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COUNT I - LIABILITY AND IlAMAGES EQR IJREACB OF ORAL CONTRACT
Plalntifrs Point for Charge 1#1: Ilreach of Contrnct
In Count I I' the Complaint, the Plaintiff, Gregory Schcnck, ehurges that John.l, Amsley,
Sr, and Catherine I. Amsley, his wife, entered intn an oral contmetto sell the Plaintiffa car wash
business located in rlisle, Pennsylvania and bctween May 31, 1996 and .Iune 6, 1996, Gregory
Schenck delivered a t al down payment of $65,000 to the Amsleys pursuanlto the above oml
agreement. The Plaint T also contends that the Amslcys took Gregory Schcnck' s down payment
pursuant to their oral fig ement and then breached their contract by l~\iling to follow through und
deliver the car wash busi ss to Gregory Schenck but rather sold und delivered the business to
other purchusers while reta ing Gregory Schenck's entire deposit and denying that any deposit
was made, I will nowexpla to you the law relating to breach of an oral contract 1'01' the sale of
real property,
Contracts can be either 0 I 01' written, For there to be a valid contmct, there must be un
offer and an acceptunce, In this c' 'e, the Plaintiff contends that he offcred to purchuse the car
wash Lusiness and the land upon w 'ch the car \vash was located ((H' $200,000, the Defendants
accepted his offer 01'$200,000 and P 'ntiffbegan perl()rmnnce by making a down payment of
$65,000, The Defendant denies thatth e was any acceptance of the Plaintiff's offer 01' that any
deposit was made and received by him, 'hese are questions of fact for you to decide based on
the evidence of the case for you to decide, Was there an offer and acceptance and paymcnt of
$65,000 or not.
When a contract involves the sale of I, d there is a Pennsylvania Statute (called the
Statute of Frauds) which requires that contract 'or the snle of real property and land be in
writing, If you tind that an oral contract came h 0 existence, this does not mean that the Plaintiff
is not entitled to recover some damages for breac of an oral contract involving the sale of land,
Even when the Statute of F1'lludHapplies and the c truct 1'01' salc of land must be in writing, a
Plaintiff who enters into an oral contract that is sub quently breached is entitled to certain
damages to be recovered from the Dcfendants, Acco ingly, if you tind that there was a contract,
that there was a down payment made by Mr, Schenck, hat the oral contract was breached, then
Mr, Schenck can recover damages in the form of the III ney that was paid on account of the
contract, interest, and the expenses incurred on the gooaith belief that the contl'llet would be
performed, In this case, that would amount to the amoun f the deposit that you tind Mr.
Schenck placed on the property plus interest fl'Omthe date I' payment to today, and any direct
expenses he incurred in preparing to take over the property, d to consummate the sale that you
tind based on the evidence,
Accordingly, under Countl of this Complaint, if you tin here was nn oral contract, a
down payment and a breach of that contruet the damages that you ould award the Plaintiff and
COUllt I would be limited to return of his down payment, interest on e money and the expenses
that he incurred on the basis of the oral contract.
Authority rOI'J'olnt: See Pennsylvania Bill' Institute, Civil .Jury Instructions ** 15,03
through 15,26. See also, Restutcl11cnt ufC'ontmcts,2d **19, 24 and 50,
The hcmt of this instruction comcs from the I'ennsylvuniu cuses dculing with thc recovery
of duinuges bused on the breach of an oml contract to sell land 01' u contruct thut docs nut comply
with the Statute of Frauds, Those cuscs muy be cited liS follows: I'olku v, Mm:, 383 I'a, 80, IIIl
A,2d 154, Weir v. Rahon, 279 I'a, Super. 508,421 A,2d 315 (1980), The proposition is also
recited in the following 1110l'e recent cases, Empire Properties IIJ~o..Y....ll_il11llil., 449 I'll, Super,
476,674 A.2d 297 (1996) und Fannin v, Cratty, 331 Pa, Super 326, 480 A,2d 1056 (1984).
,.
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l'lnlntlfrs I'olnt for C
As I have explulne to you above, in order to obtain lost protits und loss of bl\l'guin
dumuges, the Pluintiff mus rove that the omlugreement was obtuined by fraud which renches
buck tuthe originul contl'llct. In other words, thutthe Defendunt had a scheme to defmud thc
Plaintiff by eithcr mising the Ice or keeping the I'laintifl's down pnyment nnd acted on thut
scheme, It willussist you to k w thc detinition of fmud by the Pennsylvaniu COUI'ts,
In the context of this cnse, 'mud muy be defined as follows: Wheu a person mnkes a
fmudulent misrepresentation of II n' terial fact to nnuther person he is responsible for nil injuries
resulting from that other person's re nce on such n lhlUdulent misrepresentation, In order for
the Plnintiff to recover ngainstthe Dc ldant you must tind (I) that the Defendnnt made a
misrepresentation to the Plnintiff, (2) th the misrepresentation made by the Defendant to the
Plaintiff wns untrue in that he did not inte d to sell him the CUI' wash in question lit the negotinted
price 01'$200,000, (3) that the misreprescn tion was a material fact, (4) that the Defendnnt
intended thntthe Plaintiff would rely on the isrepresentation. (5) that the Plaintiff relied 011 the
misrepresentation, and (6) that the Plaintiffs I' iance on the Defendant's misrepresentntion wns a
sub3tnntinl factor in bringing nboutthe harm su 'red by the Plnintiff, I.e., the lose of profits he
would hnve made had he purchased the car wnsh,
A misrepresentation is any assertion by W01' '01' wnduet which is not in uccordall('c with
the facts or the intention of the Defendant,
A misrepresentation is frnudulent when the pel's making the misrepresentation knows
that it is not true,
A fact is material if it is one which would be of impo anee to a reasonable person in
determining n course of netion,
A material fact may not be the sole or even a substantial
influencing a reasonable persons decision,
A fact is also material if the maker of the misrepresentation kl ws that the person to
whom it Is made is likely to be regUl'ded as Important even though a re onable person would not
regard it as importnnt.
I I' you find thnt fraud was involved on the part of the Defendant sell's then the Plaintiff
may nlso recovcr damages for his loss of bargain such as lost profits from tH car wash in
addition to the return of his deposit with interest if you tind that such losses e ist under the
cvidence.
Authority for Point: Pcnnsylvnnia Bar Institute, Pennsylvania Civil Jur Instructions,
*13,14.
l'lllintlfrs )'olnt for Chllrgc #7: Amount of I'unltlvc Dlll1lllgCS
If you decid!, tlmt the I 'Illiff is entitled to un uwurd of punitive damuges, the umount of
such damages must bc fixctVby u, In doing so youmuy consider uny or all ol'the following
factors: (I) the chantcter of the D cndunts' act, (2) the nature and extent of the harm to the
Plaintiff which the Defcndants euu d or intended to cuuse (in this rogurd you may include the
Plaintin's trouble und expense in se ing to prot!,et his interests inlegul proceedings and in this
suit), und (3) the wealth of the Defell! nts insofur as it is relevant infixing an amount which will
punish him, and deter him and others Ii m like conduct in the future. The amount you assess as
punitive damages need not beur any rela nship to the amount you choose to award us
compensatory damuges, und it is not neee .try that you award compensatory damages to the
Plaintiff in order to assess punitive damages gainst the Defendant!; so long as you find in favor
of the Plainti/l' and against the Detcndants on e question of liability,
Where there is more than ono Defendant umust determine whether punitive dum ages
are to be assessed against each Defendunt by that fendunt's conduct alone and the umount of
any punitive dumages assessed must be measured b our consideration of the factors which I
have enumerated as they apply to each particular Del' dant. While you will return your award
of compensatory damages, if any, in one lump sum am mt as to all Defendants, you must return
a separate verdict as to punitive damuges, if any, against aeh of the Defendants,
The amount of punitive damuges uwarded must not e the result of passion or prejudice
against the Defendants on the part of the jury, The sole pur oses of punitive damages and the
only purpose for which you may make an award and set anu ount of punitive damages is to
punish the Defendants' outrugeous conduct and to deter the D end ants and others from the
commission of like uets.
Authority for Point: This instruction is based on Restate nt of Torts, *908(2) (1939)
und comments thereto. It is for the jury to say whether and in what nount punitive damages
should be allowed, Nagle v, Mullison, 34 Pa, 48 (1859); Palmer v, L del' I' Ib, .~ ,,7 Pa. Super,
594 (1898); Restatement of Torts, *908, Comment d (1939), The duty of assessing punitive
damages is within the province of the jury and the court should not interfere unless it clearly
appears that the amount awurded resulted from caprice, prejudice, purtiality, cOl'ruption or some
other improper influence. Tonik v. Aoex Garag~h, 442 Pu, 373,275 A.2d 296 (I 97\);
Intel'l1ational Electr.illlies Co. v, N.S.:r. Metal Products Co..lne" 370 Po, 213, 88 A.2d 40 (1952)
(excessive under the circumstances); Restatement of Torts, *908, Comment d (1939) ("The
excessiveness of punitive damages is not ground for reversal or for a new trial unless the award is
so great as to indicate that the jury was actuated by passion 01' prejudice"),
Pennsylvania Bar Institute, Pennsylvania Civil Jury Instructions * 14,02, This instruction
was last revised in July of 1991,
v.
IN THE OOURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-2163 CIVIL
GREGORY SCHENCK,
Plaintiff
JOHN J. AMSLEY, SR. and
CATHERINE B. AMSLEY,
his wife,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEFENDANTS' RESPONSE TO PLAINTIFF'S REQUESTED
POINTS FOR CHARGE
AND
DEFENDANTS' REQUEST FOR POINTS FOR CHARGE
Respectfully Submitted,
Date:
Q!ro/Q1.
f ' I .
COUNT III . LIABILITY AND DAMAGES FOR CONVERSION
Plaintiff's Point for Charge #4: Conversion does
definition of conversion under Pennsylvania law,
Defendants' Request for Charge #3
._f
Conversion Is the deprivation of another's ;I:"Of property, Including money
/
without the owner's consent and without lawM justification, (Emphasis added),
I
Shonberger v. Oswell, 530 A.2d 1)1. 114 (Pa.Super. 1987)
The defense of consent Is apPlica~to all Intentional torts, This would Include
both the fraud and conversion cou s. In this case, from the Plaintiff's tastlmony,
he apparently was willing to p . Iclpate in the scheme ho alloges Mr. Amsley
7
devised regarding the bettin of the alleged down payment on a horse race, which
unfortunately did not pay, ff as expected.
What is needed f consent Is as follows:
(1) Consen s willingness In fact for conduct to occur. It may be manifested
by a on or Inaction and need not be communicated to the actor,
(2) If ords or conduct are reasonably understood by another to be Intended
s consent, they constitute apparent consent and are as effective as
consent In fact,
Restatement (2d) of Torts, Sec. 892
4
. The effect of that consent Is as follows:
(1) One who effectively consents to conduct of another Intended to Invade his
Interests cannot recover in an action of tort for the conduct or for harm
resulting from it.
(2) To be effective, consent must be:
(a) by one who has the capacity to consent or by a person empowered
to consent for him, and
(b) to the particular conduct, or to substantially the same conduct.
(3) Conditional consent or consent restricted as to time, area or in other
respects is effective only within the limits of the condition or restriction.
(4) If the actor exceeds the consent, It is not effective for the excess.
(5) Upon termination of consent its effectiveness is terminated, except as it
may have become irrevocable by contract or otherwise, or except as its
terms may Include, expressly or by Implication, a privilege to continue to
act.
Restatement (2d) of Torts, Sec. 892A
Thus, if you find that the Plaintiff consented to participation In the horse
race betting, which resulted In the loss of his alleged downpayment, then the
Plaintiff cannot recover against the Defendants for any harm resulting from that
activity.
5
MISCELLANEOUS POINTS FOR CHARGE
a. SSJI (Clv) 5.03 - Number of Witnesses
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Exhibit A
Luwrence J. Ncary, Esquirc
Page 2
September 9, 1999
easy mce becUtl!le ofa bad leg", Director Leppler will testify that this wus un uceusation ofraee
tixing uguinst John J. Amsley, Sr. and Indicates an investigation ofruee fixing utuminimum
involving John.l. Amsley, Sr.
Director Leppler will also testify that on Junuary 8, 1992 the Commission issued an Order
suspending John J, Amsley, Sr, and "denying him the privileges of the grounds" during the term
of his suspension.
He will also testify that on December 29, 1993, John J. Amsley, Sr. reapplied to obtain II
license from the Commonwealth of Pennsylvania State !-Iorse Racing Commissionund that this
license was formally dcnied on May 18. 1994 aner a hearing and by an adjudication by the
Commonwealth of l'mmsylvania State Horse Rneing COlllmisslon.
Director Leppler will identify other documents insofar as relevant to show John J.
Amsley, Sr. 's knowledge of horse racing, race tixingdndl'cnnsylvania raec tracks,
The other witnesses, Glenn Firestone and James E. Smith, would be reserve witnesses in
the event that Anton Leppler is not available. They would testify to the same matters. Glenn
Firestone may be called to testify that he has personnlly observed.lohn J. Amsley, Sr. at Penn
National Race Truck and thut if he saw him after the dates of the suspension orders he would
arrest him for trespassing,
These nlets have independent relevancy in a case involving ruee trucks and race fixing
and, morcover, they me impeachment of the Defendant, .Iohn.l. Amsley, Sr.'s testimony during
his deposition that he had never been to Penn National (page 29), that the lilst time he was at a
truck was ten (10) ycars ago (page 30), that he never went to a race truck in Pennsylvania (page
31), that hc had never been barred from a race track (puge 32), that he had never been involved in
race fixing in any way (page 33), that he had never been accused of mee fixing (page 33), that hc
has never bcen barred from any mee track (page 33), and that as far as he knows he can go to the
Penn National Race Tmek at any time (page 34).
If you have any further questions, please do not hesitate to contact me. I believe that all
the documents you reql1ire were provided in my letter of August 31, 1999.
-.....,.,
JJW/jmb
,.
Exhibit B
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Basi cully , Mr, Amsley testified thut while he hull previously owncd fUce hOI'ses he hud never
bconto Ponn Nutional Rue\) Truck (deposition puge 29) tlmt he hud nevel' gone to u I'UCC trllck III
Pennsylvuniu (deposition puges 10-1 I); thut he hud newr heell hurred frolll uny I'uce truck hy the
Ruclng Commission or otherwise (depositioll puges 12-))} und Ihut he hud IIcvcr heen involved
in or ucellsed of mce lixing (depositioll page ))}. The Plainlil'f requests permissioll to rcud these
deposition sections to the jury und thell introduce through the Director of the PCllllsylvuniu Stute
Rucing COlllmission Exhibit 14 which consists of an expulsion notiec~ (rom I'enn Nutionnl Race
Truck signed by .Iohn Amsley, .Iohn Amsley's hand written statement that he was "ruled off at
Shenundouhu Down" in West Vit'giniu flll' "asking ajoekey to give u horse an eusy ride" in 1960
and the Rueing Commissions Order in MayoI' 1994 denying his applieutionto he reinstuted us n
licenscd owner ofruce horscs (Exhihit 4 uttuehed hereto), TIIl1 Pluintiffwillalso introduce the
tcstimony of Penn Nutional's head of security that prior to expulsion from Penn National he had
seen the Defendant. .Iohn.l, Amsley, Sr.. there and that ifhe reuppeared he would arrest him for
trespassing,
Of equally importance, the Plnintiff asks permission to read short portions of the
Defcndunts' depositions in which the Defendants both deny telephone conversations with thc
Plaintiff after May 23,1996 - the date the Pluintift: aeeompunied by .Iohn.l, Amsley, Sr,. visited
the Mellon Bunk in Dillsburg. These conversations udvanee the Plulntitrs euse beeuuse records
have been introduced in the form of Exhibit 19 showing 17 telephone contacts between Amsley
al1(lthe Plaintiffat\er that period of time. Moreover, deven (II) of those contacts were initiated
from the Amsley phone and were calls to Sl'henek and a telephone company representative has
testilled thut .Iohn Amsley attempted to have the record of these calls removed from his bill and
thereby hide and destroy this Jlal'tieulur piece of evidence.
AI{GlIMErtt
The I'luintiffrelies on Rulc 4020 of thc Pcnnsylvaniu Rulcs of CivilProccdure und the
case luw Intcrprcting this Rulc, It is rcspectfully submittcd thut thc Rule is clcur authorizatlonlo
usc the depositions of Defcndunts, such us the Amsl~y's, f(lI' uny purposc including reading those
depositions to the jury as substantive evidence. Sec Standurd I'cnnsylvaniul'rnetlee, *34: 197
attached hereto us Exhibit 5; Scc also, Rivef'U_~illQdelphiu Thcoloi:ical SenUnm:x, 326
Pa,SlIper, 509,474 A,2d 605 (1984).
The Plaintiff recognizcs that thc Court may feel thut expulsion li'om the Pcnn National
Race Course and the old debarmcnt in West Virginia for race fixing present collatel'lll issues.
The Plaintiff recognizes that it is well within the Court's discretion to kcep this particular
evidence out on that basis. It is respectfully submittcd that evcn though thc raec fixing
involvcmcnt was old, thc Defendant, John J. Amslcy, Sr. 's. conduct at thc dcposition totally
forccloscd this urea of discovcry involving racc fixing, that I'lICC fixing has becomc a major issue
in this particular case and Amsley's tcstlmony at his deposition concerning his knowlcdge of any
involvcmcnt in race fixing should be admissible under thosc circumstances, If he hud unswered
thc questions truthfully the Plaintiff may wcll havc dcvelopcd much more additionul evidence
relating to rcccnt involvement in race fixing which would cvcnmorc clearly show that John J,
Amsley, Sr, us opposed to Greg Schcnck was the individual who was knowledgcuble in this
particular area,
On the second issue of denials of tclephone contact, the offcr is twofold, First, these
denials in face of Exhibit 19 showing a plcthora of telephone eontucts llre evidencc of
consciousness of guilt. Moreover. when thcse denials arc combined with thc fact that John J,
Amsley, Sr. attcmpted to tamper with thc telephone rccords and havc calls rcmoved thcrefrom,
i
...
LIlY, JOliN J" SR.
Jl98
Multi-Page""
+--.-_._........_._-_._._~._.__..
/ Page 2h
Q Thai's yJur grandsnn?
A No. tiarricd to my granddaughter,
,
Q Ma ed 10 your grllllddllughlcr.
4 A I nit see bow this can belp you. 00 nhcud.
5 lust keep 0 shooting.
6 Q II's all very helpful. i
7 A [ C81~lt see how in the wor.Klall these thillgs,
g l<;leph ue oumbers and aU thai slufl Lei's gel down 10 Ihe
9 grill h.-ro. 1 want tllget to the g~lIY.
JO You're going to gel 10 y: I dnn'l know Ihlll
II w .gol.1I U", children down yell
12 MIl NEARY: I'm goin,8 10 object to the
13 relevancy of that. alia childjen were not involved ill
14 this. Bhbcr go on or we're ding it right now,
IS MR. WEST: Sam of them had some involvement
16 insofar as the odometer r Iback was concerned illld I think
17 ulat's rclcvDnt. It can I d to discoverable evidence.
18 MR. NEARY: 0 not answer the question. Go
19 on.
20
21
22
23
24
25
MR. W/lS . Well, I oorl of hoped O,at we could /
take all amicable d position, bllt I'll go on on that ./
qurstion,
BY MR. WEST:
Q Ha we gatlen aU lhe civil suits that yo
can recaU bci g against you? Have we gotten all ~____
SCIIENCK VS
AMSLI(Y
------.-------.1
Pill'" ')~
Just givc Ille llll idell
1 0 What horsc~ did you own?
2ofllulllbcn.
3 ^ I djdu't own 8UY. We were partners. Wc were
4 pUltlleu with three:: horscs. And I have the pictures ot
S 11C11IW, I'll be gllld to show yuu, but I didn't have, you kuo
(1 we just didn't have ~- ono person didn't own olle h~).rse. It
7 was three horses and there wus thrro people that was
g illv(Jlv(~. Uut that was only for about It two-yt'iat. peritxl n
9 IiIllO,
10
II
12
13
14
15
16
17
18
. J 19
20
21
22
23
24
25
Page 27(
tat you can recallaoout civil suil~, ' sllhal / I
aVe been in Cumberland County. I 2
Wouldn't you have IOCn the You WAS at the 3
C<lurtho Ie the othe. day. Wouldn', y hIVe ""''' them if 4
thore any against inti? 5
I'm entitled 10 uk you, 6
I'm entitled to leU y 7
Can you tcU me un r oath.. 8
NO,I don't kno . I don'l know.
IS facing?
16 A
17 time.
18 Q
19 A
20 racehones.
I don't now. I don't now
Sir, arc you Involved In any way with horse
Por along, long lime I haven'l boon, long
What wa~ your involvement with hOl:le racing?
lUllt owned a (',Guple. Jusl owned a couple
21 Q Tell us alJo\ltlhc ('ouplc that you OWr,Cll.
22 ^ WeU, tbey belonged to myself IOd
23 Mr. Zimmerman, he'II'llucd away, nick ZiuUnCrmll.h, and another
24 m.a.n thai paned away by the nunc of Roy Gutshall. 'I1lcre was
~!)!!~ of lJst~..! had .!belC.!~~rlOs.~'Y~c~~~_.~._<:~~~r~~:__
GEIGER & LORIA REPORTING SERVICE
Q And what yenrs, approximately, was that?
A I ca"'llc:ll illo you, bull cao Ic:ll you if
I had you horne. I have pictures down In the cellar hangit.p
and J could tell you. I don't know.
Q Well, approximately ho\'1 long ago wus it?
^ 1 wouldn't wanlto guess. I don'l know,
reully doo't know.
Q Was it within the last 15 y(',ars?
A You might he gelling close. You migbl he
close.
Q And how long were you partners on the three
horses with these two gentlc:mcn, Zimmerman and Gutshal1'!
A Aboul two years.
Q Were the.')c horses raced somewhere?
A We tried u we raced them at Charlcstown once
or twice. Then wc raced them at Pi~.lic~E!},aurel'_!...~5~_
Page 29
rumcmbcr which is the racctrad:, unce or twice,
Q Charlcstown being West Virginia?
A Charlestown, West Viroinia.
Q Ami what was the other track) sir?
^ The other track was Charlestown, Pimlico or
Laurel.
Q Pimlico. Where is Laurel al?
A Close to il.
Q I'm sorry?
J 0 A Close to Pimlico. One's 011 oue side of
II naltimorc, one's on the other.
12 Q Two Maryland racetracks, Did YOll race. them
13 anywlK~rc else?
1 ,I A NOlthat I know or.
15 Q Did you ever mcc at IICIlIl National?
16 A No, never did.
17 Q Did you evcr go to Penn National?
J 8 A No, sir, I have ncver been to Peon National.
19 Q YOll've never heen to the Penn National race..
20 ^ Right h~rc close by, O{lvcr been there, 11mt I s
21 it half mile racetrack and these places I called to you the
22 names arc mile racetracks. 'nIClC'S II lot of difference
7J between half mile horses and mile horses. We didn't have
2/1 go(xl enough horses to go to -- we hud two good borsr.s 10 go
25 ..~J].~~~_~~._~J.c!J~o un~_"!'..~~~!.~~t have cbf:8p onoufth h~~scs _~~-B.'!,._
9
Paue 26 . Page 7.9
'< 111is truck hits ebeu I hors,.:~--_m Page J() I 1'"UU,yIVIIUIi:--j.------.. -.-'.'__m Page :1:'
o you IllU (l out illsot~t1iC-::""""----'""~ 7. C) It's ot lhe tyP(~ ofl"ut:lllg lhnt you would
No good, nOlJood. You co~tld IIlIV" pUI (hat .1 iuv"lv" yom If willi'!
.fore if you anted to. .1 A IIX 1I0lllpl ... 1'11I" ry. Mllx 1I0U,,'1 ,,"l1od lIIe
.s Q Could you ive me un idea or what happ ,ned ~ IIUl: 1Ii,~1 nlld H~;kr,d me .. I u' Iln work fur him yoars 8110,
6 cventu lIy with the h rsos Ihat you owned llI1lt ho 'YOIl nHul" (, Aud x clllhllllo IInd ,"j . would you liko III rldo IIloUII tll
7 out? Pills \Irt~h, lllld I l)(jlicvc I a( racctrud is ill Pl.lllIISylvuuill.
8 A Wo didn't .. I don't lI,iak we Illude ny mouey, Yo" llilll is. T : M""dow.,.
9 positiv 'Iy of lI.at, a d just didn't lIIake any oney in the The MOlldo '. '1111I1" oXllclly ri/lhl.
10 horse eing busine s. It was just u husines. IIll1t I don't So YOll WOI 10 the M","lowlaud willi Mnx'!
II think a ybody mak any mOlley yet in IIIe lusiness. A With M 10 Ihc Mcudowlaud,. I used 10 .
12 Q Do you slil go to racetracks oecasio ally? for him prior ycur nud he II,ked lIIe would I like 10 rl.
13 A No, no, ha cn't been to a racclm for a along.
14 long, I ng, long tim . Q
15 Q When was he lasltime you Were al a A T Y Wern lrollers, ye,.
16 racctra ? wern hi" I ,ink. 110 bad 'ollle.
17 A Ten years ~go. Ab.olulely. 11,.t b""lItiflll rann ac
18 Q What track lWas it? 0 High SchooL
19 A I think it Was probably Onver 0 wns. Bcuuliful.
20 Q Dclaware7 : Q What ye.1f Was thai that YOll
21 A Delaware. : Me.1 owland, with Max Hempt'!
22 Q And since Ipovcf Downs, Dclawar', YOll have not I can't tell you exactly. just don'tlnow,
23 been at a racetrack? i I now it's u 1 Just can't tell yo the time, but I know it
24 A I I haven't tfcn to the races. as a cou I
25 Q'1 Haven't 1$..0 to Pimlico? ._ _.__.____ _.__. Have you ever been barred from any race nc
. Page 31 Page 33
I A! lIaven'llxx!n In Pimlico Dud have. 'e been 10 1
2 Laurol!, 2
3 Q You ,;crcn'tjElt Phnlico on Jlln~: 7th'1990? 3
4 A < No, SIr. I
5 Q i And you reu.'ize tile .ignirienncc or t1<.at dale.
6 being It dale t1,at is aUtlicd in the compl'int Ih,,! YOll
7 went t Pimlico und money was placed all a hor~e?
8 A. I Absolutely.: Ab.olutely.
9 Q. And you di~ not do thai'!
10 A No, ,ir, it'~ a lie.
11 Q Sir, have YOl1 ever gone to any racclru ks ill
12 Penns Ivania? We havt Maryland racctrack!i, w have West
13 Virgini racctrllcks aud!we have Delaware racctra ks. HflVC
14 you ev gone in PenDs Ivania?
15 A I guess we 0 have tllctD, but I didu' know.
16 They do 'I havo thoro ghbrcds thaI I know of i
17 Pcnnsylv nia, thoroug .bred racetrack. That's
18 11.Jey we 't trotters r pacers, they were thur
19 Q ,"s very in . C5tiug. So therc would be
20 racing hond lor whalev r'!
21 A Ycr..
22 Q But I've got 0 get an nnswcr to the
23 question. Have you ev r gone to a racctrnck in
24 Pennsylvania?
~__~____~o. N(~~~.y'~~wcnt to_~_~~~~~.I"I~_~i~._,_~_.~
hQt we had.
ghbrod,.
lat
nmnr.'II Ii, , (\'111 Ii 'IIHP(\'IITIIo.)(l <:r.'IIVlrF
1'1 'M
Mil 11- 'agl~
f>CIII\NCK VS
AMSI.EY
/
by the J{llcing Commission or otherwise?
A No, sir, I was neVer barred.
Q Hnve you evcr bccninvolvcd in rncc fixing in
<I UllY way?
5 ^ No. Doy, thai's bad. No, I was never barr('..(J
6 for race fixing.
7 Q lIave you ever been aceused or race fixing by
8 the..
9 A
10 Q
il to..
Aeeu,ed?
Yes, by track offici<lls nt any track, subject
12 ^ I don't think so, I don't Ihink. so. If they
I J aCl~UScd, they didn't prosccute, I know that much.
14 Q Well, J'm drawing a distinction. J mean
15 accusation would be somebody coming up 10 YOII and asking YOll
16 qucstions about it like we're asking YOIl questions here and
17 invcstignlcd for race fixing. Can you tell us of anything
18 of tl13tn3turc?
19 ^ No, sir, I can't.
20 Q Nothing at Pimlico, Laurel, Dowr Downs?
21 ^ No, sir.
22 Q Nothing at Pcnn National?
23 ^ No, liir.
7..4 Q '\s fnr as 'you know, YOlllll'C allowed to gD to
. ~_~~~~n Nll~!~~nl fllcctrack and to pllr~.ciplllC, YOU'rt: 1I0t
n"'H\ 'l() _ llflor> ~1
1~
I \
!
/
SLJiY, JOliN J., SR.
/21/98
1 I . J' 'M
r. II II. lIg11
sellliNCK VS
AMSLJiY
,
..
I'ilg,'l"
._--.,,---, --...~..,-~_..~~,,~~.
I bilrrod Imlll the trllck.,
2 ^ 11vD nover bOllll thtall. 111ft, IIlWI:r hl~llI t(l
3 !'ellU NIUllnol. I wlluld think 111111 w,,"hl hll. I'Vll """a
4 dong anytbing wrotJg .t IUY of tho uUun 1,lluiCH, 1m J
~ wlluldll't klluw why I wnuldll'l bellUow"d III II" II":,,,.
6 Q So tho Jlll!lwer would be yellt liS fUI liS you
7 kIlOW, you ellll go to Penn NaUollul'l
8 ^ A. Car IS I know, I can go thero, HIlle, (iu (0
9 ODY of them, I SUO", II for I. I know.
Where were you ma led Ill'} Wns that "I' in
1 Mercershllrg?
12 A We We", morried ID
13 IrginJI.
14 And thill's when you were 16
IS Check thol out will, Mrs. A ley. I'm proll~
16 WI' Ilcrkeloy Spring., We.t Virgi ia,
17 Q I p....tune they had a sh"rler wDIIi perind
18 and a yo gu ago?
19 A IbJlIk mayhe it was I little casier laD it
20 Wa, maybe und here or somewhere clse. I t Ilk it Was ~~
21 ond it WO' I ce 1'10"". She bad heeD II",,,, once fOl<: and
22 IOOD II ond.o be .aid, leI'. get married the,,:, nn IIlat'a
23 whot we did.
24 Q I thin We can gn on and talk ilboulth;s cor
25 wash and the sale tho car w~sh and gel right down 10 Ole
P 'e 35
I nltty.gritty. Q I)" yn ~now how mneh you paid for ;I?\
2 A SU"', go nb A $130,00
3 Q Tell us iI IIlli bit aboul tile cor wash Q Do YllU kno . where you gollhe $1 30,000'!
4 business thai you owned I Clllllslc, when y"u hnughl it A Oh, I imagine\ltook it from my savillgs
S A I didn't know ueh abOll1 it. I didn'lkllow accounl or out of my che< _. Olle of my chccldng aecou s
6 much and don't know mUe today, We had bought one tllat was 6 maybe OI",
7 broken down. It Was broke down alld I fixed it up os much 7 Q WIle'" ore ynllr so . Igs ilecnullts'!
8 as I could, liard to find part for woro outmaehillelY, but 8<< My saviogs aecoun York Federal, Ynrk
9 we did, fixed it up, and... 9 Fed~'I.
10 Q Where was itlocaled 01 add,e'.,'wise? 10 Q, Which branch, sir?
\
11 A Carlisle is goodcaoug Yoo'lI find il. II A Carlisle. Wehaveabra
12 It's right across the street from esler-Plymouth. 12 Q Do you have any..
13 Q Wllieh street? IJ A ey're mOllcy market ccrtl "'ates. They're
14 A Hanover Street. 14 not saving c rtifieales, Well, theY'I<: 01 ney market
J5 Q You mentioned Ihal iOL had fl lard tim', finding 15 certificates.
16 pilrlS? 16 Q Arc u silying tlle,e's nn savings
17 A !'arts, ye.. 17 A NO,m ey market certificate..
18 Q Whilt yenr did you huy il? 18 illtel<:sl off of Ih every 30 days.
19 A I doo'tknow. I hove no ide., hut clluld.. 19 Q 'IlIeY roll 0 er?
20 you kIlOW, we bave ""'nrd.. 20 A llley filiI.
21 Q 1I0w long ago? 21 Q Do you have a . v;lIgs D<:cnunl illlywllCfC
22 A We have record. nf thnt. We snld it III 22 YOll hove a sllvillgS DccnUlI1 n here?
23 somebody. We paid ollr taxe.. Sll we'd know wh -- hlll I -- 23 A No savillg, aecoun Mooey market
24 wbal llid you sny DOW? 24 ecrtilieillc,.
2L~ How long ilgn Was ilthal yn~J>!1."gh~!t..;r YO'-,,-_.___ 2~_--.2 ._._~i<!.ng a(:E-"-'!~~_
. '\ I'ngc :\6
^ w lllal. J dun't kuuw Wh~,\ IllJUI:hl
II ullcll dUII'e kflUW W J Ilmlll H, t)l(u(llly, '\
I) Apl"",;nll'.:')'. ~
^ NUl I wnuldn'lli . In do Ulltl. I ellll timl
() IIlll for !HUll hy l~tlJllft In tlIC) l:m hou.lie .",1 chr.cldu'l wh(U1
'I t t, d(".('.tl Wall lruudl,rmd.
<< CUll you tcllus 1I11w IUlIg Y owned JI? ""-
Nil.
Well, w;IIIill ,.
^ l:uuplc Yl'-ltrN lIIayho,
. U yellf or two?
Y c maybe ,omethillg like Ihlll.
Whill Ihal?
Mnybc 11IC1ldng like that.
e.) Can you tc ,~ wiUlin II yeur or Iwo how long
yon owned it, five yeurs?
A Well, I migll. ha. ollly OWlled it a year nr
two. I don't ",ally klIllW. AI if I did know I'd te;lJ you,
ul I don't know, hut I can find ul if thatls Jmp0l18ut 10
y< ,
Who did YOll huy iI I'm..?
A Who did I buy it from'! I kn w I don't know.
2<\ Mrs. Am Icy might know, hut I don'l kno who I boughtlhat
2S froln,
...
<\
.\
'J
Page 37
GEIGER & LORIA REPORTING SERVICE
1-1100-222-4577
PRor.l4 - PR"~ l7
C\l
I
SLEY, JOliN J., SR.
11/21/9 K
Multi-I'lIg(: 1M
I Q And willi lid you do? I (J 1'1 HICll~
2 ^ What ill do" l' ) you ~all Idl II. lOll 1 that ,'il'qllld
3 !ANY: ('III BOllig 10 uujC(;1 ThaI's bccn :I l>ill9bll/'H'I
4 nsked nnd nl red. 00 nn to sOlllelh. g dIe. ,I A
5 R WI!.'H: No, I dOll't thi it has bc(~ll. 5 Q Now, I Willi! to (like you hack /Iud I dOU'l WIIIII
6 MR. NF,AIW: He alrcmly, nid twice what he did 6 10 C{)llrIlSt~ YOIl. We're hack 10 tile first lime you IIlCIIllY
7 Bilk, '/ clieut ulld thell sometime after thnt first lime you weill willi
8 MR. WI!S'!": 'l1Iis is liell he wenlta the bank. / 8 him 10 the McllonBlIllk ill DiII~hurg. You left, yotlllild hilll,
9 H stalked abaut when I as nn UIe phone. <) the MellOll Dank. Insofur ns my client i.'1 cOllccrnc(l, whal'.~
10 MR WEST: 10 the Ilex! thing thnt happens aftcr you leave tI}(l h..lllk',
II Q When yo wenllo Ihe hnnk in person, II A A yenr ond 0 half lapsed. I didn'I'oo hilll
12 you do? 12 ood he didn't soo lIle Ihnll know of.
13 A I do t know. 13 Q Okay.
14 Q Di you wlk to somebody? 14 A lie never came around, never callr.d lIle, never
IS A really doo'l know wi er I talked 10 IS snld, hey, John, 1 gol (he IOlln approved, I'd Iiko 10 do
16 .nlllebO<! or 001. I'robnbly d' . I wonldo't go thnt fnr 16 busine," willi you, I'd like 10 buy that ellr wa.h beeau.e it
17 without talking In .ollleb . Dut luever ask everybody 17 works 8nod witb Ihe tools Ihnll get from lilY father'iu'lnw.
18 their oamt and mark U Wo. I Dever did thai in my IU' ..., 18 I can make: money thero, bc.cau~ ills RM you don'l hov(( I
19 Q Well, COlli Oll leU liS wheU"" YOlllnlked to 19 report this to U,e Internnl Rovenlle.
20 it man or woman (I our friend the manoger? 20 Q J Wilflllo make certain that we haven't missed
21 A My lood had .lready gotlou ioln IIsloess 21 someUllng. MIL..- YOlllcnve Ule bnnk, YOll don'l soo lilY
22 of his OWO, useclcaoiug. lie already gilt lnlo a 22 client, Mr, Schenck, who is silling here with IIIC, for Il ycm
23 bwincss 0 housecleaning and his II cis Doisvcrt Blld he 23 and n half?
24 lives over bero, .omeplace over . rlgbt below whore he 24 A Thai's oxnetly righl. Thnl told me
25 wall 8 maoa.ger in Mechanics g. Lives !.l~~~ 111'!..~~!!I!~~~_._ ?1__~mcthilln.~~~~.no~oney_~~"~.~_thc5~.~~~~~~:..._~nd_
/ Page 55 I'
I someplace. His firllt"Dame I elln't tell y ,bul I have it I didn't go bnek Ilx>king for him.
2 but I don't bave' with me. 2 Q 1110 sign slnyed on lhe en, wash for tllIll yo",
J Q 1118 fine. He's a manager ] nnd n hnlfl
4 cleaning co pany? 4 A I dO/l'1 know how long it stnyed, bul II didn't
5 A / ow he's a manllger 5 .Iny very long, beenu"" I sold it to .omehody.
6 company, yes. 6 Q Did YOll hnve any conversalion with him on the
7 Q He cleans houses? 7 Iel""hooe in thaI year nnd n hnll'7
8 A I think so. I d 'I know. 8 A Nev"" never. That WI' the funnic'l tbing
9 Q And his busi sses? 9 Ihal I evcr hcard of in my Ufe. liD really WI.lolorcstc<1.
10 A Ilnthroo, toilets. I dnn't know. 10 I Ulought hero's a good intorcsicd 1""'00, but be waso't, or
J I Q His bus' css is in Mcchanicshurg? II he didn1t have the money. or course, we went OVer sOllie
12 A (No lead affinnntively.) 12 things now thai we know (hat he dido't bnve tho moncy. If
13 Q Wh is the last time.. 13 he did have the money, he isn't rqlOfting it 10 the Int(~rnlll
14 A I .0 YOII ever fiy a/l nirplnne" 14 Revenne.
15 ahead. t 15 Q We'ye coyered Uml l\ couple of lilll<:S,
16 Q When is the lasllil11'-' you HOW h. 16 A Yos,olny.
J7 A When iothe last time I what' 17 Q It', onlhe reOl,d.
18 Q Saw him, tnlked to him 19 A Yes.
19 A Oh, I don't remember. 19 Q We got it. Okny. Doc, he contnetyo" hy
20 Q Now, so I'm not confuse, when you wcnllo till! 20 lclcphonc during this period?
21 bnnk in person the. seeond lime, ( . J YOll SC'C Ihis gentleman 21 A lie hns never, he bas never eootacted we.
22 Ilml you've described, Mr. Bois crt, or did you see Ihe 22 Q Did you eonlnel him hy Ielcphone7
23 wOII",n who Mr. Schenck.. 2.1 A No, sir. No, .ir.
24 A And I don't remember thel, wheUler il W' .. 24 Q Did you kuow how to conlnel him by lelophone,
25 Mr,- Doisv_~~_whcUI~'i'..",n~_lI1ciltdL_ ... 25 _In_ol!lCl..\~o!ds, sir :.: _~__ ___ ___________ ___
Page S4
-- - .---------;.,.
SCllliNCK VS
" AMSLliY
$1
GEIGER & LORIA REPORTING SERVICE
l-R(lO-???-4'i77
P1HlC 54 - Pagc 57
I'lIl','; 5H . I'lIge 60
^ Oil, yeSI I had thonumbcr. I ^ J'VC'i 1I1(\~lIdy told YUJV'Yuu'vr. asked 1IIr.lhat
Q Alld YOllnew c.lled him" 2 40 tilllc,. I'vo told you .,,, 'II bo gl.d __
A I tailed on"" 0' lwl"" to hi, ProlIC'ly .lId J Q No, I h.vcn'ln ed YOlllhalntnlL
tllem Wa.. lady anlwcred Ind .be .aJd. hUIIOY, yuu COlll(~ nil 4 ^ Well. then lBl did you Wllllt now" Whnt do yuu
down and we'll hlvo . nice lime tOlllaht. Now, HUll wu~ ulle ~ wllnt lu kllow now
ti HUlO, '11w other time what ,ho ..id I CRn't loll you. I (j Q I SlIl< as it hd"OfC or Ill'",..:!" you wcnllo tll(~
'/ tan'tlcll you In hem, buIll WI' 1I0t IIlce. '/ hnllk in/JWs rlllhnl YOII cnllcd the Iclcl'hone nUlllber nlld
H And I "Id to my wife, I ,aid, I bolieve we'", H t.lk""llo I girl'/
9 dulllR bwlne.. willi the wroDjl penou hem. I.ald, Ihis 9 A Really, I duu'l know, bUIll Wa. _.
10 penou is runnlllg u girUehoulCland tltey'm Iryillg 10 gol 10 111111's a. .uswe" .ir. //
J I me to COmo down. II You're getting close. don't know,
12 Q What'. the .ulllba UIlII you Wen: coiling, si,'! 12 ul I did call.
13 A 1 have ii, bull oou'lhave it wilh mo. IJ Q nUl's Ihe .nswer'/
14 Q Where did you get U,alaumber .I? 14 A Thal'.t"o an.wer e" I n:ally dOIl't know
15 A From him. 15 whelhe, II w.. firsl or la,
16 Q W"at did YOll dll whea you gollhe nlimber'/ /Jid 16 Q Did you take 0,500 from my clienl on May
17 you wrl!e It down somewhetC" 17 31 sl, 1996'/
18 A Oh, I oon'l remember. I don't remember whull 18 A I did uo ,Ien ceol,. 00 ahead.
19 did, hull know Ihat when 1-- to ""cck Ihat !lumber oU11 19 Q D,d y' ever lake any money from my c1ienlln
20 had called. I had dJaled and a,ked tile operalor Was thaI 20 the pre,ence or ur wire, CnU""ine?
'21 pllone Dumber in his naOlO, Ind, you know, I don't remember 21 AN. and h never,
22 wheth", tlrcy told me il was in his namo or hi, wife', nnme. 22 Q n June 5th, 1996, did YOll ~1ke $51 ,500?
23 Q You called lwice? 23 A Ife never seen $51,500.
24 A No, ooce I 1I11n\:, Ju.t onr". 24 Q Wns bo ever inside your house?
25 Q You called Ouce. And wlllll hal'~~ Ure on!'__.______ ~-.--------'-- don'.,-~ink he was ever In,lde.
Page 59
1 was 10 my celIor, hut I don't t/link
2 house.
J Q Tell us aboullhe in . e and how he got into
4 your cellar, because you've d us allthh now and all of
5 a sudden he'r. in your co r.
6 A I was in ""lIar doing .nmotlting and he
7 came in to see m nd he came righl down in the cellar
H becauso he h me holIerlog to my wife to ask who was U,.I
9 ringiog the ,II.
10 Q ell us about the time he Was in your CClJfl~
J 1 sir. cn was it in relation to the firsllime you 1/ him
12 at the car wash?
13 A I don't know. 1 Justkoow
14 lie and I, It Was only a day or tw Seen him, didn'l see
15 him and then neVer .een him f a year and a hall'. Today I,
16 Ule first day I've sccn bJUI r a year and B half, two
17 years I right now,
18 Q Was h(~ cv In your cellar and ..
19 A If r gav you $65,000, I gave it and you had a
20 recelpl of mille ouldn't you be up at my place ringing Ihe
21 hell and l>eali g my door 111'/ He didn't give me auy money
22 and he didn'l gel no recoipl. If he did, we'd he In Jall.
23 We'd he then: fighllng it tomorrow, 110 didn't gel no
24 receir-t. lie knows it.
- ~___Q.._.,._.._PI~.~~I.!!.~~~l:_____
SLllY. JOliN J., SR.
1l/21/98
)
1 lime you called? Tell us wbal happened.
2 A What happened? I just told you. Thero was.
3 gid answered the lclCJlhone Ind it acted like to me 11'.1
4 tltcy were runnilllJ 8 little pIa"" of prostitution.
5 Q Well, !ell us wllllt you said and what she
6 said.
7 A Well, .he .ald .omc had things 10 me Bnd I
8 doo'l n:aUy remember whall said. I don't really
9 remember. It JUSllook my brealh, because -- and then I did
10 know tltal it was his phone.
II Q Well, !elltl' whal she said.
12 A I don'llcnow. I eau't teU you, bUI it was
IJ 001 nlco.
14 Q You don'l know. And oUrer UllInthnllwo
15 attempts to call that number, you had no contact with
16 Mr. Schenek'l
17 A No contacts, Never called [0('1, said, hey,
18 Joho, I .ao'l huy Ihat cor wash.
19 Q Was it arle' Urese calls Ural you Wcnl bn .k 10
20 the ha ia Dlllsburg 10 find oul ..Urer or nol he
21 qllallf 1'/
22 Dy God, I can'l. . Wbatevcr yon
23 d 0 YOll put dowo th When wo go tll
24 I . It', 80111810 he eha ed.
25 Q You give LIS our hl;.')l rccollccli 1.
--'----------~.__._-_.>..~_._....- ..--.--
GEIGER & LORIA' REPORTING SERVICE
1-llon_""".A ".,.,
Multi-Pulle 1M
SCHENCK VS
AMSLEY
-~W'---."~_~'_~__'____'T_~___'__~___,_~",_~,__~,__
Page 61
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1
CIIAPTER .14
tions at lI'iul or at a hcuring," thc dt'position of a party, 01'
anyonc who al the timc of the taking of thc dcposition was
an officcr, dircctor, or munuging agcnt of II pllrly, or II
pcrsoll dcsignlltcd to testify Oil hchulf of u puhlic or privulc
corpOl'ution, purtncrship, associution, or govcl'lllllcntal
ugcncy which is u party," lIIay hl' llscd hy IIn udvcrse purty
for uny purposc" al trial, without rcgurd to thc IIvllilllhility
rcquircmcnts IIpplicablc to witncsscs and partics." Thus, the
deposition of 1111 advcrsc pllrty can bc introduccd at triul,
cvcn if the advcrse party is prcsent in the courtroom; it
cannot bc excluded on the grounds that its introduction is a
wastc of timc IInd prcvents GOnfrontation."
Thc status of the dcponellt at thc timc of thc dcposition
dctcrmines whether the dcposition can bc uscd by all adverse
party for any purposc."
If notice of deposition of thc adverse party is givcn and
thc party fails to appeal', but scnds another pcrson who has
knowlcdgc of the facts, thc dcposition of that pcrson is not
the dcposition of thc party, 01' of an officcr 01' managing
agcnt, and does not qualify as thc dcposition of an adverse
party."
~ 34:198, Parly 10 transaction involving decedent or "luna.
tic"
The tcstimony of any surviving or remaining party to a
thing 01' contract in action prcviously involving a party who
is dcad or has bcen adjudged a "lunatic," or the testimony
of any other pcrson whosc intcrest is advcrsc to thc right of
12, ~~ 34: I 87 el seq.
13. ~ 34:2 D.
14, I'a R Civ P Rule 4020(11)(2).
15, Godina v Oswald (1965) 206
Super CI 51, 211 A2d 91; SIUlll.
baugh v Reed (1984) 86 CmwIlh
Cl 316, 484 A2d 853, laler pro.
eeeding 98 Cmwllh CI 306, 510
A2d 1289.
528
16. Flynn v Chesler (1968) 429 I'll
170, 239 A2d 322.
17, Brown v Popky (1964) 413 I'll
2:16, 196 A2d 638. afl'g 32 D
&C2d 108.
18. Brown v Popky (1964) 413 I'a
236, 196 A2d 638.
Gregory Schenck thenmnde a $65,000 down payment on the bu~ine~s to John J. Amsley.
Sf. On tJ:l. 31, 1996, Gregory Sdlenek gave $10,500 in cash as an initial in~tallmenl on the
$65,000 down payment. Thi~ was followed by a $5 \ ,500 payment on June 5. 1996 and a $3,000
payment on June 6, 1996 tomnkc the totnl down payment of $65,000.
At around thi~ same time, John J. Alllsley, Sr. indicated that he haq.a scl}el\le whereby he
V,~hc.o
would receive advance notice of the winning horse at a particular race at ~llJliuo Raee'Traek
and asked Greg Schenck to accompany him tol'imblieo where John J. Amsley, Sr.. would place
bets on the winning horse. John J. Amsley, Sr., indicated that if he used some of the down
payment money in the horse race scheme it would result in more favorable terms for the
financing of the remaininl\ balance of the purchase price of the business.
On June 7, \ 996, Gregory Schenck accompanied John J. Amsley, Sr. to the l'imblk.o
Race Track in Maryland where Amsley made a series of phone calls arter which he slaled he had
been informed that a particular horse in the seventh race would win and was the horse to bet on.
Prior to this race being run, Track officials announced that the winning horse identitied by
Amsky had been "scratched" and would not run in the race. When Gregory Schenck informed
John J, Amsley. Sf. that the horse had been scratched, Alllsley indicated he would call nnd get
the identity of yet another horse that was now going to win the race. Amsley indicated that
approximately 30 horses had been trained with a special shocking device that enabled these
horses to win races. Amsley then went to a pay phOllL' in pilllblieo, made a phone (~all and came
back and announced the identity of the new winning horse. When the race in question wns run,
tl", second horse designated by John J. Amsley, Sr., lost.
2
On the trip home lhllll Pimblico, John J. Amsley, Sr. Indicated for thc lirsttime tlUlt he
would not give Greg Schem,k credit lor the entirc $65,000 he had paid as a down payment but
only 1'01' $45,000. When Schenck complained about this, John J. Amsley, Sr., indicated he would
give Schenck credit for $55,000 of the down payment but not the entirc $65,000 down payment.
John J Amsley, Sr., then threatened to keep all of till' deposit money and deny that any deposit
was paid.
Subsequent contacts with John J. Amsley, Sr., he has not only refused to pay back tlw
$65,000 deposit but when deposed in the present case John J. Amsley, Sr. denied that the money
was ever paid over to him. by Oregory Schenck.
II, STATEMENT OF BASIC FACTS AS TO DAMAGES
The Plaintiff is not asking for a specific performance but rathcr is asking that his $65,000
deposit be returned with market rate interest from the date it was turned over to the Defendants
(June 7, 1996).
TIle. PlaintilT is also asking for punitive damages bascd on the wantoa aad outrageous
conduct of John J. Amsley, Sr., in effect stealing and converting the $65,000 down payment and
then lying about it.
III, STATI~MI~NT OF THE I'IUNCH'AL ISSUES OF L1ADlLlTY AND DAMAGES
Both Gregory Schenck and the Defendants have been deposed. They tell diametrically
opposed versions of what occulTed. Grcgory Schenck indicates that he gathered $65,000 from
various source:; and paid thc lHoney to cither one or both of thc Andeys in three (3) separate
installments. The Amsley's totally deal' receiving any money from Gregory Schenck and John J.
Amsley, Sr" denies ever attending Pimblico Race Track with Gregory Schenck at any time,
3
The Pluintiff intends to present his own testimony and corroboration 1(1I' his tcstlmony in
the form of telephone toll records, bank rccords, testimony of relatives thatadvanc~'d moncy and
.Iohn.l, Amsley's own bank records showing large Stllns of money at his disposal. Plainliffwill
.1Ilso prove that the Defendants phone records show a telephone call was plaecd from a pay phone
at Pimblieo Raec Truck on June 7, 1996 to the Amsley home thcreby corroborating .Iohn.l.
Amsley, Sr.' s presencc at the race track on that date.
The Plaintiff also intends to show that when John .I. Amsley Sr. and his wife Catherine 8.
Amsley were deposed, they misrepresented many material facts relevant to the case and to
introduce testimony from a Pennsylvania Racing Commission employee that Amsley had been
barred from the Penn National Race Track in part for suspicion of race fixing - facts he denied in
his deposition.
The Plaintiff will ask the fact finder to detcrmined that .Iohn.l. Al1Islcy, Sr. and his wife,
Catherinc 8, Amsley, have frequently converted $65.000 of the Plaintifl"s money, breached an
implied contract to pay back the down paymcnt if they did not go forward with the sale and acted
frandulently by concocting the phony race scheme with the obvious purpose of ercating an
exeusc to raise the paymcnt IlW the car wash or kcep Sehcnck's money and Ill- about it.
The only issue on damages is whether punitive damages arc proper. The Plaintiff
believes that the hostile taking of the $65,000 deposit, the lying about the taking oflhe dcposit
and thcir refusal to return it entitles the Plaintiff to interest Ii'om the date the deposit was turned
over plus punitive damages for wanton and outrageous misconduct.
4
IV, SlJMMAI(Y OF LlC(;AL ISSlmS
The Plllintiff hils idcntificd scvcl'lIllilCtualmattcrs that hc would offer in his ClISC In chief
as showing II pattcrn 01' practiee by John n Amslcy, HI'. of engaging in Ihludulent conduct.
First, .Iohn.l. Amslcy, HI'. has becn convictcd ofdeceptivc busincss practiccs, a sccond
dcgree misdemeanor, lII'ising out of the salc of numerous automobiles in the Carlisle mCII with
rollcd back odometcrs. This conviction occurred on Octobcr 24, 1991 inll guilly plea before
.Iudgc Bayley.
Second, agcnts of thc Pcnllsylvania Racing Commission have i1,dicated that John G.
Amsley, Sr. has been baITed forlllPennsylvania nlCc tracks in parI because of suspected race
fixing. This was denicd by the Defendant during his deposition.
The fact that Amsley lied about bcing barred Irom the Pennsylvania race tracks, in part,
It)r suspicion of race tiXillg has independent relevancy in this case which involves allegations that
Amsley soliciled the PlaintifTto participatc in a race tixing scheme. We respectfully submilthat
Amsley lying about this at his deposition incrcases thaI relevancy and shows consciousness of
guil!. This evidence would be admissible under Ruk 404(b)(2), Pennsylvania Rules of Evidence,
to show "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake 01' acciden!." See, e.g., Jamestown Iron and Metal Co. v. Knofsky, 302 Pa. 483, 487,
154 A 15, 17 (1930); Homewood People's Bank v. Marshllll, 223 I'a, 289, 72 A 627 (1909);
Catasaugua Mil. Co. v. Hopkins, 141 Pa. 30, 21 A 638 (1891). In this case when the defendant
Was deposed it was extremely impOl'tantto explore his dcalings at various race tracks over his
career and his knowledge of race tl'llcks and their procedlll'es as well as the reasons he hlld come
to the attention of race track oftieials. His denials of being barred from race tracks and of ever
5
being necllsed of !'lice fixing lire extremely rclevllnt showing not only a connection with the
rncing industry but consciousness of guilt by denying l'Vl'l1 prior accusations or mce fixing.
V. mICN""TVOFWITNESSI:S ,)u .~
Grcgory Schenck . .. .... _I. . .,.. jS'.
Lconn Schcnck ~
Elizabeth Crcmo ~
Lnrry Cremo
W illlum Ridgewny ~
Vince Fm'lons
Patricia Miller - ()KfI 'LIa .
James R, Myers 1. .- n ClMP - \J
s.usanTetchmanJ ~ ~.
Dick Copenhaver . _ 1-/ . :S ·
~:t:~l~~;~~~~r~t ()~. ~ . ~ ~ -
Glenn Firestone y,,- l~ '\
James E. Smith
Cbuek Carlson
James and Oloria Rcxrode
I,
2,
3.
4,
5,
6,
7,
8.
9,
10.
II,
12.
13.
14.
15,
16,
-- 1 T,
18.
19.
20,
21.
DI.B.I<<utJulm..l.1,., ~
Steve Kaufman
Tcrry Glass - ~ 1
Donna Shultz - ~
Jonclle Fazzolari _ ~
VI, EXHIBIT LIST
1. Safe Deposit Records
2, Savings Bonds Copics
3, Savings Account Records
4. Chccking Account Records ($2,000 .~ $3,500)
5. Jamls Money Market Account Records
6, Janus Mercury
7, POliO Cash Reserve 7(A) Envelope
8, 20th Celltury Cash Rescrve 8(A) Envclopc
9. Summary Sheet of Financial Records
10. Schenck's Diary
11 . Bank Bag
12. BriefCase
13. Pictures of Car Wash (I3A through E)
6
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GRJ!:GORf SCIl1l:11Cl(
8 Cioada Dr,{ve
Mechani0Bburg, PA 17055
I IN 2'R1I: CO~7' Op COlofMON PLJ!:As
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I NO: 98-2163
v.
PJ,aintiff
JOIaI J. AlosSLEf, SR. JlNI>
CJl.7'H1/)RI~ 8. AlosSLBf, hiB Wife,
J,08 WiJ..1owview Drive
CarJ,isJ,e, PJI. 170J,3
Defendants
~7!;;-Z2
.R.~ 400 2
To: Counsel ~nd P~rties Of Record
PJa'n"" '"tondo '0 '0"" b , .
on"" ""ached '0 'hio nO'1" Y h eo PO'"a s, >den'1'al '0 'he
dat, lileeed below 'n whi'h ,~ ,,~~ ';e '.eoJY (20' days f'om 'h,
,ndarolon'd On ob"''1on '0 'b, S"" 0 'i't' eod ""', 'Pon 'h,
mad.. 'h. 8'hpo,""" may be ""'ea .po'"' '. In no ObJ eo '1 on "
es J, Esquire
10 N, r Street
H~rrisbu 'PA 17101
(717) 233-5051
Attorney for the Plaintiff
6, Denied. It Is denied that Jo~!' J, Amsley, Sr. ever had any conversations
with the Plaintiff regarding horse racing at the Plmllco Racetrack In Maryland,
7, Denied, It is denied that John J, Amsley, Sr. ever had any conversation
with the Plaintiff regarding the application of any down payment In any horse racing
venture,
8. Denied, The answer to paragraph 7 Is incorporated by reference herein,
9, Denied. John J, Amsley, Sr. specifically denies the receipt of any sums of
money from the Plaintiff that were to be applied as a down payment for the car wash
business and real estate
10, Denied. The answer to paragraph 9 is incorporated by reference herein,
11. Denied. The answer to paragraph 9 Is incorporated by reference herein,
12, Denied, It is denied that John J. Amsley, Sr. accompanied the P,.:.lntlff to
the Plmllco Racetrack in Maryland or that any series of phone call were made as alleged
therein,
13-19. Denied, The answer to paragraph 12 is Incorporated by reference
herein,
20, Admitted .in part and denied In part. It is admitted that Catherine B, Amsley
isa co-owner of the real estate on which the car wash business was located. It Is
denied that she was present or witnessed any alleged down payment being made by the
Plaintiff as alleged in paragraphs 9, 10, and 11.
2
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presented a sound business opportunity.
5, The selling price of the car wash business and related
property was $200,000,00 and in late May, 1996 Gregory Schenck and
John J. Amsley, Sr. agreed to the sale of the car wash business to
Gregory Schenck at that price.
6, John.}, Amsley Sr, indicated to Gregory Schenck that he
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had been contacted by an old friend concerning a scheme whereby
Amsley would be informed of the winning horl3e in a particular race
at Pimlico Race Track in Maryland, Amsley represented that he had
participated in this scheme before, had never lost and, in fact,
had made a large sum of money through this activity,
7, John J, Amsley, Sr. indicated to Gregory schenck that any
downpayment he gave to Amsley for the car wash business would be
taken off the $200,000,00 purchase price of the car wash and if the
money was then used by Amsley for the horse race scheme, it could
result in more favorable terms for the financing of the remaining
balance of the price of the car wash business,
8, John J. Amsley, Sr. indicated to Gregory Schenck on
numerous occasions that if his downpayment money was used in this
scheme, Schenck would get full credit for the money against the
purchase price of the car wash business and that all the money he
put down as a downpayment. was guaranteed by Amsley.
9, On or about. May 31, 1996, Gregory Schenck gave John J,
Amsley, Sr. $10,500.00 in cash as the initial !.nstallment. on a
$65,000,00 down payment for t.he car wash business in the kitchen of
their home at 108 Willowview Drive, Carlisle, Pennsylvania,
10. On June 5, 1996, Gregory Schenck gave John J, Amsley, Sr.
, ,
$51,500,00 in cash as an additional part of the initial downpayment
for the car wash business,
11. On June 6, 1996, Gregory schenck gave John J, Amsley, Sr,
$3,000.00 in cash as part of the initial downpayment for the car
wash business.
12. On June 7, 1996, Gregory Schenck accompanied John J.
Amsley, Sr. to the Pimlico Race Track in Maryland where Amsley made
a series of phone calls after which he identified a particular
horse in a particular race as the winner that he was to bet on,
13, shortly after this and prior to the race it was announced
ilt the track that the horse initially identified by Amsley waS
being scratched from the race,
14, When Gregory Schenck informed John J, Amsley, Sr, of this
he said that he had been told that if this happens he would be
switching to another horse,
15, Gregory Schenck questioned this because John J. Amsley,
Sr, had previously indicated that the horse that was going to win
had been trained with a special shocking device and that only three
horses had been so trained. In response to Gregory schenck's
skepticism John J, Amsley, Sr. indicated that thirty horses had
been trained with this special "shocker",
16, John J. Amsley, Sr, then made another phone call and
indicated that a different horse was the one that had been treated
with the "shocker" and would win the race,
17, When the race was run the horse designated by John J,
Amsley, Sr, lost,
18. On the trip home from Pimlico John J, Amsley, I3r,
, .
indicated for the first time that he would not givB Gregory Schenck
credit for the entire $65,000.00 but only for $45,000,00 of the
total $65,000.00 deposit.
19. Subsequently, John J. Amsley, Sr, indicated that he would
gi ve Gregory Schenck credit for $55,000.00 but not the entire
$65,000.00 dl)wnpayment and then threatened to keep all of the
deposit money and deny that any deposit was paid.
20. Catherine B. Amsley was present when the sale of the C(l,r
wash business was discussed with Gregory Schenck and when
downpayment money was delivered, She was also a co-owner of the
car wash business being sold,
COUNT 1
BREACH OF CONTRACT
Gregory Schenck v, John J, Amsley, Sr.
and Catherine 8, Amsley, his wife
21. The allegations of Paragraphs 1 through 20 of this
Complaint are incorporated herein by reference as though set forth
at length,
22, On or about May 31, 1996 John J. Amsley, Sr, and his
wife, Catherine B, Amsley, agreed to sell Gregory Schenck a car
wash business located in Carlisle, Pennsylvania,
23, Between May 31, 1996 and J\me 6, 1996, Gregory Schenck
delivered a total downpayment of $65,000.00 to the Amsleys pursuant
to the above agreement,
24, 'The Amf;lleys took Gregory Schenck's downpayment pursuant
to said agreement and at all subsequent times have failed and
refused to deliver the car wash business to Gregory Schenck, but
rather sold and delivered it to other purchasers while retaining
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Sr, would refuse to give Gregory Schenck credit for his downpayment
of $65,000,00 and retain the money,
29, Gregory Schenck believes, and therefore avers, that John
J, Amsley never intended to sell the car wash business to him, but
rather, engaged in the described elaborate sham and ruse in order
to obtain and retain the $65,000.00 deposited by Gregory Schenck on
the car wash business.
30. Notwithstanding repeated demands for the return of the
$65,000.00 deposit, John J. Amsley, Sr, has refused to return it
and has indicated he will deny that any deposit was paid.
WHEREFORE, Plaintiff respectfully requests that judgment be
entered in his favor for the return of his deposit of $65,000,00,
lost profits, interest, expenses, costs and all other such relief
and damages as the Court would deem proper.
COUNT I II
CONVERSION
Gregory Schenck v. John J. Amsley, Sr, and
Catherine B. Amsley, his wife,
31, The allegations in paragraph 1. thorough 30 of this
Complaint are incorporated herein by reference as though set forth
at length,
32, Gregory Schenck gave the Amsleys possession 01; the
$65,000.00 as a downpayment for the ultimate purchase of a car wash
business in Carlisle, Pennsylvania and for no other reason,
33. At the present time the Defendants do not intend to
return his deposit to Plaintiff nor to sell the car wash business
to Plaintiff.
34. Defendants have refused and continue to refuse to return
his downpayment to him even though they have sold the car wash
business to others.
WHBRBFORE, Plaintiff respectfully requests that judgment be
entered in his favor in the amount of $65,000,00 plus interest,
costs and such other relief as the Court deems proper,
COUNT IV
PUNITIVE DAMAGES
Gregory Schenck v. John J. Amsley, Sr,
35. The allegations of Paragraph 1 through 34 of this
Complaint are incorporated herein by reference as though set forth
at length,
36. The Defendant, John J. Amsley, Sr" has at all relevant
times acted in bad faith and with the intent to exercise unlawful
control over Plaintiff's $65,000,00 deposit,
37, John J. Amsley S1',' s conduct in this matter has been and
continues to be wanton and outrageous.
WHEREFORE, Plaintiff respectfully requests that this Court
enter judgment in his favor and against the Defendant, John J,
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
Gregory Schenck,
Plaintiff
v.
John J. Amsley, Sr. and Catherine B. Amaley,
his wife, Defendants
File No. 98-2i 63
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Harr.is saVir!9.!!LJ1.:1~"-ilJ..EY_Roail., Carlisle, PA 17013
(Name 01 Porson or Enlily)
~---...-----._-
Within twenty (20) days after service of this subpoena. you are ordered by the court to produce the following
documents or things:
See Attachment A
-~.__.._--_._--
at 105 N. Front Street, Harrisbu!:.'ll PA 17101
(Address)
Vou may deliver or mall legible copies of the documents or produce things requested by this subpoena. together
with the certificate of compliance, to the party making this request at the address listed above. Vou have the right
to seek in advance the reasonable cost of preparing the copies or produoing the things sought.
Ii you fall to produoe the doouments or things required by this subpoena within twenty (20) days after its servioe,
the party serving this subpoena may seek a court order oompelling YOll to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name____ Jam~s J,,-_lI_est, Esquire_________
__-efivf"tl Tl ",,;pI /bie-
r If-f'~ ~;/ ?.l- ~
f .,aft ([ r !/Vlllf
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Address: __..Ji>",5--B..!..~ro~Utreet
____!.I~rr~s.E_~~_J 71 O~___
Telephone: J2'!]~~]_- 50 ~]______._______
Supreme CourtlD # _____ 0033!________________
Attorney For: ________~~.'l.~n t i f ~____n_________
------
--
-
BY THE COURT: 1 _ /)
;.s1J2~.J...L2b~- _
Prothc notary/Clerk, 0Mfoivision
Date: ..vfloo ~mJ,~--Ql~j2..9rf?_________~~[2 ?n?/JCCc ;--
Seal of the Court .-<-~ Deputy
(EH.7/97)
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DATED:~r-
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me.~ J e.~t, C'squire
Attol'/le~ I.D. No. 003~-~----.._,._
105 N. hOIl/ Street __'_-..,
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(717) 233-5051
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