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SHEILA STEPALOVITCH, : IN Tit F. COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY,
: PENNSYLVANIA
v. ,
NO. 99-6350
MITCH SMITH,
Defendant CIVIL ACTION - LAW
a]
AND NOW, conics the Petitioner, Duane S. Earrick, Esquire, on behalf of the
law firm of Nicholas & Foreman, P.C., to rile this Praccipe to Withdraw as Counsel for
Plaintiff Sheila Stepalovitch, and in furtherance thereof, offers the following;
1. On October 18, 1999, Nicholas & Foreman, P.C., commenced the instant
action, by Writ of Summons, on behalf of the Plaintiff.
2. On April 17, 2001, Nicholas & Foreman, P.C., filed a Complaint in the
instant action, on behalf of the Plaintiff.
3. On May 9, 2000, on motion of Defendant, the case was removed to the
Middle District Court of Pennsylvania.
4, On March 5, 2001, the case was remanded to the Court of Common Pleas
ol'Cumberland County.
5. Yvonne M. I lusic, Esquire, was the attorney at Nicholas & Foreman, P.C.
who handled the instant case.
6. Petitioner avers that Ms. Husic terminated her relationship with the firm of
Nicholas & Foreman, P.C., on February 10, 2001, and has since been
operating as the Husic Law Office.
On March 3, 2001, Plaintiff executed a Client Trust Funds/ Transfer of
Escrow Account and Release of Title, detailing that she fully released the
law firm of Nicholas & Foreman, P.C. from all liability or claims for any
matter with regard to the above captioned case, effective February 10,
2001. (Attached hereto as Exhibit A).
8. Moreover, in this March 3, 2001, document, Plaintiff specified that she
had decided to maintain the attorney-client relationship with Yvonne M.
Husic, Esquire and had chosen to continue legal representation exclusively
with Yvonne M. Husic, Esquire, for the on-going representation of her
legal matter.
9. This document was also signed by Yvonne M. I lusic, Esquire.
10. Plaintiffs file and all related documents arc in the possession of Yvonne
M. Flusic, Esquire.
11. To date, no alternative entry of appearance has been filed on behalf of
Plaintiff.
12. Petitioner avers that due to the physical location of Plaintiffs file and
Plaintiffs decision to be represented by alternative counsel, it is
impossible for the Rmi of Nicholas & Foreman, P.C. to provide adequate
representation to Plaintiff.
13. Pursuant to Local Rule 206-2(c), Petitioner sought the concurrence of
opposing counsel of record, however at the time of the riling of this
Praccipe opposing counsel had not been reached for his position.
WI IGRCFORC, Petitioner respectfully requests this I lonorable Court to issue a
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Rule to Show Cause to Plaintiff %vhy such withdrawal should not be granted.
,a
Respectfully submitted
NICHOLAS & FOREMAN, P.C.
Dated: 4/15/,tdo/
D- u S. I3arrick, fisquirc
I.D. No. 77400
4409 North Front Street
Ilarrisburg, PA 17110
(717) 236-9391
Attorney for Petitioner
rr
ACCO
AND
RELEASE OF FILE
I, SHEILA STEPALOVITCH, decided to maintain our attorney-client
relationship with Yvonne M. Husic, Esquire. I authorize and direct Nicholas &
Foreman, P.C. to release my case and immediately transfer to, the HUSIC LAW
OFFICE our full amount in. trust/escrow, currently held by Nicholas &
Foreman, P.C., in the amount of'9 845 0 . I do not owe Nicholas & Foreman,
P. C. any. outstanding bills on this account.
I have chosen to continue my legal representation exclusively with
Yvonne M Husic, Esquire, for on-going representation of my legal matter.
I fully releas&the law firm of Nicholas & Foreman, P.C-from all liability
or claims for any matter with regard to our case effective February 10, 2001.
By signing this Transfer and Release, I acknowledge that Yvonne M.
Husic, Esquire, accepts and represents receipt of our case and the
trust/escrow funds.
Date:01iL_
Date:
Date: 9-1
SHEILA STEP VITCH
Y onne M. Husic, E quire
CERTIFICATF, OF SERVICE
AND NOW, on this Z541day of a 2001, I, Duane S. Barrick,
Esquire, hereby certify that I have served the foregoing document by mailing a
true and correct copy by United States first class mail, addressed as follows:
Sheila Stepalovitch
39 East Keller Street
Mechanicsburg, PA 17055
Timothy J. McMahon, Esquire
Marshall, Dcnnchcy, Warner, Coleman & Goggin
100 Pine Street, Fourth Floor
P.O. Box 803
Harrisburg, PA 17108.0803
Yvonne M. Husic, Esquire
Husic Law Office
c/o Bruce Warshawsky, Esquire
1820 Linglestown Road
Harrisburg, PA 17110
NICHOLAS & FOREMAN, P.C.
43usw 5
Duline S. Barrick, :squirt
,. ,
SHEILA STEPALOVITCH,
Plaintiff
V.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
: NO. 99-6350
MITCH SMITH,
Defendant
: CIVIL ACTION -LAW
RULE TO SHOW CAUSE
AND NOW, this'?Q day of , 2001, upon consideration of Petitioner's
Praccipe to Withdraw as Counsel for Plaintiff Sheila Stcpalovitch, a Rule is issued upon
Sheila Stcpalovitch to show cause why the Petition should not be granted.
Rule returnable twenty (20) days from service.
Distribution:
Sheila Stcpalovitch
Timothy J. McMahon, Esquire
Yvonne M. I lusic, Esquire
Duane S. Barrick, Esquire
BY THE COURT,
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SHEILA STEPALOVITCH. : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
VS. 99.6350 CIVIL.
MITCH SMITH, CIVIL ACTION - LAW
Defendant
IN RF DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY AND HESS. J.J.
ORDER
AND NOW, this fl o day of July, 2001, the preliminary objection of the defendant
to count VI of the plaintiffs complaint is DENIED. The preliminary objections to pamraphs 8,
9, 10, 13, 15, 16 and 54 of the complaint arc DENIED.
The preliminary objection of the defendant to count VII of the complaint is SUSTAINED
and said count is DISMISSED.
BY THE COURT,
, . 4'
Kcvi Bess, J.
Yvonne Husic, Esquire
For the Plaintiff
Co?t;vs matLc.?C 7?i?.?ol
Timothy J. McMahon, Esquire For the Defendant
Arn
SHEILA STEPALOVITCH, : IN THE COURT OP COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
VS. : 99.6350 CIVIL
MITCH SMITH, CIVIL ACTION - LAW
Defendant
IN RE DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY AND HESS. J.J.
OPINION AND ORDER
The plaintiffs complaint in this case was filed on April 17, 2000, in the Court of
Common Pleas of Cumberland County. The matter was thereafter removed to the United States
District Court for the Middle District of Pennsylvania on May 5, 2000. By order dated February
26, 2001, finding that it lacked subject matter jurisdiction, the United States District Court
remanded the case to this court.
According to the complaint, the defendant, Mitch Smith, is a licensed social worker in the
Commonwealth of Pennsylvania. Fie began psychotherapy treatment with the plaintiff, Sheila
Stepalovilch, in the course of his employment at Holy Spirit Hospital in 1990. In 1994, the
defendant left Holy Spirit Hospital and went into private practice in Camp Hill where he
continued "deprogramming" therapy with the plaintiff. It is in the course of this relationship that
the plaintiff alleges sexual misconduct on the part of the plaintiff giving rise to the various
matters complained of in her lawsuit. The defendant has filed preliminary objections seeking
dismissal of counts VI and VII of the complaint and seeking to strike several paragraphs because
they contain scandalous and impertinent matter.
+99-6350 CIVIL
Count VI of the complaint is entitled "Rape" and claims both compensatory and punitive
damages, including pain and suffering for certain nonconsensual physical contact, specifically
sexual contact. The defendant demurs to this count in the complaint "because there exists no
civil tort of'rapc' within Pennsylvania law." We agree that rape may not exist as a separate
cause of action but it is most certainly an actionable assault and/or battery. The elements of the
tort of battery include any "harmful or offensive contact with a person." See Levenson v.
Sousa, 384 Pa.Super. 132, 557 A.2d 1081 (1989). The conduct of the defendant, as alleged in
the complaint, meets this definition. We will therefore not strike the allegations in plaintiffs
count VI deeming them merely expansive of the assault and battery claim.
The defendant also seeks dismissal of count VII of the complaint. This count alleges a
violation of civil rights and, specifically, a violation of Section 504 of the Rehabilitation Act.
That section provides, in pertinent part:
No otherwise qualified individual with a
disability... shall, solely by reason of her or his
disability be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance....
29 U.S.C. Section 794(a).
Although the plaintiffs complaint contains allegations that she is a person with a
disability and that she was discriminated against, it fails to allege that she was participating in a
federally funded program for which she was qualified. The plaintiffs theory is that she receives
Supplemental Security Income ("SSI") from the federal government and that she uses the money
to pay for the defendant's services. Therefore. the defendant receives federal funding. The fact,
however, that the plaintiff used federal money to pay for the defendant's services does not
99-6350 CIVIL
establish that the defendant received federal financial assistance within the meaning of the
Rehabilitation Act. SLe Bingham v. Oregon School Activities Assn., 37 F.Supp.2d 1189, 1204
(D.Or. 1999). We agree with the defendant that the plaintiff has failed to state a claim under the
Rehabilitation Act under which relief may be granted for a violation of civil rights.
Finally, pursuant to Pa.R.C.P. 1028(a)(2), the defendant asks the court to strike
paragraphs 8, 9, 10, 13, 15, 16, and 54 because they contain scandalous or impertinent matter.
The defendant contends, specifically. that the inclusion of paragraphs 8, 9, 10, 13, and 15
constitutes scandalous and impertinent matter because those averments contain allegations of
events occurring beyond the two-year statute of limitations applicable in this case.
The affirmative defense of statute of limitations must be pleaded under new matter, and
in absence of such pleading, the defense is not properly before trial court. Evans to the Use of
Roadway Express Inc.. v. Morin, 360 Pa.Super. 45, 519 A.2d 983 (Pa.Super. 1987). Rule
1030(a) of the Pennsylvania Rules of Civil Procedure states;
Except as provided by subdivision (b), all
affirmative defenses including but not limited to
the defenses of accord and satisfaction, arbitration
and award, consent, discharge in bankruptcy,
duress, estoppel, failure of consideration, fair
comment, fraud, illegality, immunity from suit,
impossibility of performance, justification, laches,
license, payment, privilege, release, res judicata,
statute of frauds, statute of limitations, truth and
waiver shall be pleaded in a responsive pleading
under the heading "New Matter"....
Pa..R.C.P. 1030(a). We will, therefore, dismiss the defendant's preliminary objections insofar as
they relate to the application of the statute of limitations.
f 99-6350 CIVIL
The defendant also claims that certain of the aforementioned allegations, particularly
paragraphs 15, 16 and 54 of the complaint, arc impertinent and scandalous because they are
designed to attack the character of the defendant and to gain negative media attention. The
argument of the defendant is to the effect that the description of the sexual activity is gratuitously
detailed. For allegations to be scandalous and impertinent and thus subject to being stricken,
allegations must be immaterial and inappropriate to the proof of the cause of action. Common
Cause/Pennsylvania v. Com. of Pa., 710 A.2d 108, 115 (Pa.Cmmwlth. 1998), aff d 562 Pa. 632,
757 A.2d 367 (2000). Here, the allegations, though scabrous, arc material and pertinent to the
plaintiffs cause of action.
ORDER
AND NOW, this //' day of July, 2001, the preliminary objection of the defendant
to count VI of the plaintiffs complaint is DENIED. The preliminary objections to pararaphs 8,
9, 10, 13, 15, 16 and 54 of the complaint arc DENIED.
The preliminary objection of the defendant to count VII of the complaint is SUSTAINED
and said count is DISMISSED.
BY THE COURT,
Yvonne Husic, Esquire
For the Plaintiff
Timothy J. McMahon, Esquire
For the Defendant
Am
4
10t AV.tntnnna.1.PQw9107TAtbtK%141=0I4M
IN '1'I IE UNITED STATES DISTRICT COURT
FOR'flir MIDDLE DISTRICT OP PENNSYLVANIA
SHEILA STEI'ALOVITCII,
Plaintiff
V.
MITCH SMITH,
Dcfcndant
NOIV tO
JUDGE
CIVIL ACTION - LAW
.........................................................................1
SHEILA STEPALOVITCH, COURT OF COMMON PLEAS 11Ppoty
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
NO. 99-6350
MITCH SMI'T'H,
Defendant CIVIL. ACTION - LAW
Nona m, REMOVAI
TO: THE HONORABLE JUDGE OP TI If: UNITED STATES DISTRIC f COUR'T'
FOR TI IE' MIDDLE DISTRICT OF PENNSYLVANIA
'PILE PROTI IONOTARY OF TI Ili COt1RT OF COMMON PLEAS OF
CUMBERLAND COUN'T'Y, PF,NNSYLVANIA
YVONNF I IJSIC, ESQUIRE
NICI IOLAS K FOREMAN, P.C.
4409 North Front Street
I IarrisburP, PA 17110
v? ? JJ, I `
Defendant Mitch Smith hereby removes the above captioned mailer to this
I lonorable Court and provides notice of same to counsel representing Plaintiff and to the
Cumberland County Prothonotary and in support ol'removal states the following:
On or about October 18, 1999, the Plaintill' instituted this matter by filing
a Praccipc for a Writ of Summons in the Court of Conunon Pleas of Cumberland County,
Pennsylvania. A true and correct copy ofthis Praccipc for Writ of Summons is attached
hereto and marked as Exhibit "A".
2. Plaintifl'therealler on April 17, 2000 filed a Complaint in this action
which Complaint was served upon counsel f'or Defendant on April 19, 2000. A true and
correct copy of Plaintiff's Complaint is attached hereto as Exhibit "B".
Plaintiffs Complaint sets forth a variety of allegations including, inter
ilia, allegations that Plaintiff is "a known person with a disability who receives
supplemental security income from the federal government for her mental health
disability" (See Exhibit "B" at 158); that Defendant "by his actions and conduct violated
Plaintiff's civil rights parsuant to 42 11.S.C. § 1983" (Sec lixhibit "B" at 411,59) and that
Defendant "violated Section 504 of the Rehabilitation Act by discriminating against a
person with a known disability and taking advantage of her vulnerable mental health."
(Sec Exhibit "B" at 1100).
4. Count VII in Plainlill's Complaint is styled as "Violation of Civil (tights."
In her prayer fin relief' following ('ount VII, I'laintifl'secks recovery of boill
compensatory and punitive damages hosed on the cause of action outlined in Count VII
of the Complaint.
5. Upon information and belief, this court hasjurisdiction in this matter
pursuant to 42 U.S.C. § 1331 and § 1343.
WHEREFORE, Defendant Mitch Smith respectfully requests that the above-
captioned matter previously pending in the Court of Common I'leas of Cumberland
County, Pennsylvania be removed to the United States District Court for the Middle
District of Pennsylvania.
DATED: S -S O U BY:
Respectfully submitted,
MARSHALL, DLNNEI IEY, WARNER,
COLEMAN & GOGGIN
l
Ti o by Mahon, Esyuirc
100 [line 'tre t - 4"' Floor
P.O. Box 803
I larrisburg, PA 17108
I.D. No. 52918
(717) 232-9323
Attorney for Defendant
3
AFFIDAVIT
1, Timothy J. McMahon, Esquire, being duly sworn in law deposes and says that
the facts set forth in the foregoing Notice of Removal are true and correct to the best of
my knowledge, information and belief.
DATED: .515-l 9 D
SWORN TO AND SUASCRIBED
BEFORE ME THIS & DAY
Timo ,y J. hon, Esquire
OF , 2000.
n ? 1
NOTARY PUBLIC
MY COMMISSION EXPIRES:
Notarial Seal
Susan M. Williams, Notary Public
Harrisburg, Dauphin County
My Commisslon Expires Oct. 18, 2009
Member. P mnSYNaRa ASSWA113n oi Notaries
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CF.RTIFICATF OF CONCURRF,NCIs
1, Timothy J. McMahon, Esquire certify that counsel for Plaintiff has advised that
Plaintiff concurs in the removal of this case to the United States District Court for the
Middle District of Pennsylvania.
DATED: S S-- 0
TiWIh-yg.-VMahon, Esquire
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Commonwealth of Pennsylvania
County of Cumberland
SHEILA STEPALOVITCH,
Va.
MITCH SMITH,
710 VISTA DRIVE
CAMP HILL, PA 17011
Court of Common Plea
._ 99_6350 ----------------- 19_°-
No. _.__99
CIVIL ACTION LAW-----------------
MITCH SMITH -------------------------
You are hereby notified that
---------------------------------- -SIN9 M _ r1T.F'61,L4X1T_QL-----------------------------•----
the Plaintiff haS commenced an action in ---------- CIS-IL-ACTION-1.AK--------------
against you which you are required to defend or a default judgment may be entered against you.
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SHEILA STEPALOVITCH,
Plaintiff
V.
MITCH SMITH,
Defendant
: IN THE COURT Or COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
NO. 99-6350
i •-
CIVIL ACTION -LAW
COMPLAINT
AND NOW, comes the Plaintiff Sheila Stepalovitch, by and through her
attorneys, Nicholas & roreman, P.C., and brings this Complaint, averring as
follows:
1. Plaintiff, Sheila Stepalovitch, is an adult individual, and resides at 39
East Keller Street, Mechanicsburg, Cumberland County, Pennsylvania
17055.
2. Defendant Mitch Smith, is an adult individual residing at 710 Vista
Drive, Camp Hill, Cumberland County, Pennsylvania 17011.
3. Defendant Mitch Smith is an adult individual and a licensed social
worker in the Commonwealth of Pennsylvania, with a principal place
of business at 3812 Market Street, Camp Hill, Cumberland County,
Pennsylvania 17011.
4. On or about October 1990, Plaintiff began 'psychotherapy' with
Defendant while he was employed at Holy Spirit Hospital.
'Psychotherapy' continued at Holy Spirit through 1999.
5. Defendant diagnosed Plaintiff as having, a psychiatric condition known
as 'multiple personality disorder", now referred to as "Disassociative
Identity Disorder".
6. Defendant alleges that Plaintiff has in excess of 25, sometimes up to 50,
different personalities.
7. Defendant holds himself out as having 'advanced clinical skill' in the
area of multiple personality disorders, and treats other patients in his
practice for the same or a similar diagnosis.
8. In early 1993, Defendant, in the course of his'deprogranuning therapy'
with Plaintiff, began to tie her to a chair with sheets, using as many as
12 sheets at a time.
9. On or about April 1994, Defendant left Holy Spirit and went into
private practice on Trindle Road, Camp Hill, where he continued
'deprogramming therapy to Plaintiff.
10. The 'deprogramming therapy' consisted of Plaintiff's hand being tied,
sometimes in front of her or behind her, being blindfolded, spanked
either by Defendant's belt or with his hands, being slapped and hit in
the face - injuring Plaintiff's jaw, punched Plaintiff's arms and her
torso, made Plaintiff lie on the floor and sit on top of her, pinning
Plaintiff's hands under his knees, Plaintiff was made to kneel, erect, on
the floor for hours, Plaintiff was forced to call the Defendant "Master",
beaten on the buttocks with a belt so severely causing the skin on the
buttocks to turn purple.
11. Defendant warned Plaintiff never to tell anyone what occurs in
therapy, and that Plaintiff must'obey' him.
12. Defendant's 'deprogramming therapy' occurred at odd times: often
starting late in the evenings, sometimes lasting until 2AM.
13. Defendant invited Plaintiff over to his home on New Year's Eve, 1995,
and Plaintiff stayed with Defendant from 7:30PM until after Midnight.
Defendant's slated that his wife was out-of-town.
14. Plaintiff also spent part of New Year's Eve with Defendant in
subsequent years.
15. On New Year's Eve in 1996, Defendant sexually assaulted Plaintiff.
After blindfolding Plaintiff and tying her to a chair, lie removed her
2
bra and fondled her breasts. Defendant made Plaintiff kneel on the
floor while he ejaculated into his hand, demanded that Plaintiff first
lick the semen from his hand, then swallow it.
16. In subsequent 'therapy' sessions, Defendant would ejaculate into a cup
and make Plaintiff drink his semen, lick semen from his finger,
sometimes pouring the semen into her mouth; Defendant used a dildo
with Plaintiff, dipping the tip of the dildo into his cup of semen and
having Plaintiff lick it off.
17. Defendant forced Plaintiff to perform oral sex on him, and engaged in
involuntary sexual intercourse with Plaintiff.
18. On or about October 31, 1997, Defendant invited Plaintiff to Baltimore
with him for a weekend while he attended a racquetball tournament.
19. On or about October 30, 1998, Defendant again invited Plaintiff to
Baltimore with him for a weekend while he attended a racquetball
tournament.
20. On or about January 19, 1999, Defendant prepared a letter for Plaintiff
to sign a release of any liability and to verify that Defendant acted in a
professional manner towards Plaintiff. See Exhibit "A".
21. Plaintiff refused to sign the prepared letter.
22. On January 29, 2000, Defendant telephone Plaintiff and demanded that
she come to his office to "talk things over."
23. On arrival, Defendant conducted another 'deprogramming therapy'.
Defendant tied Plaintiff to a chair with rags, beat Plaintiff on her
buttocks and legs with a belt, slapped Plaintiff in the face; punched
Plaintiff in the arms so hard that the force caused a fracture in
Plaintiff's left foreman.
24. Plaintiff required emergency treatment for the injury to her arm.
25. Plaintiff's injury to her left forearm is described as a 'night-stick'
fracture.
3
COUNT ONE
PROFESSIONAL MALPRACTICE
26. Paragraphs 1 through 25 are incorporated as if fully set forth herein.
27. Defendant, by his conduct, violated the professional licensure and
ethics of the State Board of Social Work Examiners, 49 Pa. Code § 47.1
et seq.
28. Defendant, by his conduct, failed to follow standards of professional
practice and conduct, as mandated by Act 39, of the State Board of
Social Work Examiners.
29. Defendant's actions were committed in the course and scope of
Defendant's professional representation of Plaintiff for therapeutic
mental health treatment. Defendant's actions and conduct towards
Plaintiff was done to satisfy Defendant's perverse sexual gratification.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant in an amount which exceed the arbitration amount under the local
rules of court.
COUNT TWO
ASSAULT AND BATTERY
30. Paragraphs 1 through 29 are fully incorporated herein by reference.
31. Defendant, by intentionally slapping, hitting„ striking, bruising,
beating and causing other injuries to Plaintiff, caused harmful and
offensive contact to Plaintiff, and the person of Plaintiff.
32. Defendant's actions placed Plaintiff in reasonable apprehension of
immediate harmful and offensive contact to plaintiff's person, done
without Plaintiff's consent, and causing Plaintiff to fear the Defendant.
4
WHEREFORE, Plaintiff claims compensatory and punitive damages from
the Defendant in an amount which exceeds the arbitration level under local rules
of court.
COUNT THREE
FALSE IMPRISONMENT
33. Paragraphs 1 through 33 are fully incorporated as if fully set forth
herein.
34. Defendant's actions and conduct, by physically restraining, binding
and confining Plaintiff to his locked office, using physical force, tied to
chair, arms and hand tied with sheets, intended to prevent Plaintiff
from leaving the office.
35. Plaintiff's freedom of movement was restricted in all directions, and
there was no reasonable means of escape known to Plaintiff when she
was bound by Defendant.
36. Defendant refused to release Plaintiff upon her request.
37. Defendant had no valid authority to confine Plaintiff, and the
confinement served no therapeutic purpose.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant in an amount in excess of the arbitration limits set by the local rules of
court.
COUNTFOUR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
38. Paragraphs 1 through 37 are incorporated herein as if fully set forth.
5
39. Defendant's conduct, as described herein this complaint, is extreme
and outrageous.
40. Defendant's conduct was done intentionally and recklessly, causing
plaintiff severe emotional and physical distress, such as nightmare,
inability to have a normal sexual relationship with her husband,
estrangement from her children, withdrawal from society, severe
depression and isolation.
41. Defendant's conduct was continuous in nature, commencing in 1993
through 1999.
42. Defendant was aware of Plaintiff's extreme sensitivities pertaining to
sexual and emotional abuse, and was aware that Plaintiff received
Supplemental Security Income (SSI) as a person with emotional
disabilities.
43. Defendant's conduct towards Plaintiff is even more gross considering
that Defendant and Plaintiff contracted for therapeutic services.
44. Defendant exploited Plaintiff, gaining her trust, then using her for the
perverse sexual gratification of Defendant.
WHEREFORE, Plaintiff claims compensatory and punitive damages Irom
Defendant in an amount in excess of the arbitration limits set by the local rules of
court.
COUNT FIVE
NIiCLIC1:NT INFLICTION OF EMOTIONAL DISTRESS
45. Paragraphs 1 through 44 are incorporated herein as if filly set forth.
46. Defendant had a duty to Plaintiff to conform to a specific standard of
care for licensed social workers in the Commonwealth of
Pennsylvania.
6
47. Defendant breached that duty to Plaintiff by his unprofessional and
unethical conduct towards Plaintiff as referenced in paragraphs 8
through 25, inclusive, of Plaintiff's complaint.
48. Defendant's conduct is the actual and proximate cause of Plaintiff's
physical and emotional injuries, nightmares, inability to concentrate,
inability to sleep, inability to have normal sexual relations with her
husband, inability to trust other, including, broken foreman, pain,
suffering and anguish associated with the injury.
49. Plaintiff continues to experience pain, swelling, and mobility in her left
arm as a result of Defendant's negligence.
50. Defendant should be held to a higher standard of care because he is a
social worker who contracted with Plaintiff for mental health
treatment.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant, including pain and suffering, in an amount in excess of the
arbitration limits set by the local rules of court.
COUNT SIX
RAPE
51. Paragraphs I through 50 are fully incorporated as if set forth.
52. Defendant engaged in sexual intercourse with Plaintiff against her will
and consent.
53. Defendant forced Plaintiff to engage in oral sex as part of the course of
therapy.
54. Defendant coerced Plaintiff into sucking, licking, and drinking his
semen when she was blindfolded and restrained by sheets to a chair.
7
55. Defendant coerced Plaintiff by fraudulently telling; her that the sexual
acts were part of the 'deprogramming therapy' and were a necessary
component of this form of therapy.
56. Defendant at all times, was paid by Plaintiff for therapy and was
expected to act in a professional manner.
WHEREFORE, plaintiff claims compensatory and punitive damages from
Defendant, including pain and suffering, in an amount in excess of the
arbitration limits set by the local rules of court.
COUNTSEVEN
VIOLATION OF CIVIL RIGHTS
57. Paragraphs 1 through 56 are fully incorporated as set forth herein.
58. plaintiff is a known person with a disability who receives
Supplemental Security Income (SSI) from the federal government for
her mental health disability.
59. Defendant, by his actions and conduct, violated Plaintiff's civil rights
pursuant to,12 U.S.C. § 1983.
60. Defendant violated Section 504 of the Rehabilitation Act by
discriminating against a person with a known disability, and taking
advantage of her vulnerable mental health.
61. Defendant accepted Plaintiff's money for mental health treatment,
money which was received by the federal government for Plaintiff's
therapy.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant, including pain and suffering, in an amount in excess of the
arbitration limits set by the local rules of court.
8
A,
?e
Respectfully submitted,
NICHOLAS & FOREMAN, P.C.
I1y L1YVQfVKA.,V-I,,MVW-"
vonne M. Husic, squire
4409 North Front Street
Harrisburg, PA 17110
(717) 236-9391
Attorneys for Plaintiff
9
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Dear Mitch,
1 ant writing this letter, or should I say staking this statement in writing to you, due to continuing
threats by my husband, Hill Stepalovitch. Dill Stepalovitch has continued for years to make
statements that he plans in some way to bring legal actions against you in file event of my attempt
to have him removed from my apartment or in the event of my death. As 1 have told you
previously, Bill Stepalovitch has emotionally, physically and sexually abused file fin many years
and he continues to do so as of this date. Hill Stcpalovitch has been accusing you ol'having a
sexual relationship with file and that he plans in the fixture to make every eHint to "put both you
and I away," in his words As you and I both know, there has never been a sexual relationship
between its, and any attempt or statements made by anyone to say there has been anything other
than a professional psychotherapy relationship with only the highest regard for appropriate
boundaries and professional conduct on your part, would be false and a lie.
1 give you this letter in writing to be included as a part of my professional record with you should
there ever be any action by anyone to make statements against your professional reputation and
practice. I would also state for the record that you have done everything possible to help file,
including the offer of hospitalization and psychiatric evaluation, which I have always refused.
You have also on at least three occasions liled petitions for me to be evaluated on all involuntary
commitment for my need for hospitalization Each time I was released by the evaluating
psychiatrist with the finding that I was not in need of hospitalization and that I was to continue
treatment in outpatient psychotherapy with you )'off have always reminded file and 1 have
always been aware of crisis intervention availability on a 24 hours/7days a week basis You also
made yourself available for crisis intervention since I left treatment in May of 1998, to help me
with effects of having been systematically brainwashed by members of a local cult group which
tortured file through phvsical and sexual abuse
1, the undersigned, hereby attest the information given in this statement is accurate and I further
authorize Mitch Smith to release this statement in his defense should anyone question the
competence or ethical manner in which he conducted his professional relationship with file
bare Sheila "Brandy" Stcpalovitch
subscribed and swur m to belote file this day of I ypi
Notarv Public (seal)
County of state of
My commission expires _
EXHIBIT
VIERIFICATION
I, SHEILA STCPALOVITCII, verify that the statements made in the foregoing
Complaint are true and correct to the best of my knowledge. I understand that false
statements herein are made subject to penalties of 18 Pa. C.S.A. Section 4904, relating to
unswora falsification to authorities.
Dated:
SHEILA TC'ALOVITCFI
•p•. A1'P A LdKety\.:i. ? 3 j,,,M!w"'. Y ?i W '
cERr1FI nre• or Itvr r
1, Yvonne M. I-lusic, Esquire, hereby certify that on this day, the 17th Day of
April, 1000, a copy of Plaintiff's Complaint, was served by means by depositing the
same in first class U.S. Mail to the following persons:
Timothy J. McMahon, Esquire
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
100 Pinc Street, 41h Floor
P.O. Box 803
Harrisburg, PA 17108.0803
By r tit l'? 1 t-L
M. Husic, 'squire
ttarncy I N 74444
NICH FOREMAN, P.C.
4409 North Front Street
Harrisburg, PA 17110
(717) 236.9391
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
I, Yvonne M. Flusic, Esquire, hereby certify that on this day, the 17th Day of
April, 2000, a copy of Plaintiffs Complaint, was served by means by depositing the
same in first class U.S. Mail to the following persons:
Sharon M. O'Donnell, Esquire
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
100 Pine Street, 4'h floor
P.O. Box 803
Harrisburg, PA 17108.0803
By: C' i(tl•YV1Cl f`l .«,C?.o.c.,
Y nne M. Flusic, Esquire
Attorney ID q 74444
NICHOL S & FOREMAN, P.C.
4409 North Front Street
Harrisburg, PA 17110
(717) 236.9391
Attorneys for Plaintiff
.l
CERTIFICATE. OF SERVICE:
1, Melissa M. Kain, employee of Marshall, Denichcy, Warner, Coleman & Ooggin, do
hereby certify that on this _`5 day of May, 2000, served a copy of the foregoing document
via First Class United Statcs mail, postage prepaid as follows:
Yvonne Husic
NICHOLAS & FOREMAN, F.C.
4409 North Front Street
Harrisburg, PA 17110
MEI.1 SA M. KA N
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHEILA STEPALOVITCH,
Plaintiff
V. CIVIL ACTION NO. 1:C 00-87 s, C)
lAP? YN' r r.
MITCH SMITH, 4fte u
;
Defendant 1 ?'n P u Zoo
1
ORDER f?srr t~'LSpIC
MAW tjphsii'I
D Plaintiffs civ
il action against her therapist arising out of alleged sexual
abuse was filed in the Cumberland County Court of Common Pleas on April 17, 2000.
Defendant removed this action from that court on May 5, 2000, pursuant to 28 U.S.C. §§ 1441
and 1331, on the ground that, in addition to a number of state law claims, Plaintiffs complaint
asserts a cause of action for violation of civil rights, and accordingly, this Court has federal
question jurisdiction over Plaintiffs complaint. On January 11, 2001, this Court issued an Order
directing Defendant to show cause why this case should not be remanded to the state court for
lack of federal jurisdiction, pursuant to 28 U.S.C. § 1447(c), which provides that "[ilf at any time
before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded." 28 U.S.C. § 1447(c). On January 26, 2001, Defendant filed a brief in
response to the Court's order, and on February 2, 2001, Plaintiff filed a reply to the Defendant's
brief. Accordingly, the issue of the Court's jurisdiction is ripe for disposition.
As noted in the Court's January 11, 2001 Order, it is a removing defendant's burden to
establish jurisdiction. See Meritcare Inc. v St Paul Mercury Inc (n , 166 F.3d 214, 222 (3d Cir.
1999). In order to meet his burden, Defendant must demonstrate the following: (1) that federal
law is an "essential" element of Plaintiffs cause of action; (2) that the federal question "must be
disclosed upon the face of the complaint;" (3) that the federal question is not inferred from a
LQ` lr--o? li r, ?.
defense asserted or one expected to be made; and (4) that the federal question is a "substantial"
one. Martin v. Wilkes-Barre Publishing Co., 567 F.Supp. 304,307 (M.D. Pa. 1983) (citations
omitted).
In his brief in response to the Court's Order, Defendant acknowledges these requirements
but offers no explanation of how Plaintiffs complaint meets these requirements, other than his
statement that "Defendant submits here that Plaintiffs allegations in her Complaint in Count VII
satisfy the requirement of constitutional substantiality." Def. Br. at 4. Specifically, the
allegations referred to by Defendant are as follows: that Defendant "by his actions and conduct
violated Plaintiffs Civil Rights pursuant to 42 U.S.C. § 1983;" Complaint at 159; and that
Defendant "violated § 504 of the Rehabilitation Act by discriminating against a person with a
known disability and taking advantage of her vulnerable mental health." 0, at 160.
Assuming that Defendant could establish the first three requirements cited above, he has
failed to demonstrate that there is any "substantial" federal question raised by Plaintiffs
complaint. Plaintiffs complaint fails to raise a "substantial" federal question with regard to any
claim based on 42 U.S.C. § 1983, for the reasons stated in the Court's January 11, 2001 Order,
namely, the fact that Plaintiffs complaint fails to allege any state action sufficient to invoke §
1983. See Mar&, 567 F. Supp. at 309 (where there was no allegation or evidence of
governmental action involved in employee's discharge by a private employer, employee's
complaint alleging her discharge violated First Amendment was "constitutionally insubstantial"
and did not serve as a predicate for removal to federal court). Defendant implicitly
acknowledges the lack of a "substantial" federal question relating to the § 1983 claim, as his
brief states that he relies on Plaintiffs invocation of the Rehabilitation Act to justify federal
jurisdiction. Specifically, Defendant states that "Plaintiffs claimed rights under, or relationship
to, the Federal statute known as the Rehabilitation Act of 1973 as described in her Complaint
provides the factual basis for her Civil Rights claim(s) and those allegations found at Count VII
of the Complaint constitute the basis for Defendant's earlier removal of this action." Def. Br. at
6.
With regard to the Rehabilitation Act claim, Defendant has similarly failed to
demonstrate the existence of a "substantial" federal question. As noted above, Defendant has
done nothing more than reference the bare allegations made in Plaintiffs complaint and state that
those allegations "satisfy the requirement of constitutional substantiality." Def. Br. at 4. This
does not satisfy Defendant's burden to demonstrate constitutional substantiality. However, even
if Defendant had attempted to make such a showing, he could not do so here.
Plaintiff alleges a violation of § 504 of the Rehabilitation Act. That section provides, in
pertinent part:
No otherwise qualified individual with a disability.. . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the benefits
of, or be subject to discrimination under any program or activity receiving Federal
financial assistance ....
29 U.S.C. § 794(a). The elements of a Rehabilitation Act claim are as follows:
(1) plaintiff has a disability;
(2) she is "otherwise qualified" for the program;
(3) the program receives federal financial assistance; and
(4) she was denied the benefits of, or subjected to discrimination under, the program.
ee Nathanson v Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991).
While Plaintiffs complaint contains allegations that she is a person with a disability who
was discriminated against by Defendant, nowhere in her complaint does she allege that she was
r
discriminated against under a program receiving federal financial assistance, for which she was
qualified. Although she states that she receives Supplemental Security Income ("SSI") from the
federal government, and that she used the money to pay for her treatment by Defendant, =
Complaint at 1158, 61, the fact that Plaintiff used federal money to pay for Defendant's services
does not establish that Defendant received federal financial assistance within the meaning of the
Rehabilitation Act. So Bingham v Oregon School Activities Ass'n. 37 F.Supp.2d 1189, 1204
(D. Or. 1999) (payment of dues from recipient of federal funds does not suffice to render dues
recipient subject to Rehabilitation Act). Accordingly, as the allegations of Plaintiffs complaint
do not suffice to make out a Rehabilitation Act claim, Defendant cannot meet his burden of
demonstrating that such a claim is a constitutionally "substantial" one.
For all of the reasons discussed above, the Court finds that it lacks subject matter
jurisdiction over this case. Accordingly, the case must be remanded to state court. &2 28
U.S.C. § 1447(c).
4
Therefore, IT IS ORDERED THAT:
A. This case is remanded to the Cumberland County Court of Common Pleas of the
Commonwealth of Pennsylvania.
B. A certified copy of this Order shall be mailed by the Clerk of this Court to the
Clerk of the Cumberland County Court of Common Pleas of the Commonwealth
of Pennsylvania.
C. The following motions are denied as moot:
A. Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) and 12(o (Doc. No. 3);
B. Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 16 and 37 (Doc. No. 24);
C. Plaintiffs Motion to Extend Discovery (Doc. No. 28);
D. Plaintiffs Motion for Protective Order (I,doc. No. 29).,
Dated: February a4110 , 2001.
Yvette'$!ane \
United States District Judge
5
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SHEILA STEPALOVITCH,
Plaintiff
V.
MITCH SMITH,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
NO. 99-6350
CIVIL ACTION - LAW
OTI F
YOU I[AVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so, the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the Complaint
or for any other claim or relief requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
NICHOLAS & FOREMAN, P.C.
Yvonne' I. Ilusic, Esquire ?-
4409 N{?r h Front Street
Ilarrisbd g, 1'A 17110)
(717) 236-9391
11) 1174444
Anorneys for Plaintif '
SHEILA STEPALOVITCII,
Plaintiff
: IN THE. COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
MITCH SMITH,
Defendant
: NO. 99-6350
: CIVIL ACTION -LAW
OTICIA
Le han demandado a Usted en la corte. Si Usted quicre dcfendersc do estas demandas expuestas
en las paginas siguientes, Usted tiene vientc (20) dias de plazo al partir de la fecha de la demanda
y la notificacion. Usted debe presentar Una apariencia escrita o en persona o por abogado y
archivar en la cone en forma escrita sus defensas o sus objcciones a Ias demandas en contra de su
personal. Sea avisado quc si Usted no se dcficnde, la corte tomam medidas y puede cntmr Una
orden contra Usted sin prcvio aviso o notificacion y por cualquier qucja o alivio quc es pedido en
la pcticion de demanda. Usted puedc perdcr dincro o sus propiedadas o otros derechos
importantcs para Ustcd. LLEVE ESTA DEMANDA A UN ABOGADO INMEDATAMENTE.
SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717)240.6200
NICHOLAS & FOREMAN-P.C.
By: VL LC ?Iv
Yvonne . I lusic, IiSQtll
4409 N Vr h Front Street
I larrisb g, l'A 17110
(717) 236-9391
ID It74444
Attorneys for Plaintiff
SHEILA STEPALOVITCH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
NO. 99-6350
MITCH SMITH,
Defendant : CIVIL ACTION -LAW
COMPLAINT
AND NOW, comes the Plaintiff Sheila Stepalovitch, by and through her
attorneys, Nicholas & Foreman, P.C., and brings this Complaint, averring as
follows:
1. Plaintiff, Sheila Stepalovitch, is an adult individual, and resides at 39
East Keller Street, Mechanicsburg, Cumberland County, Pennsylvania
17055.
2. Defendant Mitch Smith, is an adult individual residing at 710 Vista
Drive, Camp Hill, Cumberland County, Pennsylvania 17011.
3. Defendant Mitch Smith is an adult individual and a licensed social
worker in the Commonwealth of Pennsylvania, with a principal place
of business at 3812 Market Street, Camp Hill, Cumberland County,
Pennsylvania 17011.
4. On or about October 1990, Plaintiff began 'psychotherapy' with
Defendant while he was employed at Holy Spirit Hospital.
'Psychotherapy' continued at Holy Spirit through 1994.
5. Defendant diagnosed Plaintiff as having a psychiatric condition known
as 'multiple personality disorder", now referred to as "Disassociative
Identity Disorder".
6. Defendant alleges that Plaintiff has in excess of 25, sometimes up to 50,
different personalities.
7. Defendant holds himself out as having 'advanced clinical skill' in the
area of multiple personality disorders, and treats other patients in his
practice for the same or a similar diagnosis.
8. In early 1993, Defendant, in the course of his 'deprogramming therapy'
with Plaintiff, began to tic her to a chair with sheets, using as many as
12 sheets at a time.
9. On or about April 1994, Defendant left Holy Spirit and went into
private practice on Trindle Road, Camp Hill, where lie continued
'deprogramming' therapy to Plaintiff.
10. The 'deprogramming therapy' consisted of Plaintiff's hand being tied,
sometimes in front of her or behind her, being blindfolded, spanked
either by Defendant's belt or with his hands, being slapped and hit in
the face - injuring Plaintiff's jaw, punched Plaintiff's arms and her
torso, made Plaintiff lie on the floor and sit on top of her, pinning
Plaintiff's hands under his knees, Plaintiff was made to kneel, erect, on
the floor for hours, Plaintiff was forced to call the Defendant "Master",
beaten on the buttocks with a belt so severely causing the skin on the
buttocks to turn purple.
11. Defendant warned Plaintiff never to tell anyone what occurs in
therapy, and that Plaintiff must'obey' him.
12. Defendant's 'deprogramming therapy' occurred at odd times: often
starting late in the evenings, sometimes lasting until 2AM.
13. Defendant invited Plaintiff over to his home on New Year's Eve, 1995,
and Plaintiff stayed with Defendant from 7:30PM until after Midnight.
Defendant's stated that his wife was out-of-town.
14. Plaintiff also spent part of New Year's Eve with Defendant in
subsequent years.
15. On New Year's Eve in 1996, Defendant sexually assaulted Plaintiff.
After blindfolding Plaintiff and tying her to a chair, he removed her
2
bra and fondled her breasts. Defendant made Plaintiff kneel on the
floor while he ejaculated into his hand, demanded that Plaintiff first
lick the semen from his hand, then swallow it,
16. In subsequent 'therapy' sessions, Defendant would ejaculate into a cup
and make Plaintiff drink his semen, lick semen from his finger,
sometimes pouring the semen into her mouth; Defendant used a dildo
with Plaintiff, dipping the tip of the dildo into his cup of semen and
having Plaintiff lick it off.
17. Defendant forced Plaintiff to perform oral sex on him, and engaged in
involuntary sexual intercourse with Plaintiff.
18. On or about October 31, 1997, Defendant invited Plaintiff to Baltimore
with him for a weekend while he attended a racquetball tournament.
19. On or about October 30, 1998, Defendant again invited Plaintiff to
Baltimore with him for a weekend while he attended a racquetball
tournament.
20. On or about January 19, 1999, Defendant prepared a letter for Plaintiff
to sign a release of any liability and to verify that Defendant acted in a
professional manner towards Plaintiff. See Exhibit "A".
21. Plaintiff refused to sign the prepared letter.
22. On January 29, 2000, Defendant telephone Plaintiff and demanded that
she come to his office to "talk things over."
23. On arrival, Defendant conducted another 'deprogramming therapy'.
Defendant tied Plaintiff to a chair with rags, beat Plaintiff on her
buttocks and legs with a belt, slapped Plaintiff in the face; punched
Plaintiff in the arms so hard that the force caused a fracture in
Plaintiff's left foreman.
24. Plaintiff required emergency treatment for the injure to her arm.
25. Plaintiff's injury to her left forearm is described as a 'night-stick'
fracture.
'1
COUNT ONE
PROFESSIONAL MALPRACTICE
26. Paragraphs 1 through 25 are incorporated as if fully set forth herein.
27. Defendant, by his conduct, violated the professional licensure and
ethics of the State Board of Social Work Examiners, 49 Pa. Code § 47.1
et seq.
28. Defendant, by his conduct, failed to follow standards of professional
practice and conduct, as mandated by Act 39, of the State Board of
Social Work Examiners.
29. Defendant's actions were committed in the course and scope of
Defendant's professional representation of Plaintiff for therapeutic
mental health treatment. Defendant's actions and conduct towards
Plaintiff was done to satisfy Defendant's perverse sexual gratification.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant in an amount which exceed the arbitration amount under the local
rules of court.
COUNTTWO
ASSAULT AND BATTERY
30. Paragraphs 1 through 29 are fully incorporated herein by reference
31. Defendant, by intentionally slapping, hitting, striking, bruising,
beating and causing other injuries to Plaintiff, caused harmful and
offensive contact to Plaintiff, and the person of Plaintiff.
32. Defendant's actions placed Plaintiff in reasonable apprehension of
immediate harmful and offensive contact to plaintiff's person, done
without Plaintiff's consent, and c.,using Plaintiff to fear the Defendant.
1
WHEREFORE, Plaintiff claims compensatory and punitive damages from
the Defendant in an amount which exceeds the arbitration level under local rules
of court.
COUNT THREE
FALSE IMPRISONMENT
33. Paragraphs 1 through 33 are fully incorporated as if fully set forth
herein.
34. Defendant's actions and conduct, by physically restraining, binding
and confining Plaintiff to his locked office, using physical force, tied to
chair, arms and hand tied with sheets, intended to prevent Plaintiff
from leaving the office.
35. Plaintiff's freedom of movement was restricted in all directions, and
there was no reasonable means of escape known to Plaintiff when she
was bound by Defendant.
36. Defendant refused to release Plaintiff upon her request.
37. Defendant had no valid authority to confine Plaintiff, and the
confinement served no therapeutic purpose.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant in an amount in excess of the arbitration limits set by the local rules of
court.
COUNT FOUR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
38. Paragraphs 1 through 37 are incorporated herein as if fully set forth.
5
39. Defendant's conduct, as described herein this complaint, is extreme
and outrageous.
40. Defendant's conduct was done intentionally and recklessly, causing
Plaintiff severe emotional and physical distress, such as nightmare,
inability to have a normal sexual relationship with her husband,
estrangement from her children, withdrawal from society, severe
depression and isolation.
41. Defendant's conduct was continuous in nature, commencing in 1993
through 1999.
42. Defendant was aware of Plaintiff's extreme sensitivities pertaining to
sexual and emotional abuse, and was aware that Plaintiff received
Supplemental Security Income (SSI) as a person with emotional
disabilities.
43. Defendant's conduct towards Plaintiff is even more gross considering
that Defendant and Plaintiff contracted for therapeutic services.
44. Defendant exploited Plaintiff, gaining her trust, then using her for the
perverse sexual gratification of Defendant.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant in an amount in excess of the arbitration limits set by the local rules of
court.
COUNT FIVE
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
45. Paragraphs 1 through 44 are incorporated herein as if fully set forth.
46. Defendant had a duty to Plaintiff to conform to a specific standard of
care for licensed social workers in the Commonwealth of
Pennsylvania.
6
47. Defendant breached that duty to Plaintiff by his unprofessional and
unethical conduct towards Plaintiff as referenced in paragraphs 8
through 25, inclusive, of Plaintiff's complaint.
48. Defendant's conduct is the actual and proximate cause of Plaintiff's
physical and emotional injuries, nightmares, inability to concentrate,
inability to sleep, inability to have normal sexual relations with her
husband, inability to trust other, including, broken foreman, pain,
suffering and anguish associated with the injury.
49. Plaintiff continues to experience pain, swelling, and mobility in her left
arm as a result of Defendant's negligence,
50. Defendant should be held to a higher standard of care because he is a
social worker who contracted with Plaintiff for mental health
treatment.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant, including pain and suffering, in an amount in excess of the
arbitration limits set by the local rules of court.
COUNT SIX
RAPE
51. Paragraphs I through 50 are fully incorporated as if set forth.
52. Defendant engaged in sexual intercourse with Plaintiff against her will
and consent.
53. Defendant forced Plaintiff to engage in oral sex as part of the course of
therapy.
54. Defendant coerced Plaintiff into sucking, licking, and drinking his
semen when she was blindfolded and restrained by sheets to a chair.
7
55. Defendant coerced Plaintiff by fraudulently telling her that the sexual
acts were part of the 'deprogramming therapy' and were a necessary
component of this form of therapy.
56. Defendant at all times, was paid by Plaintiff for therapy and was
expected to act in a professional manner.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant, including pain and suffering, in an amount in excess of the
arbitration limits set by the local rules of court.
COUNT SEVEN
VIOLATION OF CIVIL RIGHTS
57. Paragraphs 1 through 56 are fully incorporated as set forth herein.
58. Plaintiff is a known person with a disability who receives
Supplemental Security Income (SSI) from the federal government for
her mental health disability.
59. Defendant, by his actions and conduct, violated Plaintiff's civil rights
pursuant to 42 U.S.C. § 1983.
60. Defendant violated Section 504 of the Rehabilitation Act by
discriminating against a person with a known disability, and taking
advantage of her vulnerable mental health.
61. Defendant accepted Plaintiff's money for mental health treatment,
money which was received by the federal government for Plaintiff's
therapy.
WHEREFORE, Plaintiff claims compensatory and punitive damages from
Defendant, including pain and suffering, in an amount in excess of the
arbitration limits set by the local rules of court.
8
Respectfully submitted,
NICHOLAS & FOREMAN, P.C.
By
vonne M. Husic, quire
4409 North Front Street
Harrisburg, PA 17110
(717) 236-9391
Attorneys for Plaintiff
9
Dear Mitch.
I ant writing this letter, or should 1 say making this statement in writing to you, due to continuing
threats by my husband, Bill Stepalovitch. Bill Stepalovitch has continued for years to make
statements that he plans in some way to bring legal actions against you in the event otlny attempt
to have him removed from my apartment or in the event of my death As I have told you
previously, Bill Stepalovitch has emotionally, physically and sexually abused me for many years
and he continues to do so as of this date. Bill Stepalovitch has been accusing you of having a
sexual relationship with me and that he plans in the future to make every effort to "put both you
and 1 away," in his words. As you and I both know, there has never been a sexual relationship
between its, and any attempt or statements made by anyone to say there has been anything other
than a professional psychotherapy relationship with only the highest regard for appropriate
boundaries and professional conduct on your part, would be false and a lie.
I give you this letter in writing to be included as a pan of my professional record with you should
there ever be any action by anyone to make statements against your professional reputation and
practice. I would also state for the record that you have done everything possible to help file,
including the offer of hospitalization and psychiatric evaluation, which 1 have always refused.
You have also on at least three occasions filed petitions for me to be evaluated on an involuntary
commitment for my need for hospitalization. Each time I was released by the evaluating
psychiatrist with the finding that I was not in need of hospitalization and that I was to continue
treatment in outpatient psychotherapy with you You have always reminded me and I have
always been aware of crisis intervention availability on a 24 hours/Mays a week basis You also
made yourself available for crisis intervention since I left treatment in May of 1998, to help me
with eltects of having been systematically brainwashed by members of a local cult group which
toruned me through physical and sexual abuse.
I, the undersigned, hereby attest the information given in this statement is accurate and I lmilier
authorize Mitch Smith to release this statement in his defense should anyone question the
competence or ethical manner in which he conducted his professional relationship with me
Dane Sheila "Brandy" Stepalovitch
Subscribed and sworn to bdirre me this day of . 1999
Notary Public (:enl)
Counts. of State of
Nly commission expires
EXHIBIT
g
VERIFICATION
1, SHEILA STEPALOVITCH, verify that the statements made in the foregoing
Complaint are true and correct to the best of my knowledge. I understand that false
statements herein arc made subject to penalties of 18 Pa. C.S.A. Section 4904, relating to
unsworn falsification to authorities.
Dated:
SHEILA TC'ALOVITCH
CERTIFICATE OF SERVICE
I, Yvonne M. Husic, Esquire, hereby certify that on this day, the 17th Day of
April, 2000, a copy of Plaintiff's Complaint, was served by means by depositing the
same in first class U.S. Mail to the following persons:
Timothy J. McMahon, Esquire
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
100 Pine Street, 4`h Floor
P.O. Box 803
Harrisburg, PA 17108.0803
Attorney ID N 74444
?S & FOREMAN, P.C.
4409 North Front Street
Harrisburg, PA 17110
(717) 236.9391
Attorneys for Plaintiff
•
TERMED HBG
REMAND
U.S. District Court
Middle District of Pennsylvania (Harrisburg)
CIVIL DOCKET FOR CASE #: 00 -CV-814
Stepalovitch v. Smith Filed: 05/05/00
Assigned to: Judge Yvette Ka ne
Demand: $0,000 42041 Nature of Suit: 440
Lead Docket: None Jurisdiction: Federal Question
Dkt # in Cumberland County : is 99-6350
Cause: 42:1983 Civil Rights Act
SHEILA STEPALOVITCH
plaintiff
V.
MITCH SMITH
defendant
Yvonne M. Husic
(COR LD NTC1
Nicholas & Foreman, P.C.
4409 North Front Street
Harrisburg, PA 17110
(717) 236-9391
Timothy J. McMahon
(COR LD NTC)
Marshall,Dennehey,Warner,
Coleman & Goggin
100 Pine Street 4th F1
P O Box 803
Harrisburg, Pa 17108-0803
717-232-9323
Docket as of February 27, 2001 12:14 pm Page 1
Progeediugs include all events. TERMED
1:00cv814 Stepalovitch v. Smith HBG
RED
5/5/00 1 PETITION FOR REMOVAL from Cumberland County Court,
Case
Number: 99-6350; N/C to cnsl.; no jury trial demanded.
Receipt #: 131216 Amt: $150.00 (jh) [Entry date 05/08/001
5/8/00 -- REMARK - Copy of docket sheet to Judge Kane & Ct. Dpty. (jh)
[Entry date 05/08/001
5/10/00 2 LETTER from court to cnsl RE: case assignment & procedure.
(jk) [Entry date 05/10/001
5/10/00 3 MOTION by defendant Mitch Smith to dismiss pure to FRCP
12(b)(6) and 12(f).; Certnoncurr., CIS, Propo. (pm)
[Entry date 05/11/00]
5/11/00 4 COUNTY COURT RECORD filed by Court of Common Pleas,
Cumberland County, PA, Case No. 99-6350. (vg)
(Entry date 05/12/001
5/12/00 5 SCHEDULING ORDER by Judge Yvette Kane Case Management
Conference set for 1:30 p.m. on 6/7/00 (cc: all counsel,
court) (jk) [Entry date 05/16/001
5/22/00 6 MEMORANDUM by defendant Mitch Smith IN SUPPORT OF motion to
dismiss purs to FRCP 12(b)(6) and 12(f). [3-1]; with exh
and c/s. (sc) [Entry date 05/23/001
5/23/00 7 RESPONSE by plaintiff to deft's mtn to dismiss and strike
with exhs. attached and c of s. (jh) [Entry date 05/24/001
5/30/00 8 AMENDED SCHEDULING ORDER by Judge Yvette Kane - Case
Management Conference rescheduled to 9:30 a.m. on 6/29/00
(cc: all counsel, court) (jk) [Entry date OS/31/00]
6/16/00 9 MOTION by plaintiff Sheila Stepalovitch to continue case
management conf from 6/29/00 9:30 to another date.;
Certconc., CIS, Propo. (pm) [Entry date 06/16/001
6/20/00 10 ORDER by Judge Yvette Kane: Motion for Continuance is
granted and Case Management Conference ached, for 6/29/00
at 9:30 a.m. in rescheduled at 11:00 a.m. on 7/6/00 (cc:
all counsel court, Ctrm. Dep.) (vg) [Entry date 06/21/00]
6/28/00 11 CASE MANAGEMENT FORM returned by cnsl. (jh)
[Entry date 06/29/001
7/6/00 12 BRIEF by plaintiff Sheila Stepalovitch IN OPPOSITION to
motion to dismiss purs to FRCP 12(b)(6) and 12(f). [3-1] ;
reply brief due 7/19/00; with c/s. (sc)
[Entry date 07/07/00]
7/10/00 13 MINUTE SHEET of CMC held on 7/6/00 before J. Kane. Cnsl
present. termddl (pm) [Entry date 07/11/001
Docket as of February 27, 2001 12:14 pm Page 2
Progeedipgs include all events. TERMED
1:OCcv814 Stepalovitch v. Smith HBG
REMAND
7/13/00 14 REPLY BRIEF by defendant in support of motion to dismiss
purs to FRCP 12(b)(6) and 12(f). [3-1] CIS. (pc)
[Entry date 07/14/001
9/1/00 15 CASE MANAGEMENT ORDER by Judge Yvette Kane Jury selection
& trial set 9:30 a.m. on 5/7/01; discovery cutoff 11/3/00;
pretrial memorandum due 4/20/01; pretrial conference set
for 3:00 p.m. on 4/26/01. Case placed on STANDARD Case
Mgmt. Track (cc: all counsel, Ct., Ct. Rptr. & Ct. Dpty.)
(jh) [Entry date 09/05/003
9/12/00 16 MOTION by defendant to compel psychological/mental
examination of pltf with cert of nonconc, proposed order,
exhs. and c of s. (jh) [Entry date 09/12/001
9/12/00 17 BRIEF by defendant IN SUPPORT of motion to compel
psychological/mental examination of pltf with exh. attached
and c of s. [16-1] (jh) [Entry date 09/12/001
10/3/00 18 JOINT MOTION by plaintiff and defendant to enlarge certain
case management deadlines at 12/15/00 and 1/2/01.;
Certconc., CIS, Propo. (pm) [Entry date 10/03/001
10/4/00 19 ORDER by Judge Yvette Kane - The Court hereby AMENDS its CM
Order of 9/1/00 Discovery ddl is now 12/15/00. See order
for add'1 details. (cc: all counsel court) (sc)
[Entry date 10/05/001
10/19/00 20 ORDER by Judge Yvette Kane [16-1) 1)Pltf. shall reap, to
all outstanding discovery requests by 10/23/00 2) In light
of pltf's failure to file any resp. to dit's mtn. to compel
psychological/mental exam. of pltf. and supp. br., that
mtn. is GRANTED as unopposed, pursuant to LR 7.6. (cc: all
counsel court) (vg) [Entry date 10/20/00]
10/25/00 21 MINUTE SHEET of phone conference held by J. kane on
10/18/00. (jk) [Entry date 10/25/00]
11/14/00 22 MINUTE SHEET from teleconf held by Judge Kane on 11/9/00
re: discovery dispute. (vg) [Entry date 11/15/001
11/16/00 23 MOTION by plaintiff for protective order; CIS. (pm)
[Entry date 11/17/001
12/4/00 24 MOTION by defendant to dismiss purs to FRCP Rules 16 &
37/mtn to compel discovery.; Certcon/noncurr., Propo. (pm)
[Entry date 12/05/001
12/5/00 25 ORDER by Judge Yvette Kane, AND NOW, this 5th day of
December, 2000, upon consideration of pltf's mtn for
protective order (doc23) IT IS ORDERED THAT pltf's mtn is
deemed WITHDRAWN for failure to file br in support with the
mtn, as req by LR 7.5. [23-1] (cc: all counsel court) (pm)
[Entry date 12/06/001
.,
Docket as of February 27, 2001 12:14 pm Page 3
Proceedings include all evenLn. TERMED
1:00cv814 Stepalovitch V. Smith HBG
REMAND
12/7/00 26 BRIEF by defendant IN SUPPORT of motion to dismiss pure to
FRCP Rules 16 & 37/111i11 to compel discovery. [24-1]; CIS (pm)
[Entry date 12/00/001
12/21/00 27 RESPONSE captioned "Answer" by plaintiff Sheila
Stepalovitch to deft'n mtn to dismiss pure to FRCP 16 and I
mtn to compel diucovery. CIS. (pm) [Entry date 12/22/00]
12/28/00 28 MOTION with BRIEF IN SUPPORT by plaintiff Sheila
Stepalovitch to extend discovery; CIS; Propo. (vg)
(Entry date 12/29/001
1/3/01 29 MOTION by plaintiff for protective order with proposed
order and c of s. (jh) [Entry date 01/04/011
1/3/01 29 BRIEF by plaintiff IN SUPPORT of motion for protective
order and c of n. [29-1] (jh) (Entry date 01/04/011
1/3/01 30 BRIEF by defendant IN OPPOSITION to motion to extend
discovery with exh. attached; [28-1] reply brief due
1/16/01. (jh) (Entry date 01/04/011
1/4/01 31 BRIEF b defendant Mitch Smith IN OPPOSITION to motion for
protective order 129-11, reply brief due 1/17/01; CIS. (vg)
(Entry date 01/05/011
1/8/01 32 BRIEF - by plaintiff Sheila Stepalovitch IN OPPOSITION to
deft.'u motion to dismiss pure to FRCP Rules 16 & 37/mtn to
compel diucovery. (24-1] reply brief due 1/21/01 (c/s) (am)
(Entry date 01/00/011
1/11/01 33 ORDER by dud(je Yvette Kane - IT IS ORDERED THAT: 1)W/i 10
days of thin Order, Oft shall show cause why this case
should not bo remanded to the state ct for lack of federal
juriudiction. 2)Pltf shall file a reap to that w/i 5 days
of itu filing. 3)Ths CM Order is suspended pending the Ct's'
resolution of. this issue. (cc: all counsel court) (sc)
[Entry date 01/12/011
1/26/01 34 BRIEF FILED by defendant Mitch Smith in accord. w/ Court's
order of 1/11/01 [33-1); CIS. (vg) (Entry date 01/30/011
B,x
2/2/01 35 REPLY BRIEF FILED by plaintiff Sheila Stepalovitch in
accord w/ 1/11/01 order (33-1]; CIS. (vg)
[Entry date 02/05/011
0
Docket an of February 27, 2001 12:14 pm Page 4
Proceedings include all events. TERMED
1:0Ocv814 Stepalovitch v. Smith HBG
REMAND
2/26/01 36 ORDER - by Judge Yvette Kane: IT IS ORDERED THAT: 1. This
case is remanded to the Cumberland Cty. Crt. of Common
Pleas of the Com. of PA. 2. A cert. copy of this order
shall be mailed by the Clerk of this Crt. to the Clerk of
the Cumberland Cty. Crt. of Common Pleas of the Com. of PA.
3. The following mtns. are denied as moot: a. Deft.'s mtn.
to dismiss pur. to FRCP 12(b)(6) & 12(f). b. Deft.'s mtn.
to dismiss pur. to FRCP 16 & 37. c. Plf.'s mtn. to extend
disc. d. Plf.'s mtn. for protective order. [29-11 [28-11
[24-11 [3-11 remanding case to state court (cc: all
counsel, court, Crt. of Common Pleas of Cumberland Cty. &
Security) (am) [Entry date 02/26/011
Docket as of February 27, 2001 12:14 pm Page 5
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-06350 13
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
STEPALOVITC11 SHEILA
VS.
SMITH MITCH
RICIIARD SMITH Sheriff or Deputy Sheriff of
CUMBERLAND County,yPf!nnsylvania, who being duly sworn according
to lnw, sayo, the within WRIT OF SUMMONS was served
upon _SMI'1II MITCH__. the
defendatM, at 14:22 HOURS, on the 3rd day of November
1999 at _710-VISTA DRIVE
CAMP _IIl1.I,j PA 1'7011 CUMBERLAND
County, Pennuylvuni,i, by handing to MITCH SMITH
a Clue and aCCeuted copy of the WRIT OF SUMMONS
and at,. the came time directing His attention to the contents thereof.
Sherit IIn C:outu:
Uockc?t i n'7
•;,•rV Ice
AffldavIt
Surcharge
So answer : r
18.00
I
09
9
00 1
i
.
8.00 K. inomas ,
$3- 30-11/04/199
by
;;worn and nubncribed to before me
Chin .. i??av day oC -A
19 .. AM.
t tdt:ilaiY M
V.
NO. 99-6350
MITCH SMITH,
Defendant CIVIL ACTION-LAW
PRAECIPF FOR RULE TO FILE A COMPLAINT
1'0 THE PROTHONOTARY:
Please issue a Rule upon the Plaintiff to file her Complaint within twenty (20)
days from the date of this order or suffer judgment of nor Pros.
MARSHALL, DENNEUEY, WARNER,
COLEMAN AND GOGGIN
3?i3/ao .-,,?
OTHY cMAHON, -,SQ.
100 Pine Street - 4th FI.
1'.O. Box 803
I larrisburg, PA 17108-0803
LD. 52918
(717) 232-9323
Attorney for Defendant.
Mitch Smith
SHEILA STEPALOVITCH, : COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY,
: PENNSYLVANIA
P'*
SFIEILA STEPALOVPPCI I,
Plaintiff
V.
MITCFI SMITH,
Defendant
COURT OP COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
: NO. 99-6350
CIVIL ACTION - Law
RULE.
AND NOW, this AL y of , 2000, upon consideration of
the foregoing Praccipe, Plaintiff is hereby ordered to file her Complaint within twenty (20) days
hereof or suffer judgment of or pos.
BY THE PROTHONOTARY:
u , ..,
. xs.??.r .:?._?.., ...*a-.....w+.... r...ti?-...-,.u-???...«.a?..s. ?. v.^'._
SHEILA STEPALDVITCH IN THE COURT OF COMMON PLEAS OF
plaintiffs CUMBERLAND CUM, PENNSYLVANIA
VS No. 6350 civil 1999
MITCH SMITH CIVIL ACTION - LAW
defendants I
MIDDLE DISTRICT COURT OF
PENNSYLVANIA
Please acknowledge receipt of this case by signing and dating this document.
Co
a .
CM
t3. CC
v o v
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten an submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the wllhin matter for the next:
? Pre•TrIsI Argument Court
? Argument Court
•____•__•_________________________________•_-----------------•----_•__
CAPTION OF CASE
(entire caption mutt be staled In full)
Sheila Stepalovitch v. Mitch Smith CINI 99-6350 20 00
0
1. Stale matter to be argued (I.e., plaiml(Ps motion for new irlab VL-'fjFNVM T S a fW C
defendant's demurrer to compliant. etc.):
21 Identify counsel who will argue cares
(a) for plaintiff. Timothy J. McMahon, Esquire
(b) fordefendanls Yvonne Husic. Esquire
3. 1 will notify all parties In writing within two Jays that this cast has been listed for argument,
Timothy $1,101rqulm
(Attorney for Defendant)
Dated: April S. 2001
?,
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OFFICE ON THE CLERK
UNITED STATES DISTRICT COURT
O?,ttO er4p4 Jar the
MIDDLE DI STRICT OF PENNSYLVANIA
f t
U.S. Cou"houn
228 Helnul ttree6 Re,. 1060
7CtC P.O. nor 982
Derrle6uef, PA 17108.0981
MARYE. D'ANDREA (717) 221•J920
Clerk OfCowe February 26, 2001 Fix (717)221.2919
Curtis L. Long, Clerk
Clerk of Courts
Cumberland County Court of Common Pleas
One Courthouse Square
Carlisle, PA 17013
IN RE: Sheila Stepalovitch
VS.
Mitch Smith
Civil Action No. 00.0814
Dear Mr. Long:
I have enclosed both a certified copy of our docket sheet and the Court's Order
dated February 26, 2001 which remands this matter to the Court of Common Pleas of
Cumberland County.
Please acknowledge receipt of these Items at the bottom portion of this
letter and return at your earliest convenience.
Thank you for your attention in this matter.
Very truly yours,
MARY E. D'ANDREA, CLERK
Ann Se vcrino Michael J
Dep`utyCler
Enclosures
RECEIPT
I hereby acknowledge receipt this day of , 2001.
SIGNATURE
SI lEILA STITALOVITCI I.
Plaintiff
MITCll SMITH,
Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
: NO. 99.6350
CIVIL ACTION - LAW
PRELIMINARY OIi,1I:CTIONS OF DEFENDANT, MITCII SMITH
Now, upon remand of this action to this I lonorable Court. Derendant Mitch Smith hereby
tiles Preliminary Objections to Plaintiff's Complaint, as more fully set forth below:
1. Defendant demurs to Count VII of I'laintitTs Complaint which sounds in a "Violation
ol'Civil Rights", as I'laintiti's Complaint is legally insufficient in that it fails to state a claim
upon which relief may be granted.
2. Detendant demurs to Count VI ofthe Ilaintiff's Complaint which alleges a cause of
action in "Rape" because there gists tit) civil tort of "Rape" within Pennsylvania Law and
therel'ore the Count faits to suite a claim upon which relief maybe granted.
3. I'laintifl's Complaint should be stricken litr inclusion of scandalous or impertinent
matter, as follows:
(a) Paragraphs K x).10, 13. 15 and 16 bear no relation to any cause of action upon
which relief may be granted to I'lainliff. Paragraphs 15.16. and 54 contain
allegations of sexual misconduct on the part of Defendant involving Plaintiff.
. These allegations, as set forth the Complaint generally, are impertinent and
scandalous within the meaning of Pa.R.C.P. 1028(a)(2), and arc immaterial when
a cause of action upon which relief may be granted to Plaintiff.
(b) Count VI is redundant, scandalous and impertinent within the meaning of
1028(a)(2), and should be stricken.
(c) Paragraphs 15, 16 and 55 of Plaintiffs Complaint should be stricken as
containing scandalous and impertinent matter irrespective of this Honorable
Court's disposition of the Defendant's demurrer related to Count VI ("Rape")
of Plaintiffs Complaint.
4. Plaintiffs Complaint fails to establish that Defendant received Federal financial
assistance within the meaning of the Rehabilitation Act, 29 U.S.C. § 794(a) et scq., and therefore
Plaintiffs Complaint's allegations fail to set forth a legal sufficient Rehabilitation Act claim and
therefore Count VII of Plaintiffs Complaint alleging a violation of Civil Rights based upon the
Rehabilitation Act must be dismissed, with prejudice.
WHEREFORE, Defendant respectfully requests that this Honorable Court sustain his
Preliminary Objections and:
(a) dismiss with prejudice, Count VI of Plaintiff's Complaint and:
(b) dismiss with prejudice, Count VII of Plaintiffs Complaint and:
(c) strike paragraphs 8,9,10,13, 15, 16 and 54 of the Complaint as
being scandalous and impertinent.
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
DATED: 3/1 f/OI
BY: d4wl
Timoth cMahon, Esquire
100 Pine Street - 0 Floor
P.O. Box 803
Harrisburg, PA 17108
I.D. No. 52918
(717) 232-9323
Attorney for Defendant,
Mitch Smith
3
CERTIFICATE OF SERVICE.
I, Rachael L. Minnich, an employee of Marshall, Dennehey, Warner, Coleman &
Goggin, do hereby certify that on this -!1- day of March, 2001, served a copy of the
foregoing document via First Class United States mail, postage prepaid as follows:
Yvonne Husic
NICHOLAS & FOREMAN, P.C.
4409 North Front Street
Harrisburg, PA 17110
i?
RACHAEL L. MINNICH
.
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SHEILA STEPALOVITCH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
NO. 99-6350
MITCH SMITH,
Defendant CIVIL ACTION - LAW
ORDER
BY THE COURT,
AND NOW, this 2-4* day of m^1 , 2001, upon consideration of Petitioner's
Praecipe to Withdraw as Counsel for Plaintiff Sheila Stepalovitch, this Honorable Court's
Rule upon Sheila Stepalovitch to Show Cause why such Praecipe should not be granted,
to which no answer, response, or objection was filed, and upon Petitioner's Praecipe to
Make the Court's Rule Absolute, it is hereby ORDERED AND DECREED that
Petitioner's, Nicholas & Foreman, P.C. are permitted to withdrawal as counsel for
Plaintiff Sheila Stepalovitch.
Distribution:
Sheila Stepalovitch
Timothy J. McMahon, Esquire
Yvonne M. Husic, Esquire
Duane S. Barrick, Esquire
96C
0
,l
n: n
SHEILA STEPALOVITCH,
Plaintiff
V.
MITCH SMITH,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
NO. 99-6350
Defendant : CIVIL ACTION - LAW
AND NOW, comes the Petitioner, Duane S. Darrick, Esquire, on behalf of the law
firm of Nicholas & Foreman, P.C., to file this Pmccipe to Make Rule Absolute and thus,
permit the firm of Nicholas & Foreman, P.C, to Withdraw as Counsel for Plaintiff Sheila
Stcpalovitch, and in furtherance thereof, offers the following:
1. On October 18, 1999, Nicholas & Foreman, P.C., commenced the instant
action, by Writ of Summons, on behalf of the Plaintiff.
2. On April 17, 2001, Nicholas & Foreman, P.C., filed a Complaint in the
instant action, on behalf of the Plaintiff.
3. On May 9, 2000, on motion of Defendant, the case was removed to the
Middle District Court of Pennsylvania.
4. On March 5, 2001, the case was remanded to the Court of Common Pleas
of Cumberland County.
S. Yvonne M. Husic, Esquire, was the attorney at Nicholas & Foreman, P.C.
who handled the instant case.
6. Petitioner avers that Ms. Husic terminated her relationship with the firm of
Nicholas & Foreman, P.C., on February 10, 2001, and has since been
operating as the Husic Law Office.
7. On March 3, 2001, Plaintiff executed a Client Trust Funds/ Transfer of
Escrow Account and Release of Title, detailing that she fully released the
law firm of Nicholas & Foreman, P.C. from all liability or claims for any
matter with regard to the above captioned case, effective February 10,
2001.
8. Moreover, in this March 3, 2001, document, Plaintiff specified that she
had decided to maintain the attorney-client relationship with Yvonne M.
Husic, Esquire and had chosen to continue legal representation exclusively
with Yvonne M. Husic, Esquire, for the on-going representation of her
legal matter.
9. This document was also signed by Yvonne M. Husic, Esquire.
10. Plaintiffs file and all related documents are in the possession of Yvonne
M. Husic, Esquire.
11. To date, no alternative entry of appearance has been filed on behalf of
Plaintiff.
12. Petitioner avers that due to the physical location of Plaintiffs file and
Plaintiffs decision to be represented by alternative counsel, it is
impossible for the firm of Nicholas & Foreman, P.C. to provide adequate
representation to Plaintiff.
13. On April 25, 2001, Petitioner filed a Pmccipe of the Firm of Nicholas &
Foreman, P.C. to Withdraw as Counsel for Plaintiff Sheila Stcpalovitch.
14. On April 30, 2001, this Honorable Court issued a Rule upon Sheila
Stepalovitch to show cause why the Petition should not be granted. Said
Rule was returnable twenty (20) days from service. (attached hereto as
Exhibit A).
15. More than twenty (20) days have elapsed since service of this Honorable
Court's Rule and no answer, response or objection has been filed by
Plaintiff, Defendant, nor any entity or individual.
WHEREFORE, Petitioner respectfully requests this Honorable Court to make its
Rule Absolute and thus, permit the firm of Nicholas & Foreman, P.C. to withdraw
as counsel for Plaintiff Sheila Stcpalovitch.
Respectfully submitted,
NICHOLAS & FOREMAN, P.C.
Dated:
C? Duane S. Barrick, squire
I.D. No. 77400
4409 North Front Street
Harrisburg, PA 17110
(717) 236-9391
Attorney for Petitioner
t
?'fix
Yt; ?p
_ •f?l
S
CERTIFICATE OF SERVICE
AND NOW, on this R0t day of ?, 200 Duane S. Barrick,
Esquire, hereby certify that 1 have served the foregoing document by mailing a
true and correct copy by United States first class mail, addressed as follows:
Sheila Stepalovitch
39 East Keller Street
Mechanicsburg, PA 17055
Timothy J. McMahon, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
100 Pine Street, Fourth Floor
P.O. Box 803
Harrisburg, PA 17108-0803
Yvonne M. Husic, Esquire
Husic Law Office
c/o Bruce Warshawsky, Esquire
1820 Linglestown Road
Harrisburg, PA 17110
NICHOLAS & FOREMAN, P.C.
Duane S. Barrick, Esquire
SHEILA STEPALOVITCH,
Plaintiff
V.
MITCH SMITH,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
: NO. 99-6350
: CIVIL ACTION -LAW
RULE TO SHOW CAUSE
AND NOW, this 30 day of ?, 2001, upon consideration of Petitioner's
Praecipe to Withdraw as Counsel for Plaintiff Sheila Stepalovitch, a Rule is issued upon
Sheila Stepalovitch to show cause why the Petition should not be granted.
Rule returnable twenty (20) days from service.
Distribution:
Sheila Stepalovitch
Timothy 1. McMahon, Esquire
Yvonne M. Husic, Esquire
Duane S. Barrick, Esquire
BY THE COURT,
7T
TRUE COPY 0-n""_ "f.D
In Tottimony where10oul4fi ere nto SA my hand
and tbAW of said at Farlislo, Pa.
F S y
` rl J
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SHEILA STEPALOVITCH, : COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
Plaintiff, : PENNSYLVANIA
V. NO. 99-6350
MITCH SMITH,
Defendant. CIVIL ACTION - LAW
REPLY OF PLAINTIFF TO NEW MATTER OF DEFENDANT
57. Denied as an incorrect legal conclusion.
58. Denied as an incorrect legal conclusion.
59. Denied as an incorrect legal conclusion.
60. Denied as an incorrect legal conclusion. Also specifically denied in fact.
61. Denied.
62. Denied.
63. Denied.
64. Denied.
WHEREFORE, Plaintiff demands that the New Matter be dismissed, and judgment be
entered in her favor with costs.
ShL41a Stepalovftch, Plaintiff?
VERIFICATION
1, Sheila Stepalovitch, do hereby verify that the facts set forth in the foregoing Reply of
Plaintiff to New Matter of Defendant are true and correct to the best of my personal knowledge or
information and belief, I understand that false statements herein are made subject to the penalties of
18 Pa.C.S. §4904, relating to unswom falsification to authorities.
Date:
Sheila Stepal6vit6fi
;;
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PS
1, Shcila Stcpalovich, do hereby certify that on the date sct forth below, I did serve a true and
correct copy of the foregoing document upon the following person(s) at the following address(es)
indicated below by sendingsame in the United States Mail, first-class, postage prepaid:
Timothy J. McMahon, Esquire
Marshall, Dennehey, Warner,
Coleman & Goggin
4200 Crums Mill Road
Suite B
Harrisburg, PA 17112
Sheila SlepaloA-ch
Dated: /5/74. ?
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SHEILA STEPALOVITCII,
Plaintiff
V.
MITCH SMITH,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 99 -L 3?0
: CIVIL ACTION
: J URY TRIAL DEMANDED
PRAF.CIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY:
Please issue writ of summons on behalf of the Plaintiff against the Defendant in the
above-captioned civil action.
I. Plaintiff, Sheila Stepalovitch is an adult individual residing at 39 East Keller
Street, Mechanicsburg, Cumberland County, Pennsylvania 17055.
2. Defendant, Mitch Smith is an adult individual residing at 710 Vista Drive, Camp
Hill, Cumberland County, Pennsylvania 17011.
3. Defendant, Mitch Smith is an adult individual and a licensed social worker in the
Commonwealth of Pennsylvania, with a principal place of business at 3812 Market Street. Camp
Hill, Cumberland County, Pennsylvania 17011.
Respectfully submitted,
NICI IOLAS R FOREMAN, P.C.
13y: \
Yvonne M. I lusic, I-squire
Attorney II) H74444
4409 North Front Street
Harrisburg, PA 17110
(717) 236-9391
Attorneys for Plaintiff
f ,
Commonwealth of Pennsylvania
County of Cumberland
SHEILA STEPALOVITCH,
K
MITCH SMITH,
710 VISTA DRIVE
CAMP HILL, PA 17011
Court of Conunon Pleas
No. --. 99=6350 19
- --- -
III .._-CIVIL ACTION LAW
MITCH SMITH
You are hereby notified that
•----------------------------------SHE IbA. RTIERNMII-CK----------------------------------
the Plaintiff haS commenced an action in ---------- LI1LIL_ACT.ION_.LAyi______________________
against you which you are required to defend or a default judgment may be entered against you.
(SEAL)
--- P thon
Date OCTOBER_ 18 __._ 19.11 13Y
--------------- De uty
Plaintiff : CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
NO. 99-6350
MITCH SMITH,
Defendant CIVIL ACTION - LAW
ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT
1. Admitted in part; denied in part. It is admitted only that Plaintiff is who she says
sheds. The remaining allegations of this paragraph are denied by answering Defendant, whom
after reasonable investigation and inquiry lacks information sufficient to form a belief as to the
truth thereof, and accordingly the same are denied.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. Defendant, Mitch Smith, specifically denies having diagnosed Plaintiff
as having a psychiatric condition known as "Multiple Personal Disorder" and/or "Dissociative
Identity Disorder", To the contrary, the diagnosis of Multiple Personal Disorder was rendered by
licensed medical physician(s).
6. Denied as stated. Defendant snakes no "allegation" as such. By way of further
answer. Defendant became aware during his provision of counseling and therapy to Plaintiff that
Plaintiff exhibited multiple personalities, the precise number of which being difficult to
dctemiinc.
SHEILA STEPALOVITC11,
Plaintiff
V.
MITC14 SMITH,
Defendant
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
NO. 99-6350
CIVIL ACTION - LAW
ANSWER WITH NEW MATTRR TO PLAINTIFF'S COMPLAINT
1. Admitted in part; denied in part. It is admitted only that Plaintiff is who she says
she is. The remaining allegations of this paragraph are denied by answering Defendant, whom
after reasonable investigation and inquiry lacks information sufficient to form a belief as to the
truth thereof, and accordingly the same arc denied.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. Defendant, Mitch Smith, spccifeally denies having diagnosed Plaintiff
as having a psychiatric condition known as "Multiple Personal Disorder" and/or "Dissociative
Identity Disorder". To the contrary, the diagnosis of Multiple Personal Disorder was rendered by
licensed medical physician(s).
6. Denied as stated. Defendant makes no "allegation" as such. By way of further
answer, Defendant became aware during his provision of counseling and therapy to Plaintiff that
Plaintiff exhibited multiple personalities, the precise number of which being difficult to
determine.
7. Admitted in part; denied in part. It is admitted that Defendant has considerable
skill and experience in treating a variety of psychological disorders including but not limited to
Multiple Personal Disorder. With respect to the allegation that Defendant treats other patients in
his practice for the same or other similar diagnosis, the same is admitted expressly without
waiver of any privileged and/or confidential information concerning the identity or identities of
other patients in his practice.
8. Denied. The allegations set forth in this paragraph are specifically denied and
proof thereof is demanded at trial, if relevant. By way of further answer, the allegations set forth
in this paragraph refer to alleged events which are irrelevant by application of the appropriate
Statute of Limitations.
9. Admitted in part; denied in part. It is admitted only that Defendant began private
practice on Trindle Road in Camp Hill on or about April of 1994. It is specifically denied that
Defendant provided "the programming" therapy to Plaintiff, as alleged.
10. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
11. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true .
12. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
13. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
14. Denied. The allegations set forth in this paragraph arc denied, as not any portion
of those allegations is true.
1)
15. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
16. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
17. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
18. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
19. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
20. Admitted in part, denied in part. It is admitted only that Defendant prepared the
writing attached to Plaintiffs Complaint as Exhibit "A". By way of further answer, the writing is
a document, which in its entirety, speaks for itself. All other allegations in this paragraph arc
denied and proof thereof is demanded at trial, if relevant.
21. Admitted.
22. Admitted in part, denied in part. It is admitted only that Defendant returned a
telephone call from Plaintiff on January 29, 2000. All remaining allegations of this paragraph
are denied.
23. Denied. All allegations of this paragraph arc denied, as not any portion of those
allegations is true.
24. Denied in accordance with Pa.R.C.P. 1029(e).
25. Denied in accordance with Pa.R.C.P. 1029(e).
3
COUNT 1: PROFESSIONAL MALPRACTICF,
26. Defendant incorporates by reference his responses to paragraphs 1-25 above as if
set forth at length herein.
27. Denied. The allegations of this paragraph constitute conclusions of law within the
meaning of Pa.R.C.P. 1029(c), and accordingly these allegations are denied and proof thereof is
demanded at trial, if relevant. By way of further answer, Defendant specifically denies all
allegations of Negligence, which allegations are implicit in this paragraph.
28. Denied. The allegations of this paragraph constitute conclusions of law within the
meaning of Pa.R.C.P. 1029(c), and accordingly these allegations are denied and proof thereof is
demanded at trial, if relevant. By way of further answer, Defendant specifically denies all
allegations of Negligence, which allegations are implicit in this paragraph.
29. Denied. Defendant specifically denies all allegations that Defendant engaged in
actions and/or conduct towards Plaintiff for sexual gratification as alleged. To the contrary, at no
time did Defendant engage in any such actions and/or conduct towards Plaintiff. By way of
further answer, all remaining allegations of this paragraph are denied and proof thereof is
demanded at trial, if relevant.
WHEREFORE, Defendant, Mitch Smith, demands judgment in his favor and against
Plaintiff, together with such other relief as this Court shall deem appropriate.
.Y
COUNT IL ASSAULT AND BATTERY
30. Defendant incorporates by reference his responses to paragraphs 1-29 above as if
set forth at length herein.
4
31. Denied. Defendant specifically denies having intentionally slapped, hit, struck,
bruised, beat, and/or otherwise caused injury to Plaintiff, denies having caused harmful and/or
offensive contact to Plaintiff, and otherwise denies each and every allegation set forth in this
paragraph. Proof of the allegations of this paragraph is demanded at trial, if relevant. By way of
further answer, the allegations of this paragraph constitute conclusions of law within the meaning
of Pa.R.C.P. 1029(e) and arc denied on that basis.
32. The allegations set forth in this paragraph constitute conclusions of law within the
meaning of Pa.R.C.P. 1029(c) and are denied on that basis. To the extent relevant, proof of these
allegations is demanded at trial.
WHEREFORE, Defendant, Mitch Smith, demands judgment in his favor and against
Plaintiff, together with such other relief as this Court shall deem appropriate.
COUNT III: FALSF IMPRISONMENT
33. Defendant incorporates by reference his responses to paragraphs 1-33 above as if
set forth at length herein.
34. Denied. Defendant denies that fie threw actions and/or conduct, physically
restrained, bound, and/or confined Plaintiff to his oliicc; denies having used physical force
and/or preventing Plaintiff front leaving his office. By way of further answer, the allegations set
forth in this paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(c)
and are accordingly denied on that basis. To the extent deemed relevant, proof thereof is
demanded at trial.
35. Denied. Defendant denies that he threw actions and/or conduct, physically
restrained, bound, and/or confined Plaintiff to his office; denies having used physical force
5
and/or preventing Plaintiff from leaving his office. By way of further answer, the allegations set
forth in this paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e)
and are accordingly denied on that basis. To the extent deemed relevant, proof thereof is
demanded at trial.
36. Denied. Defendant specifically denies having refused to release Plaintiff upon
Plaintiffs request as alleged. By way of further answer, the allegations of this paragraph arc
denied in accordance with Pa.R.C.P. 1029(c) and proof thereof is demanded at trial, if relevant.
37. Denied. The allegations set forth in this paragraph constitute conclusions of law
within the meaning of Pa.R.C.P. 1029(e), and accordingly these allegations are denied and proof
thereof is demanded at trial, if relevant.
WHEREFORE, Defendant, Mitch Smith, demands judgment in his favor and against
Plaintiff, together with such other relief as this Court shall deem appropriate.
COUNT IV: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
38. Defendant incorporates by reference his responses to paragraphs 1-37 above as if
set forth at length herein.
39. Denied. The allegations set forth in this paragraph constitute conclusions of law
within the meaning of Pa.R.C.P. 1029(c), and accordingly these allegations arc denied and proof
thereof is demanded at trial, if relevant.
40. Denied. The allegations set forth in this paragraph constitute conclusions of law
within the meaning of Pa.R.C.P. 1029(e), and accordingly these allegations are denied and proof
thereof is demanded at trial, if relevant.
6
41. Denied. The allegations set forth in this paragraph are denied in accordance with
Pa.R.C.P. 1029(e) and proof thereof is demanded at trial, if relevant. By way of further answer,
and to the extent that this paragraph contains allegations which refer to events that are alleged to
have occurred prior to April 17, 1998, all such allegations are irrelevant pursuant to the
application of the applicable Statute of Limitations in this action.
42. Admitted in part; denied in part. It is admitted only that Defendant was generally
aware through the client/therapist relationship that had existed between Plaintiff and Defendant,
of Plaintiffs prior sexual and emotional abuse and further aware generally that Plaintiff had
received supplemental security income in the past. All remaining allegations of this paragraph
are denied and proof thereof is demanded at trial, if relevant.
43. Denied. The allegations of this paragraph are denied in accordance with
Pa.R.C.P. 1029(c) and proof thereof is demanded at trial, if relevant.
44. Denied. Defendant specifically denies having exploited Plaintiff and/or having
used Plaintiff for sexual gratification as alleged. To the contrary, at no time did Defendant
exploit Plaintiff and/or use Plaintiff for sexual gratification. By way of further answer, all
remaining allegations of this paragraph arc denied and proof thereof is demanded at trial, if
relevant.
WHEREFORE, Defendant, Mitch Smith, demands judgment in his favor and against
Plaintiff, together with such other relief as this Court shall deem appropriate.
COUNT V: NEGLIGENT INFLICTION OF EMOTION DISTRESS
45. Defendant incorporates by reference his responses to paragraphs 1-44 above as if
set forth at length herein.
7
46. Denied. The allegations set forth in this paragraph are denied in accordance with
Pa.R.C.P. 1029(e) and proof thereof is demanded at trial.
47. Denied. The allegations set forth in this paragraph are denied in accordance with
Pa.R.C.P. 1029(e) and proof thereof is demanded at trial.
48. Denied. The allegations set forth in this paragraph arc denied in accordance with
Pa.R.C.P. 1029(e) and proof thereof is demanded at trial.
49. Denied. The allegations set forth in this paragraph are denied in accordance with
Pa.R.C.P. 1029(e) and proof thereof is demanded at trial.
50. Denied. The allegations set forth in this paragraph are denied in accordance with
Pa.R.C.P. 1029(e) and proof thereof is demanded at trial.
WHEREFORE, Defendant, Mitch Smith, demands judgment in his favor and against
Plaintiff, together with such other relief as this Court shall deem appropriate.
COUNT VI: RAPE
51. Defendant incorporates by reference his responses to paragraphs 1-50 above as if
set forth at length herein.
52. Denied. Defendant specifically denies having engaged in sexual intercourse with
Plaintiff whatsoever. Defendant further denies having engaged in non-consensual sexual
intercourse with Plaintiff and/or having engaged in sexual intercourse with Plaintiff against her
will and/or without her consent. Proof of these allegations is demanded at trial, if relevant.
53. Denied. The allegations set forth in this paragraph are denied , as not any portion
I
of those allegations is true .
8
54. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true.
55. Denied. The allegations set forth in this paragraph are denied, as not any portion
of those allegations is true
56. Denied. The allegations of this paragraph are denied in accordance with
Pa.R.C.P. 1029(e) and proof thereof is demanded at trial, if relevant.
WHEREFORE, Defendant, Mitch Smith, demands judgment in his favor and against
Plaintiff, together with such other relief as this Court shall deem appropriate.
COUNT VII: PARAGRAPHS 57-61
These allegations set forth in Plaintiffs Complaint have been dismissed by the Court in
its Order of July 11, 2001. No further response is therefore required.
NEW MATTER DIRECTED TO PLAINTIFF
57. Plaintiffs Complaint fails to state a cause of action against Defendant upon which
relief may be granted as a matter of law.
58. Plaintiffs claims are barred in whole or in part by the applicable Statute of
Limitations.
59. No act or omission on the part of Defendant was a substantial contributing factor
in bringing about Plaintiffs injuries and/or damages, all such injuries and/or damages being
expressly denied.
9
60. Plaintiffs injuries and/or damages were caused in whole or in part by persons
other that Defendant and over whom Defendant had neither actual control or right of control and
for which Defendant bears no legal responsibility.
61. Some or all of the injuries and/or damages referenced in Plaintiffs Complaint are
injuries and/or damages which pre-date the existence of a clicnt/therapist relationship between
Plaintiff and Defendant, and no act or omission on the part of Defendant aggravated and/or
enhanced Plaintiffs pre-existing psychological, physical, and/or mental conditions.
62. Plaintiffs Complaint fails to properly plead a claim or claims for punitive
damages as a matter of law.
63. Upon information and belief, Plaintiff lacks or may lack the requisite capacity to
meaningfully participate and/or prosecute this civil action, and Defendant reserves his right to
challenge Plaintiffs standing sui juris in this action.
64. Plaintiffs claims may be barred and/or limited by applicable provisions of the
Mental Health Procedures Act, 50 P.S. 7101 et. scq.
WHEREFORE, Defendant, Mitch Smith, demands judgment in his favor and against
Plaintiff, together with such other relief as this Court shall deem appropriate.
BY:
DATE: Ak- I 1 IwI
\03 A\LIAa\T161\LLI'G\76259\.%W14 I XO\024 84
Respectfully submitted,
MARSHALL, DENNEI IEY, WARNER,
COLEMAN & GOGGIN
Timdihy Aon, Esquire
4200 C III Rd., Ste. D
I Iarrisburg, PA 17112
I.D. No. 52918
(717) 651-3505
Attorney for Defendant,
Mitch Smith
10
VERIFICATION
1, Mitch Smith, Defendant in the above matter, verify that the facts set forth in the
ANSWER WITH NEW MATTER TO PLAINTIFFS COMPLAINT, arc true to the best of my
knowledge, information and belief. If the above statements arc not true, the deponent is subject to
the penalties of 18 Pa.C.S. 4904 relating to unswom falsification to authorities.
MIT -1 SMITH ,
DATE:
W AWAm\TIATCORR%76269SXV\t41 Btla2464
SHEILA STEPALOVITCH,
Plaintiff
V.
MITCH SMITH,
Defendant
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
NO. 99-6350
CIVIL ACTION -LAW
CERTIFICATE OF SERVICE
I, Shonu V. McEchron, an employee of Marshall, Dennehey, Warner, Coleman &
Goggin, do hereby certify that on this L day of August, 2001, served a copy of the
foregoing document via First Class United States mail, postage prepaid as follows:
TO:
Yvonne Husie, Esquire
Husic Law Office
c/o Bruce Warshawsky, Esquire
2005 Alexis Drive
Harrisburg,PA 17110
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SIIO V. MCECI IRON
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Marshall, Dennehcy, Wamcr
Coleman & Goggin
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
Shelia Stepalovitch
39 East Keller Street
Mechanicsburg, PA 17055
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Harrisburg, PA 17110
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Yvonne Husic, Esquire
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SHEILA STEPALOVITCH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
MITCH SMITH,
Defendant NO. 99-6350 CIVIL TERM
ORDER OF COURT
AND NOW, this 24`x' day of September, 2001, upon consideration of the attached
letter from Defendant's counsel, Sharon O'Donnell, Esq., to the Court Administrator
dated September 14, 2001, it is ordered and directed as follows:
1. The Prothonotary is directed to time-stamp, docket and place
in the file the copy of Defendant's Motion for a Protective Order
Sealing Court Records attached hereto, in place of the original
document (which has apparently been lost or misplaced); and
2. A Rule is issued upon Plaintiff to show cause why the relief
requested should not be granted. The Rule shall be returnable within
21 days of the date of this order.
Sheila Stepalovich
39 East Keller Street
Mechanicsburg, PA 17055
Plaintiff, Pro Sc
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Yvonne Husic, Esq.
2005 Alexis Drive
Harrisburg, PA 17110-9474
BY THE COURT,
Sharon M. O'Donnell, Esq.
Suite B
4200 Crums Mill Road
Harrisburg, PA 17112
Attorney for Defendant
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4200 Crams illill Road, Suite B - Harrisburg, PA 17112 S EP ? U
(717) 651-3500 - Fax (717) 651-9630
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Scptcmbcr 14, 2001
Karen Dixon
Acting Court Administrator
Court of Common Picas of Cumberland County
One Courthouse Square
Carlisle, PA 17013-3387
RE: Sheila Stcpalovitch v. Mitch Smith
Our File No. 14180- 02484.061
Cumberland County CCP No. 99.6350
Dcar Ms. Dixon:
This will confirm our very pleasant telephone conversation of Wednesday, Scptcmbcr 12, 2001 relative
to the above matter. As I indicated to you at that time, our office had filed a Motion for Protective Order
Scaling Court Records on behalf of the Defendant, Mitch Smith on June 12, 2001. I have enclosed another
copy of that Motion reflecting a time-stamp in the Prothonotary's Office dated June 12, 2001 at 3:37 p.m.
This will confirm my conversations with several personnel in the Cumberland County Prothonotary's
Office on Scptcmbcr 121h wherein 1 was advised that the Motion for Protective Order Scaling Court Records had
never been entered on the docket. Moreover, I was advised that the actual Motion itself was not contained in
the file maintained in the Prothonotary's Office. Moreover, you advised that the Motion for Protective Order
Scaling Court Records had never made its way to your offices. You did indicate to me that if 1 mailed to your
attention another copy of the Motion for Protective Order Scaling the Court Records, that you would personally
see that the same was lodged with the Prothonotary's Office appropriately and forwarded to an appropriate
Judge for disposition.
To that end, I am forwarding to you an original and three copies of our Motion for Protective Order
Scaling the Court Records, a copy of the Certificate of Service previously forwarding a copy of the Motion for
Protective Order to Plaintiffs counsel, Yvonnc I lusic at Nicholas & Foreman, P.C., dated June 7, 2001.
1 understand that presently Ms. Ilusic is no longer employed by the firrn of Nicholas k Forcman. P.C.,
although there is a discrepancy or sonic confusion as to who now represents the Plaintiff, Sheila Stcpalovitch.
Ms. Husic has indicated to our office that she Icfl Nicholas & I-orent:m in February, 2001. She has also
Karen Dixon
September 14, 2001
Page 2
indicated to us that when she left Nicholas & Foreman in February 2001, that "her fiduciary and legal
obligations and responsibilities to all clients and their escrow accounts remaining at Nicholas & Foreman
ended." She has further indicated that she is "not representing Mrs. Stepalovitch". I am therefore providing
Ms. Husic at her new law offices, as well as the law fine of Nicholas & Foreman, P.C., with a copy of the
enclosed Motion for Protective Order. I believe it is between Ms. Husic and her former law firm to determine
how Ms. Stepalovitch is currently represented, if at all. With the understanding that neither Ms. Husic nor the
firm of Nicholas & Foreman will acknowledge or admit that either or both of them continue to represent Sheila
Stepalovitch, I am forwarding a copy of the enclosed Motion for Protective Order to Ms. Stepalovitch at her last
known address by certified mail.
I would appreciate if you would see that the enclosed Motion for Protective Order is directed to Judge
Oler who is familiar with the prior proceedings in this matter.
Thank you once again for your cooperation and professional courtesies extended in this matter.
yours,
I{ "
M. O'DONNELL
SMO/jmf
Enclosures
cc: Yvonne Husic, Esquire
Nicholas & Foreman, P.C.
Sheila Stepalovitch
103 A\UAMSMO CORRV9352Vhi1.1141 SOb2484
IN THE UNITED S'T'ATES DISTRICT COURT
FOR TIIF MIDDI 17 DISTItIC'1' 017 PENNSYLVANIA
SHEILA STEPALOVITCH,
Plaintiff
V.
MITCH SMITH,
Defendant
: NO. I:CV-00.0814
: JUDGE KANE
CIVIL ACTION - LAW
RULF. TO SHOW CAUSE
AND NOW, this _ day of June, 2001, upon consideration of the Motion of Defendant
for a Protective Order scaling the record in this action, Plaintiff is hereby directed to show cause
within ( ) days as to why the relief requested should not be granted.
J.
W AIUABMNP M7I770\S)M14180b2484
ws Aa.WNMn11.1 1'a91410UtKM141A(A02464
SHEILA STf:PALOViTai,
Plaintiff
V.
MITCI I SMITH,
Defendant
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PI?NNSYLVANIA
: NO. 99-6350
: CIVIL ACTION - LAW
C 0
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AND NOW, Defendant, Mitch Smith, by and through his attorneys, Marshall, Dennclrey,
Warner, Coleman & Goggin, hereby moves this Ilonorable Court for a Protective Order Scaling
the Record, including nil records lodged with the Prothonotary, of this particular litigation for
reasons for more fully set forth below:
Plaintiff's Complaint was filed with the Court of Common Pleas of Cumberland
County, Pennsylvania, on April 17, 2000.
2. Subsequently, the matter was removed to the U.S. District Court for the Middle
District of Pennsylvania on May 5, 2000.
3. By Order dated February 26, 2001, the U.S. District Court for the Middle District
of Pennsylvania remanded the case to the Court of Common Pleas of Cumberland County,
Pennsylvania.
4. Al the time that the U.S. District Court for the Middle District of Pennsylvania
remanded the case to Cumberland County, there were pending several Motions before the
Federal Court, including, but not limited it), Delcndant's Motion to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) and 12(Q.
Included within Defendant's Motion to Dismiss lodged with the Federal Court,
was Defendant's request that the Federal Court, in addition to striking and dismissing Plaintiffs
Complaint, with prejudice, direct its Clerk to seal those aspects of the record which otherwise
contained Plaintiffs original Complaint.
6. As part of his Motion to Dismiss before the Federal Court, Defendant submitted
that Count VI of the Plaintiffs Complaint is "redundant, scandalous and impertinent within the
meaning of F.R.C.P. 12(Q and should be stricken on that basis."
7. With respect to the request to seal the record, Defendant submitted in his Motion
to Dismiss an averment that,
[l]astly, and due to the highly salacious, impertinent and
scandalous nature of the general tenor of the allegations set forth in
Plaintiffs Complaint and particularly, those found at paragraphs 15, 16
and 54, Defendant respectfully requests that this I lonorable Court in
addition to striking and dismissing Plaintiffs Complaint with prejudice,
direct the Clerk to seal those aspects of the record which otherwise
contained Plaintiffs original Complaint.
8. Upon remand to this Ilonorable Court, Plaintiffs original Complaint of
April 17, 2000 remains the Complaint upon which this litigation is based. Paragraphs
15, 16 and 54 remain the basis for Defendant's instant Motion for a Protective Order.
9. On March 15, 2001, following the Federal Court's remand of this matter
to this Honorable Court, Defendant filed his Preliminary Objections to the Plaintiffs
Complaint, which arc pending.
10. In his Preliminary Objections, Defendant reiterated that Plaintiffs
Complaint contains scandalous and impertinent matter, including, but not limited to,
paragraphs 15, IG and 54, which contain allegations of sexual misconduct on the part of
Defendant involving the Plaintiff. Further, the Preliminary Objections submitted that
those allegations contained scandalous and impertinent matter irrespective of this
I lonomble Court's disposition of Defendant's demurrer to the Count in which those
allegations appeared in the Complaint (Count VI - entitled "Rape").
If. 'llie allegations set forth in Plaintiff's Complaint generally, and
particularly those at paragraphs 15, 16 and 54, thereof, are included in the Complaint
primarily to impugn the character of Defendant and to garner negative media attention.
Such media attention already has been devoted to this case by mere virtue of the
Plaintiffs filing of the Complaint, since those allegations were the subject of an article
which was published in the I larrisburg Patriot-News on Wednesday, May 10, 2000 at
Page B7.
12. As part of a previous Motion for a Protective Order filed by Plaintiff in the
Federal Court in this matter, Plaintiff requested that the Federal Court seal any and all
transcripts generated in the course of this litigation so as to prevent the transcripts from
being a part of the public records. (Exhibit "A" hereto, paragraph 9). 77ic Federal
Court did not rule on that Motion, choosing instead to remand the matter in full to this
Honorable Court. Defendant would agree to the imposition of a seal not only on the
transcripts as set forth in paragraph 9 of Plaintiffs Motion, but also would respectfully
request that this Honorable Court seal all pleadings, discovery, requests and responses,
motions, legal briefs, transcripts and anything else of record pertaining to this particular
litigation. Indeed, Defendant seeks an Order from this Honorable Court scaling the
entire record of this litigation as lodged with the Prothonotary. This is in contrast to the
Plaintiff's earlier request of the federal Court which did not go far enough because it did
not seek a protective order of the Complaint, Ilriefs, or the entire scope of the fruits of
discovery (Exhibit "A", Para. 12).
13. The salacious, scandalous and repugnant unsubstantiated allegations in
Plaintiffs Complaint, by themselves and as supplemented by any further filings by
Plnintiff in this case, shall harm Defendant's professional and personal reputation if not
placed under seal, causing him great embarrassment in both the geographic and
professional communities.
14. The issuance of a protective order by this Honomble Court sealing the
records of this case will not compromise either party's ability to conduct discovery in this
case in any way.
WIIEREFORE, Defendant respectfully requests that this Honorable Court enter a
Protective Order sealing any and all portions of this record including, but not limited to,
those portions containing Plaintiff's original Complaint and further ordered that the
Prothonotary maintained the records of this case under seal.
DATED: 13Y:
Harrisburg, PA 17108
MARSHALL, DENNEIIEY, WARNER,
COLEMAN & COCCIN
d&W,-
'f th Mahon, Esquire
!00 Pine 5 •el - 41h floor
P.O. Box 803
I.D. No. 52918
(717) 232.9323
Attorney for Defendant
SHEILA STEPALOVITCII, : COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
NO. 99.6350
MITCII SMITH,
Defendant : CIVIL ACTION -LAW
CERTIFICATE OF SERVICE
I, Shonu V. McEchron, an employee of Marshall, Dennehey, Warner, Coleman &
Goggin, do hereby certify that on this day of June, 2001, served a copy of the foregoing
document via First Class United States mail, postage prepaid as follows:
Yvonne Ilusic
NICHOLAS & FOREMAN, P.C.
4409 North Front Street
Harrisburg, PA 17110
tJ
SHOW V.MCECHRON
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4
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SHEILA STEPALOVITCH,
V.
MITCH SMITH,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
99.6350 CIVIL
CIVIL ACTION - LAW
Defendant.
ANSWER OF PLAINTIFF TO DEFENDANT'S
MOTION FOR A PROTECTIVE ORDER
SEALING COURT RECORDS
I. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Denied. The preliminary objections were decided by Order and Opinion of July
11, 2001. The Order and Opinion are attached hereto as Exhibit A.
10. Admitted.
11. Denied. The allegations arc material and pertinent to the Plaintiffs cause of
action, as this Court has already decided on page 4 of its Opinion of July 11, 2001, attached
hereto as Exhibit A.
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12. Admitted that Plaintiff filed a Motion in federal court. It is denied that any part of
the record in this court, including transcripts or any other documents, should be scaled.
13. Denied. The allegations arc material and pertinent to Plaintiffs cause of action,
as already decided by this Court.
14. Denied. The scaling of the records is not warranted or proper and could
conceivably cause a hardship and burden on Plaintiff and Plaintiffs counsel. Marc importantly,
there is no reason to seal the records and prevent full and fair access to the public records of this
Commonwealth simply because the Defendant does not like the consequences of his own
conduct.
WHEREFORE, Plaintiff requests the Court to deny Defendant's Motion for a Protective
Order Scaling the Court Records.
Respectfully submitted,
?A„ S' r4A
Sflcila Stcpal vitch, Plaintiff
Dated:
VERIFICATION
I, Sheila Stcpalovitch, do hereby verify that the facts set forth in the foregoing Answer of
Plaintiff to Defendant's Motion for a Protective Order Scaling Court Records are true and correct to
the best of my personal knowledge or information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to
authorities.
Date: 02), / da/
I
ShW a Stcpal itch
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CERTIFICATE OF SERVICF.
I, Sheila Stepalovitch, do hereby certify that on the date set forth below, l did serve a true
and correct copy of the foregoing document upon the following person(s) at the following
address(es) indicated below by sending same in the United States mail, postage prepaid, as follows:
Timothy J. McMahon, Esquire
Marshall, Dcnnchey, Warner
Coleman & Goggin
4200 Crums Mill Road
Suite B
Harrisburg, PA 17112
l?lv?. / ?' a r» ?ptztc?P ,P ?
Sheila StepalovAch
Date: ?- /n0 ento
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Exhibft A
SHEILA STEPALOVITCH,
Plaintiff
VS.
MITCH SMITH,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 99-6350 CIVIL
: CIVIL ACTION - LAW
IN RE DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAY LEY AND HESS, I.J.
ORDER
AND NOW, this day of July, 2001, the preliminary objection of the defendant
to count VI of the plaintiffs complaint is DENIED. The preliminary objections to paramphs 8,
9, 10, 13, 15,16 and 54 of the complaint are DENIED.
The preliminary objection of the defendant to count VII of the complaint is SUSTAINED
and said count is DISMISSED.
BY THE COURT,
Yvonne Husic, Esquire
For the Plaintiff
Timothy J. McMahon, Esquire
For the Defendant
:rlm
Kevi . Hess, J.
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SHEILA STEPALOVITCH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
VS. 99-6350 CIVIL
MITCH SMITH, CIVIL ACTION - LAW
Defendant
IN RE DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY AND HESS, J.J.
OPINION AND ORDER
The plaintiffs complaint in this case was filed on April 17, 2000, in the Court of
Common Pleas of Cumberland County. The matter was thereafter removed to the United States
District Court for the Middle District of Pennsylvania on May 5, 2000. By order dated February
26, 2001, finding that it lacked subject matter jurisdiction, the United States District Court
remanded the case to this court.
According to the complaint, the defendant, Mitch Smith, is a licensed social worker in the
Commonwealth of Pennsylvania. Ile began psychotherapy treatment with the plaintiff, Sheila
Stepalovitch, in the course of his employment at Holy Spirit Hospital in 1990. In 1994, the
defendant left Holy Spirit Hospital and went into private practice in Camp Hill where he
continued "deprogramming" therapy with the plaintiff. It is in the course of this relationship that
the plaintiff alleges sexual misconduct on the part of the plaintiff giving rise to the various
matters complained of in her lawsuit. The defendant has filed preliminary objections seeking
dismissal of counts VI and VII of the complaint and seeking to strike several paragraphs because
they contain scandalous and impertinent matter.
99-6350 CIVIL
Count VI of the complaint is entitled "Rape" and claims both compensatory and punitive
damages, including pain and suffering for certain nonconsensual physical contact, specifically
sexual contact. The defendant demurs to this count in the complaint "because there exists no
civil tort of'rapc' within Pennsylvania law." We agree that rape may not exist as a separate
cause of action but it is most certainly an actionable assault and/or battery. The elements of the
tort of battery include any "harmful or offensive contact with a person." See Levenson v.
59-u-§-er, 384 Pa.Super. 132, 557 A.2d 1081 (1989). The conduct of the defendant, as alleged in
the complaint, meets this definition. We will therefore not strike the allegations in plaintiffs
count VI deeming them merely expansive of the assault and battery claim.
The defendant also seeks dismissal of count VII of the complaint. This count alleges a
violation of civil rights and, specifically, a violation of Section 504 of the Rehabilitation Act.
That section provides, in pertinent part:
No otherwise qualified individual with a
disability... shall, solely by reason of her or his
disability be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance....
29 U.S.C. Section 794(a).
Although the plaintiffs complaint contains allegations that she is a person with a
disability and that she was discriminated against, it fails to allege that she was participating in a
federally funded program for which she was qualified. The plaintiffs theory is that she receives
Supplemental Security Income ("SSI") from the federal government and that she uses the money
to pay for the defendant's services. Therefore, the defendant receives federal funding. The fact,
however, that the plaintiff used federal money to pay for the defendant's services does not
99-6350 CIVIL
establish that the defendant received federal financial assistance within the meaning of the
Rehabilitation Act. re Bingham v Oregon School Activities Assn., 37 F.Supp.2d 1189,1204
(D.Or. 1999). We agree with the defendant that the plaintiff has failed to state a claim under the
Rehabilitation Act under which relief may be granted for a violation of civil rights.
Finally, pursuant to Pa.R.C.P. 1028(a)(2), the defendant asks the court to strike
paragraphs 8, 9, 10, 13, 15, 16, and 54 because they contain scandalous or impertinent matter.
The defendant contends, specifically, that the inclusion of paragraphs 8, 9, 10, 13, and IS
constitutes scandalous and impertinent matter because those averments contain allegations of
events occurring beyond the two-year statute of limitations applicable in this case.
The affirmative defense of statute of limitations must be pleaded under new matter, and
in absence of such pleading, the defense is not properly before trial court. Evans to the Use of
Roadway Ex areas inc. v. D'Iorio, 360 Pa.Supcr. 45, 519 A.2d 983 (Pa.Super. 1987). Rule
1030(x) of the Pennsylvania Rules of Civil Procedure states:
Except as provided by subdivision (b), all
affirmative defenses including but not limited to
the defenses of accord and satisfaction, arbitration
and award, consent, discharge in bankruptcy,
duress, estoppel, failure of consideration, fair
comment, fraud, illegality, immunity from suit,
impossibility of performance, justification, laches,
license, payment, privilege, release, res judicata,
statute of frauds, statute of limitations, truth and
waiver shall be pleaded in a responsive pleading
under the heading "New Maltcr"....
Pa..R.C.P. 1030(a). We will, therefore, dismiss the defendant's preliminary objections insofar as
they relate to the application of the statute of limitations.
.- 7
99-6350 CIVIL
The defendant also claims that certain of the aforementioned allegations, particularly
paragraphs 15, 16 and 54 of the complaint, arc impertinent and scandalous because they arc
designed to attack the character of the defendant and to gain negative media attention. Tile
argument of the defendant is to the effect that the description of the sexual activity is gratuitously
detailed. For allegations to be scandalous and impertinent and thus subject to being stricken,
allegations must be immaterial and inappropriate to the proof of the cause of action. Common
gause/Pennsvlvania v. Co m. of Pa., 710 A.2d 108, 115 (Pa.Cmmwlth. 1998), atI'd 562 Pa. 632,
757 A.2d 367 (2000). Here, the allegations, though scabrous, are material and pertinent to the
plaintiffs cause of action.
ORDER
AND NOW, this // ~ day of July, 2001, the preliminary objection of the defendant
to count VI of the plaintiffs complaint is DENIED. The preliminary objections to pararaphs 8,
9, 10, 13, 15, 16 and 54 of the complaint arc DENIED.
The preliminary objection of the defendant to count VII of the complaint is SUSTAINED
and said count is DISMISSED.
BY THE COURT,
Yvonne Husic, Esquire
For the Plaintiff'
Timothy J. McMahon, Esquire
For the Defendant
Am
Kevi . Hess, J.
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