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CIVIL ACTION - LAW
NO, cn - 61ft3
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Plaillliff
IN TIlE COURT OF COMl\ION PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
MAR Y ANN LEIB.
JOSEPH 1', WINBERRY, 0,0.
Defendant
NOTICE
TO: Joseph 1', Winberry, 0,0,
3028 Market Street, Suite 3
Camp Hill, pA 17011
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in writing
with the Court your defenses or objections to the claims set forth against you, You are warned that
if you fail to do so the case may proceed without you and ajudgment 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,
Cumberland County Cw,lL_DB
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Carlisle, PA 17013~
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PHONE: (717)L4U.('J'.Wo- d.C(1-j( &? 0 V-
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MARY ANN LEIB,
IN TIlE COURT OF C01\Il\ION "LEAS
ClJl\IIlERLAND COUNTY,PENNSYLVANfA
Plaintiff
v.
CIVIL ACTlON.- LAW
NO.
JOSEPH p, WINBERRY, OD
Dcfcndant
NOTICIA
TO: Joseph p, Winberry, O,D.
3028 Market Strcet, Suitc 3
Camp Hill, PA 17011
USTED HA S100 DEMANDADO/ A EN CORTE, Si ustcd desea defenderse de las
demandas que se presentan mas adelante en las siquicntes paginas, debe tomar accion dentro de los
proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando
personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya, Se Ie
advierte de que si usted falla de tomar accion como se describe anterionnente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra
reclamacion or remedio solicitado por el demandante puede ser dictado en contra suya por la Corte
sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para
usted,
USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAl\1ENTE, Sf USTED NO T1ENE UN ABOGADO 0 NO PUEDE PAGARLE A
UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA A VERIGUAR DONDE PUEDE
ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
PHONE: (717) 240.6200
DoclIm..:nt 1114393n,1
rctract a portion of his accusation, Dcfcndalll did hy cxprcssion and innucndo and by statcment
and implication accusc J>laintifToftaking $20 nfhis moncy
6. J>laintiffis in no way guilty of said crimes so falscly and maliciously charged by
thc Defendant, and the words and communications ullcred by thc Defendant wcrc and are untrue
and wcre known by Defendant to bc untruc whcnuttcrcd and publishcd.
7. J>laintiffthercaftcr by counsel made repeated demands upon Defendant to retract
his accusation, but despite said rcpeatcd demands, as set forth in Exhibit A, a copy of which is
attached hereto and incorporated herein by refercnce, Defendant has long since refused and
failed to retract said statement and accusation.
8. Defendant is a person of apparcnt responsibility whose position in life is
calculated to give credit to the utterances in charge as aforesaid.
9, (a) By reason of the above, Plainliff has been greatly hurt and injured in her
good name and reputation and has suffered distress and embarrassment as a result of being
falsely accused of committing a crime, which crime would be subject to punishment by
imprisonment and would be regarded by public opinion as involving moral turpitude,
(b) By reason of the above, Plaintiff has been subjected to defamation which
would adversely affect her fitness for the proper conduct of her lawful employment and
profession.
COUNT I
10, Paragraphs] -9 above are incorporated by reference,
II, Defendant negligently published the aforesaid defamatory communications under
circumstances where a reasonable person would not have made them, exhibiting an absence of
ordinary care and diligence in ascertaining the true facts,
Do..:umcnl/l14]1).10,1
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VEIUFICATlON
I, Mary Ann I.eib, do hereby verify that the facts setlorth in the loregoing Complaint arc
true and eorrcetto the best of my personal knowlcdge or infonnation and belicf. I understand that
falsc statcmcnts hcrcin arc madc subject to the pcnalties of 18 Pa,C,S, ~ 4904, relating to unsworn
falsification to authoritics,
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Datc:
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Documcn11l143930.1
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retract a ponion of his accusation, Defendant did hy explessinn and innuendo and by statement
and implication accuse PlailllilT of taking $20 of his muney
6. I'laintilTis in no way guilty nfsaid crimes sn falsely llnd mllliciously charged by
the Defendant, and the words and communications litle/cd hy the Defendant were and arc untrue
and were known by Defendant to be untrue when utlered and published.
7, PlaintilTthereafter by counsel made repeated demands upon Defendant to retract
his accusation, but despite said repeated demands, as sel fonh in Exhibit A, a copy of which is
attached hereto and incorporated herein by reference, Defendant has long since refused and
failed to retract said statement and accusation,
8, Defendant is a person of apparent responsibility whose position in life is
calculated to give credit to the utterances in charge as aforesaid.
9, (a) By reason of the above, PlaintilT has been greatly hurt and injured in her
good name and reputation and has suffered distress and embarrassment as a result of being
falsely accused of committing a crime, which crime would be subject to punishment by
imprisonment and would be regarded by public opinion as involving moral turpitude,
(b) By reason of the above, Plaintiffhas been subjected to defamation which
would adversely affect her fitness for the proper conduct of her lawful employment and
profession,
COUNT I
10, Paragraphs 1-9 above are incorporated by reference.
1], Defendant negligently published the aforesaid defamatory communications under
circumstances where a reasonable person would not have made them, exhibiting an absence of
ordinary care and diligence in ascertaining the true facts,
Document 11143930.1
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WIIEREFORE, Plainliff claims damages frum Defendanl in an amount in excess of
$25,000, together with the costs of this action,
COUNT II
12. Paragraphs 1-9 above are incorporated by reference.
13. Defendant inlentionally made the aforesaid defamatory communications when he
knew that they were false,
14, Defendant recklessly made the aforesaid defamatory communications with
disregard for whether they were true or false,
WHEREFORE, Plainliff claims damages from Defendant in an amount in excess of
$25,000, together with punitive damagr.s and the costs of this action.
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS & ERB, P,C,
BY~Ov{
Jered L, Hock, Esquire
I.D, No, 1921 I
32 II North Front Street
1',0, Box 5300
Harrisburg, P A 171 10-0300
(717) 238-8187
Attorneys for Plaintiff
Date: November ~ 1998
Document 11143930.1
-3-
VEIUFICATION
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I, Mnry Ann Leib, do hereby verify that the faels set forth in the foregoing Complaint ure
true and eorreetto the best of my personul knowledge or infonnation and belief, I understand that
false statements herein arc made subject to the penalties of 18 Pa,C.S, S 4904, relating to unsworn
falsification to authorities,
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Date:
11- /7- 7'B
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Document 11143930.1
WHEREFORE, Defendant respectfully requosts that the defamation
count of the Complaint be dismissed.
COUNT II - DEMURRER
6. Paragraphs 1 -5 above are incorporated by reference
herein.
7. In Count II of the Complaint, Plaintiff makes a claim for
intentional infliction of emotional distress.
8. Plaintiff has failed to plead that there is documented
medical evidence of her suffering, stress, and embarrassment as
required by our Commonwealth Supreme Court and the Kinq David
Memorial Park case.
9. Defendant's action, even if having resulted in medically
documented emotional distress, still does not rise to the level of
outrageousness required by law.
WHEREFORE, Defendant respectfully requests that this Count to
this Complaint be dismissed,
COUNT III - MOTION FOR A MORE PARTICULAR STATEMENT
10. Paragraphs 1 - 9 above are incorporated by reference
herein.
11. Plaintiff has failed in her Complaint to give the exact
language supposedly used by Defendant which she claims was
defamatory.
CERTIFICATION OF SERVICE
I hereby certify that I am this day serving a true and correct
copy of the ateached DEFENDANT'S PRELIMINARY OBJECTIONS on the
following individual by First Class U,S. Mail addressed as follows:
Jered L. Hock, Esquire
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
Date:
KENNETH A. WISE, ESQUIRE
10 NO, 16142
126 LOCUST STREET
p, 0, BOX 11489
HARRISBURG, PA 17108-1489
(717) 238-3838
ATTORNEY FOR DEFENDANT
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CERTIFICATION OF SERVICE
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I hereby certify that I am this day serving a true and correct copy of the auached
PRAECIPE FOR LISTING OF PRELIMINARY OBJECTIONS FOR ARGUMENT on the
following individual by First Class U.S. Mail addressed as follows:
Jered L. Hock, Esquire
METZGER WICKERSHAM
3211 North Front Street
P,O, Box 5300
Harrisburg, PA 17110-0300
, I
Date: ,',,/.;;,/
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KENNETH A. WISE, ESQUIRE
lONO, 16142
126 LOCUST STREET
P. 0, BOX 11489
HARRISBURG, PA 17108-1489
(717) 238-3838
ATTORNEY FOR DEFENDANT
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MARY ANN 1.1-111.
!'Iailllifl'
1:'0.11 liE< 'OIIRT OF ('oMMON !'I.Ei\S
(,l!:\IIlI;RI.ANIJ ('Ol f:'\iTY, !'ENNSYI.V,\NIA
v,
(,(VII. A('TlON ..I.A \V
JOSEI'II!', \\'INIIERR y, (),IJ,
Ikli:lldallt
NO, 98.(74) nV11.
NOTICIA
TO: Joseph ", Willllerry, O,/),
3028 Market Street, Suite 3
Camp II ill , "A 17011
USTED /IA smo DEMANDADO/ A EN CORTE, Si usted dcsca dcfendersc dc las
dcmandas que se presentan ma~ adclante cn la~ siquientes paginas, dcbe tomar accion dcntro dc los
proximos vcinte (20) dias dcspues dc la notificacion dc csta Dcmanda y A visa radicando
pcrsona/mcnte 0 por medio dc un aoogado una comparecencia cscrita y radicando en la Corte por
escrito sus defcnsas dc, y objecciones a, /as demand as prcsentadas aqui cn contra suya, Se Ic
adviertc de quc si lIStcd lidla de tomar accion como se describe anteriomlente, cl easo puedc
procedcr sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otm
reclamacion or rcmedio solicitado por cl demandantc puede ser dictado en contra suya por la Corte
sin ma~ aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para
usted,
USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO
INMEDlA l' AMENTE, Sl USTED NO TlENE UN ABOGADO 0 NO PUEDE P AGARLE A
UNO, LLAME 0 VA Y A A LA SIGUIENTEOFICINA PARA A VERIGUAR DONDE PUEDE
ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Bar Association
Two Libcrty Avenue
Carlisle,PA 17013
PHONE: (717) 249-3166 or 1-800-990-9108
DucumcIII/lI52912
MARY ANN LEIIl,
IN 1111. ('ontl 01- (,o~I~ION I'l.b\S
('I :~IIII'IU.'\NI> ('( II IN IY, I'I':NNSYI.V,\NIA
I'lailllilT
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('lVII, A(, liON 1.,\ W
JOSEI'III', WINBERRY, 0,1),
I)ciendanl
NO, 'lll,(,7.jJ l'IVIL
AJ\U:NJ)EJ) COJ\lI'LAINT
I, Plllintiff is UlI udult individual who resides:lt 'JJ2 Eppley Road, Monroe
Township, Meehaniesburg Post Ofliee, Cumberland County, Pennsylvania,
2, Defendant is an adult individual who maintains ofliees and a place of pro Ie ssiona I
business at 3028 Market Street, Suite 3, Camp Ilill, Cumberland County, Pennsylvania,
3. I'laintiffis a good, true, honest, and virtuous citizen of the said community and
state and as such has demeaned and behaved herself and during her entire lite has remained free
and unsuspected of and from all manlier of larccny, thcfi. and any other such crimes, PlaintilT
was esteemed and reputed a person of good name, credit, and reputation,
4, Plainliff, for a long time before the speaking and uttering of the false and
defamatory words hereinafter mentioned, followed and carried on her career as an assistant to
practitioners of optometry,
5, Defendant, contriving to deprive PlaintitTofher good name, credit, and reputation
and to bring her into disrepute in the community and also to subject Plaintifflo prosecution and
punishment for the crime of theft, did, on or about the 29th day of July, 1998, at 3028 Markel
Street, Borough of Camp Hill, Cumberland Counly, Pennsylvania, in the presence and hearing of
Document II 152912
P/aintiILlI1d.1 policc oJ'liccr or of/kcrs, did f:llsc/y a.'.'usc Plaintilfoftakiug S 1110 lrll/ll
Dc/cndant's llJ'liCC, illllic.l\ing Ihal Plailllirf"lllllk S fllU lrllllllllc II klcndanl Winh.'rry I,"
(" [Iplln hcing lilrced by obvillUS circulllslanees \\ hich he could not deny 10 relraet a
portion of his accuSal ion, heeausc he found $160 of Ihe alleged SIIlO, Dc/cndmll Winberry stalcd
thai Plainlill'''loo!; S:W,"
7, Plaintiff assured Dcfcndant she had not l1Iken Ihe $20.just as shc h.ld previously
assured Delcndant she had not takcn the $IIlO .Illd I'laintilfto/d Dc/cndant Ihal she had receivcd
only $160 of the $180 amount owed by the patient. but Dc/cndmll would not investigale the
matter and persistcd in maintaining that Plainliffhad takcn $20,
8, Plaintiffwas Ihen escorted through Ihc office of Dclcndant by the police officer to
retrieve her personal itcms. thereby being regarded as and treated like a thief, because of the
accusations made by Defendant.
9, The police ofticer thcn indicated to Plaintiff in the prescnce of Defcndantthat
Defendant would not press charges for $20 and Dc/cndant agreed with the otlicer's statement by
indicating thal it was correct or using similar words,
10, PlaintitTwas then told by the police ollicer lhat ifshe ever returned to the
premises she would be arrestcd, thereby bcing rcgarded as and trcated like a thicf. because of the
accusations madc by Defendant.
II, Thc statemcnts of Dcfendant to the police otliccr and the Defendant's persistence
in thosc accusations after having found the $160 and after having heard the explanations of
Plainti ff were not reasonable,
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IJllCUIl1ClllflI52lJI2
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12, I h., ,lat.'lIIcllIs tlf I kl"/ldanl 10 Ihc policc oniccr and Ih., Ikl"/ldanl 's pcrsistc/lcc
inlhosc acclIsalitlm allcr having filllnd III<' SIll!) and all.'r havi/lg hcard III<' cxplanalions of
Plailllil]'llcrc lIIalkiollS,
Il f h,' slal<'/ll.'nls of /)c1~ndanllolhc policc onkcr and Ihc lJc/cndmn's pcrsislcncc
inlhosc al'clIS:llions allcr having lillllld Ihe SIll!) and aller having heard Ihc explanalions of
Plainliff Were nol based upon prob:lble calise,
1-1, The slalemenls of Dc/cndanl10 Ihe policc oniccr and the Dcl~ndanl's pcrsislenee
in Ihose accllsations aller having fllll/ld the $160 and atier having heard the e,xpJanalions of
Plaintilf were nOI Sllpporled by cirellmslances sullieienllo Warranl an ordinary prudent person in
Ihe same sitllation in believing Ihallhe Plaintiff Was guilly of the oftenses of which Defendant
accllsed her,
15, The slalements of Delendnnt to Ihe police officer and Ihe Defendant's persistence
in those aecusnlions al1er having found the $160 and al1er having heard the explanations of
PlaintilT Were nOl, under the eircumstnnces in question privileged, or, in the alternative,
constituled an abuse of privilege,
16, Plaintiff is in no way guilty of said crimes so falsely and mnlieiously charged by
Ihe Defcndnm, nnd the words and communications ultered by the Defendant were and are untrue
and were known by Defendant to be unlrue when ultered and published,
I 7, Plainti ff thereal1er by counsel made repeated demands upon Defendant to retract
his accusation, bUI despite said repented demands, as set fOl1h in Exhibit A, a copy of which is
altaehed herelo and incorporated herein by reference, Defendant has long since re-fused and
f.1iJed to retrnct said stntement and aceusnlion,
J)ucumclII#1521J1.2
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IX, f)elcnd.1II1 is a person ofapparenl responsihility \\hose position inlilc is
ealculaled 10 give eredittolhc ullerances in charge as ali.resaid,
II),
(a)
By rcasonofthe ahoVC,l'lailllilThas hcen greatly hurt and injurcd in her
good name ,md repulalion and has suffcred dislress and emharrassment as a result of heing
lalsely accused of committing a crime, which crimc would he suhjeetto punishmenl hy
imprisonment and would he rcgarded by public opinion as involving moral turpitude,
(b) By reason of the ahol'e,l'laintifThas been subjected to defamation which
would adversely allccl her litness for the proper conducl of her lawJiJ! employment and
profession,
COUNT I
20, Paragraphs 1-19 abovc arc incorporated by relcrence,
21, Defendant negligently published the aforesaid defamatory communications under
circumstances where a reasonable person would not have made them, exhibiting an absence of
ordinary care and diligence in ascertaining the lrue laets,
WHEREFORE, Plaintiff claims damages from Defendant in an amount in excess of
$25,000, together with the costs of this action,
COUNT II
22, Paragraphs 1-19 above are incorporated by reference,
23, Defendant intentionally made the aforesaid defamatory communications when he
knew that lhey were false,
[)ocumclltll152912
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VI
AuguSI 4. 1998
CE/(l'lIllEl> MAIL,
/(El'V/(N /(ECE/IYI' /(EQVESTIm
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1~1I Nl1flh hllnt Sln...f
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717.~.1X.HIH7
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I'E/(SONAL & CON/lI/)ENTIAL.
ADD/(!':SSEE ONLY
Joseph p, Winberry, 0,0,
3028 Markel Street, Suite 3
Camp Hill, PA 1701 I
124 \\'l'~f KinJ; Sln....'1
Shil'J'<'",bulj;. I'A I72S7
717.S,ll~7:;IS
1',I\,717':;.llHJ7.J.l
Dear Dr, Winberry:
Our firm represents Mary Ann Leib, It has come to our allention that certain regretful
developments Occurred in the final days she was employed by you, Because of these
developments and because of the current status of mailers, we hereby notify you of the
following:
I, It is our information that after initially accusing Mrs, Leib of taking $180, that you then
were forced by obvious circumstances which you could not deny, to retract the major
ponion of your accusation, You did, however, leave the police under the impression
that she had taken $20, This is as false as the statement that she took $180,
Accordingly, within 24 hours, we demand that you issue a written retraction to the
police to whom you reported the alleged incident, confinning not only that were you
inaccurate in reponing that she had taken $180, but also indicating that she took $20,
Please provide a copy of the retraction to me,
2. It is my understanding that you still have Mrs, Leib's name on your sign or signs. The
same must be removed Wilhin 24 hours of your receipt of this letter, You have no right
to use her name on anything in connection with your business,
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Christian S. Erb, Jr.
Robert E. Yetter
James F. Carl
Robert P. Reed
Edward E. Knauss, IV.
Jcrcd L, Hock
Karl R. Hildabrand*
Richard B, Druby
Steven P. Miner
Clark DeVere
DOCUtnentHIJ9J66
'&tll'lICmifi.'I1;/ldviJ
Iria//mOQ7/dQtiu"OlCy
by tht' Nationm lJc"QrrJ
ofTrid~
lvW
Joseph P. Winherry, O,(),
Augusl 4, 11)1)8
Page 2
1\\1 lit ;II~
WICKI i(\IIt\!\ \
SINC[ IMII
3, You owe Mrs, Leih for ('ne full week of salary plus 23 lJ(lurs al $10,25 per hour plus
five hours alone-half payor $5,12'/, per hour. The total gross is $673,19, I'aymelll,
based upon this amount, with only legitim.lle deductions therefrom is to be provided to
Mrs, Leib by Wednesday of this week,
If you have any questions or concerns, please do not hesitate to contact me,
Very truly yours,
METZGER, WICKERSHAM, KNAUSS & ERIl, P,C,
Jerect L. Hock
JLH/amm
cc: Mary Ann Leib
Document #139/66
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O';JU'IF!1:.L\TE OF SEn \'1(.'1:;
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ANI> NO\...., thi, /,1 4\'ay of i ) ( (~- '! '. ,1'1'1'),/, Jered I.. lIoek, of
Melzger, Wickersham, Knan,s & Erh,I',C.. .1I10rne)'s Illr f>lainlifJ: hereh)' eertily lhall served lhe
I(lregoing Amended COlllplaint lhis day h)' depositing the same inlhe I Inited Slates mail. poslage
prepaid. in Ilarrishurg,l'ennsylvania, addressed to;
Kenneth 1\, Wise. Esquire
126 Locust Slreel
1',{),Ilox 11489
lJarrishurg,l'A 17108-1489
By:
~,{~.
Jered L. Hoek";-EsqllJrc
l)tlcumcnI#152912
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MARY ANN I.E/O,
Plaintiff
: IN TilE COURT OF COMMON PLEAS
: CUMIU:RLAND COUN1Y. PA
JOSEPH p, WINBERRY, O,D,.
: CIVILACTION-LAW
Defendant
: NO. 98 - 6743 CIVIL
NOTICE TO PLEAD
TO: Maty Ann Leib, Plaintiff
You are hereby notified to file a written response to the enclosed ANSWER
TO AMENDED COMPLAINT WITH NEW MA ITER AND COUNTERCLAIM
within twenty (20) days from service hereof or ajudgment may be entered against you,
Date:
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Kenneth A. Wise, Esquire
ID NO 16142
126 Locust Street
p, 0, Box 11489
Hanisburg, PA 17108-1489
(7 I 7) 238-3838
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Attorney for Joseph p, Winbeny, O.D,
DEFENDANT
C:\\\'P5Idocs\pJd\WinbcrTJ\Ans\\'cr to AmcnlJt::u Complainl \\' New MUlIer.doc
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and theft. Admitted that Defendant called policc, lie did so only after he noted
irregularities in financial records to be kept by Plaintiff, and only aftcr Plaintiff
was unable to give an explanation of those discrepancies, Defendant called the
police after Defendant had dismissed Plaintiff and had directcd her to remove
herself from the premises,
6, Denied, To thc contral)', Defendant made no such accusation that he
retracted, Admitted that Plaintiff fortuitously "found" a envelope with $160,00
inside, the receipt of which Plaintiff could not account for. Further admitted only
that Defendant demanded an explanation for an apparent balance of$18,OO which
had not yet been accounted for,
7, Denied as stated, Because the disappearance and fortuitous
reappearance of the $160,00 came under unexplained circumstances, Defendant
was justified in asking Plaintiff for a full explanation as to the discrepancy of the
twenty dollars owed to a patient, as well as the $160,00 amount.
8. Defendant tenninated Plaintiff and revoked permission for her to
remain on the premises, Defendant also revoked Plaintiffs permission to have
access to any office records, She was given pennission to gather her personal
belongings and to immediately leave the premises,
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9, Denied as stated, Defendant was more interested in ridding himself
of an employee who had grown troublesome, suspect, and olle who no longer
merited his trust.
10, Admitted and denied, Admitted that Defendant specilically told
Plaintiff that she was no longer pennitted to come back onto the premises, What
Plaintiff chooses to make of it is another matter which is irrelevant for the
purposes of this pleading,
I I. Denied, To the contrary, Plaintiffs inability to explain the
irregularities in the intake of the check and the fortuitous reappearance of the
check make Defendant's suspicions entirely reasonable,
12. Denied, To the contrary, Defendant's statements to police were
correct, non-defamatory, reasonable, and were within his license to make under
the circumstances,
13. Denied, After comparison of the allegation in this paragraph with
paragraphs live and six of the Amended Complaint, Defendant is without
sufficient knowledge to understand what Plaintiff is talking about. Clarilication is
demanded, Proof is also demanded because, after reasonable investigation,
Defendant is without infonnation sufficient to fonn a belief as to the truth of the
avennent.
c:\wpSldocs\pli.l\Winbcny\Answcr to Amended Complaint w New Matter.doc
3
14, The response of Paragraph 12 above is incorporated herein by
reference,
I S, The response of Paragraph 12 above is incorporalcd herein by
reference, Further, Defendant has reasonable qualified privilege,
16, Denied as slated, To the extent that Plaintiff knew about the
$160,00 and failed to process the $160,00, she was guilty ofa theft offense up to
the time when the check fortuitously reappeared,
17, Admitted, Defendant received the letters, Denied that there was any
malicious publication, or if there was publication, the publication was absolutely
or conditionally privileged,
18, Denied, Defendant is absolutely without any idea as to what
Plaintiff is alleging here, In any event, it may be considered denied and proof
demanded because Defendant, after reasonable investigation, is without
information sufficient to form a belief as to the truth of the averment.
19, (a) (b) Denied. After reasonable investigation, Defendant is without
information sufficient to form a belief as to the truth of the averment. Proof is
demanded,
c:\wpS Idocs\pld\Winbcrry,^nswcr to Amended Complaint w New Matter,doc
4
COUNT I
20, The responses to the allegations contained above are incorporated by
reference herein,
21. Denied, To the contrary, there was no defamatory communication
uttered, and such utterances as were made were reasonable in light of the
uncontradicted circumstances of this case,
WHEREFORE, Defendant respectfully requests judgement in his favor,
together with costs of suit.
COUNT II
22, The allegations of paragraphs I - 19 of the response above are
incorporated by reference herein,
23, Denied, To the contrary, no defamatory communication was made,
Further, no defamatory communication was knowingly made,
24, Denied that any defamatory allegation was made or that it was made
recklessly, To the contrary, no defamatory utterance was made, If one was made,
it was absolutely privileged or conditionally privileged, which condition
Defendant did not abuse,
WHEREFORE, Defendant respectfully requests judgement in his favor,
c:\wpSldocs\pld\WinhcJl)'\Answcr to Amcndc:d Complaint w New Mutlcr.doc
5
AFFIRMATIVE DEFENSES
25, Defendant uttercd no defamatory communication,
26, Such communication as was uttered was true and bascd on
reasonable comment on circumstances actually existing and known to Defendant.
27, Plaintiff has failcd to statc a claim upon which rcliefcan be granted.
COUNTERCLAIM
28, Paragraphs I - 27 above are incorporated by reference herein,
29, Plaintiff is bringing this action falsely and maliciously and not out of
a desire to redress any wrong, but out of a desire to embarrass Defendant and out
of a desire to put Defendant to needless expense of defending this claim,
Defendant can reasonably be expected to expend over $10,000,00 in
attorney's fees in defending this claim through trial.
30, Plaintiffs allegation of defamation is false and is calculated to
embarrass and humiliate Defendant.
31. Defendant has endured embarrassment and humiliation as a result of
the false allegations raised in this suit.
c:\wpSldocs\pld\Winbcrry\i\nswcr to Amended Complaint w New Mutter.doc
6
ClmT....ICATION OF SEIWICE
I hereby certify thai I am Ihis day serving a true and correct copy of the
attached ANSWER TO AMENDED COMPLAINT WITII NEW MATrER AND
COUNTERCLAIM - FIRST SET on the following individual by First Class U,S,
Mail addressed as follows:
Jered L. Hock, Esquire
METZGER WICKERSHAM
3211 North Front Street
P.O. Box 5300
Harrisburg, P A 17110-0300
Date:
':,
,(
?
."'/, 1/
Kenneth A. Wise, Esquire
10 NO 16142
126 Locust Street
p, 0, Box 11489
Hanisburg, PA 17108-1489
(717) 238-3838
Attorney for Defendant
Joseph p, Winberry, 0,0"
c:\wp5Idocs\pld\Winbcrry\Answcr to Amended Complaint w New Matter.doc
10
MARY /\NN 1.1:/11,
l:-.i I ilL ('01 'I{ I oF( 'O\I\IO~ I'l.h\S
C11\IJlI'RI"\:-.i1) ('OliN I y, I'I;:\NSnV/\NI/\
I'laillliff
\'.
('IVII. ,.\(' 1/0:'>1 I.A \\'
lOSl'l'II 1', W/NIII:RI{Y, (II),
I lclcnd:1I11
No, '11\'(,7.11 ( 'I V 1/,
NOTICE TO I'I.EAIl
TO: Joseph 1', Winberry, D,O,
- :lI1d-
Kenllelh A, Wise, Esquire
126 I.oeust Street
1',0, /lox 11489
Ilnrrisburg,l'A 17108-1489
Altorneys I{lr Delcodanl
\'ou arc hereby noti/ied 10 file a wrilten response to the enclosed Reply to Defendant's New
Malter :md Counterclaim wilhin twenty (20) days Irom service hereofor a judgmentmny be entered
againsl you,
METZGER, WICKERSIIAM, KNAUSS & ERB, P,C,
BY:~~
Jered L. Hock, Esquire
Altorney 1.0, No. 19211
3211 North Front Slreel
1',0, Box 5300
Harrisburg, P A 171 /0-0300
(717) 238-8187
Dale:
4,)",1 50
Allorneys for PlaintitT
,1999
DocumCllI #1572-19
MARY ANN 1.1'111.
IN TilE ('OllRT 01' ('ml~ION I'l.b\S
('[ it\IIlI.:RI.ANIl ('OliN I Y. l'I',Nr\SYI.V ANI,\
I'l00inliH'
v.
('IVII. A(,1I0N-I.,\ W
JOSEI'll 1'. WINBERRY. O.Il..
Ilcfendmll
NO. lJll-6743 CIVIL
REI'L Y OF I'LAINTIFF TO
IlEFENIlANT'S NEW MATTER ANIl COllNTEIKI.AIM
25. Denied. On the eOl1lrary.l'laintiffullered defamatory communication and
persisted therein when it was proven that he was incorrect and even al\er he received multiple
requests to retract the same.
26. Denied. The communication was false and was not reasonable on the basis of
circumstanccs which were actually existing and which were known or should have been known
to Defendant. By way of further answer. paragraph 25 above is incorporated by reference.
27. Conclusion of law. no answer required. Ifan answer is required, denied for
reasons set forth in paragraphs 25 and 26 above and in paraeraphs 1-24 of the Complaint, which
arc incorporated herein by reference.
COUNTERCLAIM
28. Paragraphs 1-27 of Plaintiffs Complaint and Reply to Defendant's New Matter
are incorporated by reference.
29. Specifically denied. On the contrary, Plaintiff is bringing this action reasonably
and solely out of desire to redress wrong; Plaintiff has no desire to embarrass Defendant or to put
Dllcumcntli 1572.19
him 10 needless e,\peme; I'I00irlliffhOls only Ihe desire 10 ,,'ek legilimOlle redress lilr the mUllers
compluin.'d of in h.'r ('omrlaint.
Ilcnk'd Ihal I ).'kndiulI C;III reusouahly he expeel.'d 10 e,\pend OIW $10.000 or uny
sum upprouching thul ,unounl in dcl~nding this c1uim. Further. uny und ull impliculions Ihut
Deli:ndunt is cnlitled 10 ullomey's I~.'s ure dcnied.
30. Spccilicully denied. Onlhe contrary. Ileli:ndunl delhmed Pluinlill'und Ihe
aVCmlents concerning the SUllie me Irue und me udvunced li'r Icgitimute purposes, rut her thun Illr
the purposc of cmburrussing und "fliliuting [)cli:ndunt.
31. Dcnicd Ihat any Ihlsc ulleg.rtions wcrc ruised. On Ihc cOl1lrury. thc ullegations
....we true and corrcct. As IOthc allegation lIurt [)cli:ndal1l hus cndured cmbarrassment and
alliliation. alicr rcusonable invcstigation. I'lainlill' is Wilhout knowledgc or information suf/icicl1l
to form a belicfus to thc truth of the sume .lI1d. if relevant and admissible. strict proof is
demanded.
WHEREFORE. Pluintiff dcmands that Deti:ndunt's coul1lerclaim be dismissed and that
judgment be entcred in her lavor. logcthcr with attorncy's fces and costs of this action.
NEW MATTER
32. Plaintiff had probable cause for bringing hcr causc of action against Defendant.
33. Defendant has brought this Counterclaim seeking. La., attomey's fees and
punitive damages for purposes other than the adjudication of the underlying claim.
34. Defcndal1l's Counlerclaim constitutes dilatory, obdurate, and/or vexatious
conduct, as well as arbitrury and bad failh action.
Dncumcnl#IS72-J9
-2~
.'
VEIUFlc'\T/ON
Thc undcrsigned hcrcby certifics thaI thc Iilcls sCIIl>rlh inlhc lilrcgoing Rcply ofPlainlifflo
Dcfendanl'sNcw Maller and CoulIlerc/aim arc Inlc and corrcct10 thc hcstofhcr knowledge.
infonn:uion. and bcliefand lilrlhcr stalcs Ihm lillsc slatcmcnts hcrcin arc made subjeettolhe
pcmrltics of 18 Pa.C.S.A. * 4904 relating 10 unsworn tillsificalion 10 ulIlhorities.
l~\
Date: i./u,'/ -,1
ih C" ',I,
Mary Ann Lein
,
I
/
.. . / .~,. "
" '
.19'1'1
,.
Document #1572.JIJ
('ElrnFIC''\n~(lF SEI{VIC'E
AND N( IW.lhis ,-2:::' day 01'
1'\' , . ~
. ~.. '-.... '
.1'11)'1. I. J~r~d I.. Ilo~k, or
Mctzger. Wickersham. Knauss & I'rh.I'.('.. allllrn~ys li'r I'laintin: h~reby c~rtilY thai I scrv~d the
Illregoing Reply ol'l'lainlilTto DcI~ndant's Ncll' ~Iallcr .u1<1 Cllunlcrclaimthis day by depositing
thc samc in thc I Inited Slatcs Imlil, postagc prcpaid, inllarrishurg, Pennsyll'ania,addrcsscd to:
K~nncth A. Wise, ES<luirc
126 Locusl Str~ct
P.O.l3ox 114S9
lI.lITisburg. P A 171011-14S'I
/'-,
. ( -,
\,
"
"'~
-",
, ,-..-------.,
By:
Jere(j-[~. qUIre
Document" I 572-19
VEnIF'CATION
Upon lilY personal knowledge or infollnalion and belicf, I hcreby verify fhallhc
facts avcrrcd in fhc forcgoing Response to I'lnintil1's New J\lnller llllll nellly arc fruc and
COrrcctto the best of lilY knowledge, infollnntion, and bclief. I undcrsland fhat falsc
slatcmcnls or avcllllcnls thcrcinllladc will subjcctlllc to thc criminal pcnallics of
18Pa.C.S. ~ 4904 relating 10 unsworn falsification to authorities.
Date: '1- J -77
) 1.-. (iJr,1 ^
~..~() v '\~-'.{"'h,'""..("l/V'\.,
~ . eph 1', inberry ./
. /