff incorporates by reference paragraphs one (1) though forty-six (46) as though fully set forth at length. X64. The acts of Shippensburg Township, its employees, servants and agents were authorkzd and directed by the individual supervisors, Steven C_ Oldt, John E. Bard, and Galen Asper, in the their capacity as members of the Township governing body. 65. In the attack upon the person of Toy Beam, Defendant Shubert, directly violated the rules and regulations of the Shippensburg Borough police department and federal law governing use of force. 66. Defendant Shubert's actions were made possible by virtue of his authority as a public official; therefore, Defendant Shubert acted under color of law to deny the Plaintiff his la 018 fundamental right of substantive and procedural due process of law under the Due Process Clause of the Fourteenth Amendment to the United States Constitution the laws of the United States, and in particular 42 U.S.C. Sections 1983, 1986 and 1988, and the Constitution of the Commonwealth of Pennsylvania when he unlawfully attacked the Plaintiff causing him physical pain and emotional injury. 67. Defendant Shubert's attack upon the person of Plaintiff facially violated established statutes and rules. 68. The Defendants are not entitled to immunity. WHEREFORE, the Plaintiff-prays that this Honorable Court for redress as follows:: a) For a judgment holding that the actions of Defendants violate the Civil Rights Act of 1871, 42 U_S.C. Section 1983; b) For a judgment for redress compensating Plaintiff for his emotional and physical upset for the wrongful attack upon his person; c) For punitive damages; and 14 62/19/03 WED 09:55 FAX 9 1 610 321 1021 IRM el) For costs of this action, including reasonable attomey's fees, pursuant to 42 U.S.C. Section 1988 and general principals of law, and for such other relief as this Court may deem just and proper. [ 019 1s Attorney for Plaintiff 02/19/03 WED 09:55 FAX 9 1 610 321 1021 IRM Q 020 091 PF-13 L11/ca/17: 15: 49 .i Y?, IR FICATION i f I, TROY REAM, state that the facts set forth in the foregoing Camplaint arc true and correct to the best of my knowledge, information and belief. I understand that false statements I made therein are made subject to the penalties of 18 Pa, C.S.A. Section 4904, relating to 1 1 unworn falsification to authorities. Date: I tz £r 10 3 T 02/19/03 WED 09:55 FAX 9 1 610 321 1021 IRM U021 CERTIFICATE OF SERVICE 1, LEE A_ STIVAL.E, ESQUIRE, hereby certify that I served a true and correct copy of a Complaint, upon all parties listed below, by placing the same in the United States Mail, First Class Mail, postage pre-paid on February 10, 2003_ Ronald Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 Steven C. Oldt 206 Chestnut Drive Shippe nsbw& PA 17257 Galen S_ Asper 399 Baltimore Road Shippensburg, PA 17257 Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Law Township of Shippensburg 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 John E. Bard 5 Bard Road Shippensburg, PA 17257 Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 B. Mancini & Associates A. U l l r C11JL' ? JJV ? V li\iJ CERTIFICATE OF SERVICE I, Linda L. Gustin, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this ! ""h day of March, 2003, I served a true and correct copy of the foregoing Preliminary Objections via U.S. First Class mail, postage prepaid, addressed as follows: Lee A. Stivale, Esquire Jackson, Cavanagh & Stivale, PC Mill of Victoria, Suite 301 1489 Baltimore Pike Springfield, PA 19064 Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 Linda L. Gustin "z" ., _ :? "r, t ' .::? :: --y `_ t .? . ?:. , Cam? ? ; _? ? 7 rr ` _ , ,_- t' ?• _- t i c ? r?? ? <_ ? :? --, - i s, ?. MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND MICHAEL J. BUTLER IDENTIFICATION NO. 59320 AND 81799 123 S. BROAD STREET ATTORNEYS FOR DEFENDANTS PHILADELPHIA, PA 19109 BOROUGH OF SHIPPENSBURG AND (215) 772-1500 OFFICER JEFFREY SHUBERT TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, CIVIL ACTION STEPHEN C. OLDT, JOHN E. BARD, NO. 02-5940 GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT DEFENDANTS ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance in the above-captioned matter on behalf of Defendants Borough of Shippensburg and Officer Jeffrey Shubert. MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP By: DAVID J. MacMAIN;"ESQUIRE Attorney I.D. #59320 MICHAEL J. BUTLER, ESQUIRE Attorney I.D. #81799 123 S. Broad Street Philadelphia, PA 19109 (215) 772-1500 r*_, ITI e? ra MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND MICHAEL J. BUTLER IDENTIFICATION NO. 59320 AND 81799 123 S. BROAD STREET ATTORNEYS FOR DEFENDANTS PHILADELPHIA, PA 19109 BOROUGH OF SHIPPENSBURG AND (215) 772-1500 OFFICER JEFFREY SHUBERT TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, CIVIL ACTION STEPHEN C. OLDT, JOHN E. BARD, NO. 02-5940 GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT DEFENDANTS DEFENDANTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants Borough of Shippensburg and Officer Jeffrey Shubert (the "Borough Defendants"), by and through their attorneys, Montgomery, McCracken, Walker & Rhoads, hereby submit their Preliminary Objections to Plaintiff s Complaint (attached as Exhibit "A") pursuant to Pennsylvania Rule of Civil Procedure 1028, as follows: 1. BRIEF SUMMARY OF ALLEGED FACTS 1. On or about June 13, 2002, Plaintiff alleges that he and a contractor were replacing windows in a residential building owned by Plaintiff when employees of Shippensburg Township (the "Township") entered the building and began conducting a court-ordered search of the building owned by Plaintiff. See Compl. (Exhibit A) 1111 -14. 2. During the inspection of the buildings, Township employees asked and Plaintiff refused to open a locked "rooming unit" in the building. See id. ¶ 15. 3. At some point during the incident, Pennsylvania State Police Trooper Hugh and members of the Shippensburg Borough Police Department were called to the scene. See id. 1116-18. 4. Plaintiff alleges that Trooper Hugh and members of the Shippensburg Borough Police used a metal bar to forcibly open the locked rooming unit. See id. 121. 5. After Trooper Hugh and Shippensburg Police got access to the room, Plaintiff alleges he pulled out his camera and took the picture of Officer Shubert. See id. 23. Plaintiff alleges that Officer Shubert thereafter struck Plaintiff and took his camera. See id. ¶¶ 6. Plaintiff's Complaint contains six (6) Counts and asserts claims against Borough of Shippensburg, Officer Shubert, Shippensburg Township, Stephen C. Oldt, John E. Bard, and Galen S. Asper. • Count I - Intentional Tort Claim against Officer Shubert • Count II - Negligence Claim against Officer Shubert • Count III - Vicarious Liability against Borough of Shippensburg • Count IV - Negligent Supervision and Hiring against Borough of Shippensburg • Count V - Negligent Supervision against Shippensburg Township -2- Count VI - Deprivation of Constitutional Rights against Shippensburg Township, Steven C. Oldt, John E. Bard, Galen Asper, and Borough of Shippensburg. II. DEMURRER TO PLAINTIFF'S COMPLAINT A. Plaintiffs State Law Claims As Asserted Against The Borough Fail As A Matter Of Law 7. The Borough Defendants incorporate herein by reference each of the foregoing paragraphs as though set forth at length. 8. Pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure, Plaintiff's Complaint as asserted against the Borough of Shippensburg should be dismissed with prejudice because Plaintiff fails to state a cause of action against the Borough Defendants upon which relief can be granted. 9. Plaintiff cannot state a cause of action against the Borough of Shippensburg because the Political Subdivision Tort Claims Act (the "Tort Claims Act") precludes Plaintiff's claims of Vicarious Liability (Count III) and Negligent Hiring and Supervision (Count IV) against the Borough as a matter of law. See 42 Pa. Cons. Stat. § 8541. 10. Specifically, the Tort Claims Act provides governmental immunity to "local agencies" (including Boroughs) from state tort claims unless they fall within the eight exceptions set forth at section 8542(b). See id. 11. Namely, Section 8542(b)(1) provides that a local agency may be sued only for a "negligent act" and only in the following eight circumstances: 1. The operation of a motor vehicle; 2. The care, custody or control of personal property; -3- 3. The care, custody or control of real property; 4. A dangerous condition of trees, traffic controls, and street lighting; 5. A dangerous condition of utility service facilities; 6. A dangerous condition of streets; 7. A dangerous condition of sidewalks; and 8. The care, custody or control of animals. Id. 12. None of the exceptions set forth in section 8542(b) apply in this case. 13. Thus, Plaintiff's state law claims for Vicarious Liability (Count III) and Negligent Hiring and Supervision (Count IV) against Shippensburg Borough are legally insufficient, and the Complaint should be dismissed with prejudice. B. Plaintiffs State Law Claims Against Officer Shubert Fail As A Matter Of Law 14. The Borough Defendants incorporate herein by reference each of the foregoing paragraphs as though set forth at length. 15. Plaintiff asserts two state law claims against Officer Shubert - - Count I - Intentional Tort, and Count II - - Negligence, both of which are legally deficient for different reasons. 1. Plaintiffs Negligent Tort Claim Fails 16. The Tort Claims Act also extends to Borough employees such as police officers unless that employee is found to have acted willfully. See id. ¶ 8545. 17. Thus, Plaintiff's negligence claim against Officer Shubert - Count II, fails for the same reasons it fails against the Borough of Shippensburg. -4- 2. Plaintiff's Intentional Tort Claim Fails 18. It is not clear what specific "intentional" tort that Plaintiff is asserting although it appears that he is asserting a claim for intentional infliction of emotional distress.' 19. Under Pennsylvania law, to state a claim for intentional infliction of emotional distress, Plaintiff must state that the alleged conduct was extreme and outrageous, intentional and reckless, and it caused severe emotional distress. See Bradshaw v. General Motors Coro., 805 F.2d 110, 114 (3d Cir. 1986). The alleged conduct must also "be `so outrageous in character, and so extreme in degree as to go beyond all decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."' See id. (citing Jones v. Nisbaum. Rudolph & Sidner, 244 Pa. Super. 377, 383, 368 A.2d 770, 773 (1976)). Finally, Plaintiff must assert, and establish that plaintiff was treated for and has competent medical evidence of treatment for the alleged emotional distress. See Kazats v. King David Mem'l Park, 527 A.2d 988, 995 (Pa. 1987). 20. Nowhere in the Complaint, does Plaintiff allege that Officer Shubert's conduct was so outrageous in character, and so extreme in degree as to go beyond all decency. 21. Nowhere in the Complaint, does Plaintiff allege that he needed, sought and was given medical care for his alleged injuries. 22. Absent Plaintiff providing, and later establishing, the two elements above, Plaintiff fails to set forth a legally viable claim and thus Count I (Intentional Infliction of Emotional Distress) must be dismissed. ' Defendants and this Court should not have to guess as to the nature of plaintiff s claim. -5- C. Plaintiffs Federal Claim Against The Borough - Count VI, Fails As A Matter of Law 23. The Borough Defendants incorporate herein by reference each of the foregoing paragraphs as though set forth at length. 24. Count VI of the Plaintiff's Complaint appears to assert procedural and substantive due process claims against, inter alia, the Borough under the Fourteenth Amendment pursuant to 42 U.S.C. §§ 1981, 1983, 1986. 25. As with Plaintiff's "Intentional" Tort claims, Plaintiff provides little explanation for the basis of his federal civil rights claim. Rather, it appears that Plaintiff alleges that the Borough is responsible for Officer Shubert's actions under a "respondeat superior" theory of liability. 26. It is well-settled that a municipality cannot be held liable for civil rights violations under a respondeat supervisor theory of liability. See See Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978) ("we conclude that a municipality cannot be held liable solely because it employees a tortfeasor - or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory"). 27. Thus, Plaintiff's Federal Claim, Count V, fails as a matter of law and should be dismissed. WHEREFORE, pursuant to Pa. R. Civ. P. 1028(a), the Borough Defendants respectfully requests that Plaintiff's Complaint be dismissed as it relates to his claims against the Borough of Shippensburg and Officer Jeffrey Shubert with prejudice, and that judgment be entered in favor of the Borough of Shippensburg and Officer Jeffrey Shubert and against -6- Plaintiff, together with costs, disbursements, attorney's fees and any further relief deemed appropriate by this Court. Dated: 0 Respectfully submitted, David J. Mac ain Michael J. Butler Attorneys for Defendants Borough of Shippensburg and Officer Jeffrey Shubert -7- CERTIFICATE OF SERVICE I, Michael J. Butler, hereby certify that on this t I day of March, 2003, I served a true and correct copy of the foregoing Defendants Borough of Shippensburg and Officer Jeffrey Shubert' Preliminary Objections to Plaintiff's Complaint by United States first-class mail, postage prepaid, upon the following: Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Attorney for Plaintiff Frank Lavery, Esquire Lavery & Kain 301 Market Street Suite 800 Harrisburg, PA 17108-1245 Attorney for Shippensburg Township Defendants r t Michael J. But r ?""? - ` ?__ ... f I. r ? ? ) r: ?_. - -" - --'- ? =f 7 Y ,-,? ? ? ::?) ; C. a i ?' `'j I J '< PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) TROY A. BEAM vs. (Plaintiff) TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG and JEFFREY SHUBERT (Defendants) No. 02-5940 - Civil Action 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant Borough of Shippensburg and Jeffrey Shubert's Preliminary Objections 2. Identify counsel who will argue case: (a) for plaintiff: Lee A. Stivale, Esquire Address: Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 (b) for defendants: Borough of Shippensburg and Jeffrey Shubert David J. MacMain, Esquire Michael J. Butler, Esquire Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 (b) for defendants: Frank Lavery, Esquire Township of Shippensburg, Lavery & Kain Stephen C. Oldt, John E. 301 Market Street, Suite 800 Bard and Galen S. Asper Harrisburg, PA 17108 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Dated: D3 t ( Attorney for D ndants CF1f,' i CD ?=' t_ F PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) TROY A. BEAM (Plaintiff) VS. TOWNSHIP OF SHIPPENSBURG, et al (Defendant) No. Haan Civil n2 19 argued i.e., plaintiff's motion for new trial, defendant's 1. State matter to be ( demurrer to complaint, etc.): Preliminary objections 2. Identify counsel who will argue case: (a) for plaintiff: Lee Stivale, Esquire Address: 1489 Baltimore Pike, Springfiled, PA (b) for defendant: Cheryl Kovaly, Esquire Address: 225 Market St., Harrisburg, PA 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 2-1, 2,00-3 Dated: 3117/03 Attorn forDF, Twp, Oltd, Bard &Asper 01 CERTIFICATE OF SERVICE I, Sharry D. Semans, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this day of March, 2003, I served a true and correct copy of the foregoing document via U.S. First Class mail, postage prepaid, addressed as follows: Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 David J. MacMain, Esquire Montgomery, McCracken Walker & Rhoads 123 South Broad Street Philadelphia, PA 19109 Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 Sharry D. Seman % C Gay Ste' _7 ; ??) LAW OFFICES OF VINCENT B. MANCINI LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 414 E. BALTIMORE PIKE MEDIA, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Troy A. Beam 401 Shippensburg Road Shippensburg, PA 17257 Plaintiff, No,, 02-5940 V. Township of Shippensburg 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 Defendant, and Steven C. Oldt 206 Chestnut Drive Shippensburg, PA 17257 Defendant, and John E. Bard 5 Bard Road Shippensburg, PA 17257 Defendant, and Galen S. Asper 399 Baltimore Road Shippensburg, PA 17257 Defendant, and Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 Defendant and Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Defendant. CIVIL RIGHTS, INTENTIONAL TORT, NEGLIGENCE JURY TRIAL DEMANDED PLAINTIFF, TROY A. BEAM'S RESPONSE TO PRELIMINARY OBJECTIONS FILED BY DEFENDANTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT TO PLAINTIFF'S COMPLAINT AND NOW, comes Plaintiff, Troy A. Beam, by and through his counsel, Lee A. Stivale, Esquire, who files this Response to the Preliminary Objections to Plaintiff's Complaint filed by the Borough of Shippensburg and Officer Jeffrey Shubert, and in support thereof avers as follows: 1. BRIEF SUMMARY OF ALLEGED FACTS 1. Denied as stated. Plaintiff's Complaint speaks for itself. By way of further answer, Plaintiff incorporates by reference its averments in IT 146 of its Complaint as though they were fully set forth herein. 2. Denied as stated. Plaintiff's Complaint speaks for itself. By way of further answer, Plaintiff incorporates by reference its averments in IT 1 46 of its Complaint as though they were fully set forth herein. 3. Denied as stated. Plaintiff's Complaint speaks for itself. By way of further answer, Plaintiff incorporates by reference its averments in ¶¶ 1-46 of its Complaint as though they were fully set forth herein. 4. Denied as stated. Plaintiff's Complaint speaks for itself. By way of further answer, Plaintiff incorporates by reference its averments in 11146 of its Complaint as though they were fully set forth herein. Denied as stated. Plaintiff's Complaint speaks for itself. By way of further answer, Plaintiff incorporates by reference its averments in J¶ 146 of its Complaint as though they were fully set forth herein. 6. Denied as stated. Plaintiff's Complaint speaks for itself. By way of further answer, Plaintiff incorporates by reference its averments in IT 146 of its Complaint as though they were fully set forth herein. II. DEMURRER TO PLAINTIFF'S COMPLAINT 7. Plaintiff incorporates its responses 1-6 above by reference as though fully set forth herein. Denied as a conclusion of law to which no further response is necessary. 8. Denied as a conclusion of law to which no further response is necessary. 9. Denied as a conclusion of law to which no further response is necessary. By way of further answer, Plaintiff avers that Defendant Officer Shubert lacks governmental immunity pursuant to 42 Pa.C.S.A. § 8550, which states: "In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply." 10. Denied as a conclusion of law to which no further response is necessary. By way of further answer, Plaintiff avers that Defendant Officer Shubert lacks governmental immunity pursuant to 42 Pa.C.S.A. § 8550. 11. Denied as a conclusion of law to which no further response is necessary. By way of further answer, Plaintiff avers that Defendant Officer Shubert lacks governmental immunity pursuant to 42 Pa.C.S.A. § 8550. 12. Denied as a conclusion of law to which no further response is necessary. By way of further answer, Plaintiff avers that Defendant Officer Shubert lacks governmental immunity pursuant to 42 Pa.C.S.A. § 8550. 13. Denied as a conclusion of law to which no further response is necessary. By way of further answer, Plaintiff avers that Defendant Officer Shubert: lacks governmental immunity pursuant to 42 Pa.C.S.A. § 8550. 14. Plaintiff incorporates its responses 1-13 above by reference as though fully set forth herein. 15. Denied as a conclusion of law to which no further response is necessary. 16. Denied as a conclusion of law to which no further response is necessary. By way of further answer, Plaintiff avers that Defendant Officer Shubert lacks governmental immunity pursuant to 42 Pa.C.S.A. § 8550. 17. Denied as a conclusion of law to which no further response is necessary. By way of further answer, Plaintiff avers that Defendant Officer Shubert lacks governmental immunity pursuant to 42 Pa.C.S.A. § 8550. 18. Denied as a conclusion of law to which no further response is necessary. 19. Denied as a conclusion of law to which no further response is necessary. In Hunger v. Grand Central Sanitation, 447 Pa.Super. 575, 670 A.2d 173 (1996), the Pennsylvania Superior Court stated that a cause for intentional infliction of emotional distress will apply where the requirements of Section 46 of the Restatement (Second) of Torts are satisfied, to wit: "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." The standard of review in determining whether or not preliminary objections should be sustained is as follows: "All material facts as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where doubt exists as to whether a demurrer should be sustained, this doubt must be resolved in favor of overruling it." Romeo v. Pittsburgh Associates, 787 A.2d 1027, 1030 (Pa.Super.2001). For the purposes of reviewing whether or not the Preliminary Objections should be sustained, it must be admitted as true that Plaintiff has averred that without cause or provocation, he was thrown by Officer Shubert against a wall, punched in the stomach by Officer Shubert, and had his camera forcibly taken from him by the officer in full view of his minor children, leading to physical injury and severe emotional distress. See ¶¶ 36-41 of Plaintiff's Complaint, which are incorporated by reference as though fully set forth herein. These actions by their very nature and circumstances are outrageous in character and so extreme in degree as to go beyond all decency. Defendant Shubert is not protected by governmental immunity. See Lancie v. Giles, 132 Pa.Cmwlth. 255, 572 A.2d 827, (1990)(Police officers were not protected by governmental immunity with respect to claim of intentional infliction of emotional distress arising from their allegedly tortuous search of claimant's home.) 20. Denied. See Plaintiff's Complaint at 1125-41, including but limited to 1137 and 38, in which Plaintiff Troy Beam, having alleged that he was in a defenseless position (126) and had neither threatened (13 1) nor provoked (¶ 32) Defendant Shubert's unlawful use of force in physically attacking Plaintiff in the presence of his children (136) and taking his camera (¶ 28), without retaliating in kind (133), states: "37. As a direct and proximate result of the Defendant Shubert's attack, Troy Beam suffered physical pain and injury; and further, great emotional upset having his family and friends watch as he was victimized and humiliated by the wrongful acts of Defendant Shubert. 38. To this day, as a direct and proximate result of the attack by Defendant Shubert, Troy Beam has been caused severe emotional upset, anxiety and embarrassment on account of the attack, all of which continues and may continue permanently." Further denied as a conclusion of law to which no further response is necessary. 21. Denied as a conclusion of law to which no further response is necessary. 22. Denied as a conclusion of law to which no further response is necessary. 23. Plaintiff incorporates its responses 1-6 above by reference as though fully set forth herein. 24. Denied as a conclusion of law to which no further response is necessary. 25. Denied as a conclusion of law to which no further response is necessary. 26. Denied as a conclusion of law to which no further response is necessary. 27. Denied as a conclusion of law to which no further response is necessary. WHEREFORE, Plaintiff Troy A. Beam respectfully requests that the Preliminary Objections of Defendants Borough of Shippensburg and Officer Jeffrey Shubert be DENIED, and that the aforesaid Defendants be directed to answer the Plaint:iff's Complaint in the time provided under the Pennsylvania Rules of Civil Procedure. RESPE LAW OFFIf OF VIN NT B. MANCINI & ASSOCIATES By: Lee A. Stivale, Esquire Atty. ID # 46511 Attorney for Plaintiff Troy A. Beam CERTIFICATE OF SERVICE I, LEE A. STIVALE, ESQUIRE, hereby certify that I served a true and correct co Response to Preliminary Obj ?ections Filed by copy of plaintiffs Defendants Borough of Shippensburg and Officer Jeffre Shubert, upon all parties listed below, b y y placing the same in the United States Mail, First Class Mail, postage pre-paid on April 1, 2003. Ronald Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 Michael J. Butler, Esquire 123 South Board Street Avenue of the Arts Philadelphia, PA 19109 Frank Lavery, Esquire Lavery & Kain 301 Market Street Suite 800 Philadelphia, PA 17108 Law Office mcent B. ?l?,, Associates By: STIVALE, ESQUIRE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Troy A. Beam Plaintiff CIVIL ACTION No. 02-5940 V. Township of Shippensburg, et al., Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of .2003, upon consideration of the Preliminary Objections to Plaintiff's Complaint and Brief filed by the Shippensburg Township Defendants (i.e., the Township of Shippensburg, Steven C. Oldt, John E. Bard, and Galen S. Asper), and the Response and Brief filed by Plaintiff Troy A. Beam, it is hereby ORDERED and DECREED that the said Preliminary Objections are hereby DENIED. The Shippensburg Township Defendants are ORDERED to file an Answer to Plaintiffs Complaint pursuant to the Pennsylvania Rules of Civil Procedure within twenty (20) days of the date of this ORDER. BY THE COURT: J. LAW OFFICES OF VINCENT B. MANCINI LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 414 E. BALTIMORE PIKE MEDIA, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS Cumberland) COUNTY, PENNSYLVANIA Troy A. Beam 401 Shippensburg Road Shippensburg, PA 17257 Plaintiff, No. 02-5940 V. Township of Shippensburg 81 Walnut Bottom Road P.O. Box 219 Shippensburg, PA 17257 Defendant, and Steven C. Oldt 206 Chestnut Drive Shippensburg, PA 17257 Defendant, and John E. Bard 5 Bard Road Shippensburg, PA 17257 Defendant, and Galen S. Asper 399 Baltimore Road Shippensburg, PA 17257 Defendant, and Borough of Shippensburg 111 N. Fayette Street Shippensburg, PA 17257 Defendant and Jeffrey Shubert 60 W. Burd Street Shippensburg, PA 17257 Defendant. CIVIL RIGHTS, INTENTIONAL TORT, NEGLIGENCE JURY TRIAL DEMAND-PT) PLAINTIFF, TROY A. BEAM'S RESPONSE TO PRELIMINARY OBJECTIONS FILED BY DEFENDANTS TOWNSHIP OF SHIPPENSBURG, STEVEN C. OLDT, JOHN E. BARD AND GALEN S. ASPER TO PLAINTIFF'S COMPLAINT AND NOW, comes Plaintiff, Troy A. Beam, by and through his counsel, Lee A. Stivale, Esquire, who files this Response to the Preliminary Objections of 'Township of Shippensburg, Steven C. Oldt, John E. Bard, and Galen S. Asper, to the Plaintiff's Complaint, and in support thereof avers as follows: 1. Admitted. 2. Admitted. 3. Admitted in part and Denied in Part arises from an incident that is alleged to have occurred on June 13, 2002, i.e., Plaintiff's averment that he was unlawfully physically assaulted on that date by Borough Officer Shubert. The remainder is denied. It is specifically denied that the Complaint is limited to Officer It is specifically admitted that the Complaint Shubert's capacity "acting in the course and scope of his employment as a Borough Police Officer." Plaintiff's Complaint, in the Background section and in Count V (Negligent Supervision) and Count VI (Deprivation of Constitutionally Protected Rights), sets out specific claims for liability on the part of Defendants Shippensburg Township, Steven C. Oldt, John E. Bard, Galen Asper, arising out of and/or related to their respective relationship(s) with Defendant Officer Shubert. 4. Admitted in Part and Denied in Part. It is admitted that the Complaint contains six (6) counts. The remainder of Defendants' averment is denied, as the Complaint speaks for itself. 5. Denied. Count V (at ¶ 60) and Count VI (at ¶ 63) of Plaintiff's Complaint specifically incorporate relevant portions of the preceding averments by reference. 6. Admitted. 7. Denied. Denied as a conclusion of law to which no further response is necessary. The Plaintiff's Complaint speaks for itself. 8. Denied. Denied as a conclusion of law to which no further response is necessary. It is specifically denied that the Plaintiff's suit is limited to the facts of Officer Shubert's capacity as a police officer on the payroll of Defendant Borough. To the contrary, Plaintiff asserts that Defendant Township, having sent its personnel in the person of Defendant Officer Shubert to the subject premises for the express purpose of assisting Defendant Township, should be held accountable for Defendant Shubert's actions and/or inactions. 9. Denied as a conclusion of law to which no further response is necessary. 10. Denied as stated. Plaintiff's Complaint speaks for itself. It is also denied as a conclusion of law to which no further response is necessary. 11. Denied as a conclusion of law to which no further response is necessary. 12. Denied as stated. Plaintiff's Complaint speaks for itself. It is also denied as a conclusion of law to which no further response is necessary. 13. Denied as a conclusion of law to which no further response is necessary. WHEREFORE, Plaintiff Troy A. Beam respectfully requests that the Preliminary Objections of Defendants Shippensburg Township, Steven C. Oldt, John E. Bard and Galen Asper be DENIED, and that the aforesaid Defendants be directed to answer the Plaintiff's Complaint in the time provided under the Pennsylvania Rules of Civil Procedure. RESPECTFULLY SUBMITTED: LAW OFFICES By: & ASSOCIATES Lee A. Stivale, Esquire Atty. ID # 46511 Attorney for Plaintiff Troy A. Beam LAW OFFICES OF VINCENT B. MANCINI & ASSOCIATES LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 414 E. BALTIMORE PIKE MEDIA, PA 19063 (610) 566-8064 Attorney for Plaintiff Troy A. Beam IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Troy A. Beam Plaintiff CIVIL ACTION No. 02-5940 V. Township of Shippensburg, et al., Defendants I• BACKGROUND JURY TRIAL DEMANDED 'S Plaintiff avers that on June 13, 2002, he was unlawfully physically assaulted by one Jeffrey Shubert, a police officer employed by the Borough of Shippensburg, who was assisting the Township of Shippensburg Code Officer with property maintenance inspections at the time of the alleged assault. Plaintiff avers that Officer Shubert was under the direction, control, and supervision of the Township, and acting on its behalf, when he allegedly assaulted Plaintiff. Plaintiff subsequently commenced this action against Defendants Shippensburg Township, Shippensburg Township Supervisors Oldt, Bard, and Asper, the Borough of Shippensburg, and Jeffrey Shubert, pursuant to state law and 42 U.S.C. § 1983. 1 Count I of Plaintiff's Complaint incorporates by reference Paragraphs 1-46 of the Complaint and sets forth intentional tort claims against Defendant Jeffrey Shubert. Count II incorporates by reference Paragraphs 1-46 of the Complaint and sets forth tort claims against Defendant Jeffrey Shubert grounded in negligence. Count III incorporates by reference Paragraphs 1-52 of the Complaint and sets forth claims against Defendant Shippensburg Borough for vicarious liability. Count IV incorporates by reference Paragraphs 1-52 of the Complaint and sets forth claims against Defendant Shippensburg Borough for negligent supervision and hiring. Count V incorporates by reference Paragraphs 1-54 of the Complaint and sets forth claims against Shippensburg Township for negligent supervision. Count VI incorporates by reference Paragraphs 1-46 of the Complaint sets forth claims against Shippensburg Township, Steven C. Oldt, John E. Bard, Galen Asper, and Shippensburg Borough for deprivation of constitutionally protected rights. Defendants Shippensburg Township and Steven C. Oldt, John E. Bard, and Galen Asper (hereinafter, "Township Defendants") subsequently filed Preliminary Objections to Plaintiff's Complaint. II. ARGUMENT STANDARD OF REVIEW: Preliminary objections should be sustained only in cases that are clear and free from doubt. Pennsylvania AFL-CIO ex rel George v ("nm 563 Pa. 108, 757 A.2d 917 (2000). Where any doubt exists, that doubt should be resolved by a refusal to sustain the 2 preliminary objections. J.B. Steven Inc. v. Board of Commissioners of Wilkens Township, 164 Pa.Cmwlth. 315, 643 A.2d 142, 144 (1994)(emphasis added), a eal denied, 539 Pa. 671, 652 A.2d 841 (1994). In cases where preliminary objections would result in the dismissal of a cause of action, preliminary objections should only be sustained where it is clear and free from doubt that the pleader has not pleaded facts sufficient to establish his right to relief. Bower v. Bower, 531 Pa. 54, 56, 611 A.2d 181, 182 (1992). The standard of review in determining whether or not preliminary objections should be sustained is as follows: "All material facts as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law say's with certainty that no recovery is possible. Where doubt exists as to whether a demurrer should be sustained, this doubt must be resolved in favor of overruling it." Romeo v. Pittsburgh Associates, 787 A.2d 1027, 1030 (Pa.Super.2001). A. STATE LAW CLAIMS - TOWNSHIP DEFENDANTS Plaintiff has averred that on or about June 13, 2002, Pennsylvania State Trooper Hugh and the Shippensburg Borough police were under the direct supervision of Shippensburg Township, by and through Township employees Angela Hock and Roman Bard, for purposes of gaining access to and conducting an inspection of Building 4-2, rooming unit number three, of the Sunbeam Court section of the Rocky Knob development in Shippensburg Township, which Building is owned by Plaintiff and leased to a third-party tenant. See Plaintiff's Complaint at ¶¶ 10, 13, 15-20. This supervision, included, but was not limited to, the Township employees' directing the Trooper and Borough police to forcibly break the door to Building 4-2, rooming unit number 3 three, even though Plaintiff had advised the Township employees and the Borough police that he would not open the door to someone's private home without the resident's prior consent; that he did not possess keys to many of the rooming units; and that occupants were not available at the time, some being out of state, without notice of the Township's intent to derive entity. See Plaintiff's Complaint at 1115, 17, 19, 20. Plaintiff has also averred that Plaintiff and/or Plaintiff's workman, standing in a public area without interfering with Defendants' actions, took a photo of Defendant Shubert exiting rooming unit three using a hand-held camera, after the front door to the rooming unit had been forcibly broken. Defendant Shubert directed that Plaintiff not take his picture and demanded Plaintiff's camera. When Plaintiff declined to turn over the camera and instead placed himself in a defenseless position with the camera behind his back, Defendant Shubert grabbed Plaintiff; threw him with great force against the wall of the public area of Building 4-2; and immediately thereafter punched Plaintiff in the stomach with great force, causing Plaintiff to bend forward in great pain and clutch his stomach. Defendant Shubert took advantage of this opportunity to seize the camera from Plaintiff's hands. See Plaintiff's Complaint at 1121-28. Plaintiff has also averred that this physical attack was witnessed by the Township employees and the Borough police officers, including Officer Mr. Shubert's immediate supervisor Chief Fred Scott, yet they took no action to physically or verbally stop or mitigate the harm done to Plaintiff. At no time did Plaintiff resist the actions of the police in breaking down doors. At no time did Plaintiff provoke or offer any type of threat to the Township and/or Borough employees, nor did he retaliate after being thrown against the wall and punched by Officer Shubert. 4 Notwithstanding all of these averments, the Township claims that it is "undisputed that Officer Shubert was not an employee, servant, or agent of the Township at the time of the incident in question". This view of Plaintiff's pleadings, when measured against the averments of the Plaintiff's Complaint and in light of applicable law, is simply incorrect. Officer Shubert was there to assist the Township in its property inspections. The Township employees did not direct Officer Shubert to leave. On the contrary, they enlisted his assistance, arranged for him to break down doors at the premises, yet failed to restrain him when he unlawfully attacked and injured Plaintiff and seized Plaintiff's camera in the course of acting on the Township's behalf. Officer Shubert was clearly an agent of the Township for purposes of state action. See, e.g., Commonwealth v. Stafford, 749 A.2d 489 (Pa.Super. 2000)(Police officer's telling informer to investigate and report what he saw or heard was sufficient to make the informer a government agent for purposes of state action); Commonwealth v. Rathfon, 705 A.2d 448 (Pa.Super.1997), cert. denied, 528 U.S. 894, 120 S.Ct. 223, 145 L.Ed.2d 187 (1999)(paramour of the defendant was held to be a government agent because a police officer asked her to go into the defendant's home and "just report back ... what she saw."). Under 42 Pa.C.S. § 8550, an employee of a local government agency is not protected by any immunity of the local agency if his or her act constitutes a crime, actual fraud, actual malice, or willful misconduct: § 8550. Willful misconduct "In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on 5 damages) shall not apply." The Commonwealth Court has held that willful misconduct in this context is synonymous with "intentional tort". King v. Breach, 115 Pa.Cmwlth. 355, 540 A..2d 976 (1988). Even if some of the other Township Defendants may be found to be protected by governmental immunity, Officer Shubert is clearly not covered by such immunity with respect to the intentional torts committed against the Plaintiff, including but not limited to, use of excessive force. See Lancie v. Giles, 132 Pa.Cmwlth. 255, 572 A.2d 827 (1990)(officers not protected by governmental immunity with respect to claim of intentional infliction of emotional distress). B. § 1983 ACTION 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizens of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suite in equity or other proper proceeding for redress." In Schnupp v. Port Authori ty of Allegheny Co, 710 A.2d 1235 (Pa.Cmwith. 1998), a trolley passenger (Schnupp) brought a civil rights action under 42 U.S.C., § 1983 against the Allegheny County Port Authority and Authority employees (a Mr. Sullivan and a Mr. Schwartz) arising from the passenger's arrest following a verbal exchange with a trolley operator. Schnupp alleged that his refusal to speak to other Authority employees following the verbal exchange with the trolley operator led to his being arrested in the presence of his two young children, who then had to take the trolley home by themselves. Schnupp was detained and taken to a small room in the trolley station, where he refused to answer the defendants' questions. Schnupp further alleged 6 that his continued silence so enraged the defendants that they threw him across the room and against the wall. Schnupp was arrested, taken into handcuffs to the city jail, and charged with resisting arrest and disorderly conduct. The resisting arrest charge was subsequently dismissed by a magistrate, and, on appeal, Schnupp was found not guilty on the charge of disorderly conduct. Schnupp subsequently filed a complaint against the Port Authority, and its employees, Sullivan, and Schwartz, alleging intentional infliction of emotional distress, misuse and abuse of process, assault and battery, false arrest, false imprisonment, libel and slander. The defendants filed a motion for summary judgment asserting that sovereign immunity applied. The trial court granted the motion for summary judgment, concurrently with the issuance of an order dismissing Schnupp's complaint. Schnupp then appealed. Following a review of the record, including the allegations of wrongful detention, interrogation, arrest, assault, injury, and prosecution in violation of plaintiffs civil rights set forth in the Plaintiff's complaint, the Commonwealth Court reversed the trial court's decision and held that fact issues precluded summary judgment in favor of Defendants. It stated: " In the present case, the trial court's opinion indicates that Appellees did not contest Schnupp's factual account of what transpired, at least insofar as admitting to a "run-in or clash between the parties at the subway station" and that they, "in their official capacity, arrested" Schnupp, as a result of which he sustained injuries. It strains credulity, however, to assume that Appellees admitted to having performed the specific, unreasonably violent acts which Schnupp alleges occurred, such as throwing him across a room so as to hit a wall. In any event, there is a substantial likelihood that through additional discovery, material facts could be elicited that would be relevant to establishing or disproving whether Appellees' specific conduct and degree of force toward Schnupp would give rise to a cause of action against them under Section 1983, 42 U.S.C. § 1983. Therefore, the trial court erred in granting Appellees' summary judgment motion. 7 More significantly, given the present fact scenario, the trial court's reliance upon sovereign immunity is misplaced. In Heinly v. Commonwealth of Penns lvania, 153 Pa.Cmwlth. 599, 621 A.2d 121.2, 1215-16 (1993), state police officers, while acting in the course and scope of their employment in arresting Heinly and his brother, were charged with violating Heinly's constitutional rights by "intentionally, willfully, knowingly and recklessly firing gunshots into the house when they knew Heinly was inside attempting to talk his brother into surrendering. Although the officers conceded they had no immunity from personal liability under Section 1983 because of the United States Supreme Court's decision in Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), they still asserted that any such 1983 action was barred by the Sovereign Immunity Act. This Court found otherwise and stated: [A] state may not lessen the availability of Section 1983 by taking any action purportedly frustrating its application. In F[owlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332, ... the United States Supreme Court disabused states of any notion that they or its courts could take any action that would alter the parameters of Section 1983.... As to why state sovereign immunity laws or doctrine cannot foreclose Section 1983 actions brought in state courts, the Supreme Court reasoned: ... A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise ... Schnunn v. Port Authorit of Alle env County, 710 A.2d 1235, 1237-1238 (Pa.Cmwith. 1998)(emphasis added)' The Commonwealth Court concluded that the record in Schnupp's case clearly indicated that at the least, genuine issues of material fact remained pending as to whether the defendants, while acting under the color of state law, committed acts which deprived Schnupp of a federally ` Footnote 5 of the Schnupp opinion notes that the difference between "governmental immunity" under the Political Subdivision Tort Claims Act and "sovereign immunity" under the Sovereign Immunity Act,, is largely one of semantics, citing the Pennsylvania Supreme Court's derision in Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342, 1344 (1995) where the Court stated that the two statutes were to be "interpreted consistently as they deal with indistinguishable subject matter." guaranteed right or interest. In the present case, Plaintiff' has also alleged, inter alia, the following violations of his civil rights: 65. In the attack upon the person of Toy Beam, Defendant Shubert, directly violated the rules and regulations of the Shippensburg Borough police department and federal law governing use of force. 66. Defendant Shubert's actions were made possible by virtue of his authority as a public official; therefore, Defendant Shubert acted under color of law to deny the Plaintiff his fundamental right of substantive and procedural due process of law under the Due Process Clause of the Fourteenth Amendment to the United States Constitution the laws of the United States, and in particular 42 U.S.C. Sections 1983, 1986 and 1988, and the Constitution of the Commonwealth of Pennsylvania when he unlawfully attacked the Plaintiff causing him physical pain and emotional injury. 67. Defendant Shubert's attack upon the person of Plaintiff facially violated established statutes and rules. Plaintiff's Complaint at ¶¶ 65-67. Just as the plaintiff in the Schnupp case raised allegations of wrongful use of force as a violation of his civil rights as the subject of a § 1983 action, Plaintiff Troy Beam in the present case has alleged that he was subjected to an unprovoked, extremely violent physical attack initiated without justification by Officer Shubert under color of authority. This case should be allowed to proceed with a § 1983 claim, since, as in Sc1MuM, there is a "...substantial likelihood that through additional discovery, material facts could be elicited that would be relevant to establishing or disproving whether ... [the defendants'] specific conduct and degree of force toward [plaintiff] would give rise to a cause of action against them under Section 1983, 42 U.S.C. § 1983...". Sc, 710 A.2d at 1238. 9 RESPECTFULLY SUBMITTED: LAW OFFS OF VINCEN'B.-92WCINI & ASSOC. By: Lee A. Stivale Attorney ID 46511 Attorney for Plaintiff Troy A. Beam 10 CERTIFICATE OF SERVICE I, LEE A. STIVALE, ESQUIRE, hereby certify that I served a true and correct copy of Plaintiffs Response to Preliminary Objections Filed by Defendants Township of Shippensburg, Steven C. Oldt, John E. Bard and Galen S. Asper, upon all parties listed below, by placing the same in the United States Mail, First Class Mail, postage pre-paid on April 1, 2003. Ronald Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 Michael J. Butler, Esquire 123 South Board Street Avenue of the Arts Philadelphia, PA 19109 Frank Lavery, Esquire Lavery & Kain 301 Market Street Suite 800 Philadelphia, PA 17108 Law Officescen ancini & Associates By: STIVALE, ESQUIRE t") c`? '? ` C ? -? ??. .._? m ? ? ' ;.,? ? ? -- } 4 N '? -? T ? -?? -a-t '-_ i'^, a ,`: '? \\Serverl\doouments\B\Beam, Troy\Shippensburg Police Litigation\Pl.eadings\Entry of Appearance LMK.rtf LAW OFFICES OF VINCENT B. MANCINI LEE A. STIVALE, ESQUIRE ATTORNEY I.D. 46511 LOUIS M. KODUMAL, ESQUIRE ATTORNEY I.D. 76935 414 E. BALTIMORE PIKE MEDIA, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, Plaintiff No. 02-5940 V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants. CIVIL RIGHTS, INTENTIONAL TORT, NEGLIGENCE JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY' S OFFICE: Kindly enter my appearance as additional counsel on behalf of Troy Beam in the above matter. LAW OFFICES OF VINCENT B. MANCINI & ASSOCIATES / o Date: S 3 03 By: Louis M. Kodumal, Esquire CERTIFICATE OF SERVICE I, LOUIS M. KODUMAL, ESQUIRE, hereby certify that I served a true and correct copy of an Entry of Appearance, upon all parties listed below, by placing the same in the United States Mail, First Class Mail, postage pre-paid on May ) 3 , 2003. Ronald Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 Michael J. Butler, Esquire 123 South Board Street Avenue of the Arts Philadelphia, PA 19109 Frank Lavery, Esquire 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, PA 17108 Law Offices of Vincent B. Mancini & Associates By: . LOUIS M. KODUMAL, ESQUIRE c ,tom `_ Sl t7 TROY A. BEAM V. TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-5940 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER, P J OLE& GUIDO. J.J. ORDER OF COURT AND NOW, this 0A day of NOVEMBER, 2003, the demurrer of the various defendants to Counts II through VI of the complaint are sustained and those Counts are DISMISSED. The demurrer of Defendant Shubert to Count I is DENIED. Edward E. Guido, J. Louis M. Kodumal, Esquire Ron Turo, Esquire Michael J. Butler, Esquire- Frank Lavery, Esquire :sld 4"AI ! i `r ?.i TROY A. BEAM V. TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-5940 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER P.J OLER, GUIDO J.J. OPINION AND ORDER OF COURT Plaintiff has filed this multi-count complaint alleging both state and federal causes of action against the defendants. All of the defendants have filed preliminary objections in the nature of a demurrer. The parties have briefed and argued their respective positions. This matter is now ready for disposition. Standard of Review The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of NO. 2002-5940 CIVIL a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402, 408 (1985) (citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a review of the allegations set forth in the complaint. Mellon Bank, N.A. v. Fabinyi, 437 Pa.Super. 559, 650 A.2d 895 (1994). Factual Background The allegations contained in plaintiff's complaint may be summarized as follows: The incident giving rise to this action occurred at approximately 1:30 p.m. on June 13, 2002, in Shippensburg Township, Cumberland County, Pennsylvania. At that time employees of Defendant Shippensburg Township (hereinafter "Township") appeared at the Rocky Knob residential complex to conduct inspections of various residences "for property maintenance purposes."' The Township employees were in possession of search warrants authorizing access to the various residences to be inspected. They were also accompanied by a Pennsylvania State Police Trooper. Plaintiff was asked to open the door to the residences. He responded that he did not have keys to all of the apartments and refused to open those for which he did have keys.z He was then advised by the Trooper that forcible entry would be made into any locked apartment. Several police officers from Defendant Shippensburg Borough (hereinafter See Complaint, paragraph 13. Rocky Knob is a residential complex serving students of Shippensburg University. Since the school was in summer recess, most of the residents were not present. Z The complaint is not clear regarding plaintiff's connection with the Rocky Knob complex. NO. 2002-5940 CIVIL "Borough") were summoned to assist with the entry into the apartments. Among those officers was Defendant Jeffrey Shubert (hereinafter "Shubert"). Plaintiff photographed the Township and Borough employees as they "broke into" each locked apartment. All photographs were taken "from the public areas of the building and the exterior of the building.s3 Defendant Shubert asked the plaintiff not to photograph him. When plaintiff ignored his request, the officer demanded that he be given the camera. Plaintiff responded "no" and put the camera behind his back. Officer Shubert grabbed the plaintiff, threw him against a wall, punched him in the stomach, and forcibly took the camera from him. Although the assault was witnessed by the other borough police officers, they did nothing to intervene. It was also witnessed by the plaintiff s children. The only intervention came from the Borough's police chief who ordered Officer Shubert to "give the man his camera back.."4 DISCUSSION State Law Causes of Action The first five counts of the complaint sound in negligence and intentional tort. Counts I and II allege causes of actions against Officer Shubert individually as a result of his attack on plaintiff. Count I seeks to impose liability for the intentional conduct of Defendant Shubert. Count II sounds in negligence. Count III of the complaint seeks to impose vicarious liability on the Borough for the conduct of its employee, Officer Shubert. Count N is an action against the Borough based upon its negligent "hiring and ' See Complaint, paragraph 21. See Complaint, paragraph 35. NO. 2002-5940 CIVIL supervision" of Officer Shubert. The claim in Count V sounds in negligence against Defendant Shippensburg Township for its failure to properly supervise Officer Shubert. The Political Subdivision Tort Claims Acts is relevant to our analysis of the state law causes of action. Governmental Immunity is granted to the Borough under Section 8541 of the Act which provides: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. 42 Pa. C.S.A. § 8541. It is extended to Officer Shubert under the provisions of Section 8545 which provides: An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter. 42 Pa. C.S.A. § 8545. The Act goes on to provide for the waiver of governmental immunity in connection with injuries "caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b)." 42 Pa. C.S.A. § 8542 (a)(2) (emphasis added). There is no allegation by plaintiff that the actions of Officer Shubert fall within one of those enumerated categories. Therefore, his negligence claim against Officer Shubert set forth in Count II must fail. For the same reasons, the claims against the Borough and Township set forth in Counts IV and V must also fail. However, the claim based on Shubert's intentional conduct is quite another matter. Section 8550 of the Act provides: 5 42 Pa. C.S.A. § 8541 et seq. NO. 2002-5940 CIVIL In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally) ... shall not apply. 42 Pa. C.S.A. § 8550. Since immunity is extended to Officer Shubert by virtue of Section 8545, and since the allegations in the complaint are sufficient to support a judicial determination that the officer's conduct constituted a crime or willful misconduct, the claim will survive the preliminary objections. The basis for the Borough's claim of governmental immunity is in Section 8541 which is set forth above. Section 8550 does not specifically abrogate the immunity of the Borough under that Section, as it did for the officer under Section 8545, nor is the immunity waived under Section 8542. Therefore, the claim in Count III which attempts to impose vicarious liability against the Borough for the conduct of Officer Shubert cannot stand. Federal Cause of Action The final claim in Count VI is against the Township, its individual supervisors, and the Borough. The claim is based upon Section 1983 of the Federal Civil Rights Act 6 The relevant section of the Act provides as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ... 6 42 U.S.C. § 1983. NO. 2002-5940 CIVIL 42 U.S.C. § 1983. The United States Supreme has held that "Congress did intend municipalities and other local government units to be among those persons to whom § 1983 applies." Monell v. Department of Social Services of New York City, 436 U.S. 658, 690 (1978). However, while "a municipality can be sued, under § 1983, it cannot be held liable unless a municipal policy or custom caused the constitutional injury." (emphasis added) Leatherman v. Tarrant County, 507 U.S. 163, 166 (1993). Applying the above law to the case at bar, the preliminary objections of all defendants to Count VI must be granted. There are no factual allegations against the individual supervisors which could in any way be interpreted to involve them in the action by Officer Shubert against the plaintiff. Likewise, there are no allegations that a policy or custom of the Township caused the injury to plaintiff. There is not even an allegation that the Township had control over Officer Shubert. Nor is there an allegation that Officer Shubert had ever acted on behalf of the Township other than in this isolated incident where he was summoned to help gain entry into the apartments. Therefore, the federal claims against the Township and its supervisors must fail. Likewise the complaint fails to allege any "policy" or "custom" of the Borough which caused (or even contributed to) plaintiff s constitutional injury. To the contrary, the complaint specifically alleges that the Borough had "rules and regulations" which Defendant Shubert specifically violated. Therefore, the federal claims against the Borough must also be dismissed. 'See Complaint, paragraph 65. Defendant cites Schnupp v. Port Authority of Allegheny, 710 A.2d 1235 (Pa.Coinmonwealth 1998) in Support of his § 1983 claim. In similar facts, the Commonwealth Court upheld a 1983 claim against Port Authority police officers. We agree that the allegations against Officer Shubert are sufficient to make out a § 1983 claim. However, he was not named as a party in Count VI. NO. 2002-5940 CIVIL ORDER OF COURT AND NOW, this 24TH day of NOVEMBER, 2003, the demurrer of the various defendants to Counts II through VI of the complaint are sustained and those Counts are DISMISSED. The demurrer of Defendant Shubert to Count I is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Louis M. Kodumal, Esquire 414 East Baltimore Pike Media, Pa. 19063 Ron Turo, Esquire 28 South Pitt Street Carlisle, Pa. 17013 Michael J. Butler, Esquire 123 South Board Street Avenue of the Arts Phila., Pa. 19109 Frank Lavery, Esquire 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, Pa. 17108 :sld 7 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND MICHAEL J. BUTLER IDENTIFICATION NO. 59320 AND 81799 123 S. BROAD STREET PHILADELPHIA, PA 19109 (215) 772-1500 ATTORNEYS FOR DEFENDANT OFFICER JEFFREY SHUBERT TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, CIVIL ACTION STEPHEN C. OLDT, JOHN E. BARD, NO. 02-5940 GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT DEFENDANTS DEFENDANT OFFICER JEFFREY SHUBERT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT Officer Jeffrey Shubert hereby answers Plaintiff's Complaint and asserts New Matter as follows: Nature of Action: The first paragraph of Plaintiffs Complaint violates Rule 1022 of the Pennsylvania Rules of Civil Procedure because it is not numbered. The paragraph also does not contain any factual allegations, and thus no response is required. By way of further answer, on November 24, 2003, this Court dismissed Counts II through VI of the Complaint. Only Count I remains of this six (6) count Complaint. Parties: Admitted upon information and belief. 2. Defendant admits that former Defendant, Township of Shippensburg, is a municipal corporation and a political subdivision of the Commonwealth of Pennsylvania with offices located at 81 Walnut Bottom Road, Shippensburg, Cumberland County, Pennsylvania. By further answer, on November 24, 2003, this Court dismissed all claims against this defendant. 3-5. Admitted in part and denied in part. Defendant admits that former Defendants Steven C. Oldt, John E. Baird, and Galen S. Asper were or currently are members of the Township of Shippensburg Board of Supervisors. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments regarding the above defendants' residences, and therefore denies same. By further answer, on November 24, 2003, this Court dismissed all claims against these defendants. 6. Defendant admits that former Defendant Borough of Shippensburg is a municipal corporation and political subdivision of the Commonwealth of Pennsylvania with offices located at 111 N. Fayette Street, Shippensburg, Cumberland County, Pennsylvania. By further answer, on November 24, 2003, this Court dismissed all claims against this defendant. Admitted. Admitted in part and denied in part. Defendant denies that all of the acts involved in this matter concern real property and transactions located in Cumberland County, Pennsylvania. To the contrary, on November 24, 2003, this Court dismissed all claims but for the claim sounding in intentional tort. It is admitted that jurisdiction and venue are proper in the Court of Common Pleas of Cumberland County. 9. Admitted in part and denied in part. Defendant admits that the averments in the Complaint refer to Defendant acting under color of state law. The remaining averments of -2- paragraph 9 of the Complaint are denied and/or refer to former defendants who were dismissed from this action by Order dated November 24, 2003, and therefore, no response is required. Background: 10-12. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraphs 10 through 12 of the Complaint, and therefore denies same. 13-17. Admitted in part and denied in part. It is admitted that Angela Hauk and Roman Bard, code officers of the Township of Shippensburg, conducted searches and inspections of several rooms in Plaintiffs buildings pursuant to a search warrant while Plaintiff was present. By way of further answer, at some point during the search, Plaintiff became disruptive and failed to abide by the warrant. Ms. Hauk was then forced to call the Pennsylvania State Troopers to assist in the search. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 13 through 17 of the Complaint, and therefore denies same. By further answer, on November 24, 2003, this Court dismissed all claims against the Township of Shippensburg. 18. Admitted in part and denied in part. Defendant admits that on June 13, 2002, Pennsylvania State Trooper Michael Rugh called Shippensburg Borough Police Department seeking back up for a search being conducted at one of Plaintiffs buildings, which is in Shippensburg Township, Pennsylvania. Four officers of Shippensburg Borough Police Department responded to this call. The remaining averments of paragraph 18 of the Complaint are denied. 19. Admitted in part and denied in part. Defendant admits that, after Borough police -3- officers gave Plaintiff an opportunity to open the apartments/rooms for the Township code officers pursuant to a validly issued court-ordered search warrant, Borough police officers assisted Township code officers in gaining access to the apartments/rooms. The remaining averments of paragraph 19 of the Complaint are denied. 20. Admitted in part and denied in part. Defendant admits that Borough police officers and Trooper Rugh assisted Township code officers in gaining access to the apartment/rooms. The remaining averments of paragraph 20 of the Complaint are denied. 21-22. Admitted in part and denied in part. Defendant admits that during the search of Plaintiff's properties on June 13, 2002, Plaintiff possessed a camera and took several pictures. The remaining averments of paragraphs 21 and 22 of the Complaint are denied. 23. Admitted in part and denied in part. Defendant admits that on June 13, 2002, Plaintiff flashed his camera in the face of Defendant while Defendant walked down a poorly lighted flight of stairs. The remaining averments of paragraph 23 of the Complaint are denied. 24-41. Denied. 42. Admitted in part and denied in part. Defendant admits that the averments in the Complaint refer to Defendant acting under color of state law as an employee for the Borough of Shippensburg. The remaining averments of paragraph 42 of the Complaint are denied. 43. Admitted. 44-46. Denied. -4- ANSWER TO COUNT I TROY BEAM v. JEFFREY SHUBERT LIABILITY FOR INTENTIONAI, TORT 47. Defendant incorporates by reference paragraphs 1 through 46 of the Complaint, inclusive, of this Answer as if set forth fully herein. 48-50. Denied. WHEREFORE, Defendant respectfully requests that this Honorable Court enterjudgment in his favor and against Plaintiff together with costs, disbursements, and other such relief as the Court deems appropriate. ANSWER TO COUNT II TROY BEAM v. JEFFREY SHUBERT LIABILITY FOR NEGLIGENCE 51. Defendant incorporates by reference paragraphs 1 through 50 of the Complaint, inclusive, of this Answer as if set forth fully herein. 52-54. Pursuant to the Court's Order of November 24, 2003, Count II of the Complaint has been dismissed, thus no response is required. WHEREFORE, Defendant respectfully requests that this Honorable Court enterjudgment in his favor and against Plaintiff together with costs, disbursements, and other such relief as the Court deems appropriate. -5- ANSWER TO COUNT III TROY BEAM v. SHIPPENSBURG BOROUGH VICARIOUS LIABILITY 55. Defendant incorporates by reference paragraphs 1 through 54 of the Complaint, inclusive, of this Answer as if set forth fully herein. 56. Pursuant to the Court's Order of November 24, 2003, Count III of the Complaint has been dismissed, thus no response is required. WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in his favor and against Plaintiff together with costs, disbursements, and other such relief as the Court deems appropriate. ANSWER TO COUNT IV TROY BEAM v. SHIPPENSBURG BOROUGH NEGLIGENT SUPERVISION AND HIRING 57. Defendant incorporates by reference paragraphs 1 through 56 of the Complaint, inclusive, of this Answer as if set forth fully herein. 58-59. Pursuant to the Court's Order of November 24, 2003, Count IV of the Complaint has been dismissed, thus no response is required. WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in his favor and against Plaintiff together with costs, disbursements, and other such relief as the Court deems appropriate. -6- ANSWER TO COUNT V TROY BEAM v. SHIPPENSBURG TOWNSHIP NEGLIGENT SUPERVISION 60. Defendant incorporates by reference paragraphs 1 through 59 of the Complaint, inclusive, of this Answer as if set forth fully herein. 61-62. Pursuant to the Court's Order of November 24, 2003, Count V of the Complaint has been dismissed, thus no response is required. WHEREFORE, Defendant respectfully requests that this Honorable Court enterjudgment in his favor and against Plaintiff together with costs, disbursements, and other such relief as the Court deems appropriate. ANSWER TO COUNT VI TROY BEAM v. SHIPPENSBURG TOWNSHIP, STEVEN C. OLDT, JOHN E. BARD, GALEN ASPER, and SHIPPENSBURG BOROUGH DEPRIVATION OF CONSTITUTIONALLY PROTECTED RIGHTS 63. Defendant incorporates by reference paragraphs I through 62 of the Complaint, inclusive, of this Answer as if set forth fully herein. 64-68. Pursuant to the Court's Order of November 24, 2003, Count VI of the Complaint has been dismissed, thus no response is required. WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in his favor and against Plaintiff together with costs, disbursements, and other such relief as the Court deems appropriate. -7- NEW MATTER Defendant reserves the right to assert any and all applicable defenses to Plaintiff's claims. Defendant has not yet obtained discovery from Plaintiff or from third parties in connection with this action, and Defendant reserves the right to amend or otherwise supplement this pleading on that basis. Without limiting the generality of the foregoing and without regard to whether the defenses set forth below are New Matter within the meaning of Pa. R. Civ. P. 1030, and without conceding that any such New Matter must be set forth in their Answer, Defendant states as follows: Plaintiffs Complaint fails to set forth a claim, in whole or in part, upon which relief can be granted. 2. Any injury or damages sustained by Plaintiff was a direct and proximate result of his own conduct. Plaintiff is estopped in whole, or in part, from raising the claims set forth in his Complaint. 4. Plaintiff's claims are barred in whole, or in part, or otherwise subject to reduction by reason of Plaintiff's contributory negligence. 5. No act or failure to act on the part of the Defendant violated any constitutional right of Plaintiff. 6. Defendant is immune from all or part of the claims set forth in Plaintiff's Complaint. -8- At all times material hereto, Plaintiff was afforded all of the rights, privileges and immunities granted pursuant to the Constitution and laws of the United States and the Commonwealth of Pennsylvania. At all times material hereto, the actions of the Defendant-Officer were justified under the circumstances and, at all times material hereto, acted based upon a reasonable good- faith belief. 9. At no time material hereto did the Defendant-Officer act in a willful, wanton, reckless and/or malicious manner. 10. Plaintiff's claims are barred, in whole or in part, by the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8501 et SeMc . 11. Plaintiff suffered no injury as a result of any acts or omissions by the Defendant. 12. Plaintiff's injuries or damages, if any, were pre-existing and not the result of any actions or omissions by Defendant. 13. Plaintiff's claims against Defendant for punitive damages are limited and/or barred by the applicable state constitution, by the Fourteenth, Fifth and Eighth Amendments to the United States Constitution and by the laws of the United States and the Commonwealth of Pennsylvania. 14. Plaintiff assumed the risk of harm by his own conduct. 15. At all times material hereto, Defendant used only that amount of force that was reasonable and necessary under the circumstances, and such force was justified under applicable state and federal law. -9- WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in his favor and against Plaintiff together with costs, disbursements, and other such relief as the Court deems appropriate. Dated: ?aI0?lD3 Respectfully submitted, 01?" ' fflDavid J. Mach n Michael J. Butler Attorneys for Defendants Officer Jeffrey Shubert -10- VERIFICATION I, Officer Jeffrey Shubert, hereby verify that the statements of fact made in the foregoing Defendant Officer Jeffrey Shubert's Answer and New Matter to Plaintiff s Complaint are true and correct. Although the words are those of counsel, the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: °d ?/ CERTIFICATE OF SERVICE I, Michael J. Butler, hereby certify that on this 01 day of December, 2003, I served a true and correct copy of the foregoing Defendant Officer Jeffrey Shubert's Answer and New Matter to Plaintiff's Complaint by United States first-class mail, postage prepaid, upon the following: Louis M. Kodumal, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Attorney for Plaintiff Michael J. Butle C1 ?-'. C_ c' ? , .. ? s". _ .? `;., _ " , ?? W;-. ?- S ?. .? C?Cjr r ` iri { L ,5 ? ? n -'(` ?T "? MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND KAREN M. IBACH IDENTIFICATION NOS. 59320 AND 90579 123 S. BROAD STREET PHILADELPHIA, PA 19109 (215) 772-1500 ATTORNEYS FOR DEFENDANT OFFICER JEFFREY SHUBERT TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT CIVIL ACTION NO. 02-5940 DEFENDANTS WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Michael J. Butler only as counsel on behalf of Defendants Borough of Shippensburg and Officer Jeffrey Shubert in the above-captioned matter. David J. MacMain remains as counsel for Defendants Borough of Shippensburg and Officer Jeffrey Shubert. ,40.;?w4? Michael J. B tier, Esquire Attorney I.D. No. 81799 United States Attorney's Office 228 Walnut Street P.O. Box 11754 Harrisburg, PA 17108-1754 -1 ft Dated: January _, 2004 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: David J. MacMain and Karen M. Ibach Identification No. 59320 and 81799 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 ATTORNEYS FOR DEFENDANTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, CIVIL ACTION STEPHEN C. OLDT, JOHN E. BARD, NO. 02-5940 GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT DEFENDANTS ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as counsel on behalf of Defendants Borough of Shippensburg and Officer Jeffrey Shubert in the above-captioned matter. David J. MacMain remains as counsel for Defendants Borough of Shippensburg and Officer Jeffrey Shubert. Dated: February , 2004. M. Ibach Attonrney I.D. No. 90579 Montgomery, McCracken, Walker & Rhoads, LLP 123 S. Broad Street Philadelphia, PA 19109 CERTIFICATE OF SERVICE I, Karen M. Ibach, hereby certify that on this L9day of February, 2004 I caused a true and correct copy of the foregoing Withdrawal of Appearance and Entry of Appearance to be served via first class mail, postage prepaid, upon the following: Louis M. Koudmal, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 4ar M. Ibach C3 TI Zl -Y InT W -" T7 V -r -: C I m } w n o -< MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND SHERYL L. BROWN IDENTIFICATION NO. 59320 AND 59313 123 S. BROAD STREET ATTORNEYS FOR DEFENDANTS PHILADELPHIA, PA 19109 OFFICER JEFFREY SHUBERT (215) 772-1500 AND THE BOROUGH OF SHIPPENSBURG TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. BOROUGH OF SHIPPENSBURG AND JEFFREY SHUBERT : DEFENDANTS CIVIL ACTION NO. 02-5940 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as additional counsel on behalf of Defendants, Borough of Shippensburg and Officer Jeffrey Shubert, in the above-captioned matter. David J. MacMain remains as counsel for Defendants, Borough of Shippensburg and Officer Jeffrey Shubert. MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP By:C / ??---- David4. MacMain, Esquire Identification No. 59320 Sheryl L. Brown, Esquire Identification No. 59313 123 South Broad Street Avenue of the Arts 1084324x1 Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Borough of Shippensburg Date: / / Vo y -2- 1084324v1 CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Entry of Appearance to be served First-Class U.S. Mail, postage prepaid, upon the persons, at the addresses and on the date that appears below: Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 1906 ( S L L. BR/01 Date: It d -3- 1084324v1 I '- -r _ 4f ? rt MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND SHERYL L. BROWN IDENTIFICATION NO. 59320 AND 59313 123 S. BROAD STREET ATTORNEYS FOR DEFENDANTS PHILADELPHIA, PA 19109 OFFICER JEFFREY SHUBERT (215) 772-1500 AND THE BOROUGH OF SHIPPENSBURG TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. BOROUGH OF SHIPPENSBURG AND JEFFREY SHUBERT DEFENDANTS CIVIL ACTION NO. 02-5940 WITHDRAWAL OF APPEARANCE TO THE PROHTONOTARY: Kindly withdraw the appearance of Karen M. Ibach, only, as counsel on behalf of Defendants, Borough of Shippensburg and Officer Jeffrey Shubert, in the above-captioned matter. David J. MacMain remains as counsel for Defendants, Borough of Shippensburg and Officer Jeffrey Shubert. MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP By: avid J. MacMain, Esquire Identification No. 59320 Karen Ibach, Esquire Identification No. 90579 123 South Broad Street 1084339v1 Avenue of the Arts Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Borough of Shippensburg Date: it 9/0 y -2- 1084339v1 CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Withdrawal of Appearance to be served First-Class U.S. Mail, postage prepaid, upon the persons, at the addresses and on the date that appears below: Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 1906 SHER L. BROWN Date: I t q 0 I -3- 1084339v1 ??? f- " : ?) 'i' c.. s .. .1.`- . '1`7 -- i c "" ... " ' W _ ?, -n f l 1 ?_._ -?r-? ?? =- _ : ? ? ?? . ._?.. .`a ' f i? -??, - C,?? ; , ? ?t C? !7 -?.. MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN IDENTIFICATION NO. 59320 123 S. BROAD STREET ATTORNEY FOR DEFENDANTS PHILADELPHIA, PA 19109 BOROUGH OF SHIPPENSBURG (215) 772-1500 AND JEFFREY SHUBERT TROY A. BEAM, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. CIVIL ACTION BOROUGH OF SHIPPENSBURG NO. 02-5940 and JEFFREY SHUBERT, Defendants. WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Sheryl L. Brown in the above-captioned matter on behalf of Defendants Borough of Shippensburg and Jeffrey Shubert. David J. MacMain remains as lead counsel for Defendants Borough of Shippensburg and Jeffrey Shubert. By: David J. acMain Attorney I.D. No. 59320 Sheryl L. Brown Attorney I.D. No. 59313 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 123 S. Broad Street Philadelphia, PA 19109 (215) 772-1500 2056376v1 CERTIFICATE OF SERVICE I, David J. MacMain, hereby certify that on March S I , 2006, I caused a copy of the foregoing Withdrawal and Entry of Appearance to be served by United States first class mail, postage prepaid, upon the following person at the address listed below: Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 1906 David J. Mach am -2- 2056376vl ,_, ?.> ... l ; 'i ; ;;,: ?? ._ - ?,: .. -? r? MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET ATTORNEYS FOR DEFENDANTS PHILADELPHIA, PA 19109 BOROUGH OF SHIPPENSBURG (215) 772-1500 AND JEFFREY SHUBERT TROY A. BEAM, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. CIVIL ACTION BOROUGH OF SHIPPENSBURG NO. 02-5940 and JEFFREY SHUBERT, Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance in the above-captioned matter on behalf of Defendants Borough of Shippensburg and Jeffrey Shubert. lle E BY Fulton 9At rney I.D. No. 80027 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 123 S. Broad Street Philadelphia, PA 19109 (215) 772-1500 2067968vt CERTIFICATE OF SERVICE I, Janelle E. Fulton, hereby certify that on May I(e, 2006,1 caused a copy of the foregoing Entry of Appearance to be served by United States first class mail, postage prepaid, upon the following person at the address listed below: Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 ?Ole E. Fulton -2- 2067968x1 N C7 C cr+ !(J ,! CD J-{' N r? GJ W GQ m -r 7 C)1?i Cs1 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET PHILADELPHIA, PA 19109 ATTORNEYS FOR DEFENDANT JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants. CIVIL ACTION NO. 02-5940 DEFENDANT'S MOTION FOR JUDGMENT OF NON PROS Defendant Officer Jeffrey Shubert ("Defendant" or "Officer Shubert"), respectfully moves this Court to enter a judgment of non pros in his favor. Officer Shubert is entitled to judgment because Plaintiff has failed to prosecute his claims for the past five (5) years. Specifically, a judgment of non pros is appropriate in this case because: (1) Plaintiff has shown a lack of due diligence by failing to prosecute his claims with reasonable promptitude; (2) Plaintiff can demonstrate no compelling reason for his delay; and (3) Plaintiff's unexcused delay has caused actual prejudice to Officer Shubert's ability to defend himself properly. Plaintiff alleges in his Complaint that Officer Shubert assaulted him during an inspection of an apartment building managed by Plaintiff on June 13, 2002 - six (6) years ago. 2. On or about December 13, 2002, Plaintiff initiated the present action by filing a writ of summons, followed by a Complaint filed on February 11, 2003 against Officer Shubert, as well as Township of Shippensburg, Steven Oldt, John Bard, Galen Asper and the Borough of Shippensburg. See Docket, attached as Exhibit A. 3. All Defendants filed Preliminary Objections to the Complaint. 4. On November 24, 2003, this Court, in a ruling authored by the Honorable Edward 2292625v1 E. Guido, entered an Order granting the Preliminary Objections in large part and dismissing all but Count I (Intentional Tort) against Officer Shubert. Officer Shubert is the only remaining Defendant. See id. 5. Officer Shubert filed his Answer to the Complaint on December 10, 2003. See id. 6. Officer Shubert's Answer was the last substantive entry on the docket. See id. 7. In the four and a half (4%) years since Officer Shubert filed his Answer, there has been absolutely no docket activity in this case, other than in connection with the substitution of defense counsel two (2) years ago. See id. 8. Since filing his Complaint on February 11, 2003, Plaintiff has done nothing to prosecute his claim other than to respond to preliminary objections of Defendants in April 2003 and change counsel in May 2003 - five (5) years ago. 9. Plaintiff has taken no discovery in this case. After being rescheduled several times, Plaintiff's deposition was taken two (2) years ago. However, despite repeated requests, Plaintiff has not cooperated in providing other witnesses nor has he fully responded to the written discovery served upon him four (4) years ago. 10. Plaintiff's continued failure to prosecute his claim warrants dismissal of the Complaint. 11. To obtain a judgment of non pros in Pennsylvania, a defendant need only establish that: (1) the plaintiff has shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there is no compelling reason for the delay; and (3) the delay has caused prejudice to the defendant. Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098, 1101 (1998). 12. Pennsylvania courts have found lack of due diligence where there have been periods of just three (3) to four (4) years of inactivity on the docket. See Shope v. Eagle, 551 Pal -2- 2292625vl 360, 710 A.2d 1104, 1108 (Pa. 1998) (affirming non pros after three (3) years without docket activity)'; Strickler v. Bell, 714 A.2d 437 (Pa. Super. 1998) (dismissing case after four (4) years of docket inactivity); Pennridge Electric, Inc. v. Souderton Area Joint School Auth., 615 A.2d 95 (Pa. Super. 1992) (entering judgment of non pros after more than four (4) years of docket inactivity). 13. With the exception of changes in defense counsel, a review of the docket in this case shows inactivity for four and a half (4%i) years (when Officer Shubert filed his answer), and no activity by Plaintiff for five (5) years, and demonstrates that Plaintiff has shown a lack of due diligence by failing to proceed with reasonable promptitude. 14. Further, Plaintiff can offer no reasonable excuse for why he has failed to move this case forward. 15. Finally, Plaintiff's delay has prejudiced Defendant's ability to defend himself adequately. 16. Accordingly, Officer Shubert is entitled to a judgment of non pros. WHEREFORE, Defendant Officer Jeffrey Shubert respectfully requests this Court to enter a judgment of non pros against Plaintiff and in his favor, and to dismiss all claims asserted in Plaintiff's Complaint. Respectfully bmitted, Date: '? y or vid J. MacMain (Pa. ID No. 59320) Janelle E. Fulton (PA ID No. 80027) Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Jeffrey Shubert Shope involved a court-initiated order that the case be dismissed for inactivity. The Shone decision has since been superseded by Pa. R. Civ. P. 230.2, which permits a court to initiate proceedings to terminate a case after two years c inactivity and without proof of prejudice. See Panosian v. HapMton, 76 Pa. D. &C. 4th 410, 417 (2005). However, the analysis set forth by Shone is still the standard that is still used where the Defendant files a Motion of Non Pros. -3- j 2292625v1 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET ATTORNEYS FOR DEFENDANT PHILADELPHIA, PA 19109 JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM, Plaintiff V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO. 02-5940 BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT OF NON PROS Defendant Officer Jeffrey Shubert ("Defendant" or "Officer Shubert"), through his undersigned counsel, hereby submits this Brief in Support of his Motion for Judgment of Non Pros and requests that this Court dismiss Plaintiff's claims with prejudice. 1. INTRODUCTION In the five (5) years since Plaintiff alleged that Officer Shubert committed an intentional tort upon him, Plaintiff has done almost nothing to prosecute his claim. Over four and a half (4%2) years have now passed with absolutely no docket activity, other than in connection with the substitution of defense counsel, and it has been five (5) years since Plaintiff filed anything with the Court or took any action to prosecute his case. Plaintiff has taken no discovery whatsoever in this case. There has been one deposition, which was taken by Officer Shubert, in the more than five (5) years this case has been on the Court's docket, and Plaintiff has not produced other witnesses for depositions despite requests by Defendant, nor has he complied with Defendant's requests to fully respond to the written discovery that Defendant served upon him four and a half (4'/2) years ago. Indeed, Plaintiff has done nothing to prosecute his claim 2292625x1 since the Court granted Defendant's Preliminary Objections and dismissed Counts II through VI of the Complaint in November 2003, leaving only Count I against Defendant Shubert. Plaintiff s opportunity to prosecute his claims has passed, and it is now time for this Court to dismiss his suit. This case has languished on the Court's docket without reasonable movement for nearly five and a half (5%2) years. In the intervening years, witnesses have relocated and memories have faded. Plaintiffs unexcused failure to prosecute his claims, therefore, has unduly prejudiced Officer Shubert's ability to adequately prepare a defense and properly present his case at trial. Plaintiff has had five and a half (51/2) years to pursue his claims, if he was interested in doing so. Plaintiffs failure to prosecute this case speaks volumes about the futility of, and lack of interest in, his claims. The time has come for this Court to dismiss the sole remaining Count of Plaintiffs Complaint. II. ARGUMENT Officer Shubert is entitled to a judgment of non pros because: (1) Plaintiff has failed to prosecute his claims for more than five (5) years; (2) there is no legitimate excuse for Plaintiff s delay; and (3) Officer Shubert is severely prejudiced by Plaintiffs inactions. Whether to grant a dismissal for failure to prosecute an action within a reasonable time is within the sound discretion of the trial court and will not be disturbed on appeal absent evidence of abuse. Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098, 1101 (1998) (citing Gallagher v. Jewish Hospital Ass'n, 228 A.2d 732, 733 (Pa. 1967)). The Court's authority to enter judgment of non pros is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the Common Pleas Court's calendar. See Link v. Wabash Railroad. Co., 370 U. S. 626 (1962) (noting that the authority of a court to dismiss for lack of prosecution is "inherent -2- 2292625vl power," governed not by rule or statute but by control necessarily vested in courts to manage their own affairs so as to achieve orderly and expeditious disposition of cases). A court may exercise its discretion to dismiss a case for inactivity where: (1) there is a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude; (2) the plaintiff has no compelling reason for the delay; and (3) the delay causes actual prejudice to the defendant. Jacobs, 710 A.2d at 1101. Here, all three prongs of the Jacobs test have been satisfied. Accordingly, Officer Shubert is entitled to a judgment of non pros in his favor. A. Plaintiff Has Failed to Prosecute His Claims With Reasonable Promptitude for More Than Five (5) Years Because Plaintiff bears the burden to move a case to trial, "it is plaintiff, not defendant, who bears the risk of failing to act within a reasonable time." Shope v. Eagle, 710 A.2d 1104, 1108 (Pa. 1998)(citing Pennridge Electric Inc. v. Souderton Area Joint School Authority, 615 A.2d 95, 99 (Pa. Super. 1992)). Where, as here, a docket remains inactive for five (5) years, with the exception of Defendant's changing of appearances, "such dilatory conduct is the exemplification of an actionable failure to proceed promptly." Strickler v. Bell, 714 A.2d 437, 439 (Pa. Super. 1998). Under the first prong of the Jacobs test, this Court must ask whether Plaintiff exhibited a lack of due diligence in pursuing this case. This question is easily answered by a review of the short list of docket activities since Plaintiff first filed suit in 2002. Tellingly, Plaintiff has not had an entry on the docket in five (5) years -- since May 2003. Plaintiff has made no attempt to prosecute his claims. He has taken no discovery whatsoever, and he has not fully responded to the written discovery served upon him four and a half (41/2) years ago. Plaintiff has also failed to respond to requests to schedule the deposition of -3- 2292625v1 other witnesses. Clearly, Plaintiff has failed to diligently pursue this case. See Gohel v. Montgomery Hosp., 40 Pa. D. & C. 4th 449, 452 (1999). Since November 2003, when the Court granted Defendants' Preliminary Objections to the Complaint by dismissing Counts 11 through VI of the Complaint and denied Officer Shubert's Preliminary Objections as to Count I, there has been no docket activity other than Defendant Shubert's Answer and New Matter in December 2003, followed by the substitution of defense counsel. Such delay, repeated for five (5) years, must not be tolerated by this Court. Plaintiff can point to nothing of persuasive import to suggest that he has exercised due diligence in proceeding to move this case with reasonable promptitude. Accordingly, the first prong of the Jacobs test is satisfied. B. Plaintiff Has Offered No Compelling Reason for His Inactions Over The Past Four Years Not only has Plaintiff failed to prosecute his claims, but he has also offered no legitimate basis for his delay. The courts have recognized compelling reasons for inactivity in limited circumstances, such as a "bankruptcy, liquidation, or other operation of law, or in cases awaiting significant developments in the law." Marino v. Hackman, 710 A.2d 1108, 1111 (Pa. 1998). None of these reasons exist here for five (5) years of delay. Further, the "presence of non-docket activity initiated by the defendants does not provide [plaintiffs] with a compelling reason for their delay." Gohel, 40 Pa. D. &. C. 4th at 453. Therefore, any discovery initiated by Officer Shubert is not to be considered. Accordingly, the second prong of the Jacobs test is satisfied. C. Plaintiff's Continued Failure to Prosecute His Claims for Over Four Years Has Prejudiced Officer Shubert's Ability to Defend Himself against Plaintiff's Claims Finally, the passage of six (6) years since the alleged incident occurred without prosecution of Plaintiff's claims has prejudiced Officer Shubert's ability to defend himself -4- 22926251 adequately. Where, as here, a defendant has suffered "any substantial diminution of [its] ability to properly present its case at trial," it has suffered actual prejudice. Jacobs, 710 A.2d at 1103. To demonstrate prejudice, Officer Shubert need only show that he has lost his ability to prepare an adequate defense, which can be established by the death or absence of a material witness as well as the loss of memories. See id.; James Brothers Co. v. Union Banking and Trust Co. of DuBois, 247 A.2d 587, 589 (Pa. 1968). Here, there can be little dispute that six (6) years after the alleged incident, the memories of witnesses have faded. Indeed, witnesses themselves have likely disappeared. Pennsylvania law is clear that in cases of such extraordinary delay, where witnesses are unavailable and memories have faded, a defendant is prejudiced in its ability to adequately present a defense. See Shope v. Ea-gle, 551 Pa. 360, 710 A.2d 1104, 1108 (Pa. 1998) (affirming non pros after three (3) years without docket activity); Strickler v. Bell, 714 A.2d 437 (Pa. Super. 1998) (dismissing case after four (4) years of docket inactivity); Pennridge Electric, Inc. v. Souderton Area Joint School Auth., 615 A.2d 95 (Pa. Super. 1992) (entering judgment of non pros after more than four (4) years of docket inactivity). In Strickler, the Court affirmed the dismissal of the plaintiffs' claims, finding actual prejudice. There, the plaintiffs claimed that the delay in prosecuting their legal malpractice cL was caused by their inability to obtain various property appraisals. Rejecting plaintiffs' argue and focusing on recent history, the court found that the plaintiffs' inactivity for nearly four (4) years "is the exemplification of an actionable failure to proceed promptly." Id. at 439. In concluding that the defendant had suffered actual prejudice the court wrote: We do not need a presumption of prejudice based on docket inactivity here, for the record shows the prejudice suffered by appellees. Over a decade has elapsed since the inception of this suit, yet discovery requests remain unanswered. The case is rooted -5- 2292625v1 at a standstill like an oak. As nearly twenty years have elapsed since the [underlying] tort action was filed, memories have faded and vanished like leaves in the autumn. Trees have grown in less time than has this case. Id. The delay in prosecuting this case has clearly prejudiced Officer Shubert. Accordingly, the third prong of the Jacobs test is satisfied. III. CONCLUSION For the foregoing reasons, Defendant Officer Jeffrey Shubert requests that this Court enter a judgment of non pros in his favor and dismiss Plaintiff's claims in their entirety with prejudice. Respectfully submitted, r Date: SI1 /40 ft a vid J. MacMain (PA ID No. 59320) Janelle E. Fulton (PA ID No. 80027) Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Jeffrey Shubert -6- 2292625x1 Q PY6511 Cumberland County Prothonotary's Office Civil Case Print Page I 002-05940 BEAM TROY A (vs) SHIPPENSBURG TOWNSHIP OF Reference No..: Filed......... 12/13/2002 Case Ty e..... . WRIT OF SUMMONS Time...... . 2.38 Judgmen?...... : .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: k******************************************************************************* General Index Attorney Info BEAM TROY A PLAINTIFF STIVALE LEE A 401 SHIPPENSBURG ROAD KODUMAL LOUIS M SHIPPENSBURG PA 17257 SHIPPENSBURG TOWNSHIP OF DEFENDANT LAVERY FRANK J JR 81 WALNUT BOTTOM ROAD P 0 BOX 219 SHIPPENSBURG PA 17257 OLDT STEVEN C DEFENDANT LAVERY FRANK J JR 206 CHESTNUT DRIVE SHIPPENSBURG PA 17257 BARD JOHN E DEFENDANT LAVERY FRANK J JR 5 BARD ROAD SHIPPENSBURG PA 17257 ASPER GALEN S DEFENDANT LAVERY FRANK J JR 399 BALTIMOE ROAD SHIPPENSBURG PA 17257 SHIPPENSBURG BOROUGH OF DEFENDANT MACMAIN DAVID J 111 N FAYETTE STREET FULTON JANELLE E SHIPPENSBURG PA 17257 SHUBERT JEFFREY DEFENDANT MACMAIN DAVID J 60 W BURD STREET BROWN SHERYL L SHIPPENSBURG PA 17257 * Date Entries 12/13/2002 FIRST ENTRY PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS-ISSUED 12/19/2002 --------- SHERIFF'S- --------------------------- FILE-RETURNED--FILED . --------------------------- Case Type: Liti t WRIT OF SUMMONS Ret Type.: SHIPPENSBURG T WNS Regular gan .: Address..: O HIP OF 81 WALNUT BOTTOM ROAD Ctyy/St/Z • SHIPPENSBURG, PA 17257 H d T OH n o: J N E BARD TOWNSHIP SUPERVISOR Shf/D ty.: RONALD HOOVER Date/Time: 12/18/2002 1504:00 Costs....: $42.49 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 12/19/2002 ---------- SHERIFF'S ------------------------------ FILE RETURNED FILED. -------------------- ------ Case Type: i i WRIT OF SUMMONS Ret Type.: Regular L gant.: t OLDT STEVEN C Address..: 81 WALNUT BOTTOM ROAD Ctyy/St/Z • SHIPPENSBURG, PA 17257 H a T OHN E AR O n o: B D T WNSHIP SUPERVISOR Shf/D ty.: RONALD HOOVER Date/ Time: 12/18/2002 1504:00 Costs....: $16.00 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 12/19/2002 SHERIFF'S ---------- FILE RETURNED FILED. ------------------------------ -------------------- Case Type: Liti ant WRIT OF SUMMONS Ret Type.: BARD JOHN E Regular j g .: Address..: 81 WALNUT BOTTOM ROAD Cty/St/Z3: SH BURG, PA 17257 H dd T P O n o: JJ Shf/Dpty.: E BARD HN RONALD HOOVER PYS511 Cumberland County Prothonotary's Office Civil Case Print Page 1 2 002-05940 BEAM TROY A (vs) SHIPPENSBURG TOWNSHIP OF Reference No... Filed......... 12/13/2002 Case Ty e..... . WRIT OF SUMMONS Time..... ..: 2.38 Judgmen?..... : .00 Execution Date 0/0010000 Judge Assigned: Jury Trial.... Disposed Desc.: Disosed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Date/Time: 12/18/2002 1504:00 eCrt 2.: Costs....: $16.00 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ------------------------------------------ - - - - - - - - - - - - - - - - - - ---- 12/19/2002 SHERIFF'S-FILE-RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: ASPER GALEN S Address..: 81 WALNUT BOTTOM ROAD Cty/St/Z . SHIPPENSBURG, PA 17257 Hnd To: JOHN E BARD TOWNSHIP SUPERVISOR Shf/D ty.: RONALD HOOVER Date/ Time: 12/18/2002 1504:00 Costs ...._-$16_00-Pd-By_-VINCENT MANCICI & ASSOC 12/19/2002 -- ------------------------------------- (---- 12/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: SHIPPENSBURG BOROUGH OF Address..: 111 N FAYETTE STREET Cty/St/Z • SHIPPENSBURG, PA 17257 Hnd To: BILL WOLFE BOROUGH MANAGER Shf D ty .: RONALD AOOVER Date/ 12/18/2002 1351:00 Costs....: $30.49 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ---------------------------------------------------------- ----- 12/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: SHUBERT JEFFREY Address..: SHIPPENSBURG POLICE DEPARTMENT 60 W BURD STREET Ctyy/St/Z • SHIPPENSBURG, PA 17257 Hnd To: SCOTT WOLFE, POLICE OFFICER Shf/D ty.: RONALD HOOVER Date/ Time: 12/18/2002 1338:00 Costs .____-$16.00 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ------ ---------------------------------- 12/31/2002 PRAECIPE FOR RULE-TO-FILE-COMPLAINT BY RON TURD-ESQ - - - - - - - - - - - - - - - ------------------------------------------------------------ 12/31/2002 RULE TO FILE COMPLAINT - BY CURTIS R LONG PROTHONOTARY - ------------------------------------------------------ ------ 2/11/2003 COMPLAINT - BY LEE A STIVALE ESQ FOR PLFF ------------------------------------------------------------'------ 2/25/2003 PRAECIPE TO ENTER APPEARANCE FOR DEFTS TWP OF SHIPPENSBURG S EVEN C OLDT JOHN E BARD AND GALEN S ASPER - BY FRANK J LAVERY JR ESQ FOR DEFTS ----------- ---------- -- ---- -------- -- ------------ -- 3/07/2003 PRELIMINARY OBJECTIONS-OF DEFT TOWNSHIP-OF SHIPPENSBURG STEV?N C OLDT JOHN E BARD AND GALEN S ASPER TO COMPLAINT - BY FRANK J LAVERY JR ESQ FOR DEFT ------------------------------------------------------------------- 3/12/2003 ENTRY OF APPEARANCE FOR DEFTS - BY MICHAEL J BUTLER ESQ - 3/12/2003 DEFENDANTS BOROUGH OFSHIPPENSBURG AND OFFICER JEFFREY-SHUB RTIS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT BY MICHAEL J B TLER ESQ FOR DEFTS --------------------------------------------------------- - - - - - - - 3/14/2003 PRAECIPE FOR LISTING CASE FOR ARGUMENT - - DEFENDANT - BOROUGH ?By F SHIPPENSBURG AND JEFFREY SHUBERT'S PRELIMINARY OBJECTIONS - MICHAEL J BUTLER ESQ -----------------------------------------------------J------- 3/18/2003 PRAECIPE - FOR - LISTING - CASE - FOR - ARGUMENT - PRELIMINARY - OBJECTIONS - BY CHERLY KOVALY ESQ ------------------------------------------------------------------- 4/02/2003 PLAINTIFF TROY A BEAM'S RESPONSE TO PRELIMINARY OBJECTIONS FILED BY DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBE T TO PLFF COMPLAINT - BY LEE A STIVAL ESQ FOR PLFF ----- --------- 4/02/2003 PLAINTIFF'S-TROY-A-BEAM'S RESPONSE TO PRELIMINARY-OBJECTIO S - FILED BY DEFTS TOWNSHIP OF SHIPPENSBURG STEVEN C OLDT JOHN E BAR AND GALEN S SAPER TO PLFFS COMPLAINT - BY LEE A STIVAL ESQ FO PLFF PYS511 Cumberland County Prothonotary's Office Civil Case Print Page 002-05940 BEAM TROY A (vs) SHIPPENSBURG TOWNSHIP OF Reference No..: Case Type.....: WRIT OF SUMMONS Judgment..... .00 Judge Assigned: Disposed Desc.: Filed......... 12/13/2002 Time. .. 2:38 Execution Date 0/00/0,000 DisposedaDate. 0/00/01000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: 5/15/2003 ENTRY OF APPEARANCE FOR TROY BEAM - BY LOUIS M KODUMAL ESQ 1/24/2003 OPINION AND ORDER OF COURT - DATED 11/24/03 - IN RE DEFTS' PRELIMINARY OBJECTIONS - THE DEMURRER OF THE VARIOUS DEFTS TO COUNTS II THROUGH VI OF COMPLAINT ARE SUSTAINED AND THOSE COUNT ARE DISMISSED - THE DEMURRER OF DEFT SHUBERT TO COUNT I IS DENI?D - BY THE COURT EDWARD E GUIDO J COPIES MAILED 11/24/03 ------------------------------------------------------------------- .2/10/2003 DEFENDANT OFFICER JEFFREY SHUBERT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT ------------------------------------------------------------------- 2/10/2004 WITHDRAWAL OF APPEARANCE FOR DEFT - BY MICHAEL J BUTLER ESQ ----------------------------------------------------------------4--- .1/15/2004 ENTRY OF APPEARANCE AS ADDITIONAL COUNSEL ON BEHALF OF DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT DAVID J MACMAIN REMAINS AS COUNSEL FOR DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT SHERYL L BROWN ESQ -- - 1--- _1/15/2004 WITHDRAWAL OF APPEARANCE - WITHDRAW THE APPEARANCE OF KAREN M IBACH ONLY AS COUNSEL ON BEHALF OF DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT ---------------------------------------------------------------+--- 4/03/2006 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY DAVID J MACMAIN ATTY? ---------------------------------------------------------------?--- 5/18/2006 PRAECIPE TO ENTER APPEARANCE - BY JANELLE E FULTON ATTY - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - k Escrow Information k Fees & Debits Beg Bal Pymts/Ad' End Bat WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 ------------------------ ------------ 55.50 55.50 .00 e******************************************************************************* k End of Case Information CERTIFICATE OF SERVICE I, Janelle E. Fulton, do hereby certify that, on this day of May 2008, a true and correct copy of the foregoing Defendant's Motion for Judgment of Non Pros and supporting Brief were served upon the following by United States first class mail, postage prepaid,. Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 9 J Ile E. 4 e--N? Fulton 2292625v1 ?? N 0 -TI Ac c J, TROY A. BEAM V. BOROUGH OF SHIPPENSBURG and JEFFREY SHUBERT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2002 - 5940 CIVIL TERM ORDER OF COURT AND NOW, this 23RD day of MAY, 2008, a Rule is issued upon Plaintiff to Show Cause why the Defendant's Motion for Judgment of Non Pros should not be granted. Rule returnable twenty (20) days after service. the Court, Edward E. Guido, J. Lee A. Stivale, Esquire Janelle E. Fulton, Esquire : sld 11C7Y?41'r?,,ti`? ? `• s 1 [ 34t i6 , ? -riRj ?. -j LAW OFFICES OF VINCENT B. MANCINI & ASSOCIATES Lee A. Stivale, Esquire Atty. I.D. # 46511 Brian C. LeGrow, Esquire Atty. I.D. # 93977 414 East Baltimore Pike Media, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, No. 02-5940 Plaintiff v. TOWNSHIP OF SHIPPENSBURG, et al, Defendants WITHDRAWAL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Plaintiff Troy Beam. VINCENT B. MANCINI & ASSOCIATES Date: By: --LOUIS M. KODUMAL, ESQUIRE ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as additional counsel on behalf of the Plaintiff Troy Beam in the above matter. VINCENT B. MANCINI & ASSOCIATES Date: By: BRLkl? C. Le , ESQUIRE • CERTIFICATE OF SERVICE I, BRIAN C. LEGROW, ESQUIRE, hereby certify that I served a true and correct copy of a Withdrawal/ Entry of Appearance, upon all parties listed below, by placing the same in the United States Mail, First Class Mail, postage pre-paid on June 11, 2008. Janelle E Fulton, Esquire Montgomery, McCracken, Walker & Rhoads, LLP 123 S. Broad Street Philadelphia, PA 19109 Law Offices of Vincent B. Mancini & Associates By: BIU'A'N C. L , ESQUIRE C) ? z co PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the owing case: for JURY trial at the next term of civil court. ? for trial without a jury. ----------------------------------------------------------- CAPTION OF CASE c k one) (entire caption must be stated in full) ( Civil Action -Law Troy Beam (Plaintiff) VS. Township of Shippensburg, et al. ? Appeal from arbitration (other) The trial list will be called on and Trials commence on (Defendant) Pretrials will be held on vs. (Briefs are due S days before pretrials No. 5940 2002 Term Indicate the attorney who will try case for the party who files this praecipe: Brian C. LeGrow, Esquire Indicate trial counsel for other parties if lmown: Janelle E. Fulton, Esquire This case is ready for trial. Signed: Print Name: Brian C. Lef_trow, Esquire Date: Attorney for: Plaintiff Troy Beam ,, - CERTIFICATE OF SERVICE I, BRIAN C. LEGROW, ESQUIRE, hereby certify that I served a true and correct copy of a Praecipe for Listing Case for Trial, upon all parties listed below, by placing the same in the United States Mail, First Class Mail, postage pre-paid on June 13, 2008. Janelle E Fulton, Esquire Montgomery, McCracken, Walker & Rhoads, LLP 123 S. Broad Street Philadelphia, PA 19109 Law Offices of Vincent B. Mancini & Associates By: - ?. BIdAN C. G , ESQUIRE A R OD 5 Sb - W a C r co h .. C n \ - -on ?^r n MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET PHILADELPHIA, PA 19109 ATTORNEYS FOR DEFENDANT JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants. CIVIL ACTION NO. 02-5940 DEFENDANT'S REPLY TO PLAINTIFF'S MEMORANDUM OF LAW IN RESPONSE TO ORDER TO SHOW CAUSE WHY DEFENDANT'S MOTION FOR JUDGMENT OF NON PROS SHOULD NOT BE GRANTED Defendant Shippensburg Borough Police Cpl. Jeffrey Shubert ("Defendant" or "Cpl. Shubert"), by and through his attorneys, Montgomery, McCracken, Walker & Rhoads, LLP, respectfully submits this Reply to Plaintiff's Memorandum of Law in Response to the Court's May 23, 2008 Order to Show Cause why Defendant's Motion for Judgment of Non Pros should not be granted. Plaintiff's Memorandum makes material misrepresentations to the Court in an attempt to avoid the consequences of Plaintiff's dilatory conduct and inexcusable delay. This Reply Brief addresses those misrepresentations and demonstrates not only that Plaintiff lacks any compelling reason for the delay in the case, but that his failure to participate in discovery - let alone to prosecute the case - has caused actual prejudice to Cpl. Shubert and severely limited his ability to prepare an adequate defense to this case. 1. ARGUMENT Plaintiff submitted a three-page Memorandum of Law in response to the Court's May 23, 2008 Order to Show Cause why Cpl. Shubert's Motion for Judgment of Non Pros should not be 2315025v1 granted. In those three pages, the only two (2) excuses Plaintiff could produce to explain his failure to prosecute this case for the last six (6) years are: (1) the claim that his counsel - Roy T. Stegna - moved to the West Coast and (2) his alleged inability to track down a college-age witness. P1's. Br. at p.2. However, neither of these so-called reasons for delay is credible, let alone compelling. A. Plaintiff Has Been Consistently Represented During This Litigation First, there is no record whatsoever that "Roy T. Stegna" has ever represented Mr. Beam in this matter in the six (6) years since this incident occurred. Mr. Stegna never entered his appearance in this case (see Docket, a copy of which is attached hereto as Exhibit A), nor has an attorney by that name ever contacted counsel for Cpl. Shubert regarding this matter. See Declaration of Janelle E. Fulton, attached hereto as Exhibit B. Rather, as the docket clearly reflects, Lee Stivale, Esquire and other members of his firm, Mancini & Associates - specifically Louis Kodumal, Esquire' (who withdrew his appearance on June 11, 2008) and Brian LeGrow, Esquire (who officially entered his appearance on June 11, 2008) - have represented Mr. Beam since this action was filed five and a half (5%2) years ago, and Mr. Stivale and his firm continue to represent Mr. Beam to date. See Exhibit A. Indeed, all correspondence and communication with Plaintiff's counsel since the inception of this case has been with Messrs. Stivale, Kodumal, and LeGrow, and all pleadings have been filed by either Mr. Stivale or Mr. Kodumal. See Docket (Exhibit A). Additionally, in a letter dated February 10, 2004, Mr. Kodumal confirmed what the docket reflects - that he and Mr. Stivale have been co-counsel for Mr. Beam in this case. See letter from Louis Kodumal to Karen lbach dated February 10, 2004 (attached hereto as ' While Mr. Kodumal filed a withdrawal of appearance on or about June 11, 2008, perhaps in an attempt to create "docket activity," it appears that he continues to be employed by Mancini & Associates. See Withdrawal/Entry of Appearance of Louis M. Kodumal, Esquire (attached hereto as Exhibit Q. -2- 2315025vt Exhibit D). Further, it was Mr. Stivale who represented Mr. Beam at his deposition, which Cpl. Shubert was finally able to secure two (2) years ago, on June 22, 2006, after several repeated attempts. See dep. tr. Beam cover page, attached hereto as Exhibit E. Second, Plaintiff does not state when Mr. Stegna left the area - whether it was six weeks ago, six months ago, or six years ago - nor does he explain why the three (3) other capable lawyers from Mancini & Associates who have represented him for the last six (6) years could not carry on in Mr. Stegna's reported absence. As such, the fact that Roy Stegna relocated from the area at some unknown time is irrelevant to Plaintiff's failure to prosecute this case, and Plaintiff has failed to demonstrate a compelling reason for his admitted delay. B. Plaintiffs Failure to Participate in Discovery and to Produce Witnesses Has Preiudiced Cpl. Shubert Plaintiff's claim that his inability to locate a college-age 2 witness contributed to his failure to prosecute is equally specious. Moreover, Plaintiff's inability to locate a witness due to change of counsel is not a compelling reason for failing to prosecute a claim3. On the contrary, Plaintiff himself has demonstrated actual prejudice to Cpl. Shubert due to unavailable witnesses, which is exactly why courts dismiss cases for failure to prosecute. To demonstrate prejudice, Cpl. Shubert need only show that he has lost his ability to prepare an adequate defense, which Z This unidentified witness was "college-age," and reportedly a student at Shippensburg University, at the time of the incident - six (6) years ago. In all likelihood, this witness, and any other college students who Plaintiff claims witnessed this incident, have long ago graduated from or otherwise moved on from college, and as such are no longer available to testify in this case. Clearly the absence of these witnesses, whom Plaintiff did not identify and, in turn, Cpl. Shubert was not able to interview or depose, prejudices Cpl. Shubert. s Furthermore, if Plaintiff did lose critical information as a result of a change of counsel, as he claims, then Plaintiff has a claim against his counsel, not against Cpl. Shubert. -3- 2315025x1 can be established by the absence of a material witness. Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098, 1103 (1998); James Brothers Co. v. Union Banking and Trust Co. of DuBois, 247 A.2d 587, 589 (Pa. 1968). Notably, in one paragraph, Plaintiff notes that he cannot locate a critical witness, and in the next he argues that Cpl. Shubert has failed to show any actual prejudice resulting from Plaintiff's failure to prosecute. However, while Plaintiff identifies only one "missing" witness in his Memorandum, all three (3) of the adult witnesses Plaintiff has identified are unavailable. Clearly, Plaintiff has provided his own specific example of how his inexcusable delay has actually prejudiced not only Cpl. Shubert, but Plaintiff himself. Additionally, over the 5%i years this case has been pending, defense counsel has repeatedly asked Plaintiff to either produce for deposition, or provide contact information for, the witnesses identified by Plaintiff, but Plaintiff has failed to do so. Further, Plaintiff has not only failed to prosecute his claim - not even attempting to take one single deposition or serving written discovery - but he has resisted every effort by Cpl. Shubert to take discovery. 1. Plaintiffs Dilatory Conduct 2003-2004 Specifically, on December 10, 2003 - 4'/2 years ago - Cpl. Shubert served Interrogatories and Requests for Production of Documents upon Plaintiff requesting, inter alia, the names and addresses of any witnesses to the incident. See letter from Michael Butler, Esquire to Louis M. Kodumal, Esquire dated December 10, 2003 and enclosed Interrogatories and Request for Production of Documents, attached hereto collectively as Exhibit F. When Plaintiff finally responded to Defendant's Interrogatories two months later, on February 16, 2004, the responses -4- 2315025v1 were incomplete, and Plaintiff failed to respond to Defendant's Request for Production of Documents altogether. As an example, while Plaintiff provided the names of two (2) witnesses to the incident - Jim Davidson and Andy Cameron - he ignored the instruction to provide a last known address for the witnesses. See Plaintiff's response to Defendant's Interrogatories Nos. 1, 3(d), 7(a), 8(a), 9(a) (attached hereto as Exhibit G). Additionally, Plaintiff completely failed to answer Interrogatory Nos. 4(a), 8(c), 8(d), 9(c), 10, 11, 12, 13, 15, 16, 21, 22, and 23. See id. Defense counsel notified Plaintiff's counsel of these deficiencies by letter dated March 22, 2004 and asked that complete responses be provided. See Letter from Karen lbach, Esquire to Louis M. Kodumal, Esquire dated March 22, 2004 (attached hereto collectively as Exhibit H). By letter dated April 19, 2004, Mr. Stivale, as counsel for Plaintiff, declined to provide the information requested. See letter from Lee Stivale, Esquire to Karen Ibach, Esquire dated April 19, 2004 (attached hereto as Exhibit 1). 2. Plaintiffs Dilatory Conduct 2005-2006 Plaintiff took no action for the next two (2) years, other than to ignore Defendant's attempts to schedule Plaintiff's deposition. Specifically, defense counsel attempted to obtain Plaintiff's deposition from November 2004 through 2005, but Plaintiff's counsel refused to provide dates for Plaintiffs deposition and canceled the deposition that defense counsel was forced to schedule unilaterally. See letters from Sheryl Brown, Esquire to Lee Stivale, Esquire dated November 9, 2004, April 27, 2005, June 8, 2005, and June 24, 2005 (attached hereto collectively as Exhibit J). a To date, Plaintiff has never responded to Defendant's Request for Production of Documents. -5- 2315025x1 In May 2006, after two (2) years of complete inactivity on Plaintiffs part, rather than seek a dismissal at that time, defense counsel once again sought Plaintiff's cooperation in discovery in an effort to move this case to conclusion. See letters from Janelle E. Fulton, Esquire to Lee Stivale, Esquire dated May 16, 2006 and June 2, 2006 (attached hereto collectively as Exhibit K). Finally, Plaintiff complied with Defendant's Notice of Deposition and appeared for deposition on June 22, 2006. During his deposition, Plaintiff identified documents, photographs, and video footage that was in his possession but had not been produced in response to Defendant's Request for Production of Documents. See dep. tr. Beam at pp. 47-48, 94 (Exhibit E); letter from Janelle E. Fulton, Esquire to Lee Stivale, Esquire dated June 23, 2006 (attached hereto as Exhibit L). Plaintiff also stated on June 22, 2006 that he was in possession of contact information for the individuals he had identified as witnesses to the incident, but he thought the information was out of date. See id. Despite the fact that all of these documents, materials, and information had been formally requested in 2003, defense counsel once again provided a formal, specific request for this information, along with a request that Plaintiff produce his witnesses for deposition. See id. In keeping with his history of dilatory conduct and his continued refusal to participate in discovery, Plaintiff once again failed to produce the information requested. See letter from Janelle E. Fulton, Esquire to Lee Stivale, Esquire dated August 17, 2006 (attached hereto as Exhibit M). To date, Plaintiff has not produced this requested information. In fact, at the time of his deposition two (2) years ago, Plaintiff testified he did not have current contact information for the three adults witnesses he identified - Andy Cameron, Jason ' Plaintiff testified that two of his sons were also witnesses to the incident, but they were ages seven (7) and five (5) at the time of the incident, and given that six (6) years - another lifetime for these young boys - has passed since the incident, the value of their testimony is highly suspect. See dep. tr. Beam at pp. 22-23 (Exhibit E). -6- 2315025x1 Lenox, and Jim Davidson - and as such, they are unavailable. Specifically, regarding Jim Davidson, Plaintiff testified: Q: So Jim Davidson was the contractor? A: He was the glass guy. Q: And do you know the company he worked for at the time? A: It's a glass company, a window company. Q: A window company? A: (Witness nods head affirmatively.) Q: Local to Shippensburg or - A: Yeah, I think they're around there local. I mean, he's local there. Q: Do you know if he still works there? A: I'm not sure. Q: When was the last time you spoke with him? A: Maybe - about a year ago maybe, within a year ago. Q: Do you know how to get in touch with him? Do you have an address or telephone number for him? A: I had a telephone number. I'm not sure if I - I think I still have it, but I'm not sure. Q: I'm going to ask you to look for it and if you can find it, give it to your lawyer and I'm going to ask your lawyer to give me that telephone number - A: Okay. Dep, tr. Beam at pp. 20-21 (Exhibit E). Based on Plaintiff s testimony, he spoke to Jim -7- 2315025v1 Davidson three (3) years ago, but as of June 2006 - two (2) years ago - Plaintiff did not know if he could locate Mr. Davidson. In fact, despite defense counsel's formal written requests for Mr. Davidson's contact information dating back five (5) years to December 2003, to date Plaintiff has failed to provide contact information for Mr. Davidson or to produce him for deposition. See Exhibits F, G, H, I, K, L, and M. Plaintiff was even less certain of his ability to contact the two college student witnesses - Andy Cameron and Jason Lenox - even two (2) years ago. Specifically, regarding Andy Cameron, Plaintiff testified: Q: Have you seen Andy Cameron since June 13, 2002? A: I've seen him since then. Q: When was the last time you saw him? A: Probably - I don't remember. I mean, it was - I saw him after that, but I don't remember when it was after that. Q: Do you know if it was in the last year? A: No, it wasn't. Q: Do you know if he's still local to the area? A: I'm not aware. I don't know that. Q: Do you have any contact information for him, a telephone number or address? A: I have a - I may have an old telephone number, but if it's still good, again - I'm not sure if I - I haven't had contact with him for a while, so I don't know if I even still got his number. -8- 2315025v1 Q: Okay. Same thing as Mr. Davidson, if you can find the number, give it to your lawyer and then I'd ask him to give it to me. A: (Witness nods head affirmatively.) Dep, tr. Beam at p. 23 (Exhibit E). Once again, despite defense counsel's formal written requests for Mr. Cameron's contact information dating back to December 2003, to date Plaintiff has failed to provide contact information for Mr. Cameron or to produce him for deposition, and thus he is unavailable. See Exhibits F, G, H, I, K, L, and M. Plaintiff is likewise unable to provide contact information for witness Jason Lenox, whom Plaintiff identified --for the first time during his deposition in June 2006 -- simply as an alumnus of Shippensburg University: Q: Do you know if he's still local to the - A: No, I don't. I haven't talked to him probably in - I may have talked to him a time or two after that.... Q: And you don't know if he's still in the area? A: I don't know. Q: Do you know what year he graduated from Shippensburg? A: I don't even know that. Dep. tr. Beam at pp. 40, 43 (Exhibit E). Had Plaintiff responded to Cpl. Shubert's request for Mr. Lenox's contact information in 2003 - the year after the incident - Cpl. Shubert might have been able to locate Mr. Lenox. However, by June 2006 - two (2) years ago - Plaintiff had no idea how to locate Mr. Lenox, and thus he is likewise unavailable. See id. -9- 2315025x1 3. Plaintiffs Dilatory Conduct 2007-2008 Finally, contrary to Plaintiff's counsel's misrepresentations to the Court that they have "recently contacted Defendant's counsel to inquire about any outdated discovery in an effort to move this case ready for trial" (Pl's. Br. at p. 2), defense counsel has not communicated with Plaintiff's counsel in nearly a year - since July 2007. See Declaration of Janelle E. Fulton (Exhibit B). To date, Plaintiff has not provided the requested information, nor has he responded to Defendant's Request for Production of Documents, nor has Plaintiff's counsel made any indication that Plaintiff will be providing this long-overdue information. Incredibly, Plaintiff has not only inexplicably failed to prosecute this case, but also to cooperate with Cpl. Shubert's efforts to move the case along. To make matters worse, after five and a half (5%2) years of inactivity, and having taken no discovery whatsoever and failing to respond to Defendant's repeated requests for witnesses and adequate discovery responses, Plaintiff has unilaterally and without consulting defense counsel declared the case is ready for trial, going so far as to file a Praecipe for Listing Case for Trial. As with the recent Withdrawal of Appearance of Attorney Kodumal, who remains with the Mancini firm, this appears to be a gratuitous - and misguided - effort to create "docket activity" to defeat the present Non-Pros Motion. For the foregoing reasons, this case is not trial-ready and should instead be dismissed for Plaintiff's failure to prosecute. C. Corporal Shubert Has Been Preiudiced By Plaintiffs Inexplicable Delay To demonstrate prejudice, Cpl. Shubert need only show that he has lost his ability to prepare an adequate defense, which can be established by the absence of a material witness as well as the loss of memories. Jacobs, 710 A.2d at 1103; James Brothers Co., 247 A.2d at 589. In addition to the reasons set forth in Section I(B), above, Cpl. Shubert has clearly been actually -10- 2315025x1 prejudiced by the inexcusable delay in the prosecution of this case. Not only can Plaintiff admittedly not locate his own witnesses, but, in the six (6) years since this very minor encounter with Plaintiff occurred, Cpl. Shubert and the other officers who were present have handled thousands of calls, and memories have undoubtedly faded. As such, Cpl. Shubert has suffered a "substantial diminution of [his] ability to properly present [his] case at trial," and he has therefore suffered actual prejudice. Jacobs, 710 A.2d at 1103. II. CONCLUSION For the foregoing reasons, and for the reasons stated in his Motion for Judgment of Non Pros and supporting Brief, Defendant Cpl. Jeffrey Shubert requests that this Court enter a judgment of non pros in his favor and dismiss Plaintiff's claims in their entirety with prejudice. Respectfully submitted, Date: id J. MacMain (PA ID No. 59320) Janelle E. Fulton (PA ID No. 80027) Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Jeffrey Shubert -11- 2315025x1 CERTIFICATE OF SERVICE I, Janelle E. Fulton, do hereby certify that, on this a4Pi u day of June 2008, a true and correct copy of the foregoing Defendant's Reply to Plaintiff's Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted was served upon the following by United States first class mail, postage prepaid,. Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 C;I*e E. Fulton 2315025v1 ?x? bL, + ? PYS511 Cumberland County Prothonotary's Office Civil Case Print 2002-05940 BEAM TROY A (vs) SHIPPENSBURG TOWNSHIP OF Reference No..: Case Type ..... . WRIT OF SUMMONS Judgment..... .00 Judge Assigned: Disposed Desc.: ------------ Case Comments ------------- Page 1 Filed......... 12/13/2002 Time.........: 2.38 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: General Index Attorney Info BEAM TROY A PLAINTIFF STIVALE LEE A 401 SHIPPENSBURG ROAD KODUMAL LOUIS M SHIPPENSBURG PA 17257 SHIPPENSBURG TOWNSHIP OF DEFENDANT LAVERY FRANK J JR 81 WALNUT BOTTOM ROAD P 0 BOX 219 SHIPPENSBURG PA 17257 OLDT STEVEN C DEFENDANT LAVERY FRANK J JR 206 CHESTNUT DRIVE SHIPPENSBURG PA 17257 BARD JOHN E DEFENDANT LAVERY FRANK J JR 5 BARD ROAD SHIPPENSBURG PA 17257 ASPER GALEN S DEFENDANT LAVERY FRANK J JR 399 BALTIMOE ROAD SHIPPENSBURG PA 17257 SHIPPENSBURG BOROUGH OF DEFENDANT MACMAIN DAVID J 111 N FAYETTE STREET FULTON JANELLE E SHIPPENSBURG PA 17257 SHUBERT JEFFREY DEFENDANT MACMAIN DAVID J 60 W BURD STREET BROWN S HERYL L SHIPPENSBURG PA 17257 * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 12/13/2002 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- 12/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: SHIPPENSBURG TOWNSHIP OF- Address..: 81 WALNUT BOTTOM ROAD Ctyy/St/Z • SHIPPENSBURG, PA 17257 Hnd To: OHN E BARD TOWNSHIP SUPERVISOR Shf/D ty.: RONALD HOOVER Date/ Time: 12/18/2002 1504:00 Costs....: $42.49 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ------------------------------------------------------------------- 2/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: OLDT STEVEN C Address..: 81 WALNUT BOTTOM ROAD Ct /St/Z • SHIPPENSBURG, PA 17257 Hn To: ?OHN E BARD TOWNSHIP SUPERVISOR Shf/D ty.: RONALD HOOVER Date/ Time: 12/18/2002 1504:00 Costs....: $16.00 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ------------------------------------------------------------------- ?/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: BARD JOHN E Address..: 81 WALNUT BOTTOM ROAD Cty/St/Z • SHIPPENSBURG, PA 17257 Hnd To: ?OHN E BARD Shf/Dpty.: RONALD HOOVER PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2002-05940 BEAM TROY A (vs) SHIPPENSBURG TOWNSHIP OF Reference No... Filed......... 12/13/2002 Case Type ..... : WRIT OF SUMMONS Time. .......: 2.38 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Date/Time: 12/18/2002 1504:00 Higher Crt 2.: Costs....: $16.00 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 -------------------------------------------------------------------- 12/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: ASPER GALEN S Address..: 81 WALNUT BOTTOM ROAD Ctyy/St/Z : SHIPPENSBURG, PA 17257 Hna To: OHN E BARD TOWNSHIP SUPERVISOR Shf/D ty.: RONALD HOOVER Date/ Time: 12/18/2002 1504:00 Costs....: $16.00 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ------------------------------------------------------------------- 12/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: SHIPPENSBURG BOROUGH OF Address..: 111 N FAYETTE STREET Ctyy/St/Z • SHIPPENSBURG, PA 17257 Hnd To: BILL WOLFE, BOROUGH MANAGER Shf/D ty.: RONALD HOOVER Date/Time: 12/18/2002 1351:00 Costs....: $30.49 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ------------------------------------------------------------------- 12/19/2002 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: SHUBERT JEFFREY Address..: SHIPPENSBURG POLICE DEPARTMENT 60 W BURD STREET Ctyy/St/Z • SHIPPENSBURG, PA 17257 Hnd To: COTT WOLFE, POLICE OFFICER Shf/D ty.: RONALD HOOVER Date/ Time: 12/18/2002 1338:00 Costs....: $16.00 Pd By: VINCENT MANCINI & ASSOC 12/19/2002 ------------------------------------------------------------------- 12/31/2002 PRAECIPE FOR RULE TO FILE COMPLAINT BY RON TURO ESQ ------------------------------------------------------------------- 12/31/2002 RULE TO FILE COMPLAINT - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- 2/11/2003 COMPLAINT - BY LEE A STIVALE ESQ FOR PLFF ------------------------------------------------------------------- 2/25/2003 PRAECIPE TO ENTER APPEARANCE FOR DEFTS TWP OF SHIPPENSBURG STEVEN C OLDT JOHN E BARD AND GALEN S ASPER - BY FRANK J LAVERY JR ESQ FOR DEFTS ------------------------------------------------------------------- 3/07/2003 PRELIMINARY OBJECTIONS OF DEFT TOWNSHIP OF SHIPPENSBURG STEVEN C OLDT JOHN E BARD AND GALEN S ASPER TO COMPLAINT - BY FRANK J LAVERY JR ESQ FOR DEFT ------------------------------------------------------------------- 3/12/2003 ENTRY OF APPEARANCE FOR DEFTS - BY MICHAEL J BUTLER ESQ ------------------------------------------------------------------- 3/12/2003 DEFENDANTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT'S PRELIMINARY OBJECTIONS TO PLFFS' COMPLAINT - BY MICHAEL J BUTLER ESQ FOR DEFTS ------------------------------------------------------------------- 3/14/2003 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANT BOROUGH OF SHIPPENSBURG AND JEFFREY SHUBERT'S PRELIMINARY OBJECTIONS - BY MICHAEL J BUTLER ESQ ------------------------------------------------------------------- 3/18/2003 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRELIMINARY OBJECTIONS - BY CHERLY KOVALY ESQ ------------------------------------------------------------------- /02/2003 PLAINTIFF TROY A BEAM'S RESPONSE TO PRELIMINARY OBJECTIONS FILED BY DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT TO PLFF COMPLAINT - BY LEE A STIVAL ESQ FOR PLFF ------------------------------------------------------------------- /02/2003 PLAINTIFF'S TROY A BEAM'S RESPONSE TO PRELIMINARY OBJECTIONS FILED BY DEFTS TOWNSHIP OF SHIPPENSBURG STEVEN C OLDT JOHN E BARD AND GALEN S SAPER TO PLFFS COMPLAINT - BY LEE A STIVAL ESQ FOR PLFF ------------------------------------------------------------------- 2 PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2002-05940 BEAM TROY A (vs) SHIPPENSBURG TOWNSHIP OF Reference No... Filed......... 12/13/2002 Case Type ..... : WRIT OF SUMMONS Time...... ..: 2:38 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Hi her Crt 2.: 5/15/2003 ENTRY OF APPEARANCE FOR TROY BEAM - BY LOUI M KODUMAL ESQ ------------------------------------------------------------------- 11/24/2003 OPINION AND ORDER OF COURT - DATED 11/24/03 - IN RE DEFTS' PRELIMINARY OBJECTIONS - THE DEMURRER OF THE VARIOUS DEFTS TO COUNTS II THROUGH VI OF COMPLAINT ARE SUSTAINED AND THOSE COUNTS ARE DISMISSED - THE DEMURRER OF DEFT SHUBERT TO COUNT I IS DENIED - BY THE COURT EDWARD E GUIDO J COPIES MAILED 11/24/03 -------------------------------------------------------------------- 12/10/2003 DEFENDANT OFFICER JEFFREY SHUBERT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT ------------------------------------------------------------------- 2/10/2004 WITHDRAWAL OF APPEARANCE FOR DEFT - BY MICHAEL J BUTLER ESQ ------------------------------------------------------------------- 11/15/2004 ENTRY OF APPEARANCE AS ADDITIONAL COUNSEL ON BEHALF OF DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT DAVID J MACMAIN REMAINS AS COUNSEL FOR DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT SHERYL L BROWN ESQ ------------------------------------------------------------------- 11/15/2004 WITHDRAWAL OF APPEARANCE - WITHDRAW THE APPEARANCE OF KAREN M IBACH ONLY AS COUNSEL ON BEHALF OF DEFTS BOROUGH OF SHIPPENSBURG AND OFFICER JEFFREY SHUBERT ------------------------------------------------------------------- 4/03/2006 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY DAVID J MACMAIN ATTY ------------------------------------------------------------------- 5/18/2006 PRAECIPE TO ENTER APPEARANCE - BY JANELLE E FULTON ATTY - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 3 * Escrow Information * Fees & Debits Bw*Bal***Pmts/Ad End Bal *********************************** ****** ******************************* WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 - - 10.00 --------- --- .00 --------- ------------ - 55.50 55.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET ATTORNEYS FOR DEFENDANT PHILADELPHIA, PA 19109 JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM, Plaintiff V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants. DECLARATION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO. 02-5940 I, Janelle E. Fulton, hereby declare under penalty of perjury, to the following: 1. I am Of Counsel with the law firm of Montgomery, McCracken, Walker & Rhoads, LLP ("MMW V ), 123 South Broad Street, Avenue of the Arts, Philadelphia, PA 19109. 2. MMWR has represented Shippensburg Police Officer Jeffery Shubert since March 2003. 3. I have reviewed MMWR's entire file on this matter, and I have located no correspondence or pleadings from Roy T. Stegna. 4. At no time did Roy T. Stegna ever contact me or any other employee of my firm regarding Mr. Beam or the matter captioned above. 5. I and other members of my firm have corresponded and verbally communicated with Lee Stivale, Esquire, Louis Kodumal, Esquire, and Brian LeGrow, Esquire, all of Mancini & Associates, and each of them represented that they are counsel for Troy Beam in this action. 6. Prior to receiving a copy of Plaintiff's Memorandum of Law in Response to Order to Show Cause, the last contact I had with Plaintiff's counsel was one year ago, in July 2007, when I spoke with Mr. LeGrow, Esquire 7. At that time, in July 2007, I directed Mr. LeGrow to my correspondence to Mr. Stivale dated June 2, 2006, June 23, 2006, and August 17, 2006, and he assured me that he would provide the discovery responses and materials that we have been seeking since 2004. 8. I have not heard from Mr. LeGrow or Mr. Stivale since July 2007, other than to receive carbon copies of the recent filings with the Court in response to the present motion. 9. Contrary to Plaintiff's misrepresentation to this Court, Plaintiff's counsel has not "recently contacted" me or any other MMWR employee "to inquire about any outdated discovery in an effort to move this case ready for trial." See Pls. Br. at p. 2. 10. To date, Plaintiff has not provided full and complete answers to Officer Shubert's Interrogatories and Request for Production of Documents, as set forth in my letters to Lee Stivale, Esquire dated May 16, 2006, June 2, 2006, June 23, 2006, and August 17, 2006. See Exhibits K, L and M to Defendant's Reply to Plaintiff's Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted. I hereby declare, under the penalty of perjury and pursuant to 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, that the foregoing is true and correct. Dated: 610411o C;?Klle E. Fulton -2- LAW OFFICES OF VINCENT B. MANCINI & ASSOCIATES Lee A. Stivale, Esquire Atty. I.D. # 46511 Brian C. LeGrow, Esquire Atty. I.D. # 93977 414 East Baltimore Pike Media, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, No. 02-5940 Plaintiff V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants WITHDRAWAL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Plaintiff Troy Beam. VINCENT B. MANCINI & ASSOCIATES Date: By: LOUIS M. KODUMAL, ESQUIRE ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as additional counsel on behalf of the Plaintiff Troy Beam in the above matter. VINCENT B. MANCINI & ASSOCIATES Date: foe By: BRLA C. Le , ESQUIRE /`' 01 LAW OFFICES VINCENT B. MANCINI & ASSOCIATES ATTORNEYS AND COUNSELORS AT LAW 414 EAST BALTIMORE PIKE MEDIA, PENNSYLVANIA 19063 VINCENT B. MANCINI LOUIS M. KODUMAL* ROY T. J. STEGENA LEE A. STIVALE + ALEXANDER F. BARTH *ALSO MEMBER OF NJ BAR +LLM TAXATION February 10, 2004 Karen M. Ibach, Esquire Montgomery, McCracken, Walker & Rhoads, LLP 123 S. Broad Street Philadelphia, PA 19109 RE: TROY A. BEAM V. OFFICER SHUBERT DOCKET No. 02-5940 Dear Ms. Ibach: TELEPHONE (610) 566-8064 FAX (610) 566-8265 I am in receipt of your letter dated February 9, 2004 in connection with the above referenced matter. I have consulted with my co-counsel Lee A. Stivale, Esquire regarding the contents of your letter. Neither Lee nor I received the Request for Admissions referenced in your letter of February 9, 2004. We are awaiting receipt of signed answers to interrogatories from Mr. Beam, together with copies of photographs taken by Mr. Beam during the incident in question. We expect to submit these materials in response to Officer Shubert's Interrogatories and Request for Production of Documents on or before February 16, 2004. I remain, Very truly yo/u.^/r,/(Jr/.s, .)//¦J/ K e'II LOUIS M. KODUMAL LMK/mlm Cc: Lee A. Stivale, Esq. r , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, PLAINTIFF VS NO. 02-5940 TOWNSHIP OF SHIPPENSBURG, STEVEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG AND JEFFREY SHUBERT, DEFENDANTS DEPOSITION OF: TROY A. BEAM TAKEN BY: DEFENDANTS BEFORE: TERESA K. BEAR, REPORTER NOTARY PUBLIC DATE: JUNE 22, 2006, 9:58 A.M. PLACE: CARLISLE BOROUGH HALL 53 WEST SOUTH STREET CARLISLE, PENNSYLVANIA APPEARANCES: LAW OFFICE OF VINCENT B. MANCINI BY: LEE A. STIVALE, ESQUIRE FOR - PLAINTIFF MONTGOMERY, McCRACKEN, WALKER & RHOADS BY: JANELLE E. FULTON, ESQUIRE FOR - DEFENDANTS GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 sons, my oldest sons, TJ and Trent, and there was a tenant there -- two tenants. I don't remember which one the one was. And Andy Cameron I think was the other one that was there that day. Q So Jim Davidson was the contractor? A He was the glass guy. He did the windows. Q The window guy? A Right, yeah. Q Did you know him before this day? A Yes. Q And do you know the company he worked for at the time? A It's a glass company, a window company. Q A window company? A (Witness nods head affirmatively.) Q Local to Shippensburg or -- A Yeah, I think they're around there local. I mean, he's local there. Q Do you know if he still works there? A I'm not sure. Q When was the last time you spoke with him? A Maybe -- about a year ago maybe, within a year ago. Q Do you know how to get in touch with him? Do you have an address or telephone number for him? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 A I had a telephone number. I'm not sure if I -- I think I still have it, but I'm not sure. Q I'm going to ask you to look for it and if you can find it, give it to your lawyer and I'm going to ask your lawyer to give me that telephone number -- A Okay. Q -- if you can find it. And you said Andy Cameron was a tenant? A Yeah, he was a -- I think he was a prior tenant but was still there moving stuff out, I believe. Q Do you remember what unit he lived in? A No. Q How many units are in that building? A It's a rooming type -- MR. STIVALE: You have to -- I think your phraseology of units would be incorrect. MS. FULTON: Okay. BY MS. FULTON: Q Let me try to get my terminology right. Building 4-2 in Sunbeam Court, how many apartments or housing units are in that building? A It's -- MR. STIVALE: It's one house, eight rooms. A -- one house that's rented to a whole group of people, like a fraternity group or a sorority group. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 BY MS. FULTON: Q Are there separate apartments -- MR. STIVALE: No. BY MS. FULTON: Q -- within that one building? A No. I mean, we don't rent it out as separate apartments. They have separate -- there's separate rooming units like -- rooming units, I guess, in there that they rent, you know, when it's rented. To my knowledge they just rent the building. Q Do you still work at Rocky Knob? A Occasionally, not as -- not too much. Q How steadily did you work at Rocky Knob back in this time period, 2002? A Pretty steadily. Q And you said your sons were there -- A Correct. Q -- Trent and TJ. How old are they now, today? A Eleven and nine. Q And which is 11 and which is nine? A TJ' s 11. Q And Trent would be nine? A Um-hum. Q So at the time he was only about five, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 four years ago? A Yeah, four years ago they were about seven and five. Q 2002? A Have you seen Andy Cameron since June 13th, I've seen him since then. Q When was the last time you saw him? A Probably -- I don't remember. I mean, it was -- I saw him after that, but I don't remember when it was after that. Q Do you know if it was in the last year? A No, it wasn' t. Q Do you know if he's still local to the area? A I'm not aware. I don't know that. Q Do you have any contact information for him, a telephone number or address? A I have a -- I may have an old telephone number, but if it's still good, again -- I'm not sure if I -- I haven't had contact with him for a while so I don't know if I even still got his number. Q Okay. Same thing as Mr. Davidson, if you can find the number, give it to your lawyer and then I'd ask him to give it to me. A (Witness nods head affirmatively.) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 keys? A A half hour at the most. Q And you said to them can I go get the keys and they said now or -- A Now or we're breaking in. And I said -- so I made a phone call to get the keys brought in to us the rest of the keys and in the meantime they started they entered to go into the building and by this time there was a bunch of other people around there. When I say a bunch, maybe a handful, I don't know exactly. I didn't count them, but there were several other people there. Q Do you know who they were? A One of them I know came there. He was an alumni from another building. I got to know him after that then, but Jason Lenox his name was. Q Do you know if he's still local to the -- A No, I don't. I haven't talked to him probably in -- I may have talked to him a time or two after that but -- he was there because it was his camera that I ended up getting. He was there and happened to have a camera with him. And so they proceeded in the building with a big four-foot crowbar and -- I mean, I'm thinking, you know -- I didn't know what to think. And when they went GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't remember. I can't remember if I developed them or he had them -- developed them for me. Q In your answers to interrogatories you said that the film was developed at Kmart. Does that refresh your recollection as to whether or not you developed it or he developed it? A I think it probably does, or else he took them to Kmart, because I got them in a Kmart bag, is how II know they came from Kmart. So I may have taken them there. I'm not sure -- I know when I got the -- I know the pictures that I have is in a Kmart processing -- film processing bag, envelope. Q Do you know if his last name is spelled. with one n or two n's? A One. I believe it's L-e-n-o-x, I think. Q And you don't know if he's still in the area? A I don't know. Q Do you remember what year he graduated from Shippensburg? A I don't even know that. Q I'm going to show you the photographs that have been produced to us and I guess we'll mark them as Beam 1. {Photographs produced and marked as Beam GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 MR. STIVALE: Yes. A I believe I did take some other pictures. I thought there was more in my pack. I don't remember what they were all -- what they all were. BY MS. FULTON: Q In your answers to interrogatories you listed that you took ten photos but I was only given six. A Okay. Q So I'd ask you to go back and if there are any other additional photographs, still photographs -- A Yeah, I think there might be some. I think it was -- I think some of the other ones I had was -- and I'd have to -- I can look. I can look on my originals. It was just more outside stuff of them coming and going and -- I don't know, I can look. Q Okay, I'd like a copy of those as well. And your counsel raised a good point, as opposed to these still photographs, did you take any film or moving picture? A At this particular instance, no. Q Later that day? A Later I did. I don't know if it was later that day or the next day. Q And do you still have that, a copy of that? I assume it's videotape? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 A Yes. Q Did you use a video camera? A Video, yes. Q And was that your personal video camera? A No. No, it wasn't. Q Whose video camera was it? A I can't remember, but I think it might have been this Jason Lenox's, though. I can't remember. I'm not sure, though. Q But you still have the videotape that you took that day? A I think I do. Q I'd like a copy of that as well. So if you could provide that to Mr. Stivale and then he'll make a copy for me. A Can you write that down? MR. STIVALE: I'm going to rely on counsel to put it into a letter. Can we take one moment, please. (Break taken.) BY MS. FULTON: Q I'd like you to just walk me through these photographs to the extent you can. I'm going to show you number -- what I've marked as number 2, which you think you may have taken first. Do you know who the three gentlemen are in that photograph? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 94 day? A Yeah, I mean, both of them saw him -- and they both mentioned about him hitting me, you know, because Andy -- I mean, Andy Cameron was standing right there. He said he gave you a good blow, he said, because he seen me bending over, you know. I mean, he made a comment like that. Q Anything else? A Not that I recall. Q Did you keep any journals or write anything down about this incident to yourself? Not something you may have sent to your lawyer as a letter to your lawyer, but any journals or memorializations of the account? A I think I have written some things down. I didn't look at it lately. I think I wrote a -- I recall doing it. Now, whether I can -- I mean, I think I still got it. I'm pretty sure I still have it, but, yeah, I did write down -- I think I wrote down -- just kind of like summarized what took place. Q I'd like you to find that -- see if you can find it and give it to your lawyer and ask him to provide it to me. MR. STIVALE: If that wasn't a memo to the law firm. MS. FULTON: Correct. GEIGER & LORIA REPORTING SERVICE 7 1-800-222-4577 ?ti ?X r MONTGOMERY, MCCRACKEN, WALKER & FZHOADS, LJIL ATTORNEYS AT LAW MICHAEL J. BUTLER 123 SOUTH BROAD STREET LiBERYYVIEW ADMITTED IN PENNSYLVANIA AVENUE OF THE ARTS 457 HADDONFIELD ROAD. SUITE 600 CHERRY HILL, NJ 08002 PHILADELPHIA, PA 19109 856-488-7700 DIRECT DIAL 215-772-7592 215-772-1500 FAX 856-488.7720 FAX 215-772-7620 mbutler@mmwr.com December 10, 2003 Louis M. Kodumal, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Re: Troy A. Beam v. Officer Jeffrey Shubert C.C.P. Cumberland County- No. 02-5940 Dear Mr. Kodumal: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-S04-7820 ONE WESTLAKES. SUITE 200 BERWYN, PA 19312 610-889-2210 FAX 610-889-2220 I enclose Defendant Officer Jeffrey Shubert's First Set of Interrogatories Directed to Plaintiff Troy A. Beam and Defendant Officer Jeffrey Shubert's First Request for Production of Documents and Things Directed to Plaintiff Troy A. Beam. Please respond pursuant to the Pennsylvania Rules of Civil Procedure. Sincerely, V44?x? Michael J. Butler Enclosures A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PEYRONI - NEW JERSEY RESPONSIBLE PARTNER MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND MICHAEL J. BUTLER IDENTIFICATION NO. 59320 AND 81799 123 S. BROAD STREET ATTORNEYS FOR DEFENDANT PHILADELPHIA, PA 19109 OFFICER JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, CIVIL ACTION STEPHEN C. OLDT, JOHN E. BARD, NO. 02-5940 GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT DEFENDANTS DEFENDANT OFFICER JEFFREY SHUBERT'S INTERROGATORIES DIRECTED TO PLAINTIFF TROY A. BEAM Defendant Officer Jefferey Shubert by and through its undersigned counsel, Montgomery, McCracken, Walker & Rhoads, LLP, hereby requests Plaintiff Troy A. Beam answer the following Interrogatories under oath within thirty (30) days from service hereof, pursuant to Rule 4006 (2) of the Pennsylvania Rules of Civil Procedure. These Interrogatories shall be deemed continuing so as to require supplemental answers if affiant, or anyone on his behalf, obtains further information between the time the answers are served and the time of trial. INSTRUCTIONS AND DEFINITIONS A. This discovery is directed toward the above named Plaintiff, his agents, representatives, employees, attorneys and any other person, and/or businesses, partnership and enterprises in which Plaintiff has a business interest and/or which are subject to Plaintiff's control. B. If you cannot answer any of the following Interrogatories in full after exercising due diligence in attempting to secure the information necessary to do so, answer to the extent possible, providing all information available to you as of the date of your response to these Interrogatories, explain why you cannot answer the remainder and state the nature of the information or knowledge that you cannot furnish. C. The term "person", as used herein, shall be deemed to include, in the plural as well as singular, any natural person, firm, association, partnership, joint venturer, corporation or other entity, unless the context otherwise indicates. D. The word "identify" or "identity" when used herein with reference to a person, means that you are to give the person's full name, all known business addresses, all known residence addresses and all known occupations. E. The term "documents", as used herein, shall mean originals and all copies, unless identical, of all forms of tangible expression, including without limitation, any written, printed, recorded, pictorial, graphic or photographic material, however produced or reproduced, formal or informal, whether for internal or external use, including without limitation, correspondence, letters, memoranda, drafts, corporate minutes, diary or appointment book entries, telephone logs, telegrams, telexes, notes (including stenographic notes), minutes, reports, contracts, agreements, directives, instructions, court papers, graphic representations, lists of persons or things, books, pamphlets, manuscripts, canceled checks, mechanical and electronic sound recordings, charts, tapes, videotapes, microfilm, microfiche, indices, data sheets, data processing cards and tapes, statistical tables, memoranda made of any telephone communications and diagrams, any and all of which are in your possession, custody or control. F. The term "communication", as used herein, shall mean any oral, written or other manner or transmission or transfer of information. G. If you are asked to "identify" a document, as defined in Paragraph E above, for each document, please state: 1. A description of the document with sufficient specificity that would enable you to identify such writing in a request to produce such writing pursuant to the Pennsylvania Rules of Civil Procedure or in a Subpoena Duces Tecum; 2. The date the document was prepared; 3. The identity of each person signing or executing the document; 4. The identity of each person who prepared the document; -2- 5. The date on which such person signed or executed such document; 6. A statement of the contents of the document; 7. The identity of the person who presently has custody of the document, or if that is not known, the identity of the person whom you know or believe last had custody of the document and the relationship (including business, blood or other relationship), if any, of that person to you; The identity of each person who received the document or a copy thereof; and 9. The identity of each person who aided or assisted in the preparation of said document, other than the person (secretary or typist, etc.) who actually prepared the document. H. The term "identify" or "identity" when used with respect to a communication, means that you are requested to state the following information: 1. The identity of each person who made each communication; 2. The identity of each person to whom each communication was made; 3. The identity of each person who was present during each communication or received a copy of each communication; and 4. A complete description of the substance and content of the communication. The information requested immediately above in Paragraphs G and H above need not be supplied if the document or a copy of the communication (or an accurate transcription or recording thereof) accompanies the service of your responses to these Interrogatories. When such document or a copy, transcription or recording of a communication is supplied in response to these Interrogatories, please identify by number each Interrogatory to which the document is responsive. I. Whenever you are asked to state the information, fact or facts upon which you base an allegation, assertion, statement, contention, admission, denial or response, you are requested to set forth, identify and describe each and every fact, act, incident, event, occurrence, omission, recording, transaction and/or communication which you claim or contend supports, rebuts and/or relates in any way to the contention or allegation. You are further requested to "identify" all persons whom you contend have knowledge of any facts which allegedly support, -3- rebut and/or relate in any way to said contention or allegation and you are requested to supply a brief description or summary of the facts within the knowledge of each such person. J. "You" or "Your" refers to the Plaintiff. K. If you claim any form of privilege, whether based on statute or otherwise, as a ground for not answering a request or an Interrogatory or any portion thereof, set forth in complete detail each and every fact and ground upon which the privilege is based, including sufficient facts for the court to make a full determination whether the claim of privilege is valid. L. "And" and "or" mean "and/or" whenever the context reasonably allows such construction. M. The singular shall include the plural, the use of the masculine gender shall include the feminine gender, and vice versa, whenever the context reasonable allows or requires such construction. N. The Interrogatories are deemed continuing so as to require reasonable supplemental answers and responsive documents if you obtain further information between the time your answers and documents are served and the time of trial. Your answers to these Interrogatories must be amended if you make additional or different contentions of fact which are not the same as those set forth in your answers to these interrogatories or if any of your answers to these Interrogatories ceases to be true or complete between the time your answers are served and the time of trial. -4- INTERROGATORIES 1. In paragraph 11 of your Complaint, you aver that on June 13, 2002, a window contractor accompanied you to the Rocky Knob community. Identify the window contractor. 2. In paragraph 18 of your Complaint, you aver that "the Borough of Shippensburg sent approximately three to four patrol cars and four to six police to the Rocky Knob community. Please identify all officers that the Borough sent to Rocky Knob Community, and if you cannot identify the officers, please describe the officer by race, gender, height, weight, hair color, and clothing, etc. 3. In paragraph 20 of your Complaint, you aver that "Trooper Hugh and several Shippensburg Borough police officers broke into rooming unit 3, building 4-2, Sunbeam Court, at the direction of the Shippensburg Township Employees." Please answer the following: Court; rooming unit; (a) Identify the tenant(s) of rooming unit 3, building 4-2, Sunbeam (b) Describe how the officers and Trooper allegedly broke into the (c) State where you were located at the time the officers and Trooper -5- allegedly broke into the room; and (d) Identify all witnesses to this alleged "break in" of rooming unit 3, building 4-2, Sunbeam Court. 4. In paragraph 22 of your Complaint, you aver that you were "standing in public areas [and] operated a hand held camera to memorialize the wrongful actions of the employees of Shippensburg Township and Shippensburg Borough." Please answer the following: referring; 2002; (a) State the "wrongful conduct" you were intending to memorialize; (b) Identify the make and model of the camera to which you are (c) State how many pictures you took at Rocky Knob on June 13, (d) Describe each picture taken on June 13, 2002 at Rocky Knob on June 13, 2002 including who or what the picture depicts and what Plaintiff finds significant about the picture; and (e) Attach to the accompanying Defendant's Request for Production of Documents any and all documents which support this contention. 5. In paragraph 22 of your Complaint, you aver that you took a picture of Defedant Officer Jeffrey Shubert. Please answer the following: (a) State whether or not you developed this picture; -6- (b) State where you and Officer Shubert were located at the time the picture was taken (i.e., staircase, public area, rooming unit, outside building); and (c) Attach this picture(s) to the accompanying Defendant's Request for Production of Documents. 6. In paragraph 23 of your Complaint, you aver that Defendant Officer Jeffrey Shubert "directed [you] not to take his picture." Identify where he was located when he made this statement (i.e. staircase, etc.). 7. In paragraph 27 of your Complaint, you state that Officer Shubert threw you against a wall. Please answer the following: (a) Identify all witness who saw Officer Shubert throw you against a wall; (b) Identify whether the wall to which you are referring is outside or inside the Sunbeam Court; and (c) Identify all injuries you suffered as a result of Officer Shubert allegedly throwing you against a wall. 8. In paragraph 27 of your Complaint, you aver that Officer Shubert punched you in the area of the stomach. Please answer the following: (a) Identify all witness who saw Officer Shubert punch you in the area of the stomach; -7- (b) left hand; (c) (d) allegedly punching you. State whether Officer Shubert allegedly hit you with his right or State the area of the stomach that Officer Shubert allegedly hit; and Identify all injuries you suffered as a result of Officer Shubert 9. In paragraph 28 of your Complaint, you state that Officer Shubert "physically grabbed the camera from Troy Beam's hands" Please answer the following: (a) Identify all witness who saw Officer Shubert allegedly physically grab the camera from your hands; (b) State which hand Officer Shubert allegedly used to grab the camera away from you; and (c) Identify all injuries you suffered as a result of Officer Shubert allegedly grabbing the camera away from you. 10. Identify in detail all injuries which you claim you suffered because of the incident not noted above. -8- 11. If you sought medical care and attention for your alleged injuries, please: (a) Identify each medical institution at which you were examined or treated; (b) State the dates of examination or treatment; (c) Describe the treatment rendered; and (d) State the amount charged. 12. As to each medical practitioner who examined or treated you since the incident, separately as to each such person: (a) State the medical practitioner's name and address; (b) Describe the medical practitioner's practice specialty; (c) State the date(s) on which the medical practitioner examined or treated Plaintiff, -9- (d) Identify the nature of the examination or treatment in detail; (e) State the amount(s) the medical practitioner charged you; and (f) Describe the medical practitioner's findings. 13. Identify all psychiatric, and/or psychological treatment, and/or professional counseling for all of your alleged injuries. Including the following: (a) the nature of the injury, disease or impairment; (b) the name of every practitioner and institution who treated or examined you in connection with the injury, disease, or impairment; and (c) state the dates of treatment or examinations received. 14. Prior to this present incident, had Plaintiff sought and/or received any medical, psychiatric and/or psychological treatment, and/or professional counseling? If so, please identify: -10- (a) the nature of the injury, disease or impairment; (b) the name of every practitioner and institution who treated or examined you in connection with the injury, disease, or impairment; and (c) state the dates or treatment or examinations received. 15. Please identify with specificity any and all damages other than those detailed above which Plaintiff contends were suffered as a result of this incident and attach to the accompanying Defendant's Request for Production of Documents any and all documents which support these damages. 16. Other than the filing of the present lawsuit, did Plaintiff register a complaint with any agency, including but not limited to the Shippensburg Borough, Shippensburg Township, or Pennsylvania State Police, as to the alleged torts committed by Defendant? . If so, state when and to whom such complaints were made and the resolution of the complaint. 17. Have you ever been arrested or charged with a criminal offense including juvenile offenses? . If so, please state: (a) the date of the arrest(s); -11- (b) the charges filed; (c) the charging police department; and (d) resolution of the charges. 18. Prior to June 13, 2002, did you have any dealings with Officer Jeffrey Shubert or any other Shippensburg Borough Police Officer? If so, please identify the following: (a) the date of contact; (b) the nature of contact or type of incident which required the officer's involvement; (c) the names of any other persons involved in this incident; and (d) whether you contend that the officer acted improperly or in any way violated any of your rights or the rights of any other individuals involved in the incident. -12- 19. After June 13, 2002, have you had any dealings with Officer Jeffrey Shubert or any other Shippensburg Borough Police Officer? If so, please identify the following: (a) the date of contact; . (b) the nature of contact or type of incident which required the officers' involvement; (c) the names of any other persons involved in this incident; and (d) whether you contend that the officers acted improperly or in any way violated any of your rights or the rights of any other individuals involved in the incident. 20. Have you or has anyone acting on your behalf obtained from any person or persons any oral or written statement, account, report, memorandum or testimony concerning the incident upon which this action is based? . If so, please identify: (a) the name and present or last known address of each such person; (b) when, where and by whom each such statement, account, report, memorandum or testimony was obtained or made; -13- (c) whether each such statement, account, report, memorandum or testimony was oral or written; and (d) if written, identify the name and present or last known address of the person who has custody or possession of each such statement, account, report or memorandum or any copy thereof. 21. Do you intend to call any persons as expert witnesses at trial? If so, separately as to each such person: (a) Identify the person; (b) Identify the subject matter as to which the person is expected to testify; (c) Identify the substance of the facts and opinions to which the person is expected to testify and a summary of the grounds for each opinion, and attach a copy of the person's report to your answers to these Interrogatories; and (d) Identify in detail the person's educational background, claimed field(s) of expertise, professional experience, publications, membership in professional societies, employment experience and court appearances (including citations). 22. Have you retained or specially employed any person in anticipation of litigation or for trial preparation purposes who you do not expect to call as an expert witness at the time of trial? . If so, identify, s_parately as to each person, their name, profession or occupation and address. -14- 23. Identify each person whom you expect to call as a witness at the trial of this lawsuit (other than expert witnesses) and identify the substance of the testimony you expect the person to give. 1. Dated: I 1 0l0-?. Respectfully submitted, 0?? ?14? 3,A.? David J. Mac "Main Michael J. Butler MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 123 S. Broad Street Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Officer Jeffrey Shubert -15- CERTIFICATE OF SERVICE I, Michael J. Butler, hereby certify that on this 10 y of December, 2003, I served a true and correct copy of the foregoing Defendant Officer Jeffrey Shubert's First Set of Interrogatories Directed to Plaintiff Troy A. Beam by United States first-class mail, postage prepaid, upon the following: Louis M. Kodumal, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Attorney for Plaintiff Michael J. B r MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN AND MICHAEL J. BUTLER IDENTIFICATION NO. 59320 AND 81799 123 S. BROAD STREET PHILADELPHIA, PA 19109 (215) 772-1500 ATTORNEYS FOR DEFENDANT OFFICER JEFFREY SHUBERT TROY A. BEAM PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT CIVIL ACTION NO. 02-5940 DEFENDANTS DEFENDANT OFFICER JEFFREY SHUBERT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS DIRECTED TO PLAINTIFF TROY A. BEAM Defendant Officer Jefferey Shubert by and through its undersigned counsel, Montgomery, McCracken, Walker & Rhoads, LLP, hereby requests Plaintiff produce and permit copying of the following documents and things, in the offices of Montgomery, McCracken, Walker & Rhoads, LLP, within thirty (30) days from receipt hereof, or at such other time and location as may be mutually convenient. INSTRUCTIONS AND DEFINITIONS A. This discovery is directed toward the above-named Plaintiff, his agents, representatives, employees, attorneys and any other person, and/or businesses, partnership and enterprises in which Plaintiff has a business interest and/or which are subject to Plaintiffs control. B. The term "documents", as used herein, shall mean originals and all copies, unless identical, of all forms of tangible expression, including without limitation, any written, printed, recorded, pictorial, graphic or photographic material, however produced or reproduced, formal or informal, whether for internal or external use, including without limitation, correspondence, letters, memoranda, drafts, corporate minutes, diary or appointment book entries, telephone logs, telegrams, telexes, notes (including stenographic notes), minutes, reports, contracts, agreements, directives, instructions, court papers, graphic representations, lists of persons or things, books, pamphlets, manuscripts, cancelled checks, mechanical and electronic sound recordings, charts, tapes, videotapes, microfilm, microfiche, indices, data sheets, data processing cards and tapes, statistical tables, memoranda made of any telephone communications and diagrams, any and all of which are in your possession, custody or control. C. If you claim any form of privilege, whether based on statute or otherwise, as a ground for not answering a request or any portion thereof, set forth in complete detail each and every fact and ground upon which the privilege is based, including sufficient facts for the court to make a full determination whether the claim of privilege is valid. -2- DOCUMENTS REQUESTED 1. Any and all documents, including but not limited to writings, reports, memoranda, statements, records, photographs, mechanical records, charts, correspondence, contracts, notes, calendars, diaries, receipts, pamphlets, brochures, computer disks or other compilation of data and any other documentary material in your possession or the possession of anyone acting on your behalf who is in any way connected with the lawsuit, whether or not prepared in anticipation of litigation, which supports or relates to the allegations set forth in Plaintiff's Complaint (excluding references to mental impressions of counsel or their conclusions, opinions, memoranda, notes or summaries, legal research or legal theories). 2. Permit Defendants to inspect and copy, test or sample, any documents as delineated in Paragraph 1 above or any other tangible things which constitute or contain matters relevant to the subject of this lawsuit (excluding references to the mental impressions of counsel or their conclusions, opinions, memoranda, notes, summaries, legal research or legal theories) and which are in the possession, custody or control of the Plaintiff herein, his agents, servants or employees or any individual, agency or company acting in any capacity on his behalf. 3. Included within the ambit of this request as set forth in Paragraphs 1 and 2, are the following documents and things: (a) any and all statements made by witnesses (including parties) concerning this action and/or its subject matter and all documents referring or relating to any such statements; (b) any and all documents containing the names and home and business addresses of all individuals known or identified as potential witnesses or who you intend to call as witnesses at trial; (c) reports and curriculum vitae of any and all experts who will testify at trial; -3- (d) any and all correspondence, letters, memoranda, notes or other writing prepared by Plaintiff pertaining to the events underlying the incident upon which the present action is based; (e) any and all correspondence, letters, memoranda, notes or other writing received by Plaintiff from any source pertaining to the events underlying the incident upon which the present action is based; (f) any and all medical records, psychological, psychiatric or mental counseling records pertaining to the alleged damages set forth in Plaintiffs Complaint; (g) any and all medical records, psychological, psychiatric or mental counseling records pertaining to treatment prior to the events underlying the incident upon which the present action is based; (h) any and all journals and/or personal notes maintained by Plaintiff which in any way relate, refer, support or refute the allegations set forth in Plaintiff s Complaint; (i) any and all correspondence, letters, memoranda, notes or other writings received by Plaintiff from any source pertaining to the damages Plaintiff allegedly suffered or incurred as a result of this incident; 6) Plaintiff's camera that Corporal Shubert allegedly grabbed from Plaintiff on June 13, 2002; and (k) any and all pictures taken on June 13, 2002 by Plaintiff, Plaintiff's employee identified in paragraph 22 of your Complaint, or Plaintiff s children. This request is deemed to be continuing in that any documents, photographs, videotapes, statements, reports or other tangible things located, discovered or secured subsequent -4- to the date herein for the production of same are to be provided to counsel for Defendants within thirty (30) days of receipt of same. Dated: l? !0 b Respectfully submitted, David J. M Main Michael J. Butler MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 123 S. Broad Street Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Officer Jeffrey Shubert -5- CERTIFICATE OF SERVICE N I, Michael J. Butler, hereby certify that on this 10 day of December, 2003,1 served a true and correct copy of the foregoing Defendant Officer Jeffrey Shubert's First Request for Production of Documents and Things Directed to Plaintiff Troy A. Beam by United States first- class mail, postage prepaid, upon the following: Louis M. Kodumal, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Attorney for Plaintiff Michael J. B ler ?x?? ?,?- INTERROGATORIES 1. In paragraph I I of your Complaint, you aver that on June 13, 2002, a window contractor accompanied you to the Rocky Knob community. Identify the window contractor. Jim Davidson 2. In paragraph 18 of your Complaint, you aver that "the Borough of Shippensburg sent approximately three to four patrol cars and four to six police to the Rocky Knob community. Please identify all officers that the Borough sent to Rocky Knob Community, and if you cannot identify the officers, please describe the officer by race, gender, height, weight, hair color, and clothing, etc. Fred Scott Chief. 3. In paragraph 20 of your Complaint, you aver that "Trooper Hugh and several Shippensburg Borough police officers broke into rooming unit 3, building 4-2, Sunbeam Court, at the direction of the Shippensburg Township Employees." Please answer the following: (a) Identify the tenant(s) of rooming unit 3, building 4-2, Sunbeam Court; None - Home for j ). New tenants did not move in yet. (b) Describe how the officers and Trooper allegedly broke into the rooming unit; 3' to 4' pry bar. (c) State where you were located at the time the officers and Trooper -5- allegedly broke into the room; and Bottom of stair well. (d) Identify all witnesses to this alleged "break in" of rooming unit 3, building 4-2, Sunbeam Court. Jim Davidson Andy Cameron T.J. Beam, Trent Beam and officers. 4. In paragraph 22 of your Complaint, you aver that you were "standing in public areas [and] operated a hand held camera to memorialize the wrongful actions of the employees of Shippensburg Township and Shippensburg Borough." Please answer the following: (a) State the "wrongful conduct" you were intending to memorialize; (b) Identify the make and model of the camera to which you are referring; 35 mm. (c) State how many pictures you took at Rocky Knob on June 13, 2002; Ten. (d) Describe each picture taken on. June 13, 2002 at Rocky Knob on June 13, 2002 including who or what the picture depicts and what Plaintiff finds significant about the picture; and Pictures of officers; damaged doors. (e) Attach to the accompanying Defendant's Request for Production of Documents any and all documents which support this contention. 5. In paragraph 22 of your Complaint, you aver that you took a picture Of Defendant Officer Jeffrey Shubert, Please answer he following; (a) State whether or not you developed this picture; K-Mart -6- (b) State where you and Officer Shubert were located at the time the picture was taken (i.e., staircase, public area, rooming unit, outside building); and Public entrance at bottom of stair case. (c) Attach this picture(s) to the accompanying Defendant's Request for Production of Documents. 6. In paragraph 23 of your Complaint, you aver that Defendant Officer Jeffrey Shubert "directed [you] not to take his picture." Identify where he was located when he made this statement (i.e. staircase, etc.). Staircase. 7. In paragraph 27 of your Complaint, you state that Officer Shubert threw you against a wall. Please answer the following: (a) Identify all witness who saw Officer Shubert throw you against a wall; Jim Davidson Andy Cameron T.J. Beam, Trent Beam. (b) Identify whether the wall to which you are referring is outside or inside a Sunbeam Court; and Inside. (c) Identify all injuries you suffered as a result of Officer Shubert allegedly throwing you against a wall. 8. In paragraph 27 oh your Complaint, you aver that Officer Shubert punched you in the area of the stomach. Please answer the following: (a) Identify all witness who saw Officer Shubert punch you in the area of the stomach; Andy Cameron, Fred Scott, Chief. -7- (b) State whether Officer Shubert allegedly hit you with his right or left hand; Right (c) State the area of the stomach that Officer Shubert allegedly hit; and (d) Identify all injuries you suffered as a result of Officer Shubert allegedly punching you. 9. In paragraph 28 of your Complaint, you state that Officer Shubert "physically grabbed the camera from Troy Beam's hands" Please answer the following: (a) Identify all witness who saw Officer Shubert allegedly physically grab the camera from your hands; Andy Cameron, T.J. Beam, Trent Beam, Fred Scott, Chief. (b) State which hand Officer Shubert allegedly used to grab the camera away from you; and Left. (c) Identify all injuries you suffered as a result of Officer Shubert allegedly grabbing the camera away from you. 10. Identify in detail all injuries which you claim you suffered because of the incident not noted above. -8- 11. If you sought medical care and attention for your alleged injuries, please: (a) Identify each medical institution at which you were examined or treated; (b) State the dates of examination or treatment; (c) Describe the treatment rendered; and (d) State the amount charged. 12. As to each medical practitioner who examined or treated you since the incident, separately as to each such person: (a) State the medical practitioner's name and address; (b) Describe the medical practitioner's practice specialty; (c) State the date(s) on which the medical practitioner examined or treated Plaintiff; -9- (d) Identify the nature of the examination or treatment in detail; (e) State the amount(s) the medical practitioner charged you; and (f) Describe the medical practitioner's findings. 13. Identify all psychiatric, and/or psychological treatment, and/or professional counseling for all of your alleged injuries, Including the following: (a) the nature of the injury, disease or impairment; (b) the name of every practitioner and institution who treated or examined you in connection with the injury, disease, or impairment; and (c) state the dates of treatment or examinations received. 14. Prior to this present incident, had Plaintiff sought and/or received any medical, psychiatric and/or psychological treatment, anti/or professional counseling? NO. . If so, please identify: (a) the nature of the injury, disease or impairment; (b) the name of every practitioner kind institution who treated or examined you in connection with the injury, disease, or impairment; and (c) state the dates or treatment or examinations received. 15. Please identify with specificity any and all damages other than those detailed above which Plaintiff contends were suffered as a result of this incident and attach to the accompanying Defendant's Request for Production of Documents any and all documents which support these damages, 16. Other than the filing of the present lawsuit, did Plaintiff register a complaint with any agency, including but not limited to the Shippensburg Borough, Shippensburg Township, or Pennsylvania State Police, as to the alleged torts committed by Defendant? . If so, state when and to whom such complaints were made and the resolution of the complaint. 17. Have you ever been arrested or charged with a criminal offense including juvenile offenses? NO . If so, please state: (a) the date of the arrest(s); -11- (b) the charges filed; (c) the charging police department; and (d) resolution of the charges. 18. Prior to June 13, 2002, did you have any dealings with Officer Jeffrey Shubert or any other Shippensburg Borough Police Officer? NO . If so, please identity the following: (a) the date of contact; (b) the nature of contact or type of incident which required the officer's involvement; (c) the names of any other persons involved in this incident; and. (d) whether you contend that the officer acted improperly or in any way violated any of your rights or the rights of any other individuals involved in the incident. -12- 19. After June 13, 2002, have you had any dealings with Officer Jeffrey Shubert or any other Shippensburg Borough Police Officer? NO . If so, please identify the following: officers' involvement; and (a) the date of contact; (b) the nature- of contact or type of incident which required the (c) the name, of any other persons involved in this incident; (d) whether you contend that the officers acted improperly or in any way violated any of your rights or the rights of any other individuals involved in the incident. 20. Have you or has anyone acting on your behalf obtained from any person or persons any oral or written statement, account, report, memorandum or testimony concerning the incident upon which this action is based? NO If so, please identify: (a) the name and present or last known address of each such person; (b) when, where and by whom each such statement, account, report, memorandum or testimony was obtained or made; -13- (c) whether each such statement, account, report, memorandum or testimony was oral or written; and (d) if written, identify the name and present or last known address of the person who has custody or possession of each such statement, account, report or memorandum or any copy thereof. 21. Do you intend to call any persons as expert witnesses at trial? If so, separately as to each such person: (a) Identify the person; (b) Identify the subject matter as to which the person is expected to (c) identify the substance of the facts and opinions to which the person is expected to testify acid a summary of the grounds for each opinion, and attach a copy of the person's report to your answers to these Interrogatories; and (d) Identify in detail the person's educational background, claimed field(s) of expertise, professional experience, publications, we6ibership in professional societies, employment experience and court appearances (including citations). 22. Have you retained or specially employed any person in anticipation of litigation or for trial preparation purposes who you do not expect to call as an expert witness at the time of trial? . If so, identify, separately as to each person, their name, profession or occupation and address. -14- 23. Identify each person whom you expect to call as a witness at the trial of this lawsuit (other than expert witnesses) and identify the substance of the testimony you expect the person to give. Jim Davidson, Andy Cameron. -15- VERIFICATION I, TROY A. BEAM, state that the facts set forth in the foregoing Plaintiff's Response to Defendant Shubert's Interrogatories and First Request for Production of Documents and Things ate true and correct to the best of my knowledge, information and belief. I understand that false statements made therein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to authorities. t TROY A. BEAM Date: Z bb 6, -16- x? ? `? MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP ATTORNEYS AT LAW KAREN M. IBACH 123 SOUTH BROAD STREET LIBERTYVIEW ADMITTED IN PENNSYLVANIA 6 NEW JERSEY AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 08002 PHILADELPHIA, PA 19109 CHERRY 856-HI48LL,8-7NJ700 DIRECT DIAL 215-772-7686 215-772-1500 FAX 856-488-7720 FAX 215-772-7620 kibach@mmwr.com March 22, 2004 Louis M. Kodumal, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Re: Troy A. Beam v. Officer Jeffrey Shubert C.C.P. Cumberland County - No. 02-5940 Dear Mr. Kodumal: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-504-7820 ONE WESTLAKES, SUITE 200 BERWYN, PA 19312 610-889-2210 FAX 610-889-2220 We received Plaintiff Troy Beam's responses to Defendant Officer Jeffrey Shubert's First Set of Interrogatories Directed to Plaintiff and Defendant Officer Jeffrey Shubert's First Request for Production of Documents and Things Directed to Plaintiff. A review of Mr. Beam's responses, however, revealed that many questions were not answered. Specifically, we ask that you provide full and complete responses to the following interrogatories: No. 8(c) and 8(d) No. 9(c) Nos. 10-13 No. 16 Nos. 21-23 In addition, your February 16, 2004 letter indicated that Mr. Beam has advised that the only documents in his possession regarding this litigation are the photographs he produced. However, I ask that you revisit and review Defendant Officer Jeffrey Shubert's First Request for Production of Documents and Things Directed to Plaintiff. 1021000vI MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP Louis M. Kodumal, Esquire March 22, 2004 Page 2 If we don't receive full and complete responses by April 15, 2004, we will be forced to file a motion to compel with the Court. Very truly yours, K en M. Ibach qtX- KMI:lad 1021000vI ?x??b?? - LAW OFFICES VINCENT B. MANCINI & ASSOCIATES ATTORNEYS AND COUNSELORS AT LAW 414 EAST BALTIMORE PIKE MEDIA, PENNSYLVANIA 1"63 VINCENT B. MANCINI LOUIS M. KODUMAL* ROY T. J. STEGENA LEE A. STWALE + ALEXANDER F. BARTH* *ALSO MEMBER OF NJ BAR +LLM TAXATION April 19, 2004 Karen M. Ibach, Esquire Montgomery, McCracken, Walker & Rhoads, LLP 123 S. Broad Street Philadelphia, PA 19109 RE: BEAM V. TOWNSHIP OF SHIPPENSBURG, ET AL. DOCKET N0.02-5940 Dear Ms. Ibach: TELEPHONE (610) 566-8064 FAX (610) 566-8265 Please accept this letter as a supplement to the interrogatory responses of Plaintiff, Troy Beam and assertion that the responses were not full and complete. 8(c) and 8(d) Responses are full and complete. 9(c) Responses are full and complete. 10. Response is full and complete. 11. Plaintiff did not seek medical care and attention. 12.43. No additional response required. 16. Response is full and complete. 21.-22. The Plaintiff has not en 'aged an expert(s) at this time and will seasonably update his responses to interrogatories 21. and 22. 23. The persons identified personally viewed the physical attack by Officer Jeffrey Shubert upon the Plaintiff. They will testify about their first hand witness of the incident. If you demand that these responses be verified, please contact V 'UE A- STIV LAS/mtf Cc: Troy Beam ?, o, f I' m x s a ._: L MONTGOMERY MCCRACKEN WALKER & R O DS LLP ATTORNEYS AT LAW SHERYL L. BROWN 123 SOUTH BROAD STREET LIBERTYVIEW ADMITTED IN PENNSYLVANIA 6 NEW JERSEY AVENUE OF THE ARTS 4S7 HADDONFIELD ROAD, SUITE 600 PHILADELPHIA, PA 19109 CHERRY HILL, NJ 08002 DIRECT DIAL 856-488-7700 2 15-7 7 2-7 6 7 1 2 1 5-7 7 2-1 500 FAX 856-488-7 7 20 FAX 215-772-7620 slbrown@mmwr.com November 9, 2004 Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 1906 Re: Troy A. Beam v. Township of Shippensburg, et al. C. C.P. Cumberland County - No. 02-5940 Dear Mr. Stivale: I am writing to you for several reasons at this time. 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2210 FAX 610-889-2220 First, I am enclosing my Entry of Appearance regarding the above-captioned matter being filed with the Court. Second, I would like to schedule the depositions of Mr. Beam and the witnesses noted in Plaintiff's Response to Interrogatories (who are noted to have viewed the alleged physical attack by Office Shubert). They would include Jim Davidson and Andy Cameron. Please advise whether you or your client have any contact with these individuals, or whether it will be necessary to serve a subpoena for their attendance. I will contact your office in the near future to schedule times for the requested depositions. Thank you for your courtesy and cooperation in this regard. Very truly yours, Sheryf.Brown SLB:fg Encl. 3084336vl A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER 0 0 MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP ATTORNEYS AT LAW SHERYL L. BROWN 123 SOUTH BROAD STREET LIBERTYVIEW ADMITTED IN PENNSYLVANIA is NEW JERSEY AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 PHILADELPHIA, PA 19109 CHERRY HILL, NJ 08002 DIRECT DIAL 856-488-7700 2 15-7 7 2-1500 FAx 856-488-7 7 20 215-772-7671 FAX 215-772-7620 slbrown@mmwr.com April 27, 2005 Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 1906 Re: Troy A. Beam v Township of Shippensburg, et aL C. C.P. Cumberland County - No. 02-5940 Dear Lee: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2210 FAx 610-889-2220 I am writing to confirm our telephone conversation of April 26, 2005 regarding the above-captioned matter. First, as noted, please direct all future communications regarding this matter directly to me as I am handling this on a daily basis. Second, this will confirm my request to schedule the deposition of Troy Beam within the next 30 to 45 days. As discussed, I anticipate that this will be scheduled in or about Shippensburg, Pennsylvania. I look forward to hearing from you in the near future regarding the scheduling of Mr. Beam's deposition. Very truly yours, `%tr Sheryl L. Brown SLB:lms 116125sv1 A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSI8LE PARTNER MONTGOMERY MCCRACKEN WALKER & RHO , , ADS, LLP ATTORNEYS AT LAW SHERYL L. BROWN 123 SOUTH BROAD STREET USERTYVIEW ADMITTED IN PENNSYLVANIA 6 NEW JERSEY AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 PHILADELPHIA, PA 19109 CHERRY HILL, NJ 08002 RECT DIAL 856-488-7700 DI 215-772 DIAL 215-772-1500 FAX 856-488-7720 FAX 215-772-7620 slbrovm@mmwr.com June 8, 2005 Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 1906 Re. Troy A. Beam v. Township of Shippensburg, et al, C C.P. Cumberland County -No. 02-5940 Dear Lee: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAx 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2210 FAx 610-889-2220 I am writing to follow-up regarding the deposition of Mr. Beam regarding the above- captioned matter. As you may recall, we spoke a few weeks back at which time I had indicated I would like to schedule Mr. Beam's deposition. I was waiting to hear for dates of availability regarding Mr. Beam. Having not heard from you since then, I am unilaterally scheduling Mr. Beam's deposition to occur on June 27, 2005 to be held in the offices Salzmann, Hughes & Fishman, P.C., 95 Alexander Spring Road, Suite 3, Carlisle, PA 17013. As such, enclosed please find a Notice of Deposition to that effect. If the date of June 27, 2005 is not convenient for your client please advise and I would be happy to reschedule the same. However, if I do not hear from you, I will assume that Mr. Beam is available for his deposition on that day. Very truly yours, Sheryl L. Brown SLB:fg Encl. cc: Brian Salzmann, Esquire 1176989v1 A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETROMI - NEW JERSEY RESPONSIBLE PARTNER MONTGOMERY MCCRACKEN WALKER & RHOADS LLP ATTORNEYS AT LAW SHERYL L. BROWN 123 SOUTH BROAD STREET LIBERTYVIEW ADMITTED IN PENNSYLVANIA 6 NEW JERSEY AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 PHILADELPHIA, PA I9109 CHERRY HILL, NJ 08002 DIRECT DIAL 856-488-7700 DI 215-772DIAL 215-772-1500 FAx 856-488-7720 FAX 215-772-7620 slbrown@mmwr.com SENT VIA FACSIMILE June 24, 2005 Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 1906 Re. Troy A. Beam v Township of Shippensburg, et al, C. CA Cumberland County - No. 02-5940 Dear Lee: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-SO4-7 800 FAx 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERwYN, PA 19312 610-889-2210 FAx 610-889-2220 This will confirm our recent telephone conversation canceling Mr. Beam's deposition for Monday, June 27, 2005, with the agreement to reschedule the same. In this regard, please advise whether you and Mr. Beam are available on Wednesday, July 13, 2005. I look forward to hearing from you in this regard. Very truly yours, h 1 L. Brown SLB:fg cc: Brian Salzmann, Esquire 1183275v1 A UNITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER ??b?? ? Ex MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP ATTORNEYS AT LAW FULTON JANELLE E 123 SOUTH BROAD STREET UBERTYVIEW . . ADMITTED IN PENNSYLVANIA AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 CHERRY HILL, NJ 08002 PHILADELPHIA, PA 19109 856-488-7700 DIAL DIRECT 215-772-1500 FAX 856-488-7720 215-772-776 685 FAX 215-772-7620 300 DELAWARE AVENUE, SUITE 750 Jfulton@mmwr.com WILMINGTON, DE 19801 302-S04-7800 FAX 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2210 FAx 610-889-2220 May 16, 2006 BY FAX AND REGULAR MAIL Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Re: Troy A. Beam v. Township of Shippensburg, et al. C C.P Cumberland County- No. 02-5940 Dear Mr. Stivale: I will be assisting David MacMain with the defense of the above-referenced matter. To that end, enclosed is a copy of my Entry of Appearance on behalf of Officer Jeffrey Shubert, which is being filed with the Court. Following up on the efforts of Sheryl Brown, I would like to re-schedule the depositions of Mr. Beam and the witnesses Jim Davidson and Andy Cameron, as well as schedule the depositions of witnesses T.J. Beam, and Trent Beam. Please advise whether you are willing and able to produce the non-party witnesses for deposition, or whether it will be necessary to serve a subpoena for their attendance. If you cannot produce them, please provide last known addresses for each of them (this information was requested in Officer Shubert's Interrogatories, but it has not been provided). I am available for the depositions on the following dates in June: 2, 5, 6, 13, 22 and 23. Please let me know which of these dates you and your client (and, if applicable, the witnesses) are available. If I do not hear from you by May 26 regarding available dates for these depositions, I will unilaterally notice the depositions for one of the above dates. I also write to follow up on my colleague, Karen Ibach's correspondence dated March 22, 2004, which delineates several deficiencies in your client's responses to Officer Shubert's Interrogatories. Specifically, the answers to the following Interrogatories are incomplete or, in most cases, missing altogether: Nos. 3(d), 4(a), 7(a), 7(c), 8(a), 8(c), 8(d), 9(a), 9(c), 10, 11, 12, 13, 15, 16, 21, 22, and 23. 2076008vt A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP Lee A. Stivale, Esquire May 16, 2006 Page 2 I also note that Plaintiff has failed to provide formal answers Officer Shubert's Request for Production of Documents, which was served on February 10, 2004. Please provide full and complete answers to the Request for Production of Documents and the deficient Interrogatories within ten (10) days. Thank you, and I look forward to hearing from you in the near future. Sincerely, anelle E. Fulton JEF:bms Enclosure cc: David J. MacMain, Esquire (w/o enclosure) 2076008v1 05/16/2005 16:12 FAX TRANSMISSION OK TX/RX NO RECIPIENT ADDRESS DESTINATION ID ST. TIME TIME USE PAGES SENT RESULT (6001 x** TX REPORT *** 0541 4135154348#040#6105668265# 05/16 16:11 00'53 3 0K MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA 123 South Broad Street Philadelphia, PA 19109-1030 FAX TRANSMISSION RECIPIENT Lee A. Stivale FROM: MMW&R is timnsmitting from: (215) 772-7620 ATTN: COMPANY Law Offices of Vincent B, Mancini Janelle E. Fulton &L s REPLY TO- PHILAPELPHIA OFFICE NM JERSEY OFFICE: CHERRY En L, NJ (Louis A. Petroni, New Jersey Responsible Attorney) PHONE No. (610) 566-8064 NUMBER OF PAGES: Ij (including this cover page) If you do not receive all the pages indicated above, please call us back as soon as possible at (215) 772-7471. May 16, 2006 3:34 PM FAX NO. 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Petropi, Now Jersey Responsible Attorney) PRONE No. FAx No. (610) 566-8064 (610)566-2365 215-772-7685 UMMS OTMWtM MICATO OR OBVIOUS FROM TIM NAT= OP TIIE TMS"nAL. (I) THE RHEA. IF AN ATTORIOV, IS A M04=0F TIffi rbt"YLVAMA BAIL, AND (3) THE W ORMATION CONrAIM 114 THIS FACSIhMS bMSACIR M ATTO M PIZIVIL =b AND CONFMNXnAL Fa'm Lt-"-' MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA 123 South Broad Street Philadelphia, PA 19109-1030 FAX TRANSMISSION MMW&R is transmitting from: (215) 772-7620 ATTN: RECIPIENT Lee A. Stivale COMPANY Law Offices of Vincent B. Mancini May 16, 2006 3:34 PM FROM: REMARKS: Janelle E. Fulton J NUMBER OF PAGES: (including this cover page) If you do not receive all the pages indicated above, please call us back as soon as possible at (215) 772-7471. 215-772-7685 UNLESS OTHERWISE INDICATED OR OBVIOUS FROM THE NATURE OF THE TRANSMITTAL, (I) THE SENDER, IF AN ATTORNEY, IS A MEMBER OF THE PENNSYLVANIA BAR, AND (2) THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DEW VER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR OR ARE NOT SURE WHETHER IT IS PRIVILEGED, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE. PLEASE DESTROY COPIES AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE AT OUR EXPENSE. THANK YOU. REPLY TO: PHILADELPHIA OFFICE NEW JERSEY OFFICE: CHERRY HILL, NJ (Louis A. Petroni, New Jersey Responsible Attorney) PHONE NO. FAX NO. (610) 566-8064 (610) 566-5 01 MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP ATTORNEYS AT LAW JANELLE E. FULTON 123 SOUTH BROAD STREET USERTYVIEW ADMITTED IN PENNSYLVANIA AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 PHILADELPHIA, PA 19109 CHERRY HILL, NJ 08002 DIRECT DIAL 856-488-7700 215-772-7685 215-772-1500 FAX 856-488-7720 Fax 215-772-7620 jfufton@mmwr.com June 2, 2006 BY FAX AND REGULAR MAIL Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Re: Troy A. Beam v. Township ofShippensburg, et al, CC P. Cumberland County -No. 02-5940 Dear Mr. Stivale: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-504-7820 1235 WESTLAKEs DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2210 FAX 610-889-2220 Pursuant to our recent telephone conversation, in which you stated that your client is available for deposition on June 22 in Carlisle, enclosed is a Notice of Deposition. Please note that we will take Mr. Beam's deposition on that date beginning at 10:00 a. m. at Carlisle Borough Hall, 53 West South St., Carlisle, PA 17013. In addition, I have still not received the overdue discovery responses outlined in my May 16 correspondence to you. Please provide full an complete responses to Interrogatories 3(d), 4(a), 7(a), 7(c), 8(a), 8(c), 8(d), 9(a), 9(c), 10, 11, 12, 13, 15, 16, 21, 22, and 23, as well as formal answers Officer Shubert's Request for Production of Documents within ten (10) days, or we will have no alternative but to file a motion to compel with the Court. Sincerely, Janelle E. Fulton JEF:bms Enclosure cc: David J. MacMain, Esquire (w/o enclosure) 2Q8t688vt A LIMITED LIABILITY PARTNERSHIP FORMEO IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER K r MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP ATTORNEYS AT LAW JANELLE E. FULTON 123 SOUTH BROAD STREET LIBERTYVIEW ADMITTED IN PENNSYLVANIA AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 PHILADELPHIA, FA 19109 CHERRY HILL, NJ 08002 856-488-77 DIRECT DIAL 2 15-772-1500 FAX 856-488-7 0702 0 215-772-7685 FAX 215-772-7620 jfuiton@mmwr.com June 23, 2006 BY FAX AND REGULAR MAIL Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Re: Troy A. Beam v. Township of Shippensburg, et al. C. C.P. Cumberland Countv - No. 02-5940 Dear Mr. Stivale: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2210 FAX 610-889-2220 As you requested, this letter will serve as a formal written request for the information, documents, photographs, and video that your client testified are in his possession. Specifically, please produce the following items as soon as possible and, in any event, no longer than thirty (30) days from the date of this letter: 1) Documents: Mr. Beam testified that he has notes, a journal, or a written account of the incident in some format. Such writing is covered by Cpl. Shubert's first set of document requests. 2) Photographs: your client stated that he has more photographs from the incident than the six (6) that were produced to my office. You will recall that Cpl. Shubert's written discovery formally requested all photographs in your client's possession that relate to the incident. 3) Information: Mr. Beam testified that he believes he is in possession of contact information for Jim Davidson and Andy Cameron. In addition, please provide any contact information you or Mr. Beam have for Jason Lenox. This information was requested in Cpl. Shubert's Interrogatories. 4) Video: Mr. Beam testified that he took video footage related to the incident at issue. I believe the video is covered by Cpl. Shubert's request for production of documents. If you do not agree, please let me know immediately. 2088638v1 A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER MONTGOMERY, MCCRACKEN, WALKER & RHOAOS, LLP Lee A. Stivale, Esquire June 23, 2006 Page 2 Finally, I would like to schedule the depositions of the individuals your client identified as witnesses he will call at trial. Specifically, Mr. Davidson and Mr. Cameron were identified in your client's answers to interrogatories, and you told me yesterday that you intend to call at trial at least one, if not both of Mr. Beam's sons who were present during the incident. Please let me know if you will produce these witnesses, or if I need to subpoena them. Please call me if you have any questions. Sincerely, nelle E. Fulton JEF:bms cc: David J. MacMain, Esquire 2088638vl m g)? ?? 6, + m MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP ATTORNEYS AT LAW JANELLE E. FULTON 123 SOUTH BROAD STREET LIBERTYVIEW ADMITTED IN PENNSYLVANIA AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 CHERRY HILL, NJ 08002 PHILADELPHIA, PA 19109 856-488-7700 DIRECT DIAL 215-772-1500 FAX 856-488-7720 215-772-7685 FAX 215-772-7620 DIRECT FAX 2 1 5-7 31-36 12 jfuiton@mmwccom August 17, 2006 BY FAX AND REGULAR MAIL Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Re: Troy A. Beam v. Township of Shippensburg, et al. C C P. Cumberland County -No. 02-5940 Dear Mr. Stivale: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2210 FAX 610-889-2220 220 WEST GAY STREET WEST CHESTER, PA 19380-2934 610-836-3000 FAX 610-431-0635 I write to follow up on my June 23 letter to you in which I formally requested information, documents, photographs, and a video that your client identified at his deposition and testified are in his possession. A copy of the letter is attached hereto for your convenience. Nearly two (2) months have passed and I have not received any response to this letter. Please provide the information and materials requested therein within fourteen (14) days of the date of this letter, or I will have no alternative but to seek an appropriate Order from the Court. Additionally, as requested in the June 23 letter, please let me know whether you will produce the following individuals for deposition: Jim Davidson, Andy Cameron, and whichever of Mr. Beam's sons you plan to call as a witness at trial. Thank you, and I look forward to hearing from you in the near future. Sincerely, (:!Janelle E. Fulton JEF:bms Enclosure cc: David J. MacMain, Esquire (w/enclosure) 2103448vl A UNITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP ATTORNEYS AT LAW JANELLE E. FULTON 123 SOUTH BROAD STREET LIBERTYVIEW ADMITTED IN PENNSYLVANIA AVENUE OF THE ARTS 457 HADDONFIELD ROAD, SUITE 600 CHERRY HILL, NJ 08002 PHILADELPHIA, PA 19109 856-488-7700 DIRECT DIAL 215-772-1500 215-772-7685 FAX 856-488-7720 FAx 215-772-7620 jfulton@mmwr.com June 23, 2006 BY FAX AND REGULAR MAIL Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 Re: Troy A. Beam v. Township of Shippensburg, et al. CC P. Cumberland County -No. 02-5940 Dear Mr. Stivale: 300 DELAWARE AVENUE, SUITE 750 WILMINGTON, DE 19801 302-504-7800 FAX 302-504-7820 1235 WESTLAKES DRIVE, SUITE 200 BERWYN, PA 19312 610-889-2 2 10 FAX 610-889-2220 C(OPY As you requested, this letter will serve as a formal written request for the information, documents, photographs, and video that your client testified are in his possession. Specifically, please produce the following items as soon as possible and, in any event, no longer than thirty (30) days from the date of this letter: 1) Documents: Mr. Beam testified that he has notes, a journal, or a written account of the incident in some format. Such writing is covered by Cpl. Shubert's first set of document requests. 2) Photographs: your client stated that he has more photographs from the incident than the six (6) that were produced to my office. You will recall that Cpl. Shubert's written discovery formally requested all photographs in your client's possession that relate to the incident. 3) Information: Mr. Beam testified that he believes he is in possession of contact information for Jim Davidson and Andy Cameron. In addition, please provide any contact information you or Mr. Beam have for Jason Lenox. This information was requested in Cpl. Shubert's Interrogatories. 4) Video: Mr. Beam testified that he took video footage related to the incident at issue. I believe the video is covered by Cpl. Shubert's request for production of documents. If you do not agree, please let me know immediately. 2088638vl A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP Lee A. Stivale, Esquire June 23, 2006 Page 2 Finally, I would like to schedule the depositions of the individuals your client identified as witnesses he will call at trial. Specifically, Mr. Davidson and Mr. Cameron were identified in your client's answers to interrogatories, and you told me yesterday that you intend to call at trial at least one, if not both of Mr. Beam's sons who were present during the incident. Please let me know if you will produce these witnesses, or if I need to subpoena them. Please call me if you have any questions. JEF:bms cc: David J. MacMain, Esquire Sincerely, Janelle E. Fulton 2088638v1 08/17/2006 10:44 FAX Q001 ?e TX REPORT ?e>ss TRANSMISSION OK TX/RX NO RECIPIENT ADDRESS DESTINATION ID ST. TIME TIME USE PAGES SENT RESULT CO MANY Law Offices of Vincent B. Mancini 2085 916105668265#8481 08/17 10:42 01'35 4 OK MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA 123 South Broad Street Philadelphia, PA 19109-1030 rI FAX TRANSMISSION REPLY To: MMW&R is transmitting from: (215) 772-7620 ATTN: RECIPIENT Lce A. Stivale FROM: August 17, 2006 9:58 AM ,lanelle E. Fulton I -5 U) 1`111I ADELPITIA OFFICE NEW JERSEY OFFICE: CHERRY HILL, NJ (Louis A. Petroni, New Jersey Responsible Attorney) PIIONE NO. (610) 666-8061 /-/ NUMBER OF PAGES: (including this cover page) If you do not receive all the pages indicated above, please call us back as soon as possible at (215) 772-7471. FAx No. (610)666-3ft- g9 &S- 215-772-7685 REMARKS: MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA 123 South Broad Street Philadelphia, PA 19109-1030 FAX TRANSMISSION MMW&R is transmitting from: (215) 772-7620 ATTN: RECIPIENT Lee A. Stivale COMPANY Law Offices of Vincent B. Mancini August 17, 2006 9:58 AM FROM REMARKS: Janelle E. Fulton NUMBER OF PAGES: 4 (Including this cover page) If you do not receive all the pages indicated above, please call us back as soon as possible at (215) 772-7471. 215-772-7685 UNLESS OTHERWISE INDICATED OR OBVIOUS FROM THE NATURE OF THE TRANSMITTAL, (1) THE SENDER, IF AN ATTORNEY, IS A MEMBER OF THE PENNSYLVANIA BAR, AND (2) THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR OR ARE NOT SURE WHETHER IT IS PRIVILEGED, PLEASE A4IEDIATELY NOTIFY US BY TELEPHONE. PLEASE DESTROY COPIES AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE AT OUR EXPENSE. THANK YOU. REPLY TO: PHILADELPHIA OFFICE NEW JERSEY OFFICE: CHERRY HILL, NJ (Louis A. Petroni, New Jersey Responsible Attorney) PHONE No. FAx No. (610) 566-8064 (610) 566-2865 r' ?.. ,AN TROY A. BEAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TOWNSHIP OF NO. 2002 - 5940 CIVIL TERM SHIPPENSBURG, et al ORDER OF COURT AND NOW, this 24TH day of JUNE, 2008, an evidentiary hearing on Defendants' Motion for Non Pros is scheduled for THURSDAY, AUGUST 7, 2008, AT 1.00 p.m., in Courtroom # 3 of the Cumberland County Courthouse, Carlisle, Pa. 17013. ZLee A. Stivale Esquire ? / Janelle E. Fulton, Esquire :sld 0-4c? p fngt , LL (.l2s?o8 Edward E. Guido, J. u:.st c*? N r°.a L. -, I_{::3 c? U TROY A. BEAM, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2002-5940 CIVIL TERM TOWNSHIP OF SHIPPENSBURG, et al, Defendants CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 7th day of August, 2008, the evidentiary hearing scheduled in this matter is continued to Wednesday, September 24, 2008, at 1:00 p.m. By Edward E. Guido, J. X b'r`an C. LeGrow, Esquire Law Offices of Vincent B. Mancini & Associates 414 East Baltimore Pike Media, PA 19063 anelle E. Fulton, Esquire Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Avenue of the Arts Philadelphia, PA 19109 srs _` ?-wSNi N2d S Z :6 WV I I OnV 9Q0Z A? iON'ul UGdd 3HI 30 TROY BEAM, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW TOWNSHIP OF SHIPPENSBURG, STEVEN C. OLDT, JOHN E. BAIRD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG and JEFFREY SHUBERT, Defendants 02-5940 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 19th day of August, 2008, upon consideration of the call of the civil trial list, and no person having called the above-captioned case for trial, it is stricken from the trial list. Lan C. LeGrow, Esquire 414 East Baltimore Pike Media, PA 19063 For Plaintiff ,,/anelle E. Fulton, Esquire 123 S. Broad Street Philadelphia, PA 19109 For Defendants v Court Administrator :mae 1 By the Court, J-Y a ? t, I N V MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET ATTORNEYS FOR DEFENDANT PHILADELPHIA, PA 19109 JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants. CIVIL ACTION NO. 02-5940 DEFENDANT'S MOTION FOR COUNSEL FEES Defendant Cpl. Jeffrey Shubert ("Defendant" or "Cpl. Shubert"), respectfully moves this Court for an award of counsel fees pursuant to 42 Pa. C.S.A. § 2503. Corporal Shubert is entitled to reimbursement of reasonable counsel fees unnecessarily incurred as a result of Plaintiff's dilatory conduct in failing to adequately prepare for a scheduled, and duly noticed, evidentiary hearing. 1. On May 15, 2008, Cpl. Shubert filed a Motion for Judgment of Non Pros because Plaintiff has failed to participate in discovery or otherwise prosecute his claim for over five (5) years. See Defendant's Motion for Judgment of Non Pros. 2. On May 23, 2008, this Court issued a Rule to Show Cause why Defendant's Motion for Judgment of Non Pros should not be granted. See Order dated May 23, 2008. 3. Plaintiff never filed a response to Cpl. Shubert's Motion for Non Pros or to the Court's Order to Show Cause. See Docket. 4. Rather, Plaintiff responded to the Rule to Show Cause by sending to the Honorable Edward E. Guido a 3-page Memorandum, in which Plaintiff claimed that his delay in prosecuting this case for the last six (6) years was due, inter alia, to the fact that his attorney, 2336282v2 Roy Stegna, had relocated to the West Coast of the United States. 5. On June 23, 2008, Cpl. Shubert filed a Reply to Plaintiff's Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted, noting that there is no evidence whatsoever in the record that Roy Stegna ever represented Plaintiff during the six (6) years this case has been pending. See Cpl. Shubert's Reply. 6. As such, by Order dated June 24, 2008, this Court scheduled an evidentiary hearing on Defendant's Motion for Non Pros to be held on August 7, 2008, which Order required Plaintiff to present evidence in support of his Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted. See Order dated June 24, 2008. 7. Despite ample notice of the evidentiary hearing, Plaintiff inexplicably elected to ignore the Court's Order and present no evidence whatsoever in support of Plaintiff's Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted. 8. Counsel for Plaintiff could offer no explanation for Plaintiff's failure to prepare for the hearing. 9. However, rather than allow the Court to rule on Defendant's Motion for Non Pros based upon the record before the Court, Plaintiff's counsel requested that the hearing be continued to a later date to allow Plaintiff to present evidence, which the Court granted. 10. By failing to appear prepared to present evidence at a hearing scheduled to address Plaintiff's failure to prosecute his claim for the last five (5) years, Plaintiff wasted the -2- 2336282v2 time of the Court and defense counsel, and forced Cpl. Shubert to incur counsel fees in the amount of $1,615.00. See Affidavit of Janelle E. Fulton, attached as Exhibit A. 11. Accordingly, pursuant to 42 Pa. C.S.A. § 2503(7), Cpl. Shubert is entitled to reimbursement of reasonable counsel fees incurred as the direct result of Plaintiff s dilatory conduct. WHEREFORE, Defendant Cpl. Jeffrey Shubert respectfully requests that this Court award counsel fees in the amount of $1,615.00. Respectfully submitted, Date: '? D f D id J. MacMain (Pa. ID No. 59320) elle E. Fulton (PA ID No. 80027) Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Jeffrey Shubert -3- 2336282v2 MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET ATTORNEYS FOR DEFENDANT PHILADELPHIA, PA 19109 JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. CIVIL ACTION TOWNSHIP OF SHIPPENSBURG, et al, NO. 02-5940 Defendants. AFFIDAVIT OF JANELLE E. FULTON I, Janelle E. Fulton, being duly sworn according to law, affirm that: 1. I am Of Counsel with the law firm of Montgomery, McCracken, Walker & Rhoads, LLP ("MMWR"), 123 South Broad Street, Avenue of the Arts, Philadelphia, PA 19109. 2. I have been a member of the Pennsylvania Bar since October 1997, and I am also admitted to practice before the United States Court of Appeals for the Third Circuit, and the United States District Courts for the Eastern and Middle Districts of Pennsylvania. 3. The usual and full billing rate at which Montgomery, McCracken typically bills our clients for my time is $330.00 per hour. However, our hourly fees in this action are charged at the reduced rate of $190.00. 4. Based on the foregoing, the hourly rates set forth herein are equivalent to and/or less than the rates of attorneys of comparable skill, experience and reputation in the Philadelphia area. 5. On August 7, 2008, I spent the following amount of time preparing for, traveling to, and attending the evidentiary hearing scheduled by the Court in response to Plaintiff's Memorandum of Law in Response to Order to Show Cause: a. Reviewing file, updating legal research, and preparing for hearing - 3.2 hours; b. Roundtrip travel from Berwyn, PA to Carlisle, PA for hearing - 4.6 hours; C. Attending hearing - 0.7 hours. 6. The attorneys' fees incurred on August 7, 2008 to prepare for, travel to, and attend the hearing totaled $1,615.00. 7. The hours and costs incurred by Montgomery, McCracken, Walker & Rhoads, LLP in the preparation for, travel to, and attendance at the evidentiary hearing on August 7, 2008 are accurate and reflect time and expenditures actually incurred. 8. The facts set forth in Defendant's Motion for Counsel Fees are true and correct to the best of my knowledge and information. J Ile E. 4Fulton SWORN TO AND S?RIBED BEFORE ME THIS DAY AEPTEMBER2008 otary Public -UMMONWEALTH OF PENN:YLVANIA PATRICIA L.?MARRUSDENSEAL , Nofery public City of P110081104 Phi Cm* my m*wm C0" E 19, 12 MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP BY: DAVID J. MacMAIN and JANELLE E. FULTON IDENTIFICATION NOS. 59320 and 80027 123 S. BROAD STREET ATTORNEYS FOR DEFENDANT PHILADELPHIA, PA 19109 JEFFREY SHUBERT (215) 772-1500 TROY A. BEAM, Plaintiff V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO. 02-5940 BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR COUNSEL FEES Defendant Cpl. Jeffrey Shubert ("Defendant" or "Cpl. Shubert"), through his undersigned counsel, hereby submits this Brief in Support of his Motion for Counsel Fees and requests that this Court award reasonable counsel fees in the amount of $1,615.00 incurred as a direct result of Plaintiff's continued dilatory conduct. 1. BACKGROUND/PROCEDURAL HISTORY Plaintiff filed this action on December 13, 2002, claiming that Defendant Shippensburg Police Cpl. Jeffrey Shubert assaulted him during an inspection of an apartment building managed by Plaintiff on June 13, 2002 - six (6) years ago. However, failed to participate in discovery or otherwise prosecute his claim for over five (5) years. As such, on May 15, 2008, Cpl. Shubert filed a Motion for Judgment of Non Pros. See Defendant's Motion for Judgment of Non Pros. On May 23, 2008, this Court issued a Rule to Show Cause why Defendant's Motion for Judgment of Non Pros should not be granted. See Order dated May 23, 2008. Incredibly, Plaintiff never filed a response to Cpl. Shubert's Motion for Non Pros or to the Court's Order to Show Cause. See Docket. Rather, Plaintiff responded to the Rule to Show 2336282v2 Cause by sending to the Honorable Edward E. Guido a 3-page Memorandum, in which Plaintiff claimed that his delay in prosecuting this case for the last six (6) years was due, inter alia, to the fact that his attorney, Roy Stegna, had relocated to the West Coast of the United States. However, there is no evidence whatsoever in the record that Roy Stegna ever represented Plaintiff during the six (6) years this case has been pending. See Cpl. Shubert's Reply to Plaintiff's Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted. As such, by Order dated June 24, 2008, this Court scheduled an evidentiary hearing on Defendant's Motion for Non Pros to be held on August 7, 2008, which Order required Plaintiff to present evidence in support of his Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted. See Order dated June 24, 2008. Despite ample notice of the evidentiary hearing, and despite the fact that defense counsel had prepared for and traveled to Carlisle from Philadelphia to attend the hearing, Plaintiff inexplicably elected to ignore the Court's Order and present no evidence whatsoever in support of Plaintiff s Memorandum of Law in Response to Order to Show Cause Why Defendant's Motion for Judgment of Non Pros Should Not Be Granted. However, rather than allow the Court to rule on Defendant's Motion for Non Pros based upon the record before the Court, Plaintiff's counsel requested that the hearing be continued to a later date to allow Plaintiff to present evidence, which the Court granted. II. ARGUMENT Title 42 Pa.C.S.A. § 2503(7) provides for payment to "[a]ny participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter." 42 Pa. C.S.A.§ 2503 (West 2008). Plaintiff's continued -2- 2336282v2 dilatory conduct, and specifically his failure to comply with the Order of this Court requiring him to appear on August 7, 2008 and present evidence, not only wasted the time of this Court, but forced Cpl. Schubert to incur reasonable counsel fees in the amount of $1,615.00 to prepare for, travel to, and attend the hearing. See Affidavit of Janelle E. Fulton, attached as Exhibit A. As such, Cpl. Shubert is entitled to an award of reasonable counsel fees. III. CONCLUSION For the foregoing reasons, Defendant Cpl. Jeffrey Shubert requests that this Court award counsel fees in the amount of $1,615.00. Respectfully submitted, Date: ello-Y 6 C "?? 9anelle J. MacMain (PA ID No. 59320) Fulton n (PA ID No. 80027) E. Fulto Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 Attorneys for Defendant Jeffrey Shubert -3- 2336282v2 CERTIFICATE OF SERVICE I, Janelle E. Fulton, do hereby certify that, on this k day of September 2008, a true and correct copy of the foregoing Defendant's Motion for Counsel Fees and supporting Brief were served upon the following by United States first class mail, postage prepaid. Lee A. Stivale, Esquire Law Offices of Vincent B. Mancini 414 E. Baltimore Pike Media, PA 19063 J elle "EFultorn 2336282v2 € 1 , '"?} i .«? i ? .if +..i, 1. W rV^'M ??y .. .+' ?'*w...? SFP G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY TROY A. BEAM, Plaintiff V. CIVIL ACTION BOROUGH OF SHIPPENSBURG NO. 02-5940 and JEFFREY SHUBERT, Defendants. ORDER AND NOW, this - day of S 2008, upon consideration of Defendant Jeffrey Shubert's Motion for Counsel Fees and any response thereto, it is hereby I)EjiED. ORDERED that Defendant's Motion is T, rt COURT: Edward E. Guido, J. Lee A. Stivale, Esquire V Janelle E. Fulton, Esquire (201.)I4P..,S ,w.t lic 2336282v2 MVA`M,&Aad 9 9 :9 NV 9 s 43S BUZ AMONG OUd 3H1 X P'; LAW OFFICES OF VINCENT B. MANCINI & ASSOCIATES Lee A. Stivale, Esquire Atty. I.D. # 46511 Brian C. LeGrow, Esquire Atty. I.D. # 93977 414 East Baltimore Pike Media, PA 19063 (610) 566-8064 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TROY A. BEAM, No. 02-5940 Plaintiff V. TOWNSHIP OF SHIPPENSBURG, et al, Defendants PRAECIPE TO WITHDRAW COMPLAINT Kindly withdraw the complaint that was filed with the court in this matter on August 8, 2006. Respectfully submitted: Law Offices of Vincent B. Mancini & Associates BY: - BRIAN L ROW, ESQUIRE Attorney for Plaintiff -r CERTIFICATE OF SERVICE I, BRIAN C. LeGROW, ESQUIRE hereby certify that I served a true and correct of a Praecipe to Withdraw Complaint via regular mail on September 23, 2008. Janelle Fulton, Esquire. Montgomery, McCracken, Walker & Rhoads, LLP 123 South Board Street Avenue of the Arts Philadelphia, PA 19109 Respectfully submitted, Law Offices of Vincent B. Mancini & Associates By: 6. B AN C. L , ESQUIRE - r ?