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HomeMy WebLinkAbout01-04451 JACQUELYN A. AUST, Plaintiff v. AARON BROWN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW Defendant No. ol- ~'ys/ IN CUSTODY CIVIL TERM ORDER AND NOW, this ?%f ~ day of Q~,a.-, , 2001, in consideration of the attached Custody Stipulation and Agreement, it is hereby ordered that: The parties hereto agree that they shall have shared legal custody of the child as such term is defined in 23 Pa. C.S.A. Section 5301 et. seq. 2. The parties agree that the Mother shall have primary physical custody of the minor child subject to the Father's rights for visitation and partial custody with said child as hereinafter set forth. 3. Father shall have the right to partial physical custody of the child every other weekend from Friday at 4 p.m. to Sunday at 7:30 p.m. 4. At such time as Father is no longer working the second shift at his place of employment, Father shall have partial physical custody of the child every Wednesday from 4 p.m. to 7:30 p.m. 5. The parties shall alternate or share the holidays of New Year's Eve, New Year's Day, Easter, Memorial Day, Independence Day, Labor Day, and Thanksgiving. The parties shall confer with each other to arrange for an alternating schedule or for a sharing of these holiday visits. 6. The parties shall alternate Christmas Eve and Christmas with the Father having the right to partial custody with the child Christmas Eve from approximately 5 p.m. until Christmas Day at approximately 12 p.m. and in alternating years Father shall have partial custody of the child from Christmas Day at approximately 12 p.m. until December 26 at approximately 7:30 p.m. 7. Father shall have the child on Father's Day and Mother shall have the child on Mother's Day any other schedule notwithstanding. 8. The child's birthday shall be shared so that each parent will spend approximately one-half day with the child on her birthday. 9. Father shall be entitled to partial custody of the child for a period of two non- consecutive weeks during the summer months upon giving Mother 30 days notice of his desire to exercise this partial custody. 10. The party having physical custody of the child shall allow the other parent open telephone contact with the child. 11. Father shall be entitled to partial custody at such other times as the parties may from time to time mutually agree. 12. The parties understand and agree that it may from time to time be necessary to modify or change the days Father's entitled to partial custody and the parties mutually agree that they may do so without the need for a change or modification of the Court Order. 13. The parties will keep each other advised immediately relative to any emergencies concerning the child and shall further take any necessary steps to insure that the health and well being of the child is protected. 14. Neither parent shall do anything which may estrange the child from the other party, or injury the opinion of the child as to the other party or which may hamper the free and development of the child's love and affection for the other P~Y• 15. The parties agree to use appropriate language and conduct when in the presence of the minor child. 16. Except as otherwise provided for herein in paragraph 12 any modification or waiver of the provisions of this Agreement shall be effective only if made in writing and only if executed with the same formality as this Stipulation and Agreement. BY THE COURT: ,~a.~ J. (?'" ~0` ~~ JACQUELYN A. AUST, Plaintiff v. AARON BROWN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. O1- 9PS( CIVIL TERM IN CUSTODY CUSTODY STIPULATION AND AGREEMENT TFIIS AGREEMENT AND STIPULATION entered into the day and year hereinafter set forth, by and between JACQUELYN A. AUST (hereinafter referred to as "Mother") and AARON BROWN (hereinafter referred to as "Father"). WHEREAS, the parties are the natural parents of HANNAH LYNN AUST, bom November 27, 2000 (hereinafter referred to as "child"); and WHEREAS, the parties are separated and living in separate residences; and, WHEREAS, the parties wish to enter into an agreement relative to the custody and partial custody of the child. NOW, THEREFORE; in consideration of the mutual covenants, promises and agreements as hereinafter set forth, the parties agree as follows: 1. The parties hereto agree that they shall have shared legal custody of the child as such term is defined in 23 Pa. C.S.A. Section 5301 et. seq. 2. The parties agree that the Mother shall have primary physical custody of the minor child subject to the Father's rights for visitation and partial custody with said child as hereinafter set forth. Father shall have the right to partial physical custody of the child every other weekend from Friday at 4 p.m. to Sunday at 7:30 p.m. 4. At such time as Father is no longer working the second shift at his place of employment, Father shall have partial physical custody of the child every Wednesday from 4 p.m. to 7:30 p.m. The parties shall alternate or share the holidays of New Year's Eve, New Year's Day, Easter, Memorial Day, Independence Day, Labor Day, and Thanksgiving. The parties shall confer with each other to arrange for an alternating schedule or for a sharing of these holiday visits. 6. The parties shall alternate Christmas Eve and Christmas with the Father having the right to partial custody with the child Christmas Eve from approximately 5 p.m. until Christmas Day at approximately 12 p.m. and in alternating years Father shall have partial custody of the child from Christmas Day at approximately 12 p.m. until December 26 at approximately 7:30 p.m. Father shall have the child on Father's Day and Mother shall have the child on Mother's Day any other schedule notwithstanding. 8. The child's birthday shall be shared so that each parent will spend approximately one-half day with the child on her birthday. 9. Father shall be entitled to partial custody of the child for a period of two non- consecutive weeks during the summer months upon giving Mother 30 days notice of his desire to exercise this partial custody. 10. The party having physical custody of the child shall allow the other parent open telephone contact with the child. :.;~ 11. Father shall be entitled to partial custody at such other times as the parties may from time to time mutually agree. 12. The parties understand and agree that it may from time to time be necessary to modify or change the days Father's entitled to partial custody and the parties mutually agree that they may do so without the need for a change or modification of the Court Order. 13. The parties will keep each other advised immediately relative to any emergencies concerning the child and shall further take any necessary steps to insure that the health and well being of the child is protected. 14. Neither parent shall do anything which may estrange the child from the other party, or injury the opinion of the child as to the other party or which may hamper the free and development of the child's love and affection for the other party. 15. The parties agree to use appropriate language and conduct when in the presence of the minor child. 16. Except as otherwise provided for herein in paragraph 12 any modification or waiver of the provisions of this Agreement shall be effective only if made in writing and only if executed with the same formality as this Stipulation and Agreement. 17. The parties desire that this Stipulation and Agreement be made an Order of Court to the Court of Common Pleas of Cumberland County, and further acknowledge that the Court of Common Pleas of Cumberland County does, in fact, have jurisdiction over the issue of custody and the parties minor child and shall retain jurisdiction should circumstances change and either party desire or require modification of said Order. 18. The parties acknowledge that they have read and understand the provisions of this Agreement. 19. Each party acknowledges that the Agreement is fair and equitable and that it is not the result of any duress or undue influence. IN WITNESS WHEREOF, the parties hereto intending to be legally bound by the terms hereof set their hands and seal the day and year written below. Michael .Scherer, Esq. . Attorney for Pltintiff Date: ~. Z ~ ~ 1 Ja quel}n A. A ,Plaintiff te: 6• Z ~ t p7~?rn ~~ tt~~ aron Brown, Defendant Date: ~riy ~~ <z,'- ~j ~ z ~' ~~~~ ~~ ~~ ~ F ~ n ~ P ~ ~~I JACQUELYN A. AUST IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. AARON P. BROWN DEFENDANT • 01-4451 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Wednesday, August 14, 2002 ,upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. ,the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, September 03, 2002 at 8:30 AM for aPre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ jacgueline M. Verney. Esg. ,~~' Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ~r~-;. ~-~~ ~ ~°~ ~~~I~ ~~~~~ ~~~,-~ r ~ nt~tN,~/;ZhS~v,1~^~ .~.~ ~Ir r ~ ''. (irx ,, ~+ err %, j J11~ ~ i AC~'~J_~J~:!~r_,~r~ 7.-t, ;_...~~.. 'rl NATHAN C. WOLF, E8QUIRE ATTORNEY ID NO. 87880 55 EAST HIGH STREET CARLISLE PA 17018 (717) 245-6090 ATTORNEY,FOR DEFENDANT AUG 0 002 JACQUELYN A. RUST, Plaintiff v. AARON P. BROWN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 01 - 4451 CIVIL TERM :CUSTODY ORDER OF COURT NOW, this day of , 2002 in consideration of the attached petition, it is hereby directed that the parties and their respective counsel appear before Esquire, custody conciliator, on the 4th Floor, Cumberland County Courthouse, on the day of , 2002, at . M. for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the Court and to enter into a temporary order. Failure to appear at this conference may provide grounds for entry of a temporary or permanent order. By the Court, By: Custody Conciliator YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 35 EAST HIGH STREET CARLISLE PA 17013 (717) 243-6080 ATTORNEY FOR DEFENDANT JACQUELYN A. AUST, Plaintiff v. AARON P. BROWN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07 - 4451 CIVIL TERM CUSTODY PETITION FOR MODIFICATION OF CUSTODY NOW, comes the petitioner, Aaron P. Brown, by his attorney, Nathan C. Wolf, Esquire, and presents the following petition for custody, representing as follows: 1. The petitioner/defendant is Aaron P. Brown, an adult individual residing at 151 Long's Gap Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. The respondent/plaintiff is Jacquelyn A. Aust, an adult individual whose precise residence is unknown to petitioner, but whose last known place of residence is 1008 Rebecca Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties are the natural parents of one child, Hannah Lynn Aust, age 20 months, born November 27, 2000, out of wedlock. 4. Since her birth, the child resided with the respondent at the residence listed above, until approximately June of 2001, when respondent moved into the home of respondent's mother, whose address is unknown to petitioner, but is located in Carlisle, Pennsylvania 17013. 5. On July 27, 2001, the Court entered a Custody Order subsequent to the filing of a stipulation and agreement signed by the parties providing for joint legal custody and primary physical custody in the respondent, subject to periods of partial custody and visitation by the petitioner. 6. While this arrangement was satisfactory for some time, the petitioner now seeks modification because he is now better able to provide for the child's needs than he was when the agreement was executed. 7. Moreover, petitioner believes that respondent has failed to discharge her parental duties herself, and has instead relied on third-parties to do so, even when respondent was not working. In fact, it has come to petitioner's attention that respondent frequently leaves the child in the care of others while she pursues other interests outside of work, even though the child is only 20 months old. 8. For these and other reasons which may be developed at a hearing in this matter, petitioner believes and therefor avers that the best interests and permanent welfare of the child require a modification of the current order so that the parties have joint legal custody of the child, but that petitioner have primary physical custody of the child, subject to respondent's rights of partial custody during specified periods of time. WHEREFORE, petitioner, Aaron P. Brown, respectfully requests that the custody of the child be ordered as aforesaid. August ~, 2002 ~ ~/" N iAN Q F IRWIN LAW OFFICE Attorney for Petitioner/Defendant SUPREME COURT ID N0.87380 35 EAST HIGH STREET CARLISLE PA 17013 (717) 243-6090 VERIFICATION I do hereby verify that the acts set forth in this petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. August 2, 2002 ~///~/ ~~2~'2~%'L~ Aaron P. Brown ~ CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copy of Defendant's Petition for Modification of Custody upon the following person and in the matter indicated: SERVICE BY U.S. MAIL: Michael A. Scherer, Esquire O'BRIEN BARK & SCHERER 17 West South Street Carlisle, PA 17013 (Attorney for Plaintiff Date: P~ ~L IRWIN LAW Esquire ID No. 87380 Attorney For Defendant 35 East High Street Carlisle, Pennsylvania 17013 (717)243-6090 ~: . ~~ f!J \ % ~] Q ~ ~ ~~ l '^ V` ~\ C+ ~~ ~~l",'P _~, i ~ ,,~~f;' ~ _,. ~~p 0 3 2002 JACQUELYN A. RUST, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. : N0.2001-4451 CIVIL TERM AARON BROWN, :CIVIL ACTION -LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this S' day of ~,~~ , 2002, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: The prior Order of Court dated July 25, 2001 is hereby vacated. 2. The Mother, Jacquelyn A. Aust, and the Father, Aaron Brown, shall have shared legal custody of Hannah Lynn Aust, born November 27, 2000. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non- emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. The parties agree to share physical custody of the Child on the following terms. A. For the months of September through May and beginning September 4, 2002, Father shall have physical custody of the Child alternating weeks, from Tuesday at 4:00 p.m. to Monday morning when he shall drop off the Child at daycare. B. For the months of June, July and August, Father shall have physical custody of the Child alternating weeks from Monday at 4:00 p.m. to Monday when he shall drop off the Child at daycare. C. During Father's off week, he shall have physical custody on Wednesdays from 4:00 p.m. to 8:30 p.m. D. Except as provided herein, Mother shall have physical custody of the child at all other times. E. During Mother's off week, she shall have physical custody on Thursdays from 4:00 p.m. to 8:30 p.m. F. The Christmas Holiday shall be divided into two Blocks. Block A shalLrun from Christmas Eve at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall run from Christmas Day at 12:00 noon to December 26 at 7:30 p.m. Mother shall have Block A in even \~iN'dArA~N~~~i~"~i1J .J~/ numbered years and Block B in odd numbered years. Father shall have Block B in even numbered years and Block A in odd numbered years. G. Thanksgiving Day and Easter Day shall be split 9:00 a. m. to 3:00 p.m. and 3:00 p.m. to 9:00 p.m., as agreed by the parties. H. The parties shall share or alternate the following holidays as agreed: New Year's Eve, New Year's Day, Memorial Day, Independence Day, and Labor Day. I. Mother shall have physical custody on Mother's Day; Father shall have physical custody on Father's Day any other schedule notwithstanding. J. The Child's birthday shall be shared equally among the parties. K. In the event either parent is in need of babysitting services for longer than two hours, they shall notify the non-custodial parent and offer the opportunity to care for the child during that time. L. Each party shall be entitled to one uninterrupted week per year with the Child provided they supply 30 days prior notice to the other party. 4. Both parties shall have liberal telephone contact with the Child. 5. The parties shall keep each other advised immediately relative to any emergencies concerning the Child and shall further take any necessary steps to insure that the health and well-being of the Child is protected. 6. Neither parent shall do anything which may estrange the Child from the other party, or injure the opinion of the Child as to the other party or which may hamper the free and natural development of the Child's love and affection for the other party. 7. The parties agree to use appropriate language and conduct when in the presence of the minor Child. 8. Transportation shall be as agreed by the parties. 9. This Order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, J. ccyiGlichael A. Scherer, Esquire, Counsel for Mgt~ie ~ n Q+p1 ~ /Nathan C. Wolf, Esquire, Counsel for Father L -1--' 9 G-o2 R~s JACQUELYN A. AUST, Plaintiff V. AARON BROWN, Defendant PRIOR JUDGE: Kevin A. Hess, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2001-4451 CIVIL TERM CIVIL ACTION -LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Hannah Lynn Aust November 27, 2000 Mother 2. A Conciliation Conference was held in this matter on September 3, 2002, with the following individuals in attendance: The Mother, Jacquelyn A. Aust, with her counsel, Michael A. Scherer, Esquire and the Father, Aaron Brown, with his counsel, Nathan C. Wolf, Esquire. 3. A prior Order of Court was entered by the Honorable Kevin A. Hess on July 25, 2001 upon stipulation of the parties, which provided for shared legal custody, Mother having primary physical custody and Father having periods of partial physical custody on alternating weekends and every Wednesday. 4. The parties agreed to entry of an Order in the form as attached. Q-3 oa Date ~~~. ~, ac eline M. Verney, Esquire Custody Conciliator NATHAN C. WOLF, ESQUIRE ATTORNEY ID N0.87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 170Li (717) 241-4436 ATTORNEY FOR PLAINTIFF F~~.E~- L.;h~-`r; s i ~~. ~ _, s _. ZDID J~~d 1 ? I~ ~ ~~ CUPJfr ~=." ,~~'~~Y JACQUELYN A. AUST (NOW NEIL), : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. AARON P. BROWN, Defendant DOCKET N0.2001-4451 CIVIL ACTION -LAW IN CUSTODY PETITION FOR SPECIAL RELIEF NOW COMES the Defendant, Aaron P. Brown, by and through his counsel, Nathan C. Wolf, Esquire, and presents the following petition for special relief and in support thereof represents as follows: 1. Plaintiff is Jacquelyn A. Aust (now Jaquelyn A. Neil), an adult individual residing at 9 Hilltop Circle, Carlisle (South Middleton Township), Cumberland County, Pennsylvania. 17015. (Hereinafter referred to as "Mother' 2. Defendant is Aaron P. Brown, an adult individual residing at 1121 Rebecca Street, Carlisle, Cumberland County, Pennsylvania, 17013. (Hereinafter referred to as "Father' 3. The parties are the natural parents of one minor child, namely: a. Hannah Lynn Aust (Born November 27, 2000) Age 9. 4. The parties are currently subject to a custody order entered by agreement on September 5, 2002, by the Honorable Kevin A. Hess. (A true and correct copy of said order is attached hereto as Exhibit A). 5. The Order provides for, inter alia, the parties to share legal and physical custody of the child. 6. On or about June 10, 2010, the child was in the custody of Father for his evening visit during Mother's week of custody. 7O• ~ P~' G~ ~L~ a~~. Pte, 7. On or about June 10, 2010, during Father's evening visit, upon information and belief, agents from the FBI and DEA and Pennsylvania State Police Troopers executed a search warrant upon Mother's residence as a result of an undercover narcotics trafficking investigation targeting Mother's husband. 8. As a result of the search, officers seized drug paraphernalia., and ultimately seized vehicles, and cell phones from Mother and her husband their search. 9. During the search, officers obtained information from Mother leading to the arrest of her husband John Neil, who was travelling from Philadelphia to the Carlisle area on the Pennsylvania Turnpike. 10. Father avers that when John Neil was taken into custody by law enforcement officers on the Pennsylvania Turnpike, Mr. Neil was in possession of approximately 255 grams of cocaine. 11. At the time of his apprehension, Mr. Neil was travelling and transporting cocaine in the same minivan which is customarily used to transport the child. 12. When Father returned the child to Mother's custody Thursday night, she failed to disclose any of the events of that evening to Father. 13. Thereafter, on June 14, 2010, Father attempted to resume custody of the child from the child's babysitter as per the Order. 14. The child was not in the care of the babysitter, Vicky Pennypacker, when Father arrived. 15. At that point, the babysitter informed Father that Mother had been involved in some type of trouble with law enforcement officers and may be facing incarceration, had lost her job working in the Register of Wills office in Cumberland County, and that the child would no longer be cared for by the babysitter in the future. 16. At that point, Father attempted to contact Mother to retrieve the child. 17. Mother offered only a cursory explanation of what had occurred and refused to give any details to Father when he gave her the chance to explain what had happened. 18. Father is fearful that if Mother continues to retain shared custody of the child, that the child will be exposed to continued risks of harm, as her other children, ages approximately two and five, were present at the time officers executed the warrant on Mother's home. 19. Father is fearful that Mother's actions are exposing the child to an unnecessary risk of harm because the actions occurring in Mother's household involved individuals who may attempt to thwart any possible cooperation that Mr. Neil may be willing to provide law enforcement. 20. It is well-established that individuals trafficking significant amounts of cocaine are often exposed to others in the drug trade who resort to violent behaviors without concern for any interests other than their own. 21. Father anticipates that may be forthcoming in the immediate future and may be filed against Mother as well as her husband. 22. Father is prepared to file a petition for modification of the underlying Order as a result of the recent events and the increased risk of harm in which the child has been placed. 23. In the interim, it is submitted that special relief is needed to ensure the safety of the child, as Mr. Neil has been released from custody. 24. Father believes that Mother would not intentionally expose the child to harm and therefore believes that visitation is appropriately granted in the interim. 25. Father is fearful though that if the child remains in the custody of Mother overnight that the child will be subjected to an unjustifiable risk, as demonstrated by Mother's complicity in the actions of her husband in her household. 26. Father submits that the child's best interests and permanent welfare would be best served by granting him primary physical custody. 27. The prior judge assigned to this matter is the Honorable Kevin A. Hess, P.J. 28. Father believes that the best interests of the child will be served by granting the relief requested herein. WHEREFORE, for the reasons set forth herein, defendant, Aaron P. Brown, respectfully requests that the Court enter a temporary order granting physical custody of the child to him and directing that Mother shall be limited to periods of visitation with the child for periods of four hours on four days per week, pending further Order of Court, along with any additional relief that the Court may deem appropriate and just. Respectfully submitted, WOLF & WOLF, Attorneys at Law Date: June ~, 2010 By: " .Wolf, Esquire We High Street 'sle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Defendant VERIFICATION I do hereby verify that I am the defendant in the foregoing action and that the facts set forth in this petition are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. June ~, 2010 „Gi~cn Aaron P. Brown ~ ~ p it 3 ZQg2 .JACQUELYN A. AUST, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. : N0.2001-4451 CIVIL TERM AARON BROWN, :CIVIL ACTION -LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this ~ day of ~J , 2002, upon consideration of the attached Custody Concilia on Report, it is ordered and directed as follows: The prior Order of Court dated July 25, 2001 is hereby vacated. 2. The Mother, Jacquelyn A. Aust, and the Father, Aaron Brown, shall have shared legal custody of Hannah Lynn Aust, born November 27, 2000. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non- emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. The parties agree to share physical custody of the Child on the following terms. A. For the months of September through May and beginning September 4, 2002, Father shall have physical custody of the Child alternating weeks, from Tuesday at 4:00 p.m. to Monday morning when he shall drop off the Child at daycare. B. For the months of June, July and August, Father shall have physical custody of the Child alternating weeks from Monday at 4:00 p.m. to Monday when he shall drop off the Child at daycare. C. During Father's off week, he shall have physical custody on Wednesdays from 4:00 p.m. to 8:30 p.m. D. Except as provided herein, Mother shall have physical custody of the child at all other times. E. During Mother's off week, she shall have physical custody on Thursdays from 4:00 p.m. to 8:30 p.m. F. The Christmas Holiday shall be divided into two Blocks. Block A shall run from Christmas Eve at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall run from Christmas Day at 12:00 noon to December 26 at 7:30 p.m. Mother shall have Block A in even ~,;:r~J-~I~ ~ i ~~ numbered years and Block •B in odd numbered years. Father shal l have Block B in even numbered years and Block A in odd numbered vears. G. Thanksgivin~~ Day and Easter Day shall be split 9:00 a. m. to 3:00 p.m. and 3:00 p.m. to 9:00 p.m., as agreed by the parties. H. The parties shall share or alternate the following holidays as agreed: New Year's Eve, New Year's Day, Memorial Day, Independence Day. and Labor Day. I. Mother shall have physical custody on Mother's -Day; Father shall have physical custody on Father's Day any other schedule notwithstanding. J. The Child's birthday shall be shared equally among the parties. K. In the event either parent is in need of babysitting services for longer than two hours, they shall notify the non-custodial parent and offer the opportunity to care for the child during that time. L. Each party shall be entitled to one uninterrupted week per year with the Child provided they supply 30 days prior notice to the other party. 4. Both parties shall have liberal telephone contact with the Child. 5. The parties shall keep each other advised immediately relative to any emergencies concerning the Child and shall further take any necessary steps to insure that the health and well-being of the Child is protected. 6. Neither parent shall do anything which may estrange the Child from the other party, or injure the opinion of the Child as to the other party or which may hamper the free and natural development of the Child's love and affection for the other party. 7. The parties agree to use appropriate language and conduct when in the presence of the minor Child. 8. Transportation shall be as agreed by the parties. 9. This Order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, J. cc: Michael A. Scherer, Esquire, Counsel for Mother Nathan C. Wolf, Esquire, Counsel for Father TRilE Ct~PY rRQtii ~~01t~ In Testimony whereof, I here un~o set my haryd an he s/eal of sa d Court at arli le, Pa. T i ......1..~P.... aY ., ...., • .:~.. J:~CQtiELYN A. MUST, Plaintiff V. AARON BROWN, Defendant PRIOR JUDGE: Kevin A. Hess, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2001-4451 CIVIL TERM CIVIL ACTION -LAW IN CUSTODY CUSTODY CONCiLIATiON SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME Hannah Lynn Aust DATE OF BIRTH CURRENTLY IN CUSTODY OF November 27, 2000 Mother 2. A Conciliation Conference was held in this matter on September 3, 2002, with the following individuals in attendance: The Mother, Jacquelyn A. Aust, with her counsel, Michael A. Scherer, Esquire and the Father, Aaron Brown, with his counsel, Nathan C. Wolf, Esquire. 3. A prior Order of Court was entered by the Honorable Kevin A. Hess on July 25, 2001 upon stipulation of the parties, which provided for shared legal custody, 1Vlother having primary physical custody and Father having periods of partial physical custody on alternating weekends and every Wednesday. 4. The parties agreed to entry of an Order in the form as attached. ~. Date ~ ac ueline M. Verney, Esquire Custody Conciliator -, NATHAN C. WOLF, ESQUIRE ATTORNEY ID N0.87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR DEFENDANT JACQUELYN A. AUST (NOW NEIL), Plaintiff v. , AARON P. BROWN, . Defendant . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.2001-4451 CIVIL ACTION -LAW IN CUSTODY CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, attorney for Defendant, do hereby certify that this date, I have served a copy of the foregoing Petition fot Special Reliefupon the following the following patties, by United States Mail, addressed as follows: Jacquelyn A. Neil 9 Hilltop Circle Carlisle, PA 17015 Michael Scherer, Esquire Baric & Scherer 19 West South Street Carlisle, PA 17013 (Counsel of Record for Defendant) Respectfully WOLF & W~ By: athan ,Esquire 10 We h Street Carus e, PA 17013 (717) 241-4436 Supreme Court LD. No. 87380 7 Attorney for Defendant Date: June / ` , 2010 r ' f7 JACQUELYN A. AUST PLAINTIFF V. AARON P. BROWN DEFENDANT AND NOW, Fi it is hereby directed that parties an at 4th Floor, Cumberland Cou for aPre-Hearing Custody Confer if this cannot be accomplished, to order. Failure to appear at the cor The court hereby directs Special Relief orders. and Custa IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • 2001-4451 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT 2010 upon consideration of the attached Complaint, their respective counsel appear before Jacqueline M. Verney, Esq. ,the conciliator, ty Courthouse, Carlisle on Thursday, August 05, 2010 at 8:30 AM ce. At such conference, an effort will be made to resolve the issues in dispute; or Mine and narrow the issues to be heard by the court, and to enter into a temporary ~rence may provide grounds for entry of a temporary or permanent order. parties to furnish any and all existing Protection from Abuse orders, orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: !s/ •Lacqueline M. Verney, Esq. lD°I Custody Conciliator ~ The Court of Com on Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individu is having business before the court, please contact our office. All. arrangements must be made at least 72 hou s prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD T KE THIS PAPER TO YOUR ATTORNEY AT ONCE. 1F YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TU FIND UT WHERE YOU CAN GET LEGAL HELP. n_~~ `, t Cumberland County Bar Association n ~~ • l ~ ' ~~ l.J~~'T'' ~ Q'~ 32 South Bedford Street ~=~ ° ~~ ~ ~~ Carlisle, Pennsylvania 17013 ~ "' ; '- Telephone (717) 249-3166 ~ ~' ~ , ~ ~ , (® ~o~; csz ' teal (~ l-~' -Z.1°I•t0 ~~Gt ~ ~ ~~ ~ -t~o -Q t_. - ,~ '-~ i ?~ tin -= h JUN 2 g 2010 JACQUELYN A. AUS Plaintiff v. AARON P. BROWN, AND NOW, thi Defendant's Petition fo; the court administrator informal attempt to res. (NOW NEAL), : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 01-4451 CIVIL TERM IN CUSTODY ORDER 9 day of ~~ , 2010, upon review of pecial Relief and Plaintiffs response thereto, it is hereby ordered that hedule a conciliation conference wherein the parties shall make an re the current situation. in A. Hess cc. Mark Bayley, Nathan Wolf, AUG 0 3 1010 JACQUELYN A. AUST (now NEIL), : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVAI~A c-- V• : N0.2001-4451 CIVIL ACTION -LAW ~~ AARON P. BROWN, - Defendant : IN CUSTODY ORDER OF COURT AND NOW, this ~~ day of ~ ~" , 2010, upon consideration of the attached Custody Concilia n Report, it is ordered and directed as follows: 1. A Hearing is scheduled in Cour Room No. ~_, of the Cumberland County Court House, on the ~ day of , 2010, at o'clock, ~. M., at which time testimony will be taken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, the prior Order of Court dated September 5, 2002 shall remain in full force and effect with the following modification. 3. In the event that Mother is unavailable to care for the child or becomes aware of her future unavailability or if events arise at the home that the child should not be present for, she shall contact Father with as much notice as possible and offer said time to Father. 4. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. ~cc: Nathan C. Wolf, Esquire, counsel for F Y Mark F. Bayley, Esquire, counsel for Mother ti.~ _o © -~ - ~ ~ _TI ~ l'-~-, __ -:~ r.:^ <, U c W ao (~p~cs r+.a..'~cd fl /tliv JACQUELYN A. AUST (now NEIL), : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. : N0.2001-4451 CIVIL ACTION -LAW AARON P. BROWN, . Defendant : IN CUSTODY PRIOR JUDGE: Kevin A. Hess, P.J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Hannah Lynn Aust November 27, 2000 shared 2. A Conciliation Conference was held August 2, 2010 with the following individuals in attendance: The Father, Aaron P. Brown, with his counsel, Nathan C. Wolf, Esquire, and the Mother, Jacquelyn A. Aust (now Neil), with her counsel, Mark F. Bayley, Esquire. 3. The Honorable Kevin A. Hess, P.J. previously entered an Order of Court dated September 5, 2002 providing for shared legal and shared physical custody. 4. Father's position on custody is as follows: Father seeks shared legal and primary physical custody. Father asserts that Mother's home was searched by federal drug agents and Mother's husband arrested. Father maintains that Mother's home is not a safe environment for the child. 5. Mother's position on custody is as follows: Mother seeks to maintain the status quo. She has not been arrested. She maintains that the home is safe. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and maintaining shared legal and shared physical custody. It is expected that the Hearing will require one-half day. ~ - a - ~ Q ~- V>L-.,. Date cqu ine M. Verney, Esquire Custody Conciliator JACQUELYN A. AUST (NOW NEAL),: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. AARON P. BROWN, Defendant DOCKET N0.2001-4451 CIVIL ACTION -LAW IN CUSTODY ORDER OF COURT AND NOW this Z~ day of ~cJaLer-. , 2010, the parties having reached an agreement to modify the terms of their custody Order, the following Order is hereby entered: (A) All prior custody orders are hereby vacated. (B) The parties shall continue to share legal custody of the child, Hannah Lynn Aust, age 9, born November 27, 2000. (C) The parties shall share physical custody of the child subject to the following schedule: a. During the first week of a two week rotating schedule, beginning Monday, November 1, 2010, at 7:00 a.m., Father shall have custody of the child for seven days, subject to Mother having a visit from after school on Thursday unti18:00 p.m. when Mother shall return the child to Father's home. b. During the second week of the schedule, Mother shall have custody of the child from Monday morning at 7:00 a.m. for seven days subject to Father having custody of the child from 4 o'clock p.m. on Thursday until the following morning when Father shall be responsible for returning the child to Mother's custody. (D) The parties shall share custody of the child on holidays as follows: a. The Christmas Holiday shall be divided into two Blocks. Block A shall run from Christmas Eve at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall run from Christmas Day at 12:00 noon to December 26 at 7:30 p.m. Mother shall have Block A in even numbered years and Block B in odd nurbered years. Father shall have Block B in even numbered years and Block A in odd numbered years. b. Thanksgiving Day and Easter Day shall be split 9:00 a.m. to 3:00 p.m. and 3:00 p.m. to 9:00 p.m., as agreed by the parties. c. The parties shall share or alternate the following holidays as agreed: New Year's Eve, New Year's Day, Memorial Day, Independence Day, and Labor Day. d. Mother shall have physical custody on Mother's Day; Father shall have physical custody on Father's Day any other schedule notwithstanding. e. The Child's birthday shall be shared equally among the parties. f. Each party shall be entitled to one uninterrupted week per year with the Child provided they supply 30 days prior notice to the other party. (E) Pending the disposition of Mother's criminal case in federal court, Mother shall ensure that the Office of Pre-Trial Services is directed to inform counsel for Father if Mother or her husband, John Neal, test positive for prohibited substances in violation of her pre-trial release conditions. In the event Mother tests positive, custody of the child shall immediately transfer to Father pending further Order of Court, unless an agreement is reached by the parties. b. In the event Mother's husband tests positive, custody of the child shall immediately transfer to Father pending Mother providing satisfactory evidence that she has separated from her husband and that she has suitable housing available for the child. Absent such evidence, Father shall retain custody pending further Order of Court, unless an agreement is reached by the parties. (F) Upon the scheduling of a date for sentencing in Mother's criminal case, Mother's counsel shall notify Father's counsel immediately. At such time, if it is reasonably likely that Mother will be sentenced to a period of incarceration, then the schedule of custody shall be modified such that Mother will have no more than three (3) overnights per week, until the time of her sentencing. (G) If Mother is sentenced to a period of incarceration of any length, custody shall transfer to Father pending further Order of Court or an agreement of the parties. (H) If Mother is not sentenced to a period of incarceration or the charges are dismissed, Father shall have 20 days from his receipt of notification of the disposition of Mother's criminal case to list the instant matter for hearing before the undersigned without the necessity of a petition or concurrence of Mother or her counsel. Notification of such disposition shall be made by Mother's counsel to Father's counsel as soon as practicable after such disposition occurs. (I) Mother shall apprise Father of any change in her release status or the conditions effecting her release. Q) The parties shall ensure that the most seamless transition occurs for the child, including notifying the child of Mother's possible incarceration and the circumstances surrounding the same prior to the commencement of any such incarceration. (I~ Both parties shall have liberal telephone contact with the child. (L) The parties shall keep each other advised immediately relative to any emergencies concerning the child and shall further take any necessary steps to insure that the health and well-being of the child is protected. (M) Neither parent shall do anything which may estrange the child from the other party, or injure the opinion of the child as to the other party or which may hamper the free and natural development of the child's love and affection for the other party. (I~ The parties agree to use appropriate language and conduct in the presence of the minor child. (O) Transportation shall be as agreed by the parties. (P) The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. D' tribution: an C. Wolf, Esquire for Defendant ark F. Bayley, Esquire for Plaintiff lo~a s~r~ ~~ BY THE COURT: KEVI A. HESS, P.J. o ~ ~ ~~ ~ ~'~ --~ ~ ~ c~n~ ~ ~® -.~~ ---~ ---o~ ~~ ~~ -~ ~ ~-~ ~~ r/ ~ w ~~ ~ ~, ~: - .~ i JACQUELYN A. AUST IN THE COURT OF COMMON PLEAS OF (Now NEAL), CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff i - V. NO. 2001-4451 CIVIL TERM AARON P. BROWN, CIVIL ACTION—LAW Defendant IN CUSTODY PRAECIPE TO ENTER/w1THDRAW APPEARANCE I Kindly withdraw my appearance on behalf of the Defendant, Aaron P. Brown, in the above captioned docket. Respectfully Su fitted, cot, co w � F Dated: ZZt3 Natha Wolf, Esquire zj Atto e D No. 87380 3:(2 a c ? 10 West High Street Carlisle, PA 17013 Kindly enter my appearance on behalf of the Defendant, Aaron P. Brown, in the above captioned docket. Respectfully Submitted, Saidis, Sullivan & Rogers Date: 3�1 � r -Wr _ Mary s, Esqu� e Attorney 1 o. 84919 Law Offices of 26 West High Street Saidis Carlisle, Pennsylvania 17013 (717)243-6222 Sullivan & Rogers 26 West High Street Carlisle,PA 17013 J JACQUELYN A. AUST, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS NO. 2001-4451 CIVIL TERM AARON P. BROWN, CIVIL ACTION - LAW Defendant IN CUSTODY IN RE: PRETRIAL CONFERENCE ORDER OF COURT AND NOW, this 15th day of April, 2013, a pretrial conference for the custody case was held in the jury deliberation room of Courtroom No. 6 of the Cumberland County Courthouse . Present on behalf of Plaintiff was Mark Bayley, Esquire. Present on behalf of Defendant was Marylou Matas, Esquire . This is a custody action between Mother Plaintiff and Father Defendant concerning one child, Hannah Lynn Aust, born 27 November 2000, whose current custodial status is primarily with Father. Mother is seeking to return to a week to week custody schedule the parties previously enjoyed; whereas, Father wants to maintain the current status quo with him being primary to include going throughout the year. Mother shall proceed first with testimony followed by Father and then Mother ' s expected witnesses and Father' s expected witnesses . There are no experts for trial, and the potential testimony of the child witness is being placed on hold. The Court will determine if a Guardian Ad Litem can be appointed in the interim period to represent the minor child prior to the proceeding and make recommendations about her testimony if needed. If the minor child' s testimony is deemed necessary, the Court will specially set a time and place for that Court in camera discussion with the minor child. The total time allotted for each party for examination and cross examination of all witnesses is one and a half hour each. How they choose to use it is left to them, but no additional time will be given absent extraordinary circumstances and does not include the potential interview with the child. There are no objections to any of the exhibits proposed in the parties ' memorandums, and the Federal Probation Officer may testify electronically and may be taken out of order if time is of a premium. Plaintiff shall provide Defendant with name and contact information of Plaintiff ' s Federal Probation Officer by close of business 22 April 2013 . ' There are no outstanding motions in the case. However, there is a potential conflict of interest issue that must be resolved by Plaintiff prior to the trial . John Neal is subject to a 5329 evaluation prior to resuming cohabitation with Plaintiff during the pendency of this custody case. This is without regard whether it ' s before or after the May 6th trial . The trial shall commence on 6 May 2013 at 9 : 00 a .m. in Courtroom No. 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania; and this order shall control the subsequent course of this action unless modified at trial to prevent manifest injustice. o Thomas A. la ey, C. P. J. r o dark F. Bayley, Esquire For the Plaintiff m z ::Q CD w4arylou Matas, Esquire �� a CD For the Defendant {� _ -- :mlc --c:) aJ- 0 JACQUELYN A. AUST (n.k.a.NEAL), : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW AARON P. BROWN, : NO. 2001-4451 CIVIL TERM Defendant : IN CUSTODY PETITION FOR THE ISSUANCE A RULE TO SHOW CAUSE AND NOW, comes Mark F. Bayley, Esquire, on behalf of the Plaintiff and in F±ppq-rt of the within Petition avers as follows: 1. The Honorable Thomas A. Placey is involved with the above captioned mat 2. The Petitioner is the Plaintiff, Jacquelyn A. Aust(n.k.a. Neal). 3. The Respondent is Mark Buckwalter who is an adult individual employed as a-federal parole officer and who maintains an office at 228 Walnut Street, Harrisburg, Pennsylvania, 17108. 4. On April 15, 2013 a pretrial conference was held wherein it was determined that the Petitioner would call the Respondent to testify at the hearing scheduled for May 6, 2013. 5. On April 15, 2013 the Court dictated an Order which granted leave for the Respondent to testify electronically. 6. The Respondent's testimony is relevant because he currently supervises the Petitioner in relation to her conviction for a federal drug offense which is an enumerated offense set forth under 23 Pa,C.S.A. §5329 (Consideration of criminal convictions). 7. Said statute sets forth the Court's duties with regard to evaluating parents that have convictions for enumerated convictions. 8. The Petitioner avers that she has remained in good behavior and compliant with her parole supervision and it is believed that Respondent can assist the Court in confirming said averment. 9. On April 18, 2013 the undersigned counsel forwarded by First Class Mail a subpoena to the Respondent; said subpoena directed him to attend and testify at the hearing scheduled for May 6, 2013. 10. Shortly thereafter undersigned counsel had telephone and email contact with the Respondent and requested him to acknowledge service of the subpoena in writing; said request was ignored. 11. On April 29, 2013 the undersigned counsel obtained a second subpoena directing the Respondent to attend and testify at the May 6, 2013 hearing. (See copy attached as "Exhibit A"). 12. On April 30, 2013 said original subpoena was served upon the Respondent by process server. (See Affidavit of Service attached as "Exhibit B"). 13. On May 3, 2013 the undersigned counsel through email received the attached memorandum between Deputy Chief Probation Officer Drew Thompson and United States District Judge John E. Jones, III. (Copy of Memorandum attached as "Exhibit C"). 14. On May 6, 2013 the Respondent failed to appear in compliance with his subpoena.l 15. The Pennsylvania Rules of Civil Procedure state as follows: Rule 234.5. Failure to Comply with Subpoena. Notice to Attend or Notice to Produce (a) If a witness fails to comply with a subpoena, the court may issue a bench warrant and if the failure to comply is wilful may adjudge the witness to be in contempt. . . . ' The Respondent was informed that he could contact undersigned counsel in advance to make arrangements to testify by telephone/electronically,the Respondent made no efforts to do so. 16. In the event that the Respondent wished to aver some legal authority in opposition of the subpoena, the Pennsylvania Rules of Civil Procedure set forth clear procedure for doing so; undersigned counsel gave_notice of this fact to the Respondent by letter faxed to his counsel,Michael J. Butler, Esquire, on May 3, 2103. (See copy of letter attached as "Exhibit D"). 17. The Respondent wilfuly failed to comply with the aforementioned subpoena and should be found in contempt. 18. The Petitioner should thereafter be reimbursed by the Respondent for attorney fees and costs made necessary to enforce the aforementioned subpoena and granted any other relief deemed appropriate by the Court. 19. Marylou Matas, Esquire (on behalf of the Defendant) and Grace E. D'Alo (on behalf of the parties' child) were contacted and have no objection to the within motion. WHEREFORE, it is requested that a Rule be issued upon the Respondent to show cause why he should not be held in contempt pursuant to Pa.R.C.P. No. 234.5 and be directed to reimburse the Petitioner for attorney fees and costs made necessary to enforce the subpoena along with any other relief deemed appropriate by the Court. Respectfully submitted, BAYLEY &MANGAN r Date: Mark F. Bayley, Esquire 17 West South Street Carlisle, PA 17013 (717) 241-2446 Supreme Court ID # 87663 JACQUELYN A. AUST (n.k.a.NEAL), : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW AARON P. BROWN, : NO. 2001-4451 CIVIL TERM Defendant : IN CUSTODY VERIFICATION Mark F. Bayley, states that he is the attorney in relation to the within matter; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904,relating to unsworn falsification to authorities. Date: Mark F. Bayley, Esquire COMMONWEALTH OF PENNSYLVVANIA COUNTY OF CUMBERLAND JACQUELYN A. AUST (now NEAL) Plaintiff File No.2001-4451 IN CUSTODY vs. AARON P. BROWN, Defendant SUBPOENA TO ATTEND AND TESTIFY TO: Mark Buckwalter,Federal Parole Officer Federal Building-228 Walnut Street,Room 720 P O Box 805 Harrisburg,PA 17108-0805 - l. You are ordered by the court to come to Cumberland County Courthouse on the 4th floor,Court Room No. 6 (Specify Courtroom or other place) at Carlisle , Cumberland " County, Pennsylvania, on May 6,2013 at 9:30 o'clock, A. K.to testify on behalf of Jacquelyn A.Aust(now Neal) in the above case, and to remain until excused. 2.. And bring with you the following: Documentation in your possession regarding the supervision of Jacquelyn A.Neal. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Mark F.Bayley,Esquire Address: 17 West South Street Carlisle,PA 17013 Telephone: 717-241-2446 Supreme Court ID# 57663 BY THE COURT: Prothonotary/Clerk, Civil Division Date: ar")A:k 0 1 Scal of toe Co rt C, Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable,including hearings in connection;vAth depositions and before arbitrators,masters,commissioners,etc. in compliance with Pa.R.C.P.No.234.1. If a subpoena for a production of documents,records or things is desired,complete paragraph 2. (Eff. 7/97) EXHIBIT a AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of Cumberland Court Case Number: 2001-4451 Court Date: 5/6/2013 9:30 am Plaintiff: Jacquelyn A. Aust(no Neal) Vs. Defendant: Aaron P. Brown For: Bayley&Mangan 17 W. South St. Carlisle, PA 17013 Received by Pennsylvania Professional Process Svc. to be served on Mark Buckwater Federal Parole Office, 228 Walnut St., Room 720, Federal Building, Harrisburg, PA 17108. I, Timothy B. Bard, being duly sworn, depose and say that on the 30th day of April, 2013 at 1:43 pm, I: SUBSTITUTE served by delivering a true copy of the Subpoena to Attend and Testify with the date and hour of service endorsed thereon by me, to: Wendy Hoffer Federal Parole Office as Receptionist, a person employed therein and authorized to accept service for Mark Buckwater at the address of: 228 Walnut St., Room 720, Federal Building, Harrisburg, PA 17108, the within named person's usual place of Work, in compliance with State Statutes. I certify that I am over the age of 18, have no interest in the above action, and am a Certified Process Server, in good standing, in the judicial circuit in which the process was served. Su s ri ed and S �n to of re me on the 2nd day Timothy B. Bard of fYla .013 by t a w s personally known Process Server to e I d Pennsylvania Professional Process Svc. P.O. Box 1148 ARY UBLIC Carlisle,PA 17013 (800) 863-2341 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Our Job Serial Number: RKR-2013000328 M.Michelle Guyton,Notary Public V. Brown Carlisle Boro,Cumberland county My Commission Expires July 9,2016 MEMBER,PENNSYLVANIA ASSOCIATION OF NOTARIES EXHIBIT Copyright©1992-2011 Database Services,Inc.-Process Servers Toolbox V6.5d United States Probation Office MIDDLE DISTRICT OF PENNSYLVANIA Memorandum TO: The Honorable John E. Jones III United States District Judge FROM: Drew Thompson Deputy Chief Probation Officer DATE: April 30,2013 SUBJECT: Jacquelyn NEAL Docket No.: 1:10-CR 276-02 On March 30,2011,Jacquelyn Neal entered a plea of guilty to Distribution and Possession with Intent to Distribute Cocaine,Aid and Abet,in violation of 21 U.S.C. § 841(a)(1)and.18 U.S.C. § (2). The defendant and her husband,John Neal,were involved in a conspiracy to import and distribute cocaine in the Carlisle area. On September 27, 2011, she was sentenced by Your Honor to a.term of 15 months imprisonment and two years supervised release. Supervision commenced on November 21, 2012. Her husband was sentenced to 24 months imprisonment and three years supervised release. He remains in Bureau of Prisons custody and..is presently housed at Capitol Pavilion,a residential re-entry center. He will also be supervised by our office upon his release. His projected release date is July 19,2013. The defendant resides in Carlisle and is in the process of obtaining a divorce from John Neal. The couple has two children who reside with her,and child custody has become a contentious issue in the divorce. Jacquelyn Neal's attorney,Mark F. Bayley,Esquire,has subpoenaed U.S.Probation Officer Mark Buckwalter to testify in connection with the custody litigation. He advised Probation Officer Buckwalter that he seeks information regarding Ms.Neal's overall adjustment to supervision. A copy of the subpoena and correspondence from Attorney Bayley is attached. Guidance provided by the Administrative Office of the United States Courts regarding disclosure of case supervision records notes that such records are presumptively privileged Court information and should not be disclosed without permission of the Court or direct statutory authority. Administrative Office policy also notes that probation records should generally remain confidential, and that disclosure of the content of the files is the prerogative of the court. a EXHIBIT 1 W J ^ Q The Guide to Judiciary Policy summarizes reasons file information should ordinarily not be disclosed,which include the following: [a) The court has a need for a free flow of information regarding the conduct of persons under supervision. [b] The probation officer maintains files for the primary purpose of reporting to the court on the conduct and condition of,probationers and supervised releasees and to aid persons under supervision to bring about improvements in their conduct and condition. [c] Persons, including the offender,who provide information to the officer should feel secure in giving information and know that it will be used primarily by the court. Guide to Judiciary Policy, Vol.VIII, Part E § 190.10(File Information Release). Use of probation office records in a child.custody hearing does not appear to be consistent with the purpose for which the records are maintained, and disclosure of such records would not encourage the free flow of information upon which our office depends in supery ising offenders. To the contrary,use of such material in a case where both parents are supervised by our office would likely harm the relationship between the officer and the offenders, and could interfere with effective community supervision. Based on the totality of circumstances surrounding this case,it is recommended that the Court not authorize disclosure of the requested information. Guidance from the Administrative Office indicates that where the Court directs that information not be disclosed,the assistance of the U.S.Attorney's Office should be obtained to communicate this instruction to Counsel. If Your Honor approves our recommendation that information not be shared,we will request the U.S.Attorney's Office to communicate that decision to Attorney Bayley. 2 . I am available to discuss this matter at the Court's convenience if further information is needed. Please indicate the Court's direction below: AP�jVqDj, Date Do not disclose the information,and request the U.S.Attorney's office to communicate the Court's decision not to provide the requested information to Attorney Bayley. DISAPPROVED, Date Comply with the subpoena. cc: Anthony C.Harvilla,Chief Probation Officer 3 Bayley &, Mangan ATTORNEYS AT LAW 17 West South Street Carlisle,Pa 17013 Mark F.Bayley,Esquire Telephone:(717)241-2446 John J.Mangan,111,Esquire fax: (717)241-2456 Brian O.Williams,Esquire ---—------— Connie J.Gibson,Secretary May 3,2013 Michael J. Butler, Esquire U.S. Dept. of Justice Via Fax Only: 221-4493 RE: Subpoena for testimony of Mark Buckwalter Dear Mr. Butler: I am in receipt of your May 2,2013 letter. The subpoena issued to Mr. Buckwalter was properly obtained and served pursuant to the Pennsylvania Rules of Civil Procedure. His status as a federal employee does not shield him from the jurisdiction of this Commonwealth. If you believe that he has statutory privilege or immunity feel free to aver the same on the record Monday morning on his behalf. Or, the rules are clear on procedure for.challenging a subpoena by motion. The issues you raise with regard to "summary of information" and the Privacy Act are frivolous nuisance. First, Mr. Buckwalter is fully aware of the information he will be asked to provide based upon my conversation with him in April and the context of the subpoena in general. Second, Ms.Neal obviously waives any privacy concerns when her own counsel issues a subpoena on her behalf. Third, you have had two weeks to raise these concerns with me and have failed to do so until the last minute. I note that my initial letter and subpoena was forwarded to Mr. Buckwalter on April 18,2013. My invitation to arrange for Mr. Buckwalter to testify via telephone shall stand through today. If he wishes to do so,he will need to contact me to make arrangements. I will likely not be available on Monday morning for those purposes. In other words, if I do not hear from Mr. Buckwalter today,,I expect him to be standing tall in court Monday morning in compliance with his subpoena. If he fails to do so, I fully intend to move for the issuance of a bench warrant pursuant to Pennsylvania Rule of Civil Procedure 234.5 along withall other remedies available. Sincerely, a 'y, J:Esquir Mark Buckwalter via email: mark buckwalter �&amp.uscourts RQV EXHIBIT Marylou Matas, Esq. JACQUELYN A. AUST (n.k.a.NEAL), : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW AARON P. BROWN, NO. 2001-4451 CIVIL TERM Defendant IN CUSTODY CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire,do hereby certify that I this day served a copy of the within document upon the following by depositing same in the United States mail,postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Marylou Matas, Esquire 26 West High Street Carlisle,PA 17013 Grace E. D'Alo 530 Greason Road Carlisle,PA 17015 Mark F. Bayley, Esquire JACQUELYN A. AUST (now NEIL) : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2001-4451 CIVIL TERM AARON P. BROWN, : CIVIL ACTION - LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this day of , 2013,upon stipulation between the parties, it is hereby directed as follows: 1. The trial previously scheduled for May 6, 2013 is rescheduled to August 15, 2013 at 9:00 a.m. in Courtroom Number 6 of the Cumberland County Courthouse. The Plaintiff shall be deemed the moving party and shall initially proceed with testimony subject to provisions previously set forth in the Order executed by the Court on April 15, 2013. 2. Counsel shall attend a Pre-trial Conference on July 22, 2013 at 1:30 p.m. where the parties may update the Court on any of the following issues: 1) the narrowing of the issues, 2) the entry of a scheduling order, 3) the special scheduling of any child witness either party intends to call at trial, 4) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, 5) the limitation of the number of expert witnesses, 6) settlement and/or mediation of the case; 7) such other matters as may aid in the disposition of the case. The parties, and attorney for the child,may supplement pre-trial memorandums that were already submitted if they choose to do so. 3. Pending trial the custodial arrangement shall be adjusted as follows: A. The Mother, Jacquelyn A. Aust (now Neal) and the Father, Aaron P. Brown, shall have shared legal custody of Hannah Lynn Aust,born November 27, 2000. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Child's general well-being including,but not limited to, all decisions regarding her health, education and religion. Pursuant to the term of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the child including,but not limited to medical, dental,religious or school records, the residence address of the child and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to full participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor child. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports given to them as parents including,but not limited to: medical records,birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regards to school pictures, extracurricular activities, children's parties,musical presentations,back-to-school nights, and the like. B. Until the summer school recess Father shall have primary physical custody of the child subject to periods of partial physical custody by Mother on alternating weekends from Friday after school to Sunday at 7:00 p.m. and every Wednesday from after school to 7:00 p.m. Mother shall assure that the child does her homework assignments and that the child attends any extracurricular activities. C. With regard to the summer school recess the parties shall share physical custody on an alternating week-on/week-off schedule with exchanges occurring on Saturdays at 5:00 p.m. and on their off-weeks both parties shall have Wednesday at 5:00 p.m. through Thursday at 5:00 p.m. During weekdays involved with Mother's custodial periods Father shall have the right of first refusal so that he and/or his wife shall provide child care during any time that Mother is not available to directly care for the child. In those instances, Mother shall provide transportation to and from Father's residence. Mother shall provide her work schedule to Father for her week of custody as soon as she receives it. In the event that Mother works a shift on Sunday morning at the end of Father's custodial week, then Father shall retain custody through Saturday night and until Mother's shift ends on Sunday. D. Holiday shall take precedence over the regular schedule: A. Mother shall have physical custody on Mother's Day. Father shall have physical custody on Father's Day. E. The parties shall share any necessary transportation. F. John Neal is subject to a 5329 evaluation prior to resuming cohabitation with Plaintiff pending further Order of Court. John Neal is not permitted to have contact with the child, Hannah,pending the results of a 5329 evaluation or further Order of Court, and Mother shall ensure the same. G. Both parties shall have liberal telephone contact with the child. H. The parties shall keep each other advised immediately relative to any emergencies concerning the child and shall further take any necessary steps to insure that the health and well-being of the child is protected. I. Neither parent shall do anything which may estrange the child from the other party, or injure the opinion of the child as to the other party or which may hamper the free and natural development of the child's love and affection for the other party. J. The parties agree to use appropriate language and conduct in the presence of the minor child. K. RELOCATION: No party shall be permitted to relocate the residence of the child which significantly impairs the ability to exercise custody unless every individual who has custodial rights to the child consents to the proposed relocation or the court approves the proposed relocation. A person proposing to relocate MUST comply with 23 Pa.C.S. §5337. L. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the within terms shall control. THE O RT, Honorable vfhkmas A. Placey cc: 34ark F. Bayley, Esquire arylou Matas, Esquire Grace E. D'Alo, Esquire • � L s at?/43 V1NVA"1ASNN3d `, 8 £Ifiz JACQUELYN A. AUST (n.k.a. NEAL), Plaintiff &00' IN THE NINTH JUDICIAL DISTRICT V. COURT OF COMMON PLEAS 2001-04451 CIVIL TERM AARON P. BROWN, Defendant IN CUSTODY IN RE: PETITION FOR ISSUANCE OF A RULE TO SHOW CAUSE ORDER OF COURT AND NOW, this-d ay of June 2013, upon consideration of the Petition for Issuance of Rule to Show Cause, a RULE is issued upon Respondent, Mark Buckwalter, to show cause why the relief requested should not be granted. PETITIONER shall effectuate service of this Rule upon Respondent. Proof of service must be filed prior to the court entertaining a motion to make rule absolute. RULE RETURNABLE twenty (20) days from the date of service by Petitioner. BY THE COURT, Thoma A. Placey C.P.J. Di ibution: T-, _rK M rk F. Bayley, Esq. ' Ma lou Matas, Esq. n t ' Grace E. D'Alo, Esq. ,,-dark Buckwalter X-1 CD Fi of Ift JACQUELYN A. AUST (n.k.a. NEAL), u Plaintiff (go tq2t IN THE NINTH JUDICIAL DISTRICT V. COURT OF COMMON PLEAS 2001-04451 CIVIL TERM AARON P. BROWN, Defendant IN CUSTODY IN RE: PETITION FOR ISSUANCE OF A RULE TO SHOW CAUSE ORDER OF COURT AND NOW, this day of June 2013, upon consideration of the Petition for Issuance of Rule to Show Cause, a RULE is issued upon Respondent, Mark Buckwalter, to show cause why the relief requested should not be granted. PETITIONER shall effectuate service of this Rule upon Respondent. Proof of service must be filed prior to the court entertaining a motion to make rule absolute. RULE RETURNABLE twenty (20) days from the date of service by Petitioner. David D. Buell Prothonotary U.S.POSTAGE>>PITNE) Cumberland County /—79L�= One Courthouse Square FILED-Or^F[C� ` Suite 100 OF THE PROTHONI OTARV / � ZIP 1701��— Carlisle,PA 17013 l�l�S I 02 1VV ��� 0001368848JUN 04 2013 JUN I n Phi 2: �:� G� CUMBERLAND PENNSYLVANIA T � Mark Buckwalter 228 Walnut Street Harrisburg. PA 17108 1 7 F% i t 1 3fl% fva n fil 10 A}I 'A RETURN TO SENDER At_CiE�FTf`T�_1R1_'1` $t1S?S7F.SC UNABLE TO FORWARD isaiiaII IIIII IIIiitI list%a ll]till its 111i1IiatiIi1;1itI III II 1 PJS:GMT:jm = COMMONWEALTH OF PENNSYLVANIA ;if— COUNTY OF CUMBERLAND JACQUELINE A. AUST :�JACQUELINE Neal) C.1 Plaintiff V. No.: 2001-4451 IN CUSTODY AARON P. BROWN, Defendant NOTICE OF FILING OF REMOVAL NOW COMES Peter J. Smith, United States Attorney for the Middle District of Pennsylvania, and Assistant United States Attorney G. Michael Thiel, respectfully gives notice that the attached Notice of Removal has been filed with the Clerk of Court of the United States District Court for the Middle District of Pennsylvania. This notice is given pursuant to Title 28, United States Code, §I446(d), which provides that: (d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court,which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. Respectfully submitted,, PETER J. SMITH UNITED STATES ATTORNEY G. MICHAEL THIEL Assistant U.S. Attorney Atty. I.D. #PA 72926 P.O. Box 309 Scranton, PA 18501 Phone 348-2800 Fax: 348-2830 Dated: June 17, 2013 E-Mail: mike.thiel @usdoj.gov COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JACQUELINE A. AUST (now Neal) Plaintiff V. No.: 2001-4451 IN CUSTODY AARON P. BROWN, Defendant CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania, and is a person of such age and discretion as to be competent to serve papers. That on June 17, 2013 she served copies of the attached: NOTICE OF FILING OF REMOVAL by placing said copy in a postpaid envelope certified mail addressed to the persons hereinafter named, at the places and addresses stated below, which is the last known addresses, and by depositing said envelopes and contents in the United States Mail at Scranton, Pennsylvania. Address: Mark F. Bayley, Esquire Marylou Matas, Esquire Grace E. D'Alo, Esquire Bailey & Mangan 26 West High Street 530 Greason Road 17 West South Street Carlisle, PA 17013 Carlisle, PA 17015 Carlisle, PA 17013 x`1'1'1 z�tCv�-lvu > Jo i Matuszewski Legal Assistant PJS:GMT:jm IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JACQUELINE A. AUST (now Neal) Plaintiff V. CIVIL NO.: 1 :13-1615 (Jones, J.) AARON P. BROWN, Defendant NOTICE OF REMOVAL AND NOW, comes Mark Buckwalter, Probation Officer for the United States Probation Office, Middle District of'Pennsylvania, by and through the United States Attorney's Office for the Middle District of Pennsylvania, and Assistant United States Attorney, G. Michael Thiel, and pursuant to 28 U.S.C. §§ 1442 (a) (1) and 1446, to remove a subpoena and the related proceedings issued to Mark Buckwalter by the Cumberland County Court of Common Pleas in the case of Aust v. Brown, Dkt. No. 2001-0445 1. In support, Petitioner states: 1. Mark Buckwalter serves as a probation officer for the United States Probation Office, Middle District of Pennsylvania, an agency of the United States, and more particularly, a component of the United States Courts. 2. On March 30, 2011, Jacquelyn Neal entered a plea of guilty to Distribution and Possession with Intent to Distribute Cocaine, Aid and Abet, in t. f violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. § (2). Mrs . Neal and her husband, John Neal, were involved in a conspiracy to import and distribute cocaine in the Carlisle area. On September 27, 2011, she was sentenced by Judge Jones to a term of 15 months imprisonment and two-years supervised release. Mrs. Neal's supervision commenced on November 21, 2012. Officer Buckwalter is her probation officer. Her husband was sentenced to 24 months imprisonment and three-years supervised release. He remains in Bureau of Prisons custody and is presently housed at Capitol Pavilion, a residential re-entry center. He will also be supervised by the very same probation office upon his release. His projected release date is July 19, 2013. 3. On April 30, 2013, Attorney Mark F. Bayley, through a process server, served upon Mark Buckwalter, a Subpoena to Attend and Testify at a custody hearing scheduled for May 6, 2013, in the matter of Aust v. Brown, Dkt. No. 2001-04451. The subpoena was issued through the Prothonotary's Office of the Cumberland County Court of Common Pleas. (Exhibit A attached hereto). 4. On May 2, 2013, AUSA, Michael Butler, faxed a letter to Attorney Bayley indicating that the disclosure/dissemination of the information obtained by Officer Buckwalter during and in the course of his employment is controlled by statute and regulation and in order to determine whether or not the request will be granted, the requester, Attorney Bayley, pursuant to regulation, must provide the 2 U.S. Attorney's Office with a summary of the information sought and its relevance to the proceeding. (Exhibit B attached hereto). 5. Rather than complying with the request for information by the U.S. Attorney's Office, on May 3, 2013, Attorney Bayley responded to the May 2, 2013, letter from the U.S. Attorney's Office, indicating among other things, that "The issues you raise with regard to "summary of Information" and the Privacy Act are frivolous nuisance." Attorney Bayley further threatened to have a bench warrant issued if Mr. Buckwalter failed to appear. (Exhibit C attached hereto). 6. On May, 3, 2013, undersigned counsel notified Mr. Hall of the Cumberland County Court of Common Pleas via e-mail (Exhibit D attached hereto), that the Honorable Judge Jones of the District Court for the Middle District of Pennsylvania determined that information sought through the subject subpoena should not be disclosed by Officer Buckwalter, and, as such, Officer Buckwalter would not be appearing to testify at the hearing scheduled for May, 6, 2013. (Exhibit E, Judge Jones determination attached hereto). 7. On June 3, 2013, the Honorable Judge Placey of the Cumberland County Court of Common Pleas, issued a Rule to Show Cause why Officer Buckwalter should not be held in contempt of court and directed to reimburse the Petitioner for attorney's fees and costs made necessary to enforce the subpoena. (Exhibit F. attached hereto). Office Buckwalter was served with the order on June 10, 2013. 3 8. Officer Buckwalter was subpoenaed in his official capacity, and the information sought arises directly out of his employment as a Probation Officer, and more particularly, his responsibility to supervise the release of Mrs. Neal on behalf of the District Court for the Middle District of Pennsylvania. 9. The Guide to Judiciary Policy, Vol. 20, Ch. 8, regulates requests for information and/or testimony of federal judicial personnel as witnesses to matters arising out of the performance of their official duties. (See Exhibit G, §810.30 attached hereto). 10. Pursuant to these regulations, federal judicial personnel like Officer Buckwalter - "may not provide testimony...in legal proceedings except as authorized in accordance with these regulations." Id. at §820 (a). 11. Pursuant to §840 (a) "Federal judicial personnel may not, in response to a request for testimony...testify...without prior approval of the.determining officer designated in §840(b)." The Guide to Judiciary Policy, Vol. 20, Ch. 8. 12. "In the case of a request directed to an employee...of a court office...such as...the probation and/or pretrial services office...the determining officer will be the unit head...such as the...chief probation officer." Id. at §840(b)(3). Pursuant to the note following §840(b)(3), "In these instances, the determining officer...should...consult with the chief judge of the court served by the particular office regarding the proper response to a request." Id. 4 3 (emphasis added). The Guide to Judiciary Policy, Vol. 20, Ch. 8, 13. In this case the determining officer was Deputy Chief Probation Officer Drew Thompson, who consulted with Judge Jones, District Court Judge for the Middle District of Pennsylvania regarding the proper response to the request. (Exhibit E, Judge Jones determination attached hereto). Judge Jones determined that Officer Buckwalter was not permitted to provide the information. (Exhibit E, at p.3) 14. At all times relative to this matter, Officer Mark Buckwalter has acted in his official capacity and/or under color of duly enacted or promulgated federal law and regulations. 15. Officer Mark Buckwalter, therefore, is in jeopardy of arrest for contempt of court under the authority of the State Court merely for acting under the color of his office and obeying federal regulations. 16. Contemporaneously with the filing of this notice, undersigned counsel will file a motion to quash the state court subpoena on behalf of Officer Buckwalter. WHEREFORE, Probation officer, Mark Buckwalter, asks this court to remove the June 3, 2013, Rule to Show Cause Order by the Honorable Judge 5 Placey of the Cumberland County Court of Common Pleas in the case of Aust v. Brown, Dkt. No. 2001-04451 to this court for resolution. Respectfully submitted, PETER J. SMITH UNITED STATES ATTO EY s G. Michael 'iel G. MICHAEL THIEL Assistant U.S. Attorney Atty. I.D. #PA 72926 P.O. Box 309 Scranton, PA 18501 Phone 348-2800 Fax: 348-2830 Dated: June 17, 2013 E-Mail: mike.thiel @usdoj.gov 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JACQUELINE A. AUST (now Neal) : Plaintiff V. CIVIL NO.: AARON P. BROWN, Defendant CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania, and is a person of such age and discretion as to be competent to serve papers. That on June 17, she served copies of the attached: NOTICE OF REMOVAL by placing said copy in a postpaid envelope certified mail addressed to the persons hereinafter named, at the places and addresses stated below, which is the last known addresses, and by depositing said envelopes and contents in the United States Mail at Scranton, Pennsylvania. Address: Mark F. Bayley, Esquire Marylou Matas, Esquire Grace E. D'Alo, Esquire Bailey & Mangan 26 West High Street 530 Greason Road 17 West South Street Carlisle, PA 17013 Carlisle, PA 17015 Carlisle, PA 17013 /s Jodi Matuszewski Jodi Matuszewski Legal Assistant 7 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JACQUELYN A. AUST (now NEAL) Plaintiff File No.2001-4451 IN CUSTODY vs. AARON P. BROWN, Defendant SUBPOENA TO ATTEND AND TESTIFY TO: Mad:Budwollm,Fcdmal Parole Officer Fcdmol Building.729 Walnut Sued,Room 720 P O Sos 905 H.,d burg,PA 17109-0905 1. You are ordered by the court to come to Cumberland County Courthouse on the 4th floor,Court Room No.6 (Specify Courtroom or other place) at Carlisle , Cumberland County,Pennsylvania,on May 6,2013 at 9:30 o'clock, A. M,.to testify on behalf of Jacquelyn A.Aust(now Neal) in the above case, and to remain until excused. 2. And bring with you the following: Documentation in your possession regarding the supervision of Jacquelyn A.Neal. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Dame: Mark F.Beysey.Esquire Address: 17 West south street Culisle,PA 17013 Telephone: 717-241-2446 Supreme Court ID# 57663 BY THE COURT: Prothonotary/Clerk,Civil Division Date: L Q Seal of toe c.otrt Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable,including hearings in connection with depositions and before arbitrators,masters,commissioners,etc.in compliance with Pa.R.C.P.No.234.1. If a subpoena for a production of documents,records or things is desired,complete paragraph 2. (Eff.7/97) EXHIBIT A U.S. Department of Justice Peter J. 5flum United States Attorney Middle District ofPennsyl yada William r Nam Federal Building Ronald Reagan Federal Bud&ug Suite Herman T.Schneebeli Federal Building Suite 311 220 Suite 316 235N. Washington A venue 228 Walnut Street 240 West Third Sheet P.O.Box 309 P.O.Box 11754 W4amspor4 PA 17701-6465 Scranton,PA 18501-0309 Harrisburg,PA 17108-1754 (570)326-1935 (570)348-2800 (71;9 221-4482 FAX(570)326-7916 FAX(570)348-20371348-2830 FAX(717)221-4493/2212246 Please respond to:Harrisburg May 2, 2013 BY FAX AND REGULAR MAIL (717) 241-2456 Mark F. Bailey, Esquire Bailey & Mangan 17 West South Street Carlisle, PA 17013 Re: Subpoena for Testimony of Mark Buckwalter at Trial No 2001-4451 In Custody (Pa. Commw. Ct.) Dear Mr. Bailey: On April 23, 2013, the United States Probation Office in Harrisburg, Pennsylvania became aware that you issued a subpoena for Probation Officer Mark Buckwalter in a civil matter related to a custody dispute. After an internal review by the Probation Office, this information was immediately provided to the United States Attorney's Office for the Middle District of Pennsylvania. Your subpoena purports to command the presence of Probation Officer Buckwalter in the Commonwealth Court of Pennsylvania at Carlisle in Cumberland County on May 6, 2013, at 9:30 a.m. to testify on behalf of Jacquelyn A. Aust (now EXHIBIT B Neal). Probation Officer Buckwalter is not authorized to testify in response to your subpoena. The disclosure of information obtained by the Federal Probation Office is controlled by statute and regulation. In order for Probation Officer Buckwalter to . disclose information, the requestor must provide this office with a summary of the information sought and its relevance to the proceeding as described in Title 28, Code of Federal Regulations, sections 16.21-16.29. Because you have not provided this office with sufficient information to properly evaluate your request, Probation Officer Buckwalter, is not authorized to testify in connection with this matter. See United States, ex rel. Touhy v. Rag en, 340 U.S. 462 (1951). Accordingly, he is not authorized to.appear in Court pursuant to your subpoena on May 6, 2013, because the subpoena does not comply with the regulations. In addition, one statute which limits our ability to comply with this request is the Privacy Act, Title 5, United States Code, section 552a. The Privacy Act generally prohibits disclosure of records maintained by government agencies, such as the Probation Office;which are retrieved by the name of an individual. You have not provided a Privacy Act request for the Plaintiff Jacquelyn A. Aust(now Neal) or any other individuals about whom you are seeking information. In order for the i Probation Office to process your request, you must supply us with a court order, a waiver, or some other basis for authorized release of information consistent with the Privacy Act. i Should you provide the.United States Attorney's Office with the required information, we will review it in light of the relevant federal regulations and make a' determination as to the propriety of the requested testimony.. The referenced provisions of the Code of Federal Regulations, however, are not intended to, and do not, create any right or benefit, substantive or procedural against the United States. EXHIBIT B The Probation Office reserves its rights under 28 C.F.R. §§ 16.21-16.29 and your compliance with the referenced regulations may not obligate the Probation Office to authorize the testimony related to information you seek. Sincerely, Michael J. B ler Assistant United States Attorney i cc: Mark Buckwalter, Federal Probation Officer i EXHIBIT B 05-/42/2013 16:34 FAX 7172212246 US ATTORNEY - HARRISBURG R001 7 :r*k TX REPORT :kW* TRANSMISSION OK TX/RX NO 3171 RECIPIENT ADDRESS 2412456 DESTINATION ID ST. TIME 05/02 16:33 TIME USE 00'58 PAGES SENT 4 RESULT OK U.S. Department of Justice Peter J Smith United States Attorney Middle District of Pennsylvania I William J.Nealon Federal Building Ronald Reagan Federal Building Herman T.Schneebeli Federal Building. Suite 311 Suite 220 Suite 316 23S IV Washington Avenue 228 Walnut Street 240 West Third Street P.O.Box 309 P.O.Box 11754 Williamsport,PA 17701-6465 Scranton,PA 18503-0309 Harrisburg,PA 1 71 08-1 754 (570)326-1935 (570)348-2800 (717)221-4482 FAX(5 70)32 6-7916 FAX(5 70)348-20371348-2830 FAX(717)221-22461221-4493 FACSIMILE TRANSMISSION COVER SHEET TO: \ '�cc Q4,be -2 7 Dy/ _ agY( FROM: Office of the U.S. Attorney Middle District.of Pennsylvania Federal Building -Suite 220 228 Walnut St., P.O. Box 11754 Harrisburg, PA 17'108 TELEPHONE NO: (717) 221-4482 FACSIMILE NO: (717) 221-2246 DATE: Q VU NO. OF PAGES: 3 (NOT INCLUDING COVER PAGE) RE: EXHIBIT B Frain: 05/03/201.3 06:57 #972 P.001/001 Bayley 8s Mangan ATTORNEYS AT LAW 17 West South Street Carlisle,Pa 17013 Mark F.Bayley,Esquire Telephone:(717)241-1446 )ohn J.Mangan,M,Esquire Fax: (717)241-2456 Brian O.Williams,Esquire Connie J.Gibson,Secretary May 3,2013 Michael J.Butler,Esquire U.S.Dept. of Justice Via Fax Only: 221-4493 RE: Subpoena for testimony of Mark Buckwalter j Dear Mr. Butler: . I am in receipt of your May 2,2013 letter. The subpoena issued to Mr. Buckwalter was properly obtained and served pursuant to the Pennsylvania Rules of Civil Procedure..His status as a federal employee does not shield him from the jurisdiction of this Commonwealth: If you believe that he has statutory privilege-or immunity fael free to aver the same on the record Monday morning on his behalf. Or,the rules are clear on procedure for,challenging a subpoena by motion. The issues you raise with regard to"summary of information"and the Privacy Act are frivolous nuisance. First,Mr.Buckwalter is fully aware of the information he will be asked to provide based upon my conversation with him in April and the context of the subpoena in general. Second,Ms.Neal obviously waives any privacy concerns when her own counsel issues a subpoena on her behalf. Third, you have had two weeks to raise these concerns with me and have failed to do so until the last minute. I note that my initial letter and subpoena was forwarded to Mr.Buckwalter on April 18,2013. My invitation to arrange for Mr. Buckwalter to testify via telephone shall stand through today. If he wishes to do so,he will need to contact me to make arrangements. I will likely not be available on Monday morning for those purposes. In other words,if I do not hear from Mr.Buckwalter today, I expect him to be standing tall in court Monday morning in compliance with his subpoena. If he fails to do so, I fully intend to move for the issuance of a bench warrant pursuant to Pennsylvania Rule of Civil Procedure 234.5 along with all other remedies available. Sincerely, k a 6Esqu' Mark Buckwalter via email: mark buckwalter@,pamp.uscourts.gov Marylou Matas, Esq. EXHIBIT C e Thiel, Mike (USAPAM) From: Thiel, Mike (USAPAM) Sent: Friday, May 03, 2013 10:36 AM To: 'mhall @ccpa.net'; 'markbayley @bayleymangan.com' cc: Butler, Michael (USAPAM) Subject: Neal v. Brown #2001-4451 Judge Jones Order.pdf Mr. Hall, As I indicated during my call to you this morning, Federal Probation Officer, Mark Buckwalter, was subpoenaed to testify in the above-referenced matter on Monday May 6,2013. Attached hereto, please find a copy of the subpoena, correspondence from AUSA Butler to Attorney Bayley concerning the subpoena,Attorney Bayley's response to AUSA Butler's correspondence,and a memorandum to Judge Jones of the Middle District of Pennsylvania informing him of the subpoena directing Buckwalter's appearance. On page three (3)of the memorandum,Judge Jones indicates that the information requested through the subpoena should not be disclosed and requests the U.S.Attorney's Office to notify Attorney Bayley of the same. Through this e-mail, I, G. Michael Thiel, Deputy Civil Chief, United States Attorney's Office for the Middle District of Pennsylvania, am complying with Judge Jones order to notify this Honorable Court and Attorney Bayley that Federal Probation Officer Buckwalter will not be appearing to testify in the above-referenced matter on Monday May, 6, 2013. Thank you. 1 EXHIBIT D United States Probation Office MIDDLE DISTRICT OF PENNSYLVANIA Memorandum TO: The Honorable John E.Jones III United States District Judge FROM: Drew Thompson Deputy Chief Probation Officer DATE: April 30, 2013 SUBJECT: Jacquelyn NEAL Docket No.: 1:10-CR-276-02 On March 30,2011,Jacquelyn Neal entered a plea of guilty to Distribution and Possession with Intent to Distribute Cocaine, Aid and Abet, in violation of 21 U.S.C. § 841(a)(1)and.18 U.S.C. § (2). The defendant and her husband, John Neal,were involved in a conspiracy to import and distribute cocaine in the Carlisle area. On September 27, 2011, she was sentenced by Your Honor to a.term of 15 months imprisonment and two years supervised release. Supervision commenced on November 21,2012, Her husband was sentenced to 24 months imprisonment and three years supervised release. He remains in Bureau of Prisons custody and is presently housed at Capitol Pavilion, a residential re-entry center. He will also be supervised by our office upon his release. His projected release date is July 19,2013, The defendant resides in Carlisle and is in the process of obtaining a divorce from John Neal. The couple has two children who reside with her, and child custody has become a contentious issue in the divorce. Jacquelyn Neal's attorney, Mark F.Bayley,Esquire, has subpoenaed U.S. Probation Officer Mark Buckwalter to testify in connection with the custody litigation. He advised Probation Officer Buckwalter that he seeks information regarding Ms. Neal's overall adjustment to supervision. A copy of the subpoena and correspondence from Attorney Bayley is attached. Guidance provided by the Administrative Office of the United States Courts regarding disclosure of case supervision records notes that such records are presumptively privileged Court information and should not be disclosed without permission of the Court or direct statutory authority. Administrative Office policy also notes that probation records should generally remain confidential, and that disclosure of the content of the files is the prerogative of the court. 1 EXHIBIT E Y The Guide to Judiciary Policy summarizes reasons file information should ordinarily not be disclosed,which include the following: [a] The court has a need for a free flow of information regarding the conduct of persons under supervision. [b] The probation officer maintains files for the primary purpose of reporting to the court on the conduct and condition of probationers and supervised releasees and to aid persons under supervision to bring about improvements in their conduct and condition. [c] Persons, including the offender,who provide information to the officer should feel secure in giving information and know that it will be used primarily by the court. Guide to Judiciary Policy. Vol.VIII, Part E § 190.10(File Information Release). Use of probation office records in a child custody hearing does not appear to be consistent with the purpose for which the records are maintained, and disclosure of such records would not encourage the free flow of information upon which our office depends in supervising offenders. To the contrary,use of such material in a case where both parents are supervised by our office would likely harm the relationship between the officer and the offenders, and could interfere with effective community supervision. Based on the totality of circumstances surrounding this case,it is recommended that the Court not authorize disclosure of the requested information. Guidance from the Administrative Office indicates that where the Court directs that information not be disclosed,the assistance of the U.S.Attorney's Office should be obtained to communicate this instruction to Counsel. If Your Honor approves our recommendation that information not be shared,we will request the U.S. Attorney's Office to communicate that decision to Attorney Bayley. 2 EXHIBIT E a I am available to discuss this matter at the Court's convenience if further information is needed. Please indicate the Court's direction below: C r. l..l3 APR Date Do not disclose the information,and request the U.S.Attorney's office to communicate i the Court's decision not to provide the requested information to Attorney Bayley. -------------------- DISAPPROVED, Date Comply with the subpoena. cc: Anthony C. Harvilla,Chief Probation Officer 3 EXHIBIT E JACQUELYN A. AUST (n.k.a. NEAL), (� Plaintiff IN THE NINTH JUDICIAL DISTRICT V. COURT OF COMMON PLEAS 46 2001-04451 CIVIL TERM AARON P. BROWN, Defendant IN CUSTODY IN RE: PETITION FOR ISSUANCE OF A RULE TO SHOW CAUSE ORDER OF COURT AND NOW, this day of June 2013, upon consideration of the Petition for Issuance of Rule to Show Cause, a RULE is issued upon Respondent, Mark Buckwalter, to show cause why the relief requested should not be granted. I PETITIONER shall effectuate service of this Rule upon Respondent. Proof of I service must be filed prior to the court entertaining a motion to make rule absolute. RULE RETURNABLE twenty (20) days from the date of service by Petitioner. BY THE COURT, Thoma A. Placey C.P.J. Distribution: C r� Mark F. Bayley, Esq. vw "' -;, MOD C� i'rl--- =7-1 c- (- Marylou Matas, Esq, z j Grace E. D'Alo, Esq. Mark Buckwalter �.+ W EXHIBIT F i ` JACQUELYN A. AUST (n.k.a.NEAL), : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION- LAW AARON P. BROWN, :NO, 2001-4451 CIVIL TERM Defendant : IN CUSTODY I ORDER OF COURT i AND NOW,this day of ,2013,upon consideration of the foregoing motion,it is hereby ordered that: i (1) a rule is issued upon the respondent, Mark Buckwalter, to.show cause why the moving party is not entitled to the relief requested; (2) the respondent shall file an answer to the motion within days of this date; (3) the motion shall be decided under. Pa.R.C.P.No. 206.7; . (4) depositions shall be completed within days of this date; (5) argument shall be held on in Courtroom #6 of the Cumberland County Courthouse; and (6) notice of the entry of this order shall be provided to all parties by the moving party. BY THE COURT, Hon. Thomas A. Placey cc: Mark F. Bayley, Esquire Marylou Matas,Esquire Grace E. D'Alo EXHIBIT F t , JACQUELYN A. AUST (n.k.a.NEAL), : IN THE COURT OF COMMON PLEAS O T Plaintiff : CUMBERLAND COUNTY,PENNgaV,WIA-i rnca _ gin_ V. : CIVIL ACTION- LAW z"o'' r,, t - -G� C)"7 AARON P. BROWN, :NO. 2001-4451 CIVIL Defendant : IN CUSTODY PETITION FOR THE ISSUANCE A RULE TO SHOW CAUSE AND NOW, comes Mark F. Bayley,Esquire, on behalf of the Plaintiff and in support of the within Petition avers as follows: 1. The Honorable Thomas A. Placey is involved with the above captioned matter. 2. The Petitioner is the Plaintiff, Jacquelyn A. Aust(n.k.a.Neal). 3. The Respondent is Mark Buckwalter who is an adult individual employed as a federal parole officer and who maintains an office at 228 Walnut Street,Harrisburg, Pennsylvania, 17108. 4. On April 15, 2013 a pretrial conference was held wherein it was determined that the Petitioner would call the Respondent to testify at the bearing scheduled for May 6,2013. 5. On April 15, 2013 the Court dictated an Order which granted leave for the Respondent to testify electronically. 6. The Respondent's testimony is relevant because he currently supervises the Petitioner in relation to her conviction for a federal drug offense which is an enumerated offense set forth under 23 Pa.C.S.A. §5329 (Consideration of criminal convictions). 7. Said statute sets forth the Court's duties with regard to evaluating parents that have convictions for enumerated convictions. EXHIBIT F s I' 8. The Petitioner avers that she has remained in good behavior and compliant with her parole supervision and it is believed that Respondent can assist the Court in confirming said averment. i 9. On April 18, 2013 the undersigned counsel forwarded by First Class Mail a subpoena to the Respondent,said subpoena directed him to attend and testify at the hearing scheduled for May 6, 2013. 10. Shortly thereafter undersigned counsel had telephone and email contact with the Respondent and requested him to acknowledge service of the subpoena in writing; said request was ignored. 11. On April 29, 2013 the undersigned counsel obtained a second subpoena directing the Respondent to attend and testify at the May 6, 2013 hearing. (See copy attached as "Exhibit A"). 12. On April 30, 2013 said original subpoena was served upon the Respondent by process I server. (See Affidavit of Service attached as"Exhibit 13"). 13. On May 3, 2013 the undersigned counsel through email received the attached memorandum between Deputy Chief Probation Officer Drew Thompson and United States District Judge John E. Jones, III. (Copy of Memorandum attached as"Exhibit C"). 14. On May 6, 2013 the Respondent failed to appear in compliance with his subpoena.t 15. The Pennsylvania Rules of Civil Procedure state as follows: Rule 234.5. Failure to Comply with Subpoena. Notice to Attend or Notice to Produce I. (a) If a witness fails to comply with a subpoena,the court may issue a bench warrant and if the failure to comply is wilful may adjudge the witness to be in contempt. . . . The Respondent was informed that he could contact undersigned counsel in advance to make arrangements to 1 testify by telephone/electronically;the Respondent made no efforts to do so. EXHIBIT F V I1 16. In the event that the Respondent wished to aver some legal authority in opposition of the subpoena,the Pennsylvania Rules of Civil Procedure set forth clear procedure for doing so;undersigned counsel gave notice of this fact to the Respondent by letter faxed to his i counsel,Michael J. Butler, Esquire,on May 3, 2103. (See copy of letter attached as "Exhibit D"). 17. The Respondent wilfuly failed to comply with the aforementioned subpoena and should be found in contempt. 18. The Petitioner should thereafter be reimbursed by the Respondent for attorney fees and costs made necessary to enforce the aforementioned subpoena and granted any other relief deemed appropriate by the Court. I 19. Marylou Matas, Esquire(on behalf of the Defendant) and Grace E. D'Alo (on behalf of the parties' child) were contacted and have no objection to the within motion. WHEREFORE,it is requested that a Rule be issued upon th e Respondent to show cause why he should not be held in contempt pursuant to Pa.R.C.P.No. 234.5 and be directed to i reimburse the Petitioner for attorney fees and costs made necessary to enforce the subpoena I along with any other relief deemed appropriate by the Court. Respectfully submitted, BAYLEY&MANGAN Date. Mark F. Bayley, Esquire 17 West South Street Carlisle,PA 17013 (717) 241-2446 Supreme Court ID# 87663 I EXHIBIT F F 9 JACQUELYN A. AUST (n.k.a.NEAL), : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY,PENNSYLVANIA V. : CIVIL ACTION- LAW AARON P. BROWN, : NO.2001-4451 CIVIL TERM Defendant : IN CUSTODY VERIFICATION Mark F. Bayley, states that he is the attorney in relation to the within matter;that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, I based upon his investigation of the matters averred or denied in the foregoing document;and that this statement is made subject to the penalties of 18 Pa. C.S. §4904,relating to unsworn falsification to authorities. Date: i Mark F. Bayley, Esquire 9 I I EXHIBIT F r Guide to Judiciary Policy Vol 20: Administrative Claims and Litigation Ch 8: Testimony and Production of Records § 810 Overview § 810.10 Purpose § 810.20 Authority § 810.30 Definitions § 810.40 Applicability § 820 Testimony and Production of Records § 830 Contents and Timeliness of a Request § 840 Identity of Determining Officer § 850 Procedure When Request Is Made § 810 Overview § 810.10 Purpose (a) These regulations establish policy, assign responsibilities and prescribe procedures with respect to: (1) the production or disclosure of official information or records by the federal judiciary; and (2) the testimony of present or former judiciary personnel relating to any official information acquired by any such individual as part of that individual's performance of official duties, or by virtue of that individual's official status, in federal, state, or other legal proceedings covered by these regulations. (b) The purpose of these regulations is, among other things, to: (1) conserve the time of federal judicial personnel for conducting official business; Last substantive revision(Transmittal GR-4) September 2, 2009 Last revised(minor technical changes)May 31, 2012 EXHIBIT G f i Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 2 (2) minimize the involvement of the federal judiciary in issues unrelated to its mission; (3) maintain the impartiality of the federal judiciary in disputes between private litigants; (4) avoid spending the time and money of the United States for private purposes; and (5) protect confidential and sensitive information and the deliberative processes of the federal judiciary. § 810.20 Authority These regulations are promulgated under the authority granted the Director of the Administrative Office of the United States Courts, under the supervision and direction of the Judicial Conference of the United States, (a) to "[s]upervise all administrative matters relating to the offices of clerks and other clerical and administrative personnel of the courts," 28 U.S.C. § 604(a)(1); (b) to "[p]erform such other duties as may be assigned to him by . . . the Judicial Conference of the United States," 28 U.S.C. § 604(a)(24); (c) to "make, promulgate, issue, rescind, and amend rules and regulations . . . as may be necessary to carry out the Director's functions, powers, duties, and authority," 28 U.S.C. § 604(f); and (d) to "delegate any of the Director's functions, powers, duties, and authority . . . to such officers and employees of the judicial branch of Government as the Director may designate," 28 U.S.C. § 602(d). (These regulations were adopted by the Judicial Conference at its March 2003 session. JCUS-MAR 03, p. 9.) § 810.30 Definitions Information All information, records, documents, or materials of any kind, however stored, or Records that are in the custody or control of the federal judiciary or were acquired by federal judicial personnel in the performance of their official duties or because of their official status. EXHIBIT G •� r 1 � 1 1 Guide to Judiciary Policy, Vol.20, Ch. 8 Page 3 § 810.30 Definitions Judicial All present and former-officers and employees of the federal judiciary and any ! Personnel other individuals who are or have been appointed by, or subject to the supervision,jurisdiction, or control of, the federal judiciary, including individuals hired through contractual agreements by or on behalf of the federal judiciary, or performing services under such agreements for the federal judiciary, such as consultants, contractors, subcontractors, and their employees and personnel. This phrase also includes alternative dispute j resolution neutrals or mediators, special masters, individuals who have served and are serving on any advisory committee or in any advisory capacity, and any similar personnel performing services for the federal judiciary. Legal All pretrial, trial, and post-trial stages of all existing or anticipated judicial or Proceedings administrative actions, hearings, investigations, cases, controversies, or similar proceedings, including grand jury proceedings, before courts, agencies, commissions, boards or other tribunals, foreign and domestic, or all legislative proceedings pending before any state or local body or agency, other than those specified in § 810.40(b). Request An order, subpoena, or other demand of a court, or administrative or other authority, of competent jurisdiction, under color of law, or any other request by whatever method, for the production, disclosure, or release of information or records by the federal judiciary, or for the appearance and testimony of federal judicial personnel as witnesses as to matters arising out of the performance of their official duties, in legal proceedings. This definition includes requests for voluntary production or testimony in the absence of any legal process. Testimony Any written or oral statement in any form by a witness arising out of the performance of the witness' official duties, including personal appearances and statements in court or at a hearing or trial, depositions, answers to interrogatories, affidavits, declarations, interviews, telephonic, televised, or videotaped remarks, or any other response during discovery or similar proceedings that would involve more than production of documents. § 810.40 Applicability (a) These regulations apply to: (1) All components of the federal judiciary and their personnel, except the Supreme Court of the United States, the Federal Judicial Center, and the United States Sentencing Commission, and their personnel. EXHIBIT G r Guide to Judiciary Policy,Vol.20, Ch. 8 Page 4 (b) These regulations do not apply to:. (1) Legal proceedings in which the federal judiciary or a court or office of the federal judiciary is a party. (2) Legal proceedings, arising out of the performance of official duties by federal judicial personnel, in which federal judicial personnel are parties. (3) Legal proceedings in which federal judicial personnel are to testify while in leave or off-duty status as to matters that do not arise out of the performance of official duties. These regulations do not seek to deny federal judicial personnel access to the courts as citizens in their private capacities on off-duty time. (4) Congressional requests for testimony or documents. (5) Requests governed by the garnishment regulations in the Guide, Vol 20, Ch 5. (6) Proceedings conducted under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364, under the authority conferred on the judicial councils of the respective federal judicial circuits by 28 U.S.C. § 332, or under the authority conferred on the Judicial Conference of the United States by 28 U.S.C. § 331. (7) Requests by members of the public, when properly made through the procedures established by a court for that purpose, for records or documents, such as court files or dockets, routinely made available to members of the public for inspection or copying. §820 Testimony and Production of Records (a) Federal judicial personnel may not provide testimony or produce records in legal proceedings except as authorized in accordance with these regulations. (b) Testimony may be taken from federal judicial personnel only at the federal judicial personnel's place of business, or at any other place authorized by the determining officer designated in § 840(b). Additional conditions may be specified by the determining officer. The time for such testimony should be reasonably fixed so as to avoid substantial interference with the performance of official duties by federal judicial personnel. EXHIBIT G Y e i Guide to Judiciary Policy,Vol.20, Ch. 8 Page 5 (c) Nothing in these regulations should restrict in any way any defenses, objections, or privileges that may be asserted by federal judicial personnel in response to a request. (d) These regulations are not intended to, and do not: (1) Waive the sovereign immunity of the United States; or (2) Infringe upon or displace the responsibilities committed to the Department of Justice in conducting litigation on behalf of the United States in appropriate cases. (e) These regulations are intended only to govern the internal operation of the federal judiciary and are not intended to create, do not create, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable in law or equity against the United States or against the federal judiciary or any court, office, or personnel of the federal judiciary.. § 830 Contents and Timeliness of a Request (a) The request for testimony or production of records must set forth, or must be accompanied by an affidavit setting forth, a written statement by the party seeking the testimony or production of records, or by counsel for the party, containing an explanation of the nature of the testimony or records sought, the relevance of the testimony or records sought to the legal proceedings, and the reasons why the testimony or records sought, or the information contained therein, are not readily available from other sources or by other means. This explanation must contain sufficient information for the determining officer designated in § 840(b) to determine whether or not federal judicial personnel should be allowed to testify or the records should be produced. Where the request does not contain an explanation sufficient for this purpose, the determining officer may deny the request or may ask the requester to provide additional information. (b) The request for testimony or production of records, including the written statement required by § 830(a), must be provided to the federal judicial personnel from whom testimony or production of records is sought at least 15 working days in advance of the time by which the testimony or production of records is to be required. Failure to meet this requirement will provide a sufficient basis for denial of the request. EXHIBIT G Y l , Guide to Judiciary Policy,Vol.20, Ch. 8 Page 6 (c) The determining officer designated in § 840(b) has the authority to waive the requirements of this section (830) in the-event of an emergency under conditions which the requester could not reasonably have anticipated and which demonstrate a good faith attempt to comply with the requirements of these regulations. In no circumstance, however, is a requester entitled to consideration of an oral or untimely request. To the contrary, whether to permit such an exceptional procedure is a decision within the sole discretion of the determining officer. § 840 Identity of Determining Officer (a) Federal judicial personnel may not, in response to a request for testimony or the production of records in legal proceedings, comment, testify, or produce records without the prior approval of the determining officer designated in § 840(b). (b) The determining officer authorized to make determinations under these regulations will be as follows: (1) In the case of a request directed to a federal court of appeals judge, district judge, Court of International Trade judge, Court of Federal Claims judge, bankruptcy judge, or magistrate judge, or directed to a current or former member of such a judge's personal staff(such 1 as a judge's secretary, law clerk), the determining officer will be the federal court of appeals judge, district judge, Court of International Trade judge, Court of Federal Claims judge, bankruptcy judge, or magistrate judge himself or herself. I (2) In the case of a request directed to a former federal court of appeals judge, district judge, Court of International Trade judge, Court of Federal Claims judge, bankruptcy judge, or magistrate judge, or directed to a former member of a former judge's personal staff who is no longer a court employee and thus is not covered by § 840(b)(1) or (b)(3), the determining officer will be the chief judge of the court on which the former judge previously served. (3) In the case of a request directed to an employee or former employee of a court office (other than an employee or former employee covered by § 840(b)(1), such as the office of the clerk of court, the office of the circuit executive, the staff attorneys' and/or preargument attorneys' office, the probation and/or pretrial services office, and the office of the Federal Public Defender, the determining officer will be the unit head of the particular office, such EXHIBIT G Guide to Judiciary Policy,Vol.20, Ch. 8 Page 7 as the clerk of court, the circuit executive, the senior staff attorney, the chief probation officer, the chief pretrial services officer, or the Federal Public Defender. Note: In these instances, the determining officer (except the Federal Public Defender, as provided below) should, as provided by local rule or order, consult with the chief judge of the court served by the particular office regarding the proper response to a request. The Federal Public Defender, in the case of a request related to the defender office's administrative function (but not requests related to the defender office's provision of representation pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, and related statutes), should, as provided by local rule or order, consult with the chief judge of the court of appeals that appoints the Federal Public Defender regarding the proper response to such a request. (4) In the case of a request directed to an employee or former employee of the Administrative Office of the United States Courts, the determining officer will be the General Counsel of the Administrative Office. (5) In the case of a request not specified in subsections (1) through (4) above (such as, for example, a request made to federal judicial personnel as defined in § 810.30 ["judicial personnel"] who are not current or former judges or their staff, employees of a court office, or employees of the Administrative Office), the determining officer will be the officer designated to serve as the determining officer by the chief judge of the court served by the recipient of the request. In these instances, the determining officer (if someone other than the chief judge of the relevant court) should, if the circumstances warrant, consult with the chief-judge of the relevant court regarding the proper response to a request. § 850 Procedure When Request Is Made (a) In response to a request for testimony or the production of records by federal judicial personnel in legal proceedings covered by these regulations, the determining officer may determine whether the federal judicial personnel may be interviewed, contacted, or used as witnesses, including as expert witnesses, and whether federal judicial records may be produced, and what, if any donditions will be imposed upon such interview, contact, testimony, or production of records. The determining officer may EXHIBIT G a Guide to Judiciary Policy,Vol. 20, Ch. 8 Page 8 deny a request if the request does not meet any requirement imposed by these regulations. In determining whether or not to authorize the disclosure of federal judicial information or records or the testimony of federal judicial personnel, the determining officer will consider, based on the following factors, the effect in the particular case, as well as in future cases generally, which testifying or producing records will have on the ability of the federal judiciary or federal judicial personnel to perform their official duties. (1) The need to avoid spending the resources of the United States for private purposes, to conserve the time of federal judicial personnel for the performance of official duties, and to minimize the federal i judiciary's involvement in issues unrelated to its mission. (2) Whether the testimony or production of records would assist the federal judiciary in the performance of official duties. (3) Whether the testimony or production of records is necessary to prevent the perpetration of fraud or injustice in the case or matter in question. (4) Whether the request is unduly burdensome or is inappropriate under applicable court or administrative rules. (5) Whether the testimony or production of records is appropriate or necessary under the-rules of procedure governing the case or matter in which the request arises, or under the relevant substantive law of privilege. (6) Whether the request is within the proper authority of the party making it. (7) Whether the request meets the requirements of these regulations. (8) Whether the request was properly served under applicable court, administrative, or other rules. (9) Whether the testimony or production of records would violate a statute, regulation, or ethical rule. (10) Whether the testimony or production of records would disclose information regarding the exercise of judicial or quasi-judicial EXHIBIT G Guide to Judiciary Policy,Vol. 20, Ch. 8 Page 9 .responsibilities by federal judicial personnel in the decisional or deliberative process. (11) Whether the testimony or production of records would disclose confidential information from or pertaining to a presentence investigation report or pertaining to an individual's probation, parole, or supervised release, or would disclose any other information that is confidential under any applicable statute or regulation. (12) Whether the testimony or production of records reasonably could be expected to result in the appearance of the federal judiciary favoring one litigant over another, or endorsing or supporting a position advocated by a litigant. (13) Whether the request seeks testimony, records or documents available from other sources. (14) Whether the request seeks testimony of federal judicial personnel as expert witnesses. (15) Whether the request seeks personnel files, records or-documents pertaining to a current or former federal judicial officer or employee, and (A) the personnel files, records or documents sought by the request may be obtained from the current or former federal judicial officer or employee in question, or (B) the personnel files, records or documents sought by the request would be made available to the requester with the written consent or authorization of the current or former federal judicial officer or employee in question. (16) Any other consideration that the determining officer designated in § 840(b) may consider germane to the decision. (b) Federal judicial personnel upon whom a request for testimony or the production of records in legal proceedings is made should promptly notify the determining officer designated in § 840(b). If the determining officer determines, upon consideration of the requirements of these regulations and the factors listed in § 850(a), that the federal judicial personnel upon whom the request was made should not comply with the request, the federal judicial personnel upon whom the request was made should notify the requester of these regulations and must respectfully decline to comply EXHIBIT G J. Guide to Judiciary Policy,Vol. 20, Ch. 8 Page 10 with the request. In appropriate circumstances federal judicial personnel may—through the Department of Justice, or with the assistance of retained legal counsel if the Department of Justice is unavailable—file a motion, before the appropriate court or other authority, to quash such a request or to obtain other appropriate relief. i (c) If, after federal judicial personnel have received a request in a legal proceeding and have notified the determining officer in accordance with this section, a response to the request is required before instructions from the determining officer are received, federal judicial personnel should notify the requester of these regulations and inform the requester that the request is under review pursuant to these regulations. If necessary, federal judicial personnel may—through the Department of Justice, or with the assistance of retained legal counsel if the Department of Justice is unavailable —seek a stay of the request pending a final determination by the determining officer, or seek other appropriate relief. (d) If, in response to action taken under§ 850(c), a court of competent jurisdiction or other appropriate authority declines to stay the effect of a request pending a determination by the determining officer, or if such court or other authority orders that the request be complied with notwithstanding the final decision of the determining officer, the federal judicial personnel upon whom the request was made must notify the determining officer and must comply with the determining officer's instructions regarding compliance with the order or request. Unless and until otherwise instructed by the determining officer, however, the federal judicial personnel upon whom the request was made must respectfully decline to comply with the order or request. See United States ex rei. Touhy v. Ragen, 340 U.S. 462 (1951). I EXHIBIT G JACQUELYN A. RUST (n.k.a.NEAL), IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY,PENNSYLVANIA V. CIVIL ACTION- LAW AARON P. BROWN, :N0. 2001-4451 CIVIL TERM Defendant : IN CUSTODY PLAINTIFF'S MOTION TO WITHDRAW PETITION FOR THE ISSUANCE OF A RULE TO SHOW CAUSE AND TO VACATE THE ORDER OF JUNE 4, 2013 AND NOW, comes the Plaintiff by and through her counsel, Mark F. Bayley, and in support of the within motion avers as follows: 1. The Honorable Thomas A. Placey is assigned to the above captioned matter. 2. On May 29, 2013 the Plaintiff filed a petition for the issuance of a Rule on Federal Probation Officer Mark Buckwalter to show cause why he should not be held in contempt for failing to appear to a hearing under subpoena. 3. By Order filed June 4, 2013 the Court issued said Rule. 4. Assistant U.S.Attorney G. Michael Thiel subsequently filed a motion in Federal Court to quash the Plaintiff s subpoena and remove the matter to Federal Court. 5! The undersigned, Marylou Matas, and Attorney Thiel participated in a telephone conference with U.S. District Court Judge John E. Jones, III, wherein the parties were able to reach a compromise in which Mr. Buckwalter would submit information relevant to trial in writing. C. 6. The parties have no objection to said writing being entered as an exhibit at tria attri t1se = rnm absence of Mr. Buckwalter. '7. Based on these facts the Plaintiff's petition is moot. —C') 4= C-n < C3 WHEREFORE, the Plaintiff moves to withdraw said petition and requests that the Order of Court filed June 4, 2013`be vacated. Respectfully submitted, BAYLEY &MANGAN Date: Mark F. Bayley, Esqui 17 West South Street Carlisle,PA 17013 (717) 241-2446 Supreme Court ID # 87663 JACQUELYN A. AUST (n.k.a'.NEAL), IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION- LAW AARON P. BROWN, NO. 2001-4451 CIVIL TERM Defendant IN CUSTODY CERTIFICATE OF SERVICE 1,Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within document upon the following by depositing same in the United States mail,postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Marylou Matas, Esquire 26 West High Street Carlisle, PA 17013 Grace E. D'Alo 530 Greason Road Carlisle, PA 17015 G Michael Thiel, Esquire Assistant US Attorney P 0 Box 309 Scranton, PA 18501 F. Bayley, Esqd1re JACQUELYN A. AUST (n.k.a.NEAL), IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY,PENNSYLVANIA V. CIVIL ACTION - LAW AARON P. BROWN, NO. 2001-4451 CIVIL TERM Defendant IN CUSTODY VERIFICATION Mark F. Bayley, states that he is the attorney in relation to the within matter; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904,relating to unsworn falsification to authorities. Date Mark F. Bayley, Esquire U' IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JACQUELINE A. AUST, 1:13-cv-1615 Plaintiff, : Hon. John E. Jones III v. .� AARON P. BROWN, -<> --� AC-) Defendant. 5 ORDER June 20, 2013 1. The subject supboena issued to United States Probation Officer Mark Buckwalter in Dkt. No. 2001-04451, Cumberland County Court of Common Pleas is DEEMED WITHDRAWN as a result of a discussion among counsel and this Court on a telephone conference conducted on today's date. 2. This matter, which was removed from the Cumberland County Court of Common Pleas on June 17, 2013, is REMANDED to that Court. 3. The Clerk of Court shall CLOSE the file on this case. s/ John E. Jones III John E. Jones III United States District Judge JACQUELYN A. AUST (n.k.a.NEAL), : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW AARON P. BROWN, : NO. 2001-4451 CIVIL TERM Defendant : IN CUSTODY 0 R OF COURT AND NOW, this I day of , 2013, upon motion by the Plaintiff, Plaintiffs petition filed May 29, 2013 is deemed withdrawn and the Court's Order of June 4, 2013 is vacated. BY THE OU'T, Hon. Tho Tr.s . Placey cc: V)Aark F. Bayley, Esquire /1�V arylou Matas, Esquire / Gce E. D'Alo, Esquire /G Michael Thiel, Esquire I€S /�t l�tL a7 P3 MCC cn c..• >n 4 .9-'1 ma) Qom ;,