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HomeMy WebLinkAbout07-3670 David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES Defendant V. Bernadine M. WILEY Defendant V. Kevin M. KELLEY, Defendant V. Kevin W. PRESTON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07 - 31070 CIVIL TERM CIVIL DIVISION - LAW NOTICE In festi6o,h YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of 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 GETLEGAL HELP. 7?6 RD Cumberland County Bar Association hand 32 Bedford Street Carlisle, PA 17013 (717) 249-3166 David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES Defendant V. Bernadine M. WILEY Defendant V. Kevin M. KELLEY, Defendant V. Kevin W. PRESTON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07 - 31plO CIVIL TERM CIVIL DIVISION - LAW COMPLAINT AND NOW come Plaintiffs, David and Robin Wiley, by and through their attorneys, Turo Law Offices, and represent as follows: 1. Plaintiffs, David Wiley and Robin Wiley, are husband and wife, and reside at 398 Centerville Road, Newville, PA 17241. 2. Defendant Peggy L. Nieves is an adult individual and sister of Plaintiff David Wiley, and resides at 109 North Baltimore Street, Mount Holly Springs, Cumberland County, PA 17065. 3. Defendant Bernadine M. Wiley is an adult individual and sister of Plaintiff David Wiley, and her current residence is believed to be with Defendant Peggy L. Nieves at 109 North Baltimore Street, Mount Holly Springs, Cumberland County, PA 17065. 4. Defendant Kevin M. Kelley is a Pennsylvania State Constable. 5. Defendant Kevin W. Preston is a Pennsylvania State Constable and Chief Constable of Dickinson Township, Cumberland County, Pennsylvania. 6. Plaintiffs, at the time complained of, were tenants of their father, Harold F. Wiley, and residents of property located at 2258 Pine Road, Newville, PA 17241, in Penn Township, Cumberland County. 7. In a letter dated February 15, 2007, Harold F. Wiley informed Plaintiffs through his attorney of his desire that Plaintiffs vacate the property, as he wished to put it up for sale. 8. Plaintiffs were in the process of peaceably relocating from the property within a lawful timeframe when Defendants Nieves and Wiley began systematic and malevolent acts of interference with Plaintiffs' performance of their removal. 9. On February 17, 2007, Defendants Nieves and Wiley entered Plaintiffs' residential property along with Defendants Kelley and Preston. 10. Plaintiffs retained a tenant's right of possession of the property as of that date, it being a mere two days since the date of the letter by which they were first informed of Harold F. Wiley's intentions. 11. Plaintiffs did not give their willful consent to Defendants' entry onto the property. 12. Defendant Constables Kelley and Preston were issued no orders from any authority by which they had any right to enter Plaintiff's property and residence, or to seize any personal property, nor were there any such legal documents in existence. 13. Defendants Wiley and Nieves communicated a brazen lie to Defendants Kelley and Preston in informing them, erroneously, that the Plaintiffs had an oral agreement regarding entry onto Plaintiffs' property and the removal of Harold Wiley's personal property. 14. Plaintiffs had, in fact, made no such agreement, and, as Defendants Nieves and Wiley expected, Plaintiffs were caught completely by surprise when all four Defendants invaded their home, ransacked it and absconded with their personal property. 15. Defendants Kelley and Preston forced the Plaintiffs to stand aside in detainment to allow Defendants Nieves and Wiley to literally ransack Plaintiffs' home and personal property, emptying drawers, cabinets, dressers and the like, actually throwing Plaintiffs belongings to the floor as they did so. 16. Ultimately, with the aid of Defendants Kelley and Preston, Defendants Nieves and Wiley absconded with a plethora of personal property, the rightful ownership and possession of which is vested in Plaintiffs and no others. 17. Defendants Kelley and Preston, furthermore, while informing Plaintiffs that guns were not allowed in the home while the Constables were present there, removed from the property numerous firearms which belonged variously to both Harold Wiley and also Plaintiffs, and placed them in Defendant Constables' vehicle. Defendant Constables then drove away with all of the guns and subsequently relinquished them to the possession of Defendant Nieves. 18. Defendants Kelley and Preston, astoundingly, relied solely upon the unsubstantiated oral averment of a private citizen to forcibly enter the private property of other private citizens, force them to stand in restraint, allow others to rifle through their personal property and literally loot their home with abandon, doing so without any list (legal or otherwise) dictating to whom belonged what particular property, and then to actually seize that property. 19. Defendants Kelley and Preston were issued no orders from any valid legal authority by which they had any right to invade Plaintiffs' privacy and inspect and seize Plaintiffs' property; without authority they allowed themselves to be relegated to the status of little more than hired muscle to do the bidding of Defendants Nieves and Wiley. 20. On February 25, 2007, Defendants Nieves and Wiley returned again, this time without Defendants Kelley and Preston, and invaded Plaintiffs' property without willful consent and pilfering Plaintiffs' belongings. 21. At the incursion on February 25, 2007, Defendants Nieves and Wiley also changed the locks on Plaintiffs' home. 22. No formal order of eviction was ever issued as of that date nor has one since issued; no court order been issued, nor even one single legal document from any court indicating that any legal action was to occur involving Plaintiffs' home or the personal property located therein. COUNT I - TRESPASS TO LAND Against All Defendants 23. Paragraphs 1 through 22 are incorporated herein as if fully set forth. 24. Plaintiffs, on both February 17 and February 25, were the lawful occupants of the property which was their private residence at 2258 Pine Road, Newville, PA 17241. 25. Defendants Nieves, Wiley, Kelley and Preston, all with intent to do so, physically invaded Plaintiffs' property on February 17, 2007, and Defendants Nieves and Wiley, with intent to do so, physically invaded Plaintiffs' property on February 25, 2007. 26. Plaintiff did not give willful consent to the entrance onto the property of any of the four Defendants on either occasion. 27. The conduct in encroachment onto Plaintiffs' property by Defendants Nieves and Wiley was outrageous, in that Defendants Nieves and Wiley invaded Plaintiffs' home under the false pretense of authority, with the erroneous assistance of law enforcement officers who, in concert, forced their way onto Plaintiffs' property. 28. The conduct in encroachment onto Plaintiffs' property by Defendants Kelley and Preston was outrageous, in that, under the auspices of a grossly reckless adherence to the unsubstantiated averment of a false and, moreover, non-authoritative oral agreement between private citizens, they aided Defendants Nieves and Wiley in forcing their way onto Plaintiffs' property. 29. Such outrageous conduct warrants a judgment of punitive damages. 30. Plaintiffs also suffered monetary loss as a result of Defendants' trespass to land, insofar as the forceful invasion afforded Defendants Nieves and Wiley the opportunity to thieve Plaintiffs' personal property. 31. Defendants Kelley and Preston, despite their identity as Pennsylvania State Constables, by their patent abuse of authority, stand before the Court bearing the same liability for their illegal acts as if they were actors without the pretense of authority. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against all Defendants, to hold all Defendants jointly and severally liable for punitive damages as the Court deems just and proper, along with such compensatory damages for stolen person property, and along with the cost of suit and such other relief as the Court deems just and equitable. COUNT II - CONVERSION Against Defendants Peggy L. Nieves and Bernadine M. Wiley 32. Paragraphs 1 through 31 are included herein as if fully set forth. 33. Defendants Nieves and Wiley, with intent to do so and regardless of their fraudulent acquisition and abuse of Constabulary power, wrongfully acquired, in the manner of theft, a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in Plaintiffs. This property includes: a. Plaintiff Robin Wiley's engagement ring b. Diamond accent bracelet c. Pfaltzgraff dishes d. 300 feet of wood flooring e. 12'x 18' piece of carpet f. Vinyl flooring g. Carpeting tools h. Tile tools (including a tile cutter) i. All of Plaintiff David Wiley's Craftsman tools (exceedingly numerous) j. Belt sander k. Two palm sanders 1. Router M. Bow and arrow n. Two black powder guns o. Pancake air compressor p. Miscellaneous tools that were hanging in the garage q. Food that was in the refrigerator and the pantry r. Kitchen Aide mixer s. Miscellaneous Tonka toys t. Propane heater U. Various firearms v. 25 boxes of Newville Little League baseball first aid supplies and totes, which were in the lawful possession of Plaintiffs, who are committee members of said league 34. Defendants continue to wrongfully possess Plaintiffs' personal property, which they have held for four months, and have given no indication that they intend any result but to permanently retain Plaintiffs' possessions. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, in replevin of the personal property, or, if necessary, to pay the fair market value of the converted personal property, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT III - TRESPASS TO CHATTELS Against Defendants Peggy L. Nieves and Bernadine M. Wiley 35. Paragraphs 1 through 34 are incorporated herein as if fully set forth. 36. Defendants Nieves and Wiley, with intent to do so and regardless of their fraudulent acquisition and abuse of Constabulary power, wrongfully interfered with the right to possession of a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in Plaintiffs. This property includes the that listed in Paragraph 33, a - v. 37. Defendants' intentional interference with Plaintiffs' right to possession of the personal property at issue has caused a loss of Plaintiffs' possessory right in said property. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, a judgment for damages from harm to property, if any, and/or the fair rental value of the property once returned, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT IV - NEGLIGENCE Against Defendants Kevin M. Kelley and Kevin W. Preston 38. Paragraphs 1 through 37 are incorporated herein as if fully set forth. 39. Defendants Kelley and Preston owe to Plaintiffs a duty of care akin to the professional standard of a Pennsylvania State Constable when acting as constables. 40. Defendants Kelley and Preston, acting in concert, breached that duty when, without any legal document from any court whatsoever, they astoundingly and recklessly relied solely upon the unsubstantiated oral averment of a private citizen to forcibly enter the private property of other private citizens, force them to stand in restraint, allow others to rifle through their personal property and literally loot their home with abandon, doing so without any list dictating to whom belonged what particular property, and then to actually seize that property. 41. Even if the Defendant Constables had initially gone onto the property with authority, their conduct thereafter was grossly outside the bounds of their authority, as they allowed Defendants Nieves and Wiley to literally ransack the Plaintiffs' home with abandon, and remove such personal property as they chose without any legal document indicating what property was or was not, in fact, in the rightful possession of the Plaintiffs. 42. This reckless breach of duty on the part of both Defendants Kelley and Preston was the actual and proximate cause of damages to Plaintiffs, including trespass to their land and the loss of their personal property. WHEREFORE, Plaintiffs request respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Kelley and Preston jointly and severally liable for punitive damages as the Court deems just and proper, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT V - FRAUD Against Defendants Peggy L. Nieves and Bernadine M. Wiley 43. Paragraphs 1 through 42 are incorporated herein as if fully set forth. 44. Defendant Wiley issued a direct falsehood to Defendant Constables in the form of a brazen lie regarding a non-existent oral agreement about the Plaintiffs being in accordance with entry onto their property and the removal of chattels therefrom. 45. Defendant Nieves calculated to deceive as well, at the very least by her silence as to the truth, with full knowledge that there was no such agreement and that all four Defendants would catch Plaintiffs by complete surprise with their invasion of February 17, 2007. 46. In commanding the assistance of Defendant Constables Kelley and Preston with the known false representation regarding the erroneous existence of an oral agreement with the Plaintiffs, Defendants Nieves and Wiley calculated and intended to deceive Defendants Kelley and Preston, thus causing them to enter the Plaintiffs' property and otherwise conduct constabulary duties which they actually had no right to perform. 47. Defendants Kelley and Preston relied on the outright lie told to them by Defendants Nieves and Wiley, and in their capacity as Pennsylvania State Constables, aided and abetted Defendants Nieves and Wiley in trespassing on Plaintiffs' property and in the theft of Plaintiffs' personal property. 48. The resulting harm suffered by Plaintiffs was proximately caused by the Constables' reliance on the fraud perpetuated by Defendants Nieves and Wiley, with trespass to their private property and the theft of their personal belongings. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Nieves and Wiley jointly and severally liable for damages, along with the cost of suit, and such other relief as the Court deems just and equitable. (-, 4 y7 Date Respectfully Submitted, TURO LAW OFFICES 40nes M. Ro nson, Esquire South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs T VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. /P o'7 Date ll? Date David Wiley Plaintiff Robin Wiley Plaintiff 7T- - V? - . 17 r: X 9j _ . c r DAVID WILEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, Defendant V. BERNADINE M. WILEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007 - 3670 CIVIL TERM CIVIL DIVISION - LAW V. KEVIN M. KELLEY, Defendant V. KEVIN W. PRESTON, Defendant PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the Defendants, KEVIN M. KELLEY and KEVIN W. PRESTON, in the above captioned case. Respectfully submitted, IRWIN & KNIGHT By: Marcu A. Mc ht, III, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendants, Kevin M. Kelley and Kevin W. Preston Date: July 17, 2007 I LN. DAVID WILEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, Defendant V. BERNADINE M. WILEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007 - 3670 CIVIL TERM CIVIL DIVISION - LAW V. KEVIN M. KELLEY, Defendant V. KEVIN W. PRESTON, Defendant CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe for Entry of Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: James M. Robinson, Esq. 28 South Pitt Street Carlisle, PA 17013 IRWIN By: Marcds A. McKqig]A III, Esquire 60 West Pomfret feet Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: July 17, 2007 rl r-11 -r t M F l cr, cQ r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, CASE NUMBER: 07-3670 Civil Term Plaintiffs ISSUE NUMBER: V. PLEADING: Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, PRAECIPE FOR APPEARANCE Defendants CODE AND CLASSIFICATION: FILED ON BEHALF OF: Kevin W. Preston, Defendant. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa.ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants CASE NO: 07-3670 Civil Term PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the Defendant, Kevin W. Preston, in the above-captioned matter. A JURY TRIAL IS DEMANDED CIVIL DIVISION Respectfully submitted, CIPRIANI & WERNER, P.C. DENNIS J. BONETTI ADAM L. SEIFERTH Attorney for the Defen Kevin W. Preston BY: CERTIFICATE OF SERVICE That counsel for the Defendant, Kevin W. Preston, hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mapostage pre-paid, accord ng to the Pennsylvania Rules of Civil Procedure, on theday of J , 2007. James M. Robinson Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Attorney for the Plaintiff Marcus A. McKnight, III Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant, Kevin M. Kelley Peggy L. Nieves 109 North Baltimore Street Mount Holly Springs, PA 17065 Bernadine M. Wiley 109 North Baltimore Street Mount Holly Springs, PA 17065 Respectfully submitted, CIPRIANI & WERNER, P.C. BY: (UAX?'?eu' DENNIS J. BONETTI, ESQ IR ADAM L. SEIFERTH, ESQ IR Attorney for the Defendant Kevin W. Preston ? o O David WILEY and Robin WILEY, Plaintiffs v. Peggy L. NIEVES Defendant v. Bernadine M. WILEY Defendant V. Kevin M. KELLEY, Defendant v. Kevin W. PRESTON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07 -3670 CIVIL TERM CIVIL DIVISION - LAW PRAECIPE TO ENTER DEFAULT JUDGMENT To the Prothonotary of said Court: Please enter a Default Judgment in favor of the Plaintiffs, David and Robin Wiley, and against the Defendants, Peggy L. Nieves and Bernadine M. Wiley, for failure to plead, having both been served by Sheriff with a certified copy of the Complaint on June 28, 2007, and both thereafter served with a Notice of Default on July 26, 2007, as evidenced by the attached Notices of Default. Please enter the judgments against Peggy L. Nieves and Bernadine M. Wiley, damages to be assessed at a trial at which the issues shall be limited to the amount of the damages, and costs of record. Respectfully Submitted, TURO LAW OFFICES 8 d Date Ja M. Robin on, Esquire 28 S uth Pitt St et Ca sle, PA 17013 (717) 245-9688 Attorney for Plaintiffs David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES Defendant V. Bernadine M. WILEY Defendant V. Kevin M. KELLEY, Defendant V. Kevin W. PRESTON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW TO: Peggy L. Nieves DATE: July 26, 2007 109 North Baltimore St. Mount Holly Springs, PA 17065 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Respectfully Submitted TURO LAW OFFICES Date --?= on, Esquire Jadn M. Robijeet 28 uth Pitt S Carlisle, PA 17 3 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Default Notice upon Peggy L. Nieves, by depositing same in the United States Mail, first class, postage pre- paid on the 26th day of July, 2007, from Carlisle, Pennsylvania, addressed as follows: Peggy L. Nieves 109 North Baltimore Street Mount Holly Springs, PA 17065 TURO LAW OFFICES J s M. Robo son, Esquire 2 Mouth Pitt treet Carlisle, PA 1 013 (717) 245-9688 Attorney for Plaintiffs David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES Defendant V. Bernadine M. WILEY Defendant V. Kevin M. KELLEY, Defendant V. Kevin W. PRESTON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW TO: Bernadine M. Wiley DATE: July 26, 2007 109 North Baltimore St. Mount Holly Springs, PA 17065 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 f Date Respectfully Submitted TURO LAW OFFICES /J c J s M. Robi on, Esquire 2 outh Pitt S feet Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Default Notice upon Bernadine M. Wiley, by depositing same in the United States Mail, first class, postage pre-paid on the 26th day of July, 2007, from Carlisle, Pennsylvania, addressed as follows: Bernadine M. Wiley 109 North Baltimore Street Mount Holly Springs, PA 17065 TURO LAW OFFICES J s M. Robin n, Esquire 2 outh Pitt S eet Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs fV C=3 ?IZS ?N rrt ;J ?r c j..s ? l SHERIFF'S RETURN - REGULAR CASE NO: 2007-03670 P W COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILEY DAVID ET AL VS NIEVES PEGGY L ET AL SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KELLEY KEVIN M the DEFENDANT , at 1126:00 HOURS, on the 26th day of June , 2007 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to KEVIN KELLEY a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 07/12/2007 RO TURO By: ` Deputy eriff A. D. SHERIFF'S RETURN - REGULAR S. CAiE NO: 2007-03670 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILEY DAVID ET AL VS NIEVES PEGGY L ET AL SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PRESTON KEVIN W the DEFENDANT , at 1126:00 HOURS, on the 26th day of June 2007 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to KEVIN PRESTON a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 F'(?1 j&7,. 00 16.00 Sworn and Subscibed to before me this of So Answers: R. Thomas Kline 07/12/2007 RON TURO I I /?/ By: day Deputy , A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2007-03670 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILEY DAVID ET AL VS NIEVES PEGGY L ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon NIEVES PEGGY L the DEFENDANT , at 2000:00 HOURS, on the 28th day of June 2007 at 109 NORTH BALTIMORE STREET MT HOLLY SPRINGS, PA 17065 by handing to HAROLD F WILEY, FATHER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 5.76 Postage .75 Surcharge 10.00 00 B?bgCe1- 34.51 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 07/12/2007 RON TURO By: Deputy Sheriff A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2007-03670 P a COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILEY DAVID ET AL VS NIEVES PEGGY L ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WILEY BERNADINE M the DEFENDANT , at 2000:00 HOURS, on the 28th day of June 2007 at 109 NORTH BALTIMORE STREET MT HOLLY SPRINGS, PA 17065 BERNADINE M WILEY by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 1]04/01 ? Sworn and Subscibed to before me this of So Answers: 6:00 .00 .00 10.00 R. Thomas Kline .00 16.00 07/12/2007 RON TURO By day Deputy Sheriff A.D. M r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants CASE NUMBER: 07-3670 Civil Term ISSUE NUMBER: PLEADING: PRAECIPE FOR APPEARANCE CODE AND CLASSIFICATION: FILED ON BEHALF OF: KEVIN M. KELLEY, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa.ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 .01 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants CASE NO: 07-3670 Civil Term PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the defendant, KEVIN M. KELLEY, in the above-captioned matter. Respectfully submitted, BY: A JURY TRIAL IS DEMANDED CIPRIANI & WERNER, P.C. DENNIS J. BOXETTI, E $Q ADAM L. SEIFERTH, Q Counsel for the Defenda , KEVIN M. KELLEY s CERTIFICATE OF SERVICE That counsel for the Defendant, KEVIN M. KELLEY, hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by firstJcla$5 mail, postage re-paid, according to the Pennsylvania Rules of Civil Procedure, on the 66 X177''11 day of , 2007. 01 James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Attorney for the Plaintiff Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant, Kevin W. Preston Peggy L. Nieves 109 North Baltimore Street Mount Holly Springs, PA 17065 Bernadine M. Wiley 109 North Baltimore Street Mount Holly Springs, PA 17065 BY: Respectfully submitted, CIPRIANI & WERNER, P.C. DENNIS J. BONETT ADAM L. SEIFERT , Counsel for the Defe KEVIN M. KELLEY N Q "' fl PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) DAVID WILEY AND ROBIN WILEY (Plaintiff) VS. PEGGY L. NIEVES, BERNADINE M. WILEY, KEVIN M. KELLY AND KEVIN W. PRESTON (Defendant) No. 07-3670 , Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendants, Kevin M. Kelley and Kevin W. Preston 2. Identify counsel who will argue cases: (a) for plaintiff: James M. Robinson, Esquire, 28 Soath Pitt Street, (Name and Address) _ Carlisle, PA 17013 (b) for defendant: Adam L. Seiferth, Esquire, 1011 Mumma Road, Suite 201 Name and Address) Lemoyne, PA 170 3 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signature Adam L. Seiferth Print our name Defendants, Kevin Kelley and Kevin Preston Date: L) ^ 5 - ©? Attorney for c? ? -r?? ,n "? G.,. <. s 4"i-y ?' ?..; ? , ' ? .?; _, C? .. _._.i _ r :r ". .,. te ,Mr^-' It l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants TO: PLAINTIFFS, DAVID AND ROBIN WILEY YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. ADAM L. SE F H, E QUI E CASE NUMBER: 07-3670 Civil Term ISSUE NUMBER: PLEADING: PRELIMINARY OBJECTIONS OF DEFENDANTS, KEVIN M. KELLY AND KEVIN W. PRESTON, TO PLAINTIFFS' COMPLAINT CODE AND CLASSIFICATION: FILED ON BEHALF OF: Kevin M. Kelly and Kevin W. Preston, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 t 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants CASE NO: 07-3670 Civil Term PRELIMINARY OBJECTIONS OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, Kevin M. Kelly and Kevin W. Preston, by and through their attorneys, Cipriani & Werner, and files Preliminary Objections in the Nature of a Demurrer pursuant to Pa.R.C.P. 1028(a)(4) or, alternatively, Motion to Strike pursuant to Pa.R.C.P. 1028(a)(2) and, in support thereof, avers as follows: 1. Plaintiffs, David and Robin Wiley ("Plaintiffs"), filed a Complaint on June 19, 2007. A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A". 2. On July 27, 2007, initial counsel for Defendant, Mr. Preston, wrote to Plaintiffs' counsel requesting that the claims for punitive damages be dismissed against Mr. Preston. A true and correct copy of said letter is attached hereto as Exhibit "B". 3. Thereafter, on August 2, 2007, the undersigned counsel entered his appearance on behalf of Defendant, Mr. Preston. After entering his appearance, the undersigned counsel confirmed in writing with Plaintiffs' counsel that Defendant, Preston, had an unlimited extension of time within which to file a responsive pleading to Plaintiffs' Complaint. A true and correct copy of the undersigned counsel's letter dated August 8, 2007 is attached hereto as Exhibit "C". 4. On or about August 14, 2007, the undersigned counsel entered his appearance on behalf of Defendant, Mr. Kelley. 5. Defendants, Mr. Kelley and Mr. Preston, now preliminary object to Plaintiffs' Complaint in the nature of a demurrer or, alternatively, motion to strike all punitive damage claims asserted against them. 6. The material factual allegations in the Complaint against Defendants, Mr. Kelley and Mr. Preston, aver the following: a. Defendants, Mr. Kelley and Mr. Preston, are Pennsylvania State Constable. (Complaint, paragraphs 4, 5). b. Defendants, Mr. Kelley and Mr. Preston, entered the Plaintiffs' residential property on February 17, 2007 without Plaintiffs' alleged consent. (Complaint, paragraphs 9, 11); C. Defendants, Mr. Kelley and Mr. Preston, "forced the Plaintiffs to stand aside in detainment." (Complaint, paragraph 15); d. Defendants, Mr. Kelley and Mr. Preston, removed firearms from the Plaintiffs' property and subsequently returned the firearms to the possession of Defendant, Peggy Nieves. (Complaint, paragraph 17). 7. Plaintiffs' Complaint sets forth two counts against Defendants, Mr. Kelley and Mr. Preston, in trespass to land and negligence. (See, Complaint, Count I and Count IV). In each of these Counts, Plaintiffs requests an award of punitive damages against Defendants, Mr. Kelley and Mr. Preston. 8. Punitive damages may be awarded for conduct that is outrageous, because of a Defendant's evil motive or his reckless indifference to the rights of others. See, Martin v. Johns-Manville Corp., 494 A.2d 1088 (Pa. 1985), adopting restatement (2"d) of Tort § 908. Neither mere negligence, nor even gross negligence shows sufficient culpability to justify a punitive damage award. Takes v. Metropolitan Edison Co., 655 A.2d 138, 144 (Pa. Super. 1995). Rather, it must be something more than negligent; it must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. See, Moran v. G. & W.H. Corson, Inc., 586 A.2d 416, 423 (Pa. Super. 1991). 9. Plaintiffs' Complaint fails to aver facts which allege anything more than negligent conduct, in advertence, mistake and/or error of judgment against Defendants, Mr. Kelley and Mr. Preston. 10. Plaintiffs' Complaint lacks any facts alleging that Defendants, Mr. Kelley or Mr. Preston, physically injured Plaintiffs; physically restrained Plaintiffs; converted any of Plaintiffs' property; damaged any of Plaintiffs' property; or otherwise acted with an evil motive towards Plaintiffs. At most, the factual allegations of the Complaint aver that Defendants, Mr. Kelley and Mr. Preston, entered Plaintiffs property without the consent or authority to do so and/or acted negligently. 11. These allegations fail to establish the outrageousness, evil motive or reckless indifference to the rights of others which would entitle Plaintiffs to an award of punitive damages as a matter of law. Therefore, Plaintiffs' Complaint fails to state a claim for punitive damages against Defendants, Mr. Kelley and Mr. Preston. WHEREFORE, Defendants, Kevin M. Kelley and Kevin W. Preston, respectfully requests this Honorable Court to issue an order granting their Preliminary Objection in the nature of a demurrer to Plaintiffs' punitive damage claim against them or, alternatively, to issue an order granting their motion to strike the allegations and claims of punitive damages in Plaintiffs' Complaint. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: DENNIS J. BONETTI, Q E ADAM L. SEIFERTH Counsel for the Defenda A JURY TRIAL IS DEMANDED Kevin W. Preston and Kevin M. Kelley 1 Pl1 J,JL- 2 2 0- 007 03 Ij NEgTE"R FEnFETT0 7GEI,C'> 6 i 0 070 193 P. J31/14 j David WIL EY and ?i Robin WILEY, Plaintiffs ?i i' V. i' j? Peggy L. NIEVES Defendant V. Bernadine M. WILEY Defendant i r' V, I I I Kevin M. KELLEY, j Defendant V. Kevin W. PRESTON, i Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07 T- 3&,71!) CIVIL TERM C^eY CIVIL DIVISION - LAW N 0 T I C E i? I' YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims ?I 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 it p lcrn-'4 " and fili,rg in wrifing t c ?u 1i 'r'oof' d ke; "b?3 ?'? o ijt;::tiU11S to the Ciaims Set II forth against you. You are warned that if you fail to do so the case may proceed without 11 you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of for any other claim or relief requested by the P'la'intiff. You may lose money or property or other rights important to you, j ?j YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYFR (DR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE j OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. I, n r` C F ?C F D Cumberland County Bar Association TR U ! qrr-'Y i- Testimm ?, r a nt ?2 Bedford Street ) } P8. Carllsie PA 17013 f, i? tI a sEai ai s? (717) 249-3166 i Th's da of. !) .... " o?t?'1 I ?rothornzy.....,,.... ii ft PEREE-,rn HrEta '7' 69 6 C 519:, r, 041114 ?UL-90-2007 01.17 PM CN r I ji i David WILEY and IN THE COURT OF COMMON PLEAS Robin WIC EY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs i 1 Peggy L. NIEVES i! Defendant ; j v. Bernadine M. WILEY No. 07 - CIVIL TERM ? !w Defendant I V. Kevin M. KELLEY. Defendant I V. I Kevin W. PRESTON, Defendant CIVIL DIVISION - LAW I i? i COMPLAINT it i? AND NOW come Plaintiffs, David and Robin Wiley, by and through their attorneys, Tura Law Offices, and represent as follows. ii 1. Plaintiffs, David Wiley and Rabin Wiley, arP husband and wife, and reside j at 398 Centerville Road, Newville, PA 17241. +I I 2. Defendant Peggy L. Nieves is an adult individual and sister of Plaintiff I} David Wiley, and resides at 109 North Baltimore Street, Mount Holly Springs, I fl Cumberland County, PA 17065. ?i 3. Defendant Bernadine IA, Wiley is an adult individual and sister of Plaintiff David Wiley, and her current residence is believed to tie with Defendant Peggy L. I,' t 1I 6.0 6`j u? 14 CHE `!ER PEK E f T0 r',GE1,C`Y L - o-cL1 1f III - ,i Nieves at 109 North Baltimore Street, Mount Holly Springs, Cumberland County, PA 11 17065 I ' 4. Defendant Kevin M, Kelley is H' Pennsylvania State Constable. Ij 5. Defendant Kevin W. Preston is a Pennsylvania State Constable and Chief i Constable of Dickinson TownsNp, Cumberland County, Pennsylvania. 6. Plaintiffs, at the time complained of, were tenants of their father, Harold F. Wiley, and residents of property located at 2258 Pine Road, Newv?lle, PA 17241, in Penn 1 owns-hip, Cumberland County, 7 In a letter dated February 16, 2007, Harold F. Wiley informed Plaintiffs through his attorney of his desire that Plaintiffs vacate the property, as he wished to put it up for sale. 8. Plaintiffs were in the process of peaceably relocating from the property ?I within a lawful timeframe when Defendants Nieves and Wiley began systematic and j malevolent acts of interference with Plaintiffs' performance of their removal. l ,j II 9. On February 17, 2007, Defendonts Nieves and Vtlifey entered I'lai^' ff i; residential property along with Defendants Kelley and Preston. li li 10. Plaintiffs retained a tenant's right of possession of the property as of that date, it being a mere two days since the date of the letter by which they were first I informed of Harold F. Wiley's intentions. i? I I? 11. Plaintiffs did not give their willful consent to Defendants' entry onto the i! property. ?i i i? ?I I! I? i ri 14 tiTEP, a it ERFETTO GEIJ? 9? DE. 0-20,01 0 1 P?1 NE Y _ i i I i i 12. Defendant Constables Kelley and Preston were issued no orders from any j authority by which they had any right to enter Plaintiff's property and residence, or to seize any personal property, nor were there any such legal documents in existence. 13. Defendants Wiley and Nieves communicated a brazen lie to Defendants Kelley and Preston in informing there, erroneously, that the Plaintiffs had an oral agreement regarding entry onto Plaintiffs' property and the removal of Harold Wiley's l personal property. IJ 14. Plaintiffs had, in fact, made no such agreement, and, as Defendants Nieves and Wiley expected, Plaintiffs were caught completely by surprise when all four Defendants invaded their horde, ransacked it and absconded with their personal property. 15. Defendants Kelley and Freston forced the Plaintiffs to stand aside in detainment to allow Defendants Nieves and Wiley to literally ransack Plaintiffs' home and personal property, emptying drawers, cabinets, dressers and the like, actually throwing Plaintiff's belongings to the floor as they did so. 16. Ultimately, with the aid of Defendants Kelley and Preston, Defendants Nieves and Wiley absconded with a plethora of personal property, the rightful Ownersh!p and possession of which is vested in Plaintiffs and no others. 17, Defendants Kelley and Preston, furthermore, while informing Plaintiffs that guns were not allowed in the home while the Constables were present there, removed from the property numerous firearms which belonged vario,.sly to both Harold Wiley and also Plaintiffs, and placed them in Defendant Constables' vehicle. Defendant Constables then drove away with all of the guns and subsequently relinquished them to he possession of Defendant Nieves. 7/14 L_??i-? !l 0?' ; ES-,ER rEEFETTO AGEPaDY 61L? ?? ij ?i 18. Defendants Kelley and Preston, astoundingly, relied solely upon the II unsubstantiated oral averment of a private citizen to forcibly enter the private property of other private citizens, force them to stand in restraint, allow others to rifle through their personal property and literally loot their home with abandon, doing so without any list (legal or otherwise) dictating to whom belonged what particular property, and then to ii actually seize that property. ( 19. Defendants Kelley and Preston were issued no orders from any valid legal authority by which they had any right to invade Plaintiffs' privacy and inspect and seize Plaintiffs' property; without authority they allowed themselves to be relegated to the 1 status of little more than hired muscle to do the bidding of Defendants Nieves and 1; Wiley, I? ++;? 20. On February 25, 2007, Defendants Nieves and Wiley returned again, this !i time without Defendants Kelley and Preston, and invaded Plaintiffs' properly without willful consent and pilfering Plaintiffs' belongings. 21. At the incursion on February 25, 2007, Defendants Nieves and Wiley also changed the locks on Plaintiffs' home 22. No formal order of eviction was ever issued as of that date nor has one since i?-sued; no court order been issued, nor even one single legal document from any court indicating that any legal action was to occur involving Plaintiffs' home or the personal property located therein. GOUNT { TRESPASS TO LAND Against All Defendants 23, Paragraphs 1 through 22 are incorporated herein as if fully set forth F rETTC? A?G4JCY 670 r"C F 14 30-?CO l PM ?,HE .TEP, E 0 i I j 24 Plaintiffs, on both February 17 and February 25, were the lawful j! occupants of the property which was their private residence at 2258 Pine Road, I? Newville, PA 17231, 25. Defendants Nieves, Wiley, Kelley and Preston, all with intent to do so, physically invaded Plaintiffs' property on February 17, 2007, and Defendants Nieves and Wiiey, with intent to do so, physically invaded Plaintiffs' property on February 25, 2007. 26. Plaintiff did not give willful consent to the entrance onto the property of any of the four defendants on either occasion. ?I 27. The conduct in encroachment onto Plaintiffs' property by Defendants Nieves and Wiley was outrageous, in that Defendants Nieves and Wiley invaded Plaintiffs' home under the false pretense of authority, with the erroneous assistance of { law enforcement officers who, in concert, forced their way onto Piaintiffs' property. I? ii 28, The conduct in encroachment onto Plaintiffs' property by Defendants Kelley and Preston Was outrageous, in that, under the auspices of a grossly reckless i; adherence to the unsubstantiated averment of a false and, moreover, non-authoritative '{ oral agreement between private citizens, they aided Defendants Nieves and Wiley in l I' torcing their way onto Plaintiffs' properly. 1y 29. Such outrageous conducl warrants 'a judgment of punitive damages. 30. Plaintiffs also suffered monetary loss as a result of Defendants' trespass to land, insofar as the forceful invasion afforded Defendants Nieves and Wiley the ? { opportunity to thieve Plaintiffs' personal property. I? ? i Ij j ??NE?TER ?'F=,FTAGE1?C?' 6'::? y ,C,, F g? F, TG _- i 31. Defendants Kelley and Preston, despite their identity as Pennsylvania ? State Constables, by their patent abuse of authority, stand before the Court bearing the same liability for their illegal acts as if they were actors without the pretense of authority. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against all Defendants, to hold all Defendants jointly and Severally liable for punitive damages as the Court deems just and proper, along with uch compensatory damages for stolen person property, and along with the cost of suit and such other relief as the Court deems just and equitable. COUNT It - CONVERSION Against Defendants Peggy L. Nieves and Bernadine M. Wiley 32, Paragraphs 1 through 39 are included herein as it fully set forth. 33, Defendants Nieves and Wiley, with intent to do so and regardless of their fraudulent acquisition and abuse of Constabulary power, wrongfully acquired, in the manner of theft, a surfcit of Plaintiffs' personai property, the unmitigated right of immediate possession was and ie vested only in Plaintiffs. This property includes: a. Plaintiff Robin Wiley's engagement ring b. Diamond agent bracelet c. Pfaltzgraff dishes d. 300 feet of wood flooring e. 12' x 18' piece of carpet f. Vinyl flooring 9. Carpeting tools h. Tile tools (including a He cutter; i. All of Plaintiff David Wiley's Craftsman tools (exceedingly numerous) J Belt sander 1 hi: 5;9v P 10/14 i'JL-aU-?ii07 3 ; 1 i PM CaES T ER ?ERFETTCii?C'' i -- , M II k. Two palm sanders 1. Router j? M. Bow and arrow n. Two black powder guns o. Pancake air compressor ?j A. Miscellaneous tools that were hanging in the garage q. Food that was in the refrigerator and the pantry I' r. Kitchen Aide mixer s. Miscellaneous Tonka toys I? t. Propane heater U. Various firearms {i v. 25 boxes of Newvilie Little League baseball first aid supplies and totes, which were in the lawful possession of Plaintiffs, who are ji committee members of said league i 34. Defendants continue to wrongfully possess Plaintiffs' personal property, I 1 ?I which they have h eld for four months, and have given no indication that they intend any result but to permanently retain Plaintiffs' possessions. it WHEREFORE, Plaintiffs respectfully request that this Honorabie Court issue judgment in their favor and against Defendants Nieves and Wiley, in replevin of the personal property, or, if necessary, to pay the fair market value of the converted personal property, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT III - TRESPASS TO CHATTELS Against Defendants Peggy L. Nieves and Bernadine M. Wiley 35. Paragraphs 1 through 34 are incorporated herein as if fully set forth. 14 r HE0 ER PERFETTO A:ar.{1iY 6'.C ?? 36. Defendants Nieves and Wiley, with intent to do so and regardless of their li fraudulent acquisition and abuse of Constabulary power, wron0fully interfered with the right to possession of a surfeit of Plaintiffs' personal property, the unmitigated right of ii irnmediate possession was and is vested only in Plaintiffs, This property includes the ii that listed in Paragraph 33, a - v. it 37 Defendants' intentional interference with Plaintiffs' right to possession of 11 ?j the personal property at issue has caused a loss of Plaintiffs' possessory right in said property. WHEREFCRE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, a judgment for damages from harm to property, if any, and/or the fair rental value of the property once returned, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT IV - NEGLiGENCE Against Defendants Kevin M. Kelley and Kevin W. Preston I? 38. Paragraphs 1 through 37 are incorporated herein as if fully set forth. >. Defendants Kelley and Preston o,We to Plaintiffs a duty of care akin to the it I; prufessjonal standard of a Pennsylvania State Constable when acting as constables. I? I! 40, Defendants Kelley and Preston, acting in concert, kxeachad that duty when, without any legal document from any court whatsoever, they astoundingly and I' recklessly relied solely upon the unsubstantlated oral averment of a private 6tizen to I forcibly enter the private property of other private citizens, force there to stand in restraint, allow others to rifle through their personas property and literally loot their horne I! with abandon, doing so without any list dictating to whom belonged what particMMET I' propert,,, arid then to actually seize that prnper*y i i i? lye-00- 007 03:19 FJ HENTER FEF;FFTTC AGEttiC'> 610 6-110 E1,93 P.12i1 ?I 41. Even if the Defendant Constables had initially gone onto the property with l authority, their conduct thereafter was grossly outside the bounds of their authority, as I j! they allowed Defendants Nieves and Wiley to literally ransack the Plaintiffs' home with ?i abandon, and remove such personal property as they chose without any legal I 'I document indicating what property was or was not, in fact, in the rightful passession of I the Plaintiffs. II', 42. This reckless breach of duty on the part of both Defendants Kelley and i? Preston was the actual and proxhnate cause of damages to Plaintiffs, including trespass to their land and the loss of their personal property. 1 WHEREFORE, Plaintiffs request respectfully request that this Honorable Court f i issue judgment In their favor and against Defendants, to hold Defendants Kelley and li Preston jointly and severally liable for punitive damages as the Court deems just and proper, along with the cost of suit, and such other relief as the Court deems just and equitable. I) I COUNT V - FRAUD Against Defendants Peggy L. Nieves and Bernadine M Wiley ff I I 43 . Paragraphs 1 through 42 are incorporated herein as if fully set forth, i 44. Defendant Wiley is,ued a direct falsehood to Defendant Constables in the I' form of a brazen lie regarding a non-existent oral agreement about the Plaintiffs being in ` accordance with entry onto their property and the removal of chattels therefrom. ?f 45. Defendant Nieves calculated to deceive as well, at the very least by her silence as to the truth, with full knowledge that there was no such agreement and that all four Defendants would catch Plaintiffs by complete surprise with their invasion of February 17, 2407. j 6iC x;93 F, 13 4 F H E TER PEREE`l 1 11 1e1L-30-2r r 0 l ?a PM 46. In commanding the ass}stance of Defendant Constables Kelley and Preston with the known false representation regarding the erroneous existence of an 11 oral agreement with the Plaintiffs, Defendants Nieves and Wiley calculated and intended to deceive Defendants Kelley and Preston, thus causing them to enter the Plaintiffs' property and otherwise conduct constabulary duties which they actually had no right to perform. I? I? 47. Defendants Kelley an id Preston relied on the outright lie told to them by Defendants Nieves and Wiley, and in their capacity as Pennsylvania State Constables, aided and abetted Defendants Nieves and Wiley in trespassing on Plaintiffs' property and in the theft of Plaintiffs' personal property. it ?i 48. The resulting harm suffered by Plaintiffs was proximately caused by the i( Constables' reliance on the fraud perpetuated by Defendants Nieves and Wiley, with it trespass to their private property and the theft of their personal belongings. l 1 WHEREFORE, Plaintiffs respectfus4 y request that this Honorable Court issue judgment in their favor and against Defendants, to ho;d Defendants Nieves and Wiley jointly and severally liable for damages, along with the cost of suit, and such other relief li as the Court deems just and equitable, J j; Respectfully Submitted, TURO LAW OFFICES I? Date 9a es W Ro nson Esquire i Z Scwth Pitt treet Carlisle, PA 17013 I (717)245-9688 I Attorney for Plaintiffs p 1 411 J11L-31 0-20',1 I? 20 Pit CHES HER ?En;FETT0 ACE11C'Y 61'J 6-10 5193: VERIFICATION ;i ?I I I I verify that the statements made in ;he foregoing Complaint are true and correct. understand that false statements herein are made subject to the penalties of la i, Pa,C.S. §4904 relating to unsworn falsification to authorities. I (I it I I 1 Date ?I I; ii Date David Wiley Plaintiff Robin iley Plaintiff LAW OFFICES IRWIN & McKNI GHT WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET ROGER B. IRWIN CARLISLE, PENNSYLVANIA 17013-3222 MARCUS A. McKNIGHT. I11 DOUGLAS G. MILLER (717) 249-2353 MATTHEW A. McKNIGHT FAX (717) 249-6354 W W W.IMHLAW. COM July 27, 2007 JAMES M. ROBINSON, ESQUIRE TURD LAW OFFICES 28 SOUTH PITT STREET CARLISLE, PA 17013 RE: DAVID WILEY AND ROBIN WILEY v. PEGGY L. NIEVES, BERNADINE M. WILEY, KEVIN M. KELLY and KEVIN W. PRESTON 07-3670 Dear Mr. Robinson: HAROLD S. IRWIN (1925-1977) HAROLD S. IRWIN, JR. (1954-1986) IRWIN. IRWIN & IRWIN (1956-1986) IRWIN, IRWIN & McKNIGHT (1986-1994) IRWIN, McKNIGHT & HUGHES (1994-2003) IRWIN & MCKNIGHT (2003- ) FILE COPY Please be advised that I met with my client, Constable Kevin W. Preston, and was ready to file an Answer with Counterclaim and New Matter. I noticed that in your count for Trespass to Land you placed a claim for punitive damages. Punitive damages in this case are not appropriate and my client does not have insurance coverage for punitive damages. You need to agree to remove Paragraph 29 and modify the request for punitive damages at the end of Count I - Trespass to Land. If you do not agree to do so, I will file Preliminary Objections to the punitive damages claim. As I indicated to you in my telephone conversation, Constable Preston enjoys governmental immunity from suit in carrying out his duties as a state constable. Enclosed please find a copy of a Federal Court decision from the Eastern District of Pennsylvania, Jennifer Wacker Martin and Anneliese I. Wacker v. Tyrone Comunale and John Doe, which discusses the immunity provided to constables in pursuit of their duties. Please review this and let me know if you are willing to dismiss this claim against my client, Constable Kevin W. Preston. Very truly yours, MAM:sls Enclosures cc: Kevin W. Preston, Constable IRWIN C Marcu AEsquire i , Dennis P. Cullen Jr. Dennis J. Bonetti * Lewis L. Wolfgang Jason K. Burns - Mark R. Zogby Paul A. Cacciamani - Stephen R. Harris Adam L. Seiferth David H. Radcliff Of Counsel Also admitted in NJ $ Also admitted in D.C. & NJ * Board Certified Civil Trial Advocate Writers E-mail: aseiferth <c-wlaw.coin VIA FACSIMILE - 717-245-2165 AND REGULAR MAIL James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 A PROFESSIONAL CORPORATION ATTORNEYS AT LAW Suite 201 1011 Mumma Road Lemoyne. Pennsylvania 17043-1145 Telephone (717) 975-9600 Fax: (717) 975-3846 www.C-WLAW.com Pittsburgh Office: 650 Washington Road, Suite 700 Pittsburgh, PA 15228 Telephone (412) 563-2500 Philadelphia Office: 482 Norristown Road, Suite l 11 Blue Bell, PA 19422-2352 Telephone (610) 567-07(X) Scranton Office: 409 Lackawanna Avenue, Suite 210 Scranton, PA 18503-2059 Telephone (570) 347-0600 Marlton Office: 10000 Lincoln Drive East, Suite 201 Marlton. NJ 08053-0725 Telephone (856) 761-0725 August 8, 2007 RE: David Wiley and Robin Wiley v. Petty L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston Claim No.: 127794 Our File No.: 1053-18866H Dear Mr. Robinson: This letter confirms our conversations of August 7, 2007. At that time, you confirmed that you were not agreeable to striking the punitive damages claim against my client, Kevin Preston, as previously requested by Attorney McKnight. You also confirmed that you were agreeable to allowing a reasonable extension of time to file a responsive pleading to the Complaint. I appreciate your professional courtesy in this regard. Should you have any questions or concerns, or I am incorrect in anything set forth above, please do not hesitate to contact me. Very truly yours, Adam L. Seiferth CIPRIANI & WERNER ALS/ekh cc: Marcus A. McKnight, III, Esquire V w , d CERTIFICATE OF SERVICE That counsel for the Defendants, Kevin W. Preston and Kevin M. Kelley, hereby certifies that a true and correct copy of its PRELIMINARY OBJECTIONS OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFFS' COMPLAINT has been served on all counsel of record, by first class mail, postage re-paid, according to the Pennsylvania Rules of Civil Procedure, on the ---15-- day of , v , 2007. James M. Robinson, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Attorney for the Plaintiffs Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant, Kevin Preston Peggy L. Nieves 109 North Baltimore Street Mount Holly Springs, PA 17065 Bernadine M. Wiley 109 North Baltimore Street Mount Holly Springs, PA 17065 BY: Respectfully submitted, CIPRIANI & WERNER, P.C. DENNIS J. BONETTi, E QU WE— ADAM L. SEIFERTH, E QU E Counsel for the Defendan Kevin W. Preston and Kevin M. Kelley j __ .? i v- 'Tv `C1 gt??-- ,, wa . ? , CPS •.`:'4 ,: i t1 Yom, „?..? _ ;?J DAVD WILEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, BERNADINE WILEY, KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3670 - CIVIL TERM CIVIL DIVISION - LAW PETITION TO OPEN DEFAULT JUDGMENT PER Pa.RCiy.P. 237.3 AND now, comes Defendant's Peggy Nieves and Bernadine Wiley, by and through their counsel, Karl E. Rominger, Esquire, in respect for Petition of this Court to open a default judgment upon praecipe of Plaintiffs, David and Robin Wiley, and avers as follows: I. Plaintiffs commenced this action on June 28, 2007, by Complaint in order to recover for alleged wrongs perpetrated by Defendants herein and others. A Copy of Plaintiffs Complaint is attached as Exhibit "A". 2. On or about July 26, 2007, the Complaint and Notice to Defend was served upon Defendants. 3. A Praecipe to Enter Default Judgment was filed on August 8, 2007, and subsequent thereto served upon answering Defendants. 4. Upon learning of the entry of default judgment, answering Defendants promptly notified undersigned attorney to take steps to open a default judgment and this Petition to Open has been promptly filed. 5. This request is within ten days of Defendants receipt of notice of entry of the Default Judgment, the tenth day being a Saturday, and this matter having been filed on the Monday the Courthouse opened thereafter. 6. Defendants possessing meritorious defenses to Plaintiffs Complaint for reasons that are more fully set forth in Defendants proposed Answer and New Matter to Plaintiffs Complaint attached as Exhibit "B". 7. Pursuant to case of Attix et al v. Lehman 925 A.2d 864 (2007), the default judgment should be removed attached as Exhibit "C". WHEREFORE, Defendants respectfully request that this Court open the Default Judgment entered by Plaintiffs in the above captioned matter and permit the Defendants to plead to the complaint within twenty (20) days thereafter. Respectfully Submitted, Rominger & Associates Date: August 20, 2007 arl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants Nieves and Wiley DAVD WILEY and ROBIN WILEY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3670 - CIVIL TERM V. PEGGY L. NIEVES, BERNADINE : WILEY, KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants CIVIL DIVISION - LAW VERIFICATION I verify that I am a Defendant and that the statements made in the foregoing Petition to Open Default Judgment are true and correct. 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: 20 Z(DQ-1 J e-f C4 Peggy L. ieves, Defendant David WILEY and Robin WILEY, - P4ainfiffs - V. : Peggy L. NIEVES Defendant V. Bernadine M. WILEY Defendant V. Kevin M. KELLEY, Defendant V. Kevin W. PRESTON, Defendant IN THE COURT__OECOMMON PLEAS -- - - -C.U*MBERLAND COUNTY, PENNSYLVANIA No. 07 - 30'70 CIVIL TERM CIVIL DIVISION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of 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. TRUE OP'Y FROM RECORD Cumberland County Bar Association i Testimony ; h- canto set my hand 32 Bedford Street id the seal sal:) al Carlisle, Pa. Carlisle, PA 17013 ,ij ......lg:!?.?I. day of.,..Jbpa........ ' `Oc>l (717) 249-3166 xW bj? tA,, David WILEY and Robin WILEY -Plaintiffs v_ Peggy L. NIEVES Defendant V. Bernadine M. WILEY Defendant V. Kevin M. KELLEY, Defendant v. ii Kevin W. PRESTON, Defendant ii is i IN THE COURT-OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA No. 07 - CIVIL TERM CIVIL DIVISION - LAW COMPLAINT AND NOW come Plaintiffs, David and Robin Wiley, by and through their i attorneys, Turo Law Offices, and represent as follows: 1. Plaintiffs, David Wiley and Robin Wiley, are husband and wife, and reside at 398 Centerville Road, Newville, PA 17241. 2. Defendant Peggy L. Nieves is an adult individual and sister of Plaintiff I David Wiley, and resides at 109 North Baltimore Street, Mount Holly Springs, Cumberland County, PA 17065. 3. Defendant Bernadine M. Wiley is an adult individual and sister of Plaintiff David Wiley, and her current residence is believed to be with Defendant Peggy L. i; i i 17065. 4. Defendant Kevin M. Kelley is a Pennsylvania State Constable. 5. Defendant Kevin W. Preston is a Pennsylvania State Constable and Chief Constable of Dickinson Township, Cumberland County, Pennsylvania. i 6. Plaintiffs, at the time complained of, were tenants of their father, Harold F. Wiley, and residents of property located at 2258 Pine Road, Newville, PA 17241, in Penn Township, Cumberland County. 7. In a letter dated February 15, 2007, Harold F. Wiley informed Plaintiffs through his attorney of his desire that Plaintiffs vacate the property, as he wished to put it up for sale. 8. Plaintiffs were in the process of peaceably relocating from the property i within a lawful timeframe when Defendants Nieves and Wiley began systematic and malevolent acts of interference with Plaintiffs' performance of their removal. 9. On February 17, 2007, Defendants Nieves and Wiley entered Plaintiffs' residential property along with Defendants Kelley and Preston. ?I !I 10. Plaintiffs retained a tenant's right of possession of the property as of that date, it being a mere two days since the date of the letter by which they were first informed of Harold F. Wiley's intentions. 11. Plaintiffs did not give their willful consent to Defendants' entry onto the ,i property. Nieves at 100 North Baltimore Street, Mount Holly Springs, Cumberland County, PA 12, Defendant Constables Kelley and Preston were issued no orders from any authority by which they had any dght_to enter Plaintiff's-property and-residence-, or to seize any personal property, nor were there any such legal documents in existence. 13. Defendants Wiley and Nieves communicated a brazen lie to Defendants Kelley and Preston in informing them, erroneously, that the Plaintiffs had an oral agreement regarding entry onto Plaintiffs' property and the removal of Harold Wiley's personal property. I 14. Plaintiffs had, in fact, made no such agreement, and, as Defendants ii Nieves and Wiley expected, Plaintiffs were caught completely by surprise when all four Defendants invaded their home, ransacked it and absconded with their personal property. 15. Defendants Kelley and Preston forced the Plaintiffs to stand aside in, detainment to allow Defendants Nieves and Wiley to literally ransack Plaintiffs' home and personal property, emptying drawers, cabinets, dressers and the like, actually throwing Plaintiff's belongings to the floor as they did so. 16. Ultimately, with the aid of Defendants Kelley and Preston, Defendants Nieves and Wiley absconded with a plethora of personal property, the rightful ownership and possession of which is vested in Plaintiffs and no others. 17. Defendants Kelley and Preston, furthermore, while informing Plaintiffs that j guns were not allowed in the home while the Constables were present there, removed from the property numerous firearms which belonged variously to both Harold Wiley and also Plaintiffs, and placed them in Defendant Constables' vehicle. Defendant Constables then drove away with all of the guns and subsequently relinquished them to the possession of Defendant Nieves. 18. Defendants Kelley and Preston, astoundingly, relied solely upon the unsubstantiated oral averment-of-a-pr--iv-ate-citizen to forcibly enter the private property of other private citizens, force them to stand in restraint, allow others to rifle through their personal property and literally loot their home with abandon, doing so without any list (legal or otherwise) dictating to whom belonged what particular property, and then to actually seize that property. 19. Defendants Kelley and Preston were issued no orders from any valid legal authority by which they had any right to invade Plaintiffs' privacy and inspect and seize Plaintiffs' property; without authority they allowed themselves to be relegated to the status of little more than hired muscle to do the bidding of Defendants Nieves and 'i Wiley. Ij 20. On February 25, 2007, Defendants Nieves and Wiley returned again, this time without Defendants Kelley and Preston, and invaded Plaintiffs' property without 11 willful consent and pilfering Plaintiffs' belongings. 21. At the incursion on February 25, 2007, Defendants Nieves and Wiley also changed the locks on Plaintiffs' home. ?I j 22. No formal order of eviction was ever issued as of that date nor has one ! since issued; no court order been issued, nor even one single legal document from any court indicating that any legal action was to occur involving Plaintiffs' home or the personal property located therein. COUNT I - TRESPASS TO LAND Against All Defendants ?i !i 23. Paragraphs 1 through 22 are incorporated herein as if fully set forth. 24, Plaintiffs, on both February 17 and February 25, were the lawful occupantsofith6 property which was their private residence at 2258 Pine Road, Newville, PA 17241. 25. Defendants Nieves, Wiley, Kelley and Preston, all with intent to do so, physically invaded Plaintiffs' property on February 17, 2007, and Defendants Nieves and Wiley, with intent to do so, physically invaded Plaintiffs' property on February 25 2007. 26. Plaintiff did not give willful consent to the entrance onto the property of any of the four Defendants on either occasion. 27. The conduct in encroachment onto Plaintiffs' property by Defendants Nieves and Wiley was outrageous, in that Defendants Nieves and Wiley invaded Plaintiffs' home under the false pretense of authority, with the erroneous assistance of law enforcement officers who, in concert, forced their way onto Plaintiffs' property. 28_ The conduct in encroachment onto Plaintiffs' property by Defendants Kelley and Preston was outrageous, in that, under the auspices of a grossly reckless adherence to the unsubstantiated averment of a false and, moreover, non-authoritative oral agreement between private citizens, they aided Defendants Nieves and Wiley in forcing their way onto Plaintiffs' property. 29. Such outrageous conduct warrants a judgment of punitive damages 30. Plaintiffs also suffered monetary loss as a result of Defendants' trespass to land, insofar as the forceful invasion afforded Defendants Nieves and Wiley the opportunity to thieve Plaintiffs' personal property. I 31, Defendants Kelley and Preston, despite their identity as Pennsylvania State Constables, by their patent abuse of authority, stand before the Court bearing the same liability for their illegal acts as if they were actors without the pretense of authority. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against all Defendants, to hold all Defendants jointly and ''. severally liable for punitive damages as the Court deems just and proper, along with such compensatory damages for stolen person property, and along with the cost of suit and such other relief as the Court deems just and equitable. I COUNT If - CONVERSION Against Defendants Peggy L. Nieves and Bernadine M. Wiley i 32. Paragraphs 1 through 31 are included herein as if fully set forth. 33. Defendants Nieves and Wiley, with intent to do so and regardless of their j fraudulent acquisition and abuse of Constabulary power, wrongfully acquired, in the manner of theft, a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in Plaintiffs. This property includes: a. Plaintiff Robin Wiley's engagement ring b. Diamond accent bracelet ? c. Pfaltzgraff dishes d. 300 feet of wood flooring e. 12' x 18' piece of carpet f. Vinyl flooring g. Carpeting tools h. Tile tools (including a tile cutter) i. All of Plaintiff David alley's Craftsman tools (exceedingly numerous) j. Belt sander k. Two palm sanders 1. Router M. Bow and arrow n. Two black powder guns o. Pancake air compressor p. Miscellaneous tools that were hanging in the garage q. Food that was in the refrigerator and the pantry r. Kitchen Aide mixer s. Miscellaneous Tonka toys t. Propane heater U. Various firearms v. 25 boxes of Newville Little League baseball first aid supplies and totes, which were in the lawful possession of Plaintiffs, who are committee members of said league j 34. Defendants continue to wrongfully possess Plaintiffs' personal property, i which they have held for four months, and have given no indication that they intend any I result but to permanently retain Plaintiffs' possessions. '! WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue ;I judgment in their favor and against Defendants Nieves and Wiley, in replevin of the Ij personal property, or, if necessary, to pay the fair market value of the converted personal property, along with the cost of suit, and such other relief as the Court deems just and equitable. i COUNT III - TRESPASS TO CHATTELS Against Defendants Peggy L. Nieves and Bernadine M. Wiley 35. Paragraphs 1 through 34 are incorporated herein as if fully set forth. I? 'I it i 36. Defendants Nieves and Wiley, with intent to do so and regardless of their fraudulent acquisition and abuse of Constabulary power, wrongfully interfered with the right to possession of a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in Plaintiffs. This property includes the that listed in Paragraph 33, a - v. 37. Defendants' intentional interference with Plaintiffs' right to possession of the personal property at issue has caused a loss of Plaintiffs' possessory right in said property. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, a judgment for damages from harm to property, if any, and/or the fair rental value of the property once returned, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT IV - NEGLIGENCE Against Defendants Kevin M. Kelley and Kevin W. Preston 38. Paragraphs 1 through 37 are incorporated herein as if fully set forth 39. Defendants Kelley and Preston owe to Plaintiffs a duty of care akin to the professional standard of a Pennsylvania State Constable when acting as constables. 40. Defendants Kelley and Preston, acting in concert, breached that duty ?l I when, without any legal document from any court whatsoever, they astoundingly and recklessly relied solely upon the unsubstantiated oral averment of a private citizen to 1 forcibly enter the private property of other private citizens, force them to stand in restraint, allow others to rifle through their personal property and literally loot their home with abandon, doing so without any list dictating to whom belonged what particular j property, and then to actually seize that property. I. , I? I I, 41. Even if the Defendant Constables had initially gone onto the property with authority, their conduct thereafter was grossly outside the bounds of their authority, as they allowed Defendants Nieves and Wiley to literally ransack the Plaintiffs' home with abandon, and remove such personal property as they chose without any legal document indicating what property was or was not, in fact, in the rightful possession of the Plaintiffs. 42. This reckless breach of duty on the part of both Defendants Kelley and Preston was the actual and proximate cause of damages to Plaintiffs, including trespass to their land and the loss of their personal property. WHEREFORE, Plaintiffs request respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Kelley and Preston jointly and severally liable for punitive damages as the Court deems just and proper, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT V - FRAUD Against Defendants Peggy L. Nieves and Bernadine M. Wiley 43. Paragraphs 1 through 42 are incorporated herein as if fully set forth. 44. Defendant Wiley issued a direct falsehood to Defendant Constables in the form of a brazen lie regarding a non-existent oral agreement about the Plaintiffs being in accordance with entry onto their property and the removal of chattels therefrom. 45. Defendant Nieves calculated to deceive as well, at the very least by her silence as to the truth, with full knowledge that there was no such agreement and that all four Defendants would catch Plaintiffs by complete surprise with their invasion of February 17, 2007. 46. In commanding the assistance of Defendant Constables Kelley and Preston with the known false representation regarding the erroneous existence of an oral agreement with the Plaintiffs, Defendants Nieves and Wiley calculated and intended to deceive Defendants Kelley and Preston, thus causing them to enter the Plaintiffs' property and otherwise conduct constabulary duties which they actually had no right to perform. 47. Defendants Kelley and Preston relied on the outright lie told to them by Defendants Nieves and Wiley, and in their capacity as Pennsylvania State Constables, aided and abetted Defendants Nieves and Wiley in trespassing on Plaintiffs' property and in the theft of Plaintiffs' personal property. 48. The resulting harm suffered by Plaintiffs was proximately caused by the Constables' reliance on the fraud perpetuated by Defendants Nieves and Wiley, with trespass to their private property and the theft of their personal belongings. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Nieves and Wiley jointly and severally liable for damages, along with the cost of suit, and such other relief as the Court deems just and equitable. Respectfully Submitted, TURO LAW OFFICES Ja es M. Ro nson, Esquire Z South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date c ? r Date David Wiley Plaintiff Robin Wiley Plaintiff DAVD WILEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, BERNADINE WILEY, KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3670 - CIVIL, TERM CIVIL DIVISION - LAW ANSWER TO COMPLAINT AND NEW MATTER AND now, comes Peggy Nieves and Bernadine Wiley, by and through their counsel Karl E. Rominger, Esquire in support of their Answer to Complaint and New Rutter, and avers as follows: 1. Admitted. 2. Admitted. 3. Denied. Strict proof of the same is demanded at trial 4. Admitted. 5. Admitted. 6. Denied. Strict proof of the same is demanded at trial. 7. Admitted. 8. Denied. Strict proof of the same is demanded at trial. 9. Admitted in part and denied in part. It is admitted that and entry was made it is denied that it was plaintiffs residential property. Strict proof of the same is demanded at trial. 10. Conclusion of Law and requires no answer. By way of further answer should an answer be deemed required it is denied and strict proof of the same is demanded at trial. CXW4Lr?„g,, 11. Conclusion of Law and requires no answer. By way of further answer should an answer be deemed required it is denied and strict proof of the same is demanded at trial. 12. Denied. Strict proof of the same is demanded at trial. 13. Denied. Strict proof of the same is demanded at trial. 14. Denied. Strict proof of the same is demanded at trial. 15. Denied. Strict proof of the same is demanded at trial. 16. Denied. Strict proof of the same is demanded at trial. 17. Denied. Strict proof of the same is demanded at trial. 18. Denied. Strict proof of the same is demanded at trial. 19. Denied. Strict proof of the same is demanded at trial. 20. Denied. Strict proof of the same is demanded at trial. 21. Denied. Strict proof of the same is demanded at trial. 22. Denied. Strict proof of the same is demanded at trial. By way of further answer none was required. COUNT I - TRESPASS TO LAND 23. No answer required. 24. Denied. Strict proof of the same is demanded at trial. 25. Denied. Strict proof of the same is demanded at trial. 26. Denied. Strict proof of the same is demanded at trial. 27. Denied. Strict proof of the same is demanded at trial. 28. Denied. Strict proof of the same is demanded at trial. 29. Conclusion of Law and requires no answer. By way of further answer should an answer be deemed required it is denied and strict proof of the same is demanded at trial. 30. Denied. Strict proof of the same is demanded at trial. 31. Conclusion of Law and requires no answer. By way of further answer should an answer be deemed required it is denied and strict proof of the same is demanded at trial. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor. COUNT U - CONVERSION 32. No answer required. 33. Denied. Strict proof of the same is demanded at trial. 34. Denied. Strict proof of the same is demanded at trial. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor. COUNT III - TRESPASS TO CHATTELS 35. No answer required. 36. Denied. Strict proof of the same is demanded at trial. 37. Denied. Strict proof of the same is demanded at trial. 38. These paragraphs do not apply to answering Defendants. Insomuch as they are deemed to apply to answering Defendants they are denied and strict proof of the same is demanded at trial. COUNT IV - NEGLIGENCE 39. These paragraphs do not apply to answering Defendants. Insomuch as they are deemed to apply to answering Defendants they are denied and strict proof of the same is demanded at trial. 40. These paragraphs do not apply to answering Defendants. Insomuch as they are deemed to apply to answering Defendants they are denied and strict proof of the same is demanded at trial. 41. These paragraphs do not apply to answering Defendants. Insomuch as they are deemed to apply to answering Defendants they are denied and strict proof of the same is demanded at trial. 42. These paragraphs do not apply to answering Defendants. Insomuch as they are deemed to apply to answering Defendants they are denied and strict proof of the same is demanded at trial. WHERFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor. COUNT V - FRAUD 43. Requires no answer. 44. Denied. Strict proof of the same is demanded at trial. 45. Denied. Strict proof of the same is demanded at trial. 46. Denied. Strict proof of the same is demanded at trial. 47. Denied. Strict proof of the same is demanded at trial. 48. Denied. Strict proof of the same is demanded at trial. WHERFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor. NEW MATTER 49. Plaintiffs acted in bad faith at all times. 50. At all times Defendants acted in good faith in conjunction with the constables to retrieve property of their Father which was being unlawfully held. 51. At no time did answering Defendants take any property belonging to Plaintiffs or to which Plaintiffs were entitled. 52. Plaintiffs were trespassers and as such were not privileged to be on the premise. 53. At the time of the alleged incident Plaintiffs had all ready vacated the premise and established a new address. 54. At all times relevant Plaintiffs were engaging in a series of fraudulent behaviors designed to bilk their elderly Father of money. 55. At all times relevant Plaintiffs were holding their Father in conditions of squalor such that the County of Department of Aging had to have him physically removed for his own safety. 56. At all times the premise in question was the home of Defendant's and Plaintiff's Father. 57. Plaintiffs had damaged the house of their Father in such a matter as to decrease its value. 58. At all times Defendants were acting lawfully and/or with lawful privilege. 59. Plaintiffs refer to a series of "blatant lies" none of which is true, and in fact at all times relevant, Plaintiffs had agreed that their Fathers property could be removed and that they would cooperate. 60. At all times Defendants relied upon the expertise and knowledge of the constables in maintaining a legal and proper removal of their Father's property from their Father's premise. 61. This suit is barred by the doctrine of lies pendens. 62. Any damage which occurred to Plaintiffs property was solely the cause of Plaintiffs themselves at dates and times unknown by the Defendants. WHEREFORE, Defendants demand judgment in their favor and against Plaintiffs. Respectfully Submitted, Rominger & Associates Date: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants Nieves and Wiley Page 1 4 of 16 DOCUMENTS JEFFREY EDWARD ATTIX AND GAIL GREENSPON AND ROSS ATTIX, H/W, Appellees v. PATRICIA LEHMAN, Appellant No. 2517 EDA 2006 SUPERIOR COURT OF PENNSYLVANIA 2007 PA Super 153; 925 A. 2d 864; 2007 Pa. Super. LEXIS 1542 March 6, 2007, Argued May 30, 2007, Filed PRIOR HISTORY: [»*1] Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, No. 2967 July Term, 2005. Before DYCH, J. Affix v. Lehman, 2006 Phila. Cr Com Pl. LEXIS 390 (2006) COUNSEL: Michael E. Ellery, Philadelphia, for appellant. Attix, who was tiding his bicycle. Jeffrey suffered a broken ankle and other injuries. Plaintiffs initiated this action via writ of summons; the complaint [**2] was filed on October 27, 2005. On April 17, 2006, plaintiffs sent notice to defendant, pursuant to Pa.R.C.P. 237.1, that they would seek a default judgment if she did not file an answer within ten days. On June 27, 2006, plaintiffs filed a praecipe for default judgment. On July 6, 2006, defendant filed a petition to open the default, which was denied. Richard A. Kessler, Philadelphia, for appellees. JUDGES: BEFORE LALLY-GREEN, KLEIN and TAMILIA, JJ. OPINION BY KLEIN, J. OPINION BY: KLEIN OPINION OPINION BY KLEIN, J.: [*P1j Defendant Patricia Lehman appeals from the order denying her petition to open a default judgment in favor of plaintiffs Jeffrey Edward Attix and his parents, Gail Greenspon and Ross Attix. We reverse and remand for further proceedings. I 1 In reviewing an order denying a petition to open a default judgment, we must determine whether the trial court committed an error of law or clear abuse of discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A. 2d 698, 700 (Pa. 1973). [*P2] This appeal stems from an accident in which a car operated by Lehman struck then-17-year-old Jeffrey [*P3] Essentially, this case turns on the interpretation and application of Pa.R.C.P. 237.3(b), which provides that if a petition for relief from a default is filed within 10 days after the entry of judgment on the docket, "the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense." Under prior practice, which was defined by common law, in addition to promptly filing a petition to open and showing a meritorious defense, the petitioner was also required to show a reasonable excuse for the late filing or non-filing. 2 Here, defendant does not attempt to explain her failure to timely answer the complaint. 2 See, e.g., Cintas Corp. Y. Lee's Cleaning Servs., 549 Pa. 84, 700 A. 2d 915, 919 (Pa. 1997); Alba Y. Urology Assocs., 409 Pa. Super. 406, 598 A.2d 57, 58 (Pa. Super. 1991); Liquid Carbonic Corp. v . Cooper & Reese, Inc., 272 Pa. Super. 462, 416 A. 2d 549, 551 (Pa. Super. 1979). [**3] [*P4] The question then becomes whether Pa.R.C.P. 237.3(b) eliminates the traditional, common law requirement that the petitioner must show that the failure to file was reasonably excusable. We hold that a fair reading of the rule does eliminate that requirement, if ?Xh1?01? uC?? Page 1 4 of 16 DOCUMENTS JEFFREY EDWARD ATTIX AND GAIL GREENSPON AND ROSS ATTIX, H/W, Appellees v. PATRICIA LEHMAN, Appellant No. 2517 EDA 2006 SUPERIOR COURT OF PENNSYLVANIA 2007 PA Super 153; 925 A. 2d 864; 2007 Pa. Super. LEXIS 1542 March 6, 2007, Argued May 30, 2007, Filed PRIOR HISTORY: [**I] Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, No. 2967 July Term, 2005. Before DYCH, J. Attix v. Lehman, 2006 Phila. Ct. Corn. Pl. LEXIS 390 (2006) COUNSEL: Michael E. Ellery, Philadelphia, for appellant. Attix, who was riding his bicycle. Jeffrey suffered a broken ankle and other injuries. Plaintiffs initiated this action via wilt of summons; the complaint [*"2] was filed on October 27, 2005. On April 17, 2006, plaintiffs sent notice to defendant, pursuant to Pa.R.C.P. 237.1, that they would seek a default judgment if she did not file an answer within ten days. On June 27, 2006, plaintiffs filed a praecipe for default judgment. On July 6, 2006, defendant filed a petition to open the default, which was denied. Richard A. Kessler, Philadelphia, for appellees. JUDGES: BEFORE LALLY-GREEN, KLEIN and TAMILIA, JJ. OPINION BY KLEIN, J. OPINION BY: KLEIN OPINION OPINION BY KLEIN, J.: [*PL] Defendant Patricia Lehman appeals from the order denying her petition to open a default judgment in favor of plaintiffs Jeffrey Edward Attix and his parents, Gail Greenspon and Ross Attix. We reverse and remand for further proceedings. t 1 In reviewing an order denying a petition to open a default judgment, we must determine whether the trial court committed an error of law or clear abuse of discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698, 700 (Pa. 1973). [*P2] This appeal stems from an accident in which a car operated by Lehman struck then-l7-year-old Jeffrey [*P3] Essentially, this case turns on the interpretation and application of Pa.R.C.P. 237.3(b), which provides that if a petition for relief from a default is filed within 10 days after the entry of judgment on the docket, "the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense." Under prior practice, which was defined by common law, in addition to promptly filing a petition to open and showing a meritorious defense, the petitioner was also required to show a reasonable excuse for the late filing or non-filing. z Here, defendant does not attempt to explain her failure to timely answer the complaint. 2 See, e.g., Cintas Corp. v. Lee's Cleaning Servs., 549 Pa. 84, 700 A. 2d 915, 919 (Pa. 1997); Alba v. Urology Assocs., 409 Pa. Super. 406, 598 A.2d 57, 58 (Pa. Super. 1991); Liquid Carbonic Corp. v . Cooper & Reese, Inc.. 272 Pa. Super. 462, 416 A. 2d 549, 551 (Pa. Super. 1979). [**3] [*P4] The question then becomes whether Pa.R.C.P. 237.3(b) eliminates the traditional, common law requirement that the petitioner must show that the failure to file was reasonably excusable. We hold that a fair reading of the rule does eliminate that requirement, if 2007 PA Super 153, *P4; 925 A.2d 864; 2007 Pa. Super. LEXIS 1542, **3 the petition to open is filed within 10 days and states a meritorious cause of action or defense. [*P5] The issue on appeal is whether the plain language of Rule 237.3(b) eliminates the common law requirement that the petitioner must show that the failure to file a complaint or answer was reasonably excusable. The rule reads as follows: Rule 237.3 Relief from Judgment of Non Pros or by Default (a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237.1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file. (b) If the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense. There is no mention in Rule 237.3(b) ("4] of the common law requirement that there must be an excuse for the failure to file a timely answer. ['"P6] Our interpretation of Rule 237.3(b) begins with a review of the non-binding explanatory notes accompanying the rule. See Pa.R.C.P. 129(e) ("A note to a rule or an explanatory comment is not a pact of the rule but may be used in construing the rule.") Both the Note and Comment to Rule 237.3 support the conclusion that if a petition to open is filed within ten days of the default, the defendant does not have to show an excuse for the failure to file an answer. The Note states in relevant part: Rule 2373 does not change the law of opening judgments. Rather, the rule supplies two of the three requisites for opening such judgments by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in the entry of the judgment. The Explanatory Comment (1994) further provides: Subdivision (b) eases the burden of a party against whom judgment has been entered and who moves promptly for relief from that judgment.... . . [Y"'x5] ... Rule 237.3(b) presumes that a petition filed within the required ten-day period is both timely and with reasonable explanation or legitimate excuse for the inactivity or delay. In this context, subdivision. (b) requires that the judgment be opened if the petitioner attaches to the petition a verified complaint or answer which states a meritorious cause of action or defense. Page 2 [*P7] While not pertinent to the holding of the case, this Court in Penn-Delco School District v. Bell Atlantic-PA, Inc., 1999 PA Super 317, 745 A.2d 14, 17 (Pa. Super. 1999), noted that the purpose of Pa.R.C.P. 237.3 is "to ease the burden of parties who move promptly for relief from judgment entered by default or non pros." [*PS] There are several reasons why our rules provide relief for a party against whom a judgment was entered, even if that party was negligent in not responding to a complaint or other pleading. Default judgments are generally not favored. See Kennedy v. Black, 492 Pa. 397, 424 A.2d 1250. 1252 (Pa. 1981); Peters Twp. Sanitary Auth. v. Am. Home & Land Dev. Co., 696 A.2d 899, 902 (Pa. Cominw. 1997). [**6] There may be equitable reasons for the trial court to reach the merits of the case and decide the issues rather than dismiss it for a procedural flaw. The purpose of allowing defaults to be taken "'is to prevent a dilatory defendant from impeding the plaintiff in establishing his claim"'; it is not intended as a means for a plaintiff to quickly obtain judgment without the difficulties of litigation. Peters Twp., 696 A. 2d at 902 (citation omitted). [*P9] Moreover, the party seeking entry of non. pros or default (in most cases, the plaintiff) controls the time when the petition to open the non pros or default is filed. There is no need for the party wishing to take a non. pros or default to wait months to file a praecipe. If the plaintiff waits, then he or she should not be heard to complain that the defendant did not act promptly in seeking relief from the judgment. [*P10] Therefore, we hold that under Rule 237.3(b) 2007 PA Super 153, *P10; 925 A.2d 864; 2007 Pa. Super. LEXIS 1542, **6 , if the party against whom a default judgment is entered files a petition to open within 10 days of such entry, and he or she states meritorious defense, the trial court must open the judgment. See Stauffer Y. Hevener, 2005 PA Super 287, 881 A.2d 868, 870-71 (Pa. Super. 2005) [**7] (concluding that defendants satisfied Rule 237.3(b) requirements for opening default, where they filed petition to open within 10 days and raised meritorious defense);Kruis v. McKenna, 2001 PA Super 366, 790 A.2d 322, 326 (Pa. Super. 2001) (noting that Rule 237.3(b) excuses petitioner from establishing first two prongs of common law standard, where petition is filed within 10 days of iron pros). [*P11] We note, however, that in this case, plaintiffs assert two additional reasons why the default against defendant should not be opened. [*P12] First, plaintiffs claim that the boilerplate allegations of defendant's answer are insufficient to raise a meritorious defense. In view of the boilerplate allegations of the complaint itself, this argument is without merit. It would have been preferable for defendant to plead in more specific terms that Jeffrey Attix ran a stop sign and rode his bicycle into the intersection and that is why he was injured (which was only mentioned in defendant's motion for reconsideration filed after her petition to open was denied). However, we conclude that the broad averments of contributory negligence in defendant's answer [**81 and new matter are sufficient to plead a meritorious defense. There is no requirement that the answer attached to a petition to open be any more specific than the typical broad answer to a complaint. [*P13] Second, plaintiffs claim that the effective date of the filing of the default should be considered, and here there is a factual issue concerning when the initial default was entered on the docket. Plaintiffs claim that their initial praecipe for entry of the default judgment was filed on June 21, 2006, five days before it was docketed, but it was improperly rejected by the filing clerk for failing to include an affidavit of non-military service. Thus, plaintiffs claim, defendant's petition filed on July 6, 2006 was untimely. We disagree. [*P14] The praecipe itself, which is in the certified record, bears three separate date-stamps: one indicating that it was "presented for review" on June 21, 2006; one indicating that it was "presented for review" on June 26, 2006; and one indicating that it was "filed" on June 27, Page 3 2006. However, the only date that is relevant for determining whether the petition to open was timely filed is the date on which the judgment was entered [**9] on the docket. Rule 237.3(b) provides relief if the defendant files the petition to open within ten days "after the entry of the judgment on the docket." [*P15] Here, the docket entries show that the judgment was docketed on June 27, 2006, the praecipe was stamped "filed" on June 27, 2006, and the petition to open was filed on July 6, 2006. Thus, even if the clerk erred initially, the petition to open was still filed within the ten-day period required by the rule. 3 Therefore, this claim fails. 3 We note that defendant's petition to open, although filed on July 6, 2006, was not docketed until July 12, 2006. Despite the late docketing, however, no one disputes that the petition was filed with the Prothonotary on July 6, 2006. [*P16] Accordingly, we reverse the denial of the petition to open the default judgment and remand to the trial court with the directive to open the judgment and allow defendant to file an answer to the complaint. 4 4 We note that in this case, the distinguished trial judge never discussed or even mentioned the applicability of Rule 237.3(b). Rather than prepare a proper Pa.R.A.P. 1925(a) opinion, the trial judge merely referenced the footnote in his initial order denying the petition to open, which quoted boilerplate law and did not refer to the facts or specific issues of this case. This seems to be an increasing trend among trial judges. We recognize that trial judges are busy, particularly when dealing with a large volume of motions. It may be appropriate for a trial court to issue a short-form explanation of its decision to the parties, who are already familiar with the case. However, once an appeal is taken, the trial court should explain the facts and its ruling in more detail. In this case, the trial judge has an excellent reputation, and a more thorough analysis of the issues undoubtedly would have assisted our Court. [**10] [*P17] Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished. DAVD WHEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, BERNADINE WILEY, KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3670 - CIVIL TERM CIVIL DIVISION - LAW CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Petition to Open Default Judgment upon the following by depositing the same in the United States Mail, first class, postage prepaid, addressed as follows: James M. Robinson, Esquire 28 South Pitt Street Carlisle, Pennsylvania 17013 Respectfully Submitted, Rominger & Associates Date: August 20, 2007 Yjdf E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants Nieves and Wiley f CD _3 David WILEY and Robin WILEY, Plaintiffs v. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 Bedford Street Carlisle, PA 17013 (717) 249-3166 David WILEY and IN THE COURT OF COMMON PLEAS Robin WILEY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. NO. 07 - 3670 CIVIL TERM Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, : Defendants CIVIL DIVISION - LAW AMENDED COMPLAINT AND NOW come Plaintiffs, David and Robin Wiley, by and through their attorneys, Turo Law Offices, and represent as follows: 1. Plaintiffs, David Wiley and Robin Wiley, are husband and wife, and reside at 398 Centerville Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant Peggy L. Nieves is an adult individual and sister of Plaintiff David Wiley, and resides at 2258 Pine Road, Newville, Pennsylvania 17241. 3. Defendant Bernadine M. Wiley is an adult individual and sister of Plaintiff David Wiley, and resides in Halifax, Dauphin County, Pennsylvania. 4. Defendant Kevin M. Kelley is a Pennsylvania State Constable. 5. Defendant Kevin W. Preston is a Pennsylvania State Constable and Chief Constable of Dickinson Township, Cumberland County, Pennsylvania. 6. Plaintiffs, at the time complained of, were tenants of their father, Harold F. Wiley, and residents of property located at 2258 Pine Road, Newville, Pennsylvania 17241, in Penn Township, Cumberland County. 7. In a letter dated February 15, 2007, Harold F. Wiley informed Plaintiffs through his attorney of his desire that Plaintiffs vacate the property, as he wished to put it up for sale. (Exhibit °A", said letter, is attached and incorporated herein as if fully set forth.) 8. Plaintiffs received said letter on February 16, 2007. 9. Plaintiffs were in the process of peaceably relocating from the property within a lawful timeframe when Defendants Nieves and Wiley began systematic and malevolent acts of interference with Plaintiffs' performance of their removal. 10. On February 17, 2007, all four defendants entered the property and appeared at the door of Plaintiffs' Pine Road residence. 11. Plaintiffs retained a tenant's right of possession of the property as of February 17, it being a mere two days since the date of the letter by which they were first informed of Harold F. Wiley's intentions, and just one day following their receipt of that letter. 12. Plaintiff Robin Wiley was at that moment home alone with her three children. 13. Plaintiff Robin Wiley did not immediately allow the Defendants into her home. 14. Defendant Preston stated to Plaintiff Robin Wiley that Defendant Wiley had a power of attorney over Harold Wiley, and that, "We have a court order," to enter and retrieve the personal belongings of Harold Wiley. 15. Defendant Preston warned Plaintiff Robin Wiley, "Let them [Defendant Nieves and Defendant Wiley] do what they want to do so they can get out of your way." 16. When Plaintiff Robin Wiley asked to see the court order, Defendant Preston said that the Defendants would show it to her when they left. 17. It is averred that Plaintiff Robin Wiley would never have allowed Defendants Nieves and Wiley into her home if they had appeared alone, demanding to search Plaintiffs' home and belongings and remove property, particularly absent any presentation of an actual court order. 18. It is averred that Plaintiff Robin Wiley would have called the police had the event commenced akin to the scenario described in paragraph 17. 19. Plaintiff Robin Wiley would have called the police owing to the belligerent and hostile manner in which Defendants Nieves and Wiley have historically treated Plaintiffs, and because of her awareness of the criminal history of Defendant Nieves, involving theft-related charges. 20. Plaintiff Robin Wiley, under the false impression given by Defendant Preston that a court order existed, and that Defendant constables Preston and Kelly were at her home to enforce that court order, and particularly because of the compelling directives of Defendant constables, in whom she placed her trust as law enforcement officials, did not call the police and instead permitted the Defendants to enter her home. 21. Plaintiff Robin Wiley did not give her willful, informed consent to the entry of any of the Defendants' into her home. 22. Plaintiff Robin Wiley did not give her willful, informed consent to the search and seizure of her personal property by any of the four Defendants. 23. Defendant Nieves went first to Harold Wiley's room while Defendant Wiley went first to the kitchen cupboards. 24. Defendants Nieves and Wiley proceeded thereafter to literally ransack Plaintiffs' personal property and their entire home, emptying drawers, cabinets, dressers and the like, and actually throwing Plaintiff's belongings to the floor in the process. 25. Plaintiff Robin Wiley was sequestered in the living room and monitored by Defendant Kelley while Defendants Nieves and Wiley looted the rest of the house. 26. Defendant Kelley directed Plaintiff Robin Wiley not to get involved with events or "It will look bad for you." 27. Plaintiff Robin Wiley wept throughout her detainment in the living room at the shock and dismay of what was occurring in her home. 28. At one point, when Defendant Kelley went outside, Plaintiff Robin Wiley left her place of detainment and found Defendants Wiley and Nieves alone searching through her bedroom dresser drawers. 29. Plaintiff Robin Wiley pleaded with Defendant Preston to make Defendant Wiley stop; Defendant Preston complied but Defendants Wiley and Nieves were already finished, and Defendant Wiley walked away stating, "We already got what we needed." 30. Defendant Preston made no effort to stop Defendants Wiley and Nieves and ascertain what item or items they had procured from Plaintiff Robin Wiley's bedroom dresser drawers while in the Plaintiffs' home under the auspices of obtaining the property of Harold F. Wiley. 31. Despite their sole purported reasoning for their entry of acquiring Harold F. Wiley's property, Defendant Wiley also proceeded to take photographs throughout Plaintiffs' private residence. 32. Defendants Wiley and Nieves were alone and unsupervised during the majority of their search and removal of items in the Plaintiffs' home. 33. Plaintiff David Wiley arrived at the home mid-way through this episode and pulled his vehicle into the driveway. 34. Defendant Kelley approached Plaintiff David Wiley and stated, "Stay out of the house." 35. Defendant Kelley told Plaintiff David Wiley, "We have a court order to take certain items." 36. Plaintiff David Wiley asked to see the court order under which the Defendants had entered the property and were now searching and removing personal property from Plaintiffs' private residence. 37. Defendant Kelley responded that he would not show them the court order immediately, but, "You'll get a copy before we leave." 38. Plaintiff David Wiley later asked again to see the purported court order, and received the same response from both Defendant constables. 39. No court order was ever revealed to the Plaintiffs before the Defendants departed with a plethora of Plaintiffs' personal property, because no such court order ever existed. 40. Plaintiff David Wiley, under the false impression given by Defendants Preston and Kelley that the Defendants had entered the property pursuant to an existing court order with the assistance of law enforcement officers, believed that he was therefore helpless to stop the search and seizure of his property or to force the Defendants from his home. 41. Plaintiff David Wiley did not give his willful, informed consent to the entry of any of the four Defendants onto his private residence. 42. Plaintiff David Wiley did not give his willful, informed consent to the search and seizure of his personal property. 43. After Plaintiff David Wiley's arrival, Defendants Preston and Kelley directed Plaintiffs David and Robin Wiley and their children to remain outside in their driveway while Defendants Nieves and Wiley continued searching through Plaintiffs' entire home and belongings. 44. Plaintiffs and their children waited in their driveway in the cold for an hour. 45. Plaintiffs were finally allowed back inside when Plaintiff Robin Wiley asked to re-enter because their children were suffering from the cold. 46. Defendant Preston told Plaintiff Robin Wiley that no firearms were permitted in the home while the Defendant constables were present. 47. Defendant Preston collected and seized all of the firearms in the house and placed them in the Defendant constables' vehicle. 48. Two of the seized firearms were the property of the Plaintiffs. 49. Defendants Preston and Kelley did not return those firearms which were not the property of Harold F. Wiley to the Plaintiffs before leaving the premises. 50. Defendants Preston and Kelley instead handed over all of the firearms to the possession of Defendant Nieves. 51. Defendants looted Plaintiffs' home and personal property without any court order, without any list of Harold Wiley's items, often without supervision, and without allowing Plaintiffs to verify the rightful ownership of the belongings being removed, all for a total of two-and-a-half hours. 52. At no point did Defendants Preston or Kelley call a halt to the obvious ransacking of Plaintiffs' home, despite the destructive abandon with which Defendants Wiley and Nieves searched the premises and the pleas of the Plaintiffs. 53. Defendant constables' response throughout was generally analogous to, "We have a court order," and, "Let them do what they came to do." 54. Defendants Kelley and Preston also participated in searching the Plaintiffs' private residence and other buildings, including the horse stable. 55. Defendant constables Kelley and Preston were issued no order or orders from any authority by which they were given any right to enter Plaintiffs' property and private residence, or to search and seize any personal property or facilitate the same, nor were there any such order or orders in existence. 56. Defendant constables were presented no list purporting to be the property of Harold F. Wiley for which Defendants should limit their search and their confiscation of property in Plaintiffs' possession in their private residence. 57. When Plaintiff David Wiley telephoned Defendant Nieves after the incident to ask her to return the property that Defendants had stolen from Plaintiffs property, Defendant Nieves stated, "You're not getting nothing. Don't call here again." 58. Defendants Wiley and Nieves, at some point, evidently communicated a brazen lie to Defendants Preston and Kelley in informing them, erroneously, that the Plaintiffs had made an oral agreement with Defendant sisters as to the removal of Harold F. Wiley's personal property. 59. The Plaintiffs had never made any such agreement with Defendants Wiley and Nieves. 60. As Defendants Nieves and Wiley expected, Plaintiffs were caught completely by surprise when all four Defendants invaded their home on February 17, 2007, ransacked it and absconded with Plaintiffs' personal property. 61. Defendants Kelley and Preston were issued no orders from any valid legal authority by which they had any right to invade Plaintiffs' privacy and search and seize Plaintiffs' property 62. Without authority they allowed themselves to be relegated to the status of little more than hired muscle to do the bidding of private citizens until Defendants Nieves and Wiley declared that they were content to be finished with their own designs. 63. Defendants Preston and Kelley, in egregious bad faith, either knowingly aided and abetted the malicious plans of Defendants Wiley and Nieves, or at the very least relied solely upon the unsubstantiated oral averments of Defendant private citizens to forcibly enter the private property of other private citizens, force them to stand in detainment, allow others to search through their personal property and literally loot their home with abandon, doing so without any list (legal or otherwise) dictating to whom belonged what particular property, and then to actually seize that property. 64. Defendants Preston and Kelley either knowingly lied to Plaintiffs repeatedly about the existence of a court order, or at the very least failed to verify that such an order did exist before making such bold statements of authority and proceeding to forcibly enter the private property of other private citizens, force them to stand in detainment, allow others to search through their personal property and literally loot their home with abandon, doing so without any list (legal or otherwise) dictating to whom belonged what particular property, and then to actually seize that property. 65. Ultimately, with the aid of Defendants Kelley and Preston, Defendants Nieves and Wiley absconded with a plethora of personal property, the rightful ownership and possession of which is vested in the Plaintiffs and no others. 66. On February 25, 2007, Defendants Nieves and Wiley returned again, this time without Defendants Kelley and Preston, and invaded Plaintiffs' property and private residence without consent and pilfered Plaintiffs' belongings. 67. At the incursion on February 25, 2007, Defendants Nieves and Wiley also changed the locks on Plaintiffs' home to bar Plaintiffs' further entry. 68. No formal order of eviction was ever issued. COUNT I - TRESPASS TO LAND Against All Defendants 69. Paragraphs 1 through 68 are incorporated herein as if fully set forth. 70. Plaintiffs, on both February 17 and February 25, were the lawful occupants of the property which was their private residence at 2258 Pine Road, Newville, PA 17241. 71. Defendants Nieves, Wiley, Kelley and Preston, all with intent to do so, physically invaded Plaintiffs' property on February 17, 2007, and Defendants Nieves and Wiley, with intent to do so, physically invaded Plaintiffs' property on February 25, 2007. 72. Plaintiffs did not give willful, informed consent to the entrance onto the property or into their private residence to any of the four Defendants on either occasion. 73. The conduct in encroachment onto Plaintiffs' property by Defendants Nieves and Wiley was outrageous, in that Defendants Nieves and Wiley, under either false pretenses or by the conspiracy of all four Defendants, acquired and utilized the erroneous assistance of law enforcement officers to effectuate forceful entry into a private residence and remain therein. 74. The conduct in encroachment onto Plaintiffs' property by Defendants Kelley and Preston was outrageous, in that, either in an intentional and knowing conspiracy with Defendants Wiley and Nieves, or under the auspices of an intentional and grossly reckless adherence to the unsubstantiated averment of a false and, moreover, non-authoritative oral agreement between private citizens, they entered and aided entry of Defendants Nieves and Wiley in forcing their way into Plaintiffs' private residence and remained therein after Plaintiff David Wiley's arrival. 75. Such outrageous conduct is far in excess or ordinary negligence and warrants a judgment of punitive damages. 76. Plaintiffs also suffered monetary loss as a result of Defendants' trespass to land, insofar as the forceful invasion afforded Defendants Nieves and Wiley the opportunity to thieve Plaintiffs' personal property. 77. Plaintiff David Wiley has suffered a loss of business as a result of the theft of tools necessary for his employment. 78. Defendants Kelley and Preston, despite their identity as Pennsylvania State Constables, by their patent abuse of authority stand before the Court bearing the same liability for their illegal acts as if they were actors without the pretense of authority. 79. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against all Defendants, to hold all Defendants jointly and severally liable for punitive damages as the Court deems just and proper, along with such compensatory damages for stolen person property, and along with the cost of suit and such other relief as the Court deems just and equitable. COUNT II - CONVERSION Against Defendants Peggy L. Nieves and Bernadine M. Wiley 80. Paragraphs 1 through 79 are included herein as if fully set forth. 81. Defendants Nieves and Wiley, with intent to do so and regardless of their fraudulent acquisition and abuse of Constabulary power, wrongfully acquired, in the manner of theft, a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in Plaintiffs. This property includes: a. Plaintiff Robin Wiley's gold diamond engagement ring b. Diamond accent bracelet c. Pfaltzgraff dishes d. 320' of hardwood flooring e. 12' x 15' (20 yards) piece of carpet f. 15'x 18'(30 yards) piece of carpet g. Vinyl flooring remnants h. Carpeting tools Tile cutter j. Craftsman 19.2 volt cordless kit with 11 tools k. Craftsman worm drive circular saw 1. Craftsman 4 x 24 belt sander M. 2 Craftsman palm sanders n. Craftsman router and bits o. 2 Craftsman cordless nailers p. Craftsman buffer q. Craftsman 12° compound miter saw r. Craftsman 1470 professional tool set s. Craftsman grease air gun t. Smoldering gun U. Multiple air tools v. Miscellaneous hand tools w. DeWalt jig saw kit X. DeWalt master drill bit kit Y. DeWalt cordless drill kit Z. Botsch air compressor aa. Diamond head grinder with blades bb. 2 Angle grinders cc. Carpet power stretcher dd. Steel chainsaw ee. 2 Black powder guns ff. Miller portable welder gg. Compound bow and accessories hh. Miscellaneous tools that were hanging in the garage ii. Food that was in the refrigerator and the pantry h. Kitchen Aide mixer kk. Miscellaneous Tonka toys Il. Propane heater mm. 25 boxes of Newville Little League baseball first aid supplies and totes, which were in the lawful possession of Plaintiffs, who are committee members of said league nn. Tax forms pertaining to Plaintiff David Wiley 82. Defendants continue to wrongfully possess Plaintiffs' personal property, which they have held for nearly seven months, and have given no indication that they intend any result but to permanently retain Plaintiffs' possessions. 83. Plaintiff David Wiley has lost business as a result of the Defendants' theft of tools he requires for work. 84. The intentional conduct of Defendants Wiley and Nieves in commanding the erroneous assistance of Defendant constables Preston and Kelley, either by knowingly false representations or by conspiracy, is an outrageous act of utilizing an abuse of authority to facilitate the conversion of Plaintiffs' personal property in deliberate disregard of the rights of the Plaintiffs. 85. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, in replevin of the personal property, or to pay the fair market value of the converted personal property, including punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT III - TRESPASS TO CHATTELS Against Defendants Peggy L. Nieves and Bernadine M. Wiley 86. Paragraphs 1 through 85 are incorporated herein as if fully set forth. 87. Defendants Nieves and Wiley, without willful, informed consent, regardless of their fraudulent acquisition and abuse of constabulary power, wrongfully interfered with the right to possession of a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in the Plaintiffs. This property includes that listed in Paragraph 81, a - nn. 88. Defendants' intentional interference with Plaintiffs' right to possession of the personal property at issue has caused a loss of Plaintiffs' possessory right in said property. 89. Plaintiff David Wiley has lost business as a result of the Defendants' theft of a copious amount of tools he requires for work. 90. The intentional conduct of Defendants Wiley and Nieves in commanding the erroneous assistance of Defendant constables Preston and Kelley, either by knowingly false representations or by conspiracy, is an outrageous act of utilizing an abuse of authority to facilitate trespass to Plaintiffs' personal property in deliberate disregard of the rights of the Plaintiffs. 91. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, a judgment for damages from harm to property, if any, and/or the fair rental value of the property once returned, punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT IV - NEGLIGENCE Against Defendants Kevin M. Kelley and Kevin W. Preston 92. Paragraphs 1 through 91 are incorporated herein as if fully set forth. 93. Defendants Kelley and Preston owe to Plaintiffs a duty of care akin to the professional standard of a Pennsylvania State Constable when acting as constables. 94. Defendants Kelley and Preston, acting in concert, breached that duty when they intentionally, falsely and deceptively used a show of their constabulary authority and a false pronouncement of possession of a court order to forcibly enter the private property of other private citizens and remain there, to force them into a detainment, to allow others to search their personal property and literally loot their home with abandon, and to seize personal property, all knowingly without ever having been presented with a court order and without the existence of a court order, either in conspiracy with Defendants Wiley and Nieves or at the very least in a reckless reliance solely upon the unsubstantiated oral averment of Defendant private citizens. 95. Defendants Kelley and Preston also breached their duty when, upon entering the premises, Defendant constables failed to regulate the actions of Defendants Wiley and Nieves, who literally looted the entirety of Plaintiffs' private residence in a manner of destructive abandon. 96. Defendants Kelley and Preston further breached their duty in facilitating and allowing Defendants Wiley and Nieves to steal a plethora of Plaintiffs' personal property by a failure to require a list of property to be removed, or, at the very least, to regulate what property was being removed and to verify ownership before allowing Defendants Wiley and Nieves to abscond with said property. 97. This intentional and grossly reckless breach of duty on the part of both Defendants Kelley and Preston was the actual and proximate cause of damages to Plaintiffs, including but not limited to trespass to their land and the loss of their personal property. 98. The Defendant constables at all times acted intentionally and outrageously in a dereliction of duty and an abuse of authority, with reckless indifference to the rights of the Plaintiffs, David and Robin Wiley. 99. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to gain entrance into the Plaintiffs' private residence and to facilitate the entry of Defendants Wiley and Nieves into Plaintiffs' private residence, knowing that they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 100. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to detain the Plaintiffs away from the ongoing events while their private residence was searched and their property was seized, knowing they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 101. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to search the Plaintiffs' private residence and to facilitate the search of Defendants Wiley and Nieves of the Plaintiffs' residence, knowing they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 102. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to seize the Plaintiffs' personal property and to facilitate the seizure of Plaintiffs' property by Defendants Wiley and Nieves, knowing they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 103. Defendants Preston and Kelley acted intentionally in making statements repeatedly to the Plaintiffs regarding the existence of a court order, to facilitate entry, detainment, search and seizure, knowing that they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 104. Defendant constables' intentional actions in gaining entry into Plaintiffs' private residence, making possible a search and seizure of their property, and making false averments of a court order, whether it be the result of the gross recklessness of relying on the oral averments of Defendants Wiley and Nieves, or the gross recklessness of the failure to verify that their actions were pursuant to issued order, or whether the evil motive of a conspiracy with Defendants Wiley and Nieves to harass Plaintiffs and steal their property, Defendants Preston and Kelley at all times relevant acted intentionally and in bad faith, with full knowledge of the risk that basic laws and Constitutional rights were being violated and in deliberate disregard of that knowledge. 105. In total, Defendants Preston and Kelley were led solely to do the bidding of Defendant private citizens and by a show of their constabulary authority at their exclusive behest, compelled the Plaintiffs into detainment while Defendant private citizens forced their way into Plaintiffs' private residence, ransacked their home, and searched for and removed property of their own choosing, all while knowing they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 106. The facts illustrate a clear picture of Pennsylvania constables taking orders from private citizens in the manner of private guards and armed enforcers. 107. Defendant constables acts are all intentional, knowing acts constituting a dereliction of duty and abuse of power that are substantially in excess of common negligence. 108. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs request respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Kelley and Preston jointly and severally liable for damages, as the Court deems just and proper, including punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT V - FRAUD Against Defendants Peggy L. Nieves and Bernadine M. Wiley 109. Paragraphs 1 through 108 are incorporated herein as if fully set forth. 110. Defendant Wiley issued a direct falsehood to Defendant Constables in the form of a brazen lie regarding a non-existent oral agreement about the Plaintiffs being in accordance with entry onto their property and the removal of chattels therefrom. 111. Defendant Nieves calculated to deceive as well, at the very least by her silence as to the truth, with full knowledge that there was no such agreement and that all four Defendants would catch Plaintiffs by complete surprise with their invasion of February 17, 2007. 112. In commanding the assistance of Defendant Constables Kelley and Preston with the known false representation regarding the erroneous existence of an oral agreement with the Plaintiffs, Defendants Nieves and Wiley calculated and intended to deceive Defendants Kelley and Preston, thus causing them to enter the Plaintiffs' property and otherwise conduct constabulary duties which they actually had no right to perform. 113. Defendants Kelley and Preston relied on the outright lie told to them by Defendants Nieves and Wiley, and in their capacity as Pennsylvania State Constables, aided and abetted Defendants Nieves and Wiley in trespassing on Plaintiffs' property and in the theft of Plaintiffs' personal property. 114. The resulting harm suffered by Plaintiffs was proximately caused by the Constables' reliance on the fraud perpetuated by Defendants Nieves and Wiley, with trespass to their private property and the theft of their personal belongings. 115. The conduct of Defendants Nieves and Wiley was intentional and outrageous in procuring the services of law enforcement officials either by false pretenses to enter Plaintiffs' private residence and search and remove Plaintiffs' personal property. 116. Punitive damages are also warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Nieves and Wiley jointly and severally liable for damages, including punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. Respectfully Submitted, RO LI WDRFICES htibI Date L rew 28 th Pitt , Esquire Ca'A 013 (71f) 24 " 5-0 Att ev for Plaintiffs TELEPHONE (717) 245-2698 David Wiley 2258 Pane Road Newville, PA 17241 Dear Mr. Wiley: LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET - SUITE 101 CARLISLE. PENNSYLVANIA 17013 February 15, 2007 I have been retained to represent Mr. Harold Wiley through the FAX (717) 245-0829 Cumberland County Office of Aging. Mr. Wiley has instructed me to ask you to vacate the premises. If you don't, he has the right to go through the District Justice to have you evicted. He has requested that you leave the house immediately. Sincerely, SJORig__. teAhen J. Hogg, Esqu? VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. u I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. I (I ),Co-, Date Date lo" U. David Wiley Plaintiff Rob Wiley Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Amended Complaint upon Adam L. Seiferth, Esquire, Karl Rominger, Esquire, and Marcus A. McKnight, Esquire, by depositing the same in the United States Mail, first class, postage pre-paid on the eleventh day of September, 2007, from Carlisle, Pennsylvania, addressed as follows: Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlsile, PA 17013 C-) f-3 1 L ? C= ?i F71 r=, rat G Cn UU IN THE COURT OF COMMON PLEAS OF CUMBERLAND Cot INTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants TO: PLAINTIFFS, DAVID AND ROBIN WILEY YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERTiD AGAINST YOU. DAM L. SEIFERTH, ES UI CASE NUMBER: 07-3670 Civil Term ISSUE NUMBER: PLEADING: ANSWER AND NEW MATTER OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFFS' AMENDED COMPLAINT CODE AND CLASSIFICATION: FILED ON BEHALF OF: Kevin M. Kelley and Kevin W. Preston, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 T I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants CASE NO: 07-3670 Civil Term JURY TRIAL DEMANDED ANSWER, NEW MATTER AND CROSSCLAIM OF DEFENDANTS, KEVIN KELLEY AND KEVIN PRESTON TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, come the Defendants, Kevin M. Kelley ("Mr. Kelley") and Kevin W. Preston ("Mr. Preston"), by and through their attorneys, Cipriani & Werner, and answers Plaintiffs' Amended Complaint as follows: 1. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 1 of Plaintiffs' Complaint and the same are therefore denied. 2. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 2 of Plaintiffs' Complaint and the same are therefore denied. 3. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 3 of Plaintiffs' Complaint and the same are therefore denied. I 1 4. Admitted. 5. Admitted with clarification. The alleged position of Chief Constable of Dickinson Township of Cumberland County, Pennsylvania does not exist. 6. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 6 state conclusions of law to which no answer is required. To the extent an answer may be required, it is specifically denied that Plaintiffs were tenants of Harold F. Wiley at 2258 Pine Road, Newville, Pennsylvania or had any legal interest, rights or privileges with regard to said property. 7. Denied. The allegations of paragraph 7 are an attempt to interpret a written document which speaks for itself and the same is, therefore, denied. 8. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 8 of Plaintiffs' Complaint and the same are therefore denied. 9. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 9 of Plaintiffs' Complaint and the same are therefore denied. 10. Admitted. 11. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 11 of Plaintiffs' Complaint state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a tenant's right of possession of the property, or had any legal interest, rights or privileges with regard to said property at any time material hereto. , r 12. Denied. It is specifically denied that Plaintiff, Robin Wiley, was alone with her three children at any time material hereto. To the contrary, it is believed and, therefore, averred that a gentleman thought to be the father of Plaintiff, Robin Wiley, was also present on the property at all times relevant. 13. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that Plaintiff, Robin Wiley, did not immediately allow Defendants into her home. To the contrary, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 14. Denied. It is specifically denied that Defendant, Mr. Preston, made any such statements as alleged. To the contrary, Defendant, Mr. Preston advised Plaintiff, Robin Wiley, that his presence and the presence of Defendant, Mr. Kelley, were for purposes of maintaining the peace while the property of Harold Wiley was removed from the premises. 15. Denied. It is specifically denied that Defendant, Mr. Preston, warned Plaintiff, Robin Wiley, as alleged. To the contrary, Defendant, Mr. Preston advised Plaintiff, Robin Wiley, that his presence and the presence of Defendant, Mr. Kelley, were for purposes of maintaining the peace while the property of Harold Wiley was removed from the premises. 16. Denied. It is specifically denied that Defendant, Mr. Preston, refused to show Plaintiff, Robin Wiley, a court order, as alleged. To the contrary, Plaintiff, Robin Wiley, never asked to see a court order. 17. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 17 of Plaintiffs' Complaint and the same are therefore denied. By way of further answer, Plaintiff, Robin Wiley, did not have any interest in the property and, therefore, had no authority to refuse the entry of the Defendants who were on the property at the request of the owner, Harold Wiley. Even so, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order and that Defendant, Bernadine Wiley, notified Plaintiff, Robin Wiley, of the intention to remove the belongings of Harold Wiley on February 17, 2007. 18. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 18 of Plaintiffs' Complaint and the same are therefore denied. In no event did Plaintiff, Robin Wiley, call the police. By way of further answer, Plaintiff, Robin Wiley, did not have any interest in the property and, therefore, had no authority refuse the entry of the Defendants who were on the property at the request of the owner, Harold Wiley. Even so, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 19. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 19 of Plaintiffs' Complaint and the same are therefore denied. To the extent a further answer is required, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property and at no time called the police. 20. Admitted in part and denied in part. Defendants, Mr. Kelley and Mr. Preston, admit that Plaintiff, Robin Wiley, permitted the Defendants to enter the home. It is specifically denied that Plaintiff, Robin Wiley, had the authority to refuse the entry of Defendants into the premises. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, gave Plaintiff, Robin Wiley, a false impression that a Court Order existed. To the contrary, Plaintiff, Robin Wiley, never requested to see a court order. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 21. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 21 state conclusions of law to which no answer is required. To the extent a further answer is required, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 22. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 22 state conclusions of law to which no answer is required. To the extent a further answer is required, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property so that the belongings of Harold Wiley could be removed. 23. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 23 pertain to a party other than Defendants and therefore, no answer is required. 24. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 24 pertain to a party other than Defendants and therefore, no answer is required. 25. Denied. Defendant, Mr. Kelley, specifically denies that he "sequestered" Plaintiff, Robin Wiley, at any time material hereto. To the contrary, Plaintiff, Robin Wiley, was permitted to move about the premises at all times relevant. 26. Denied. Defendant, Mr. Kelley, specifically denies that he made any such statement to Plaintiff, Robin Wiley, as alleged. 27. Denied. It is specifically denied that Plaintiff, Robin Wiley, was detained, wept, or was otherwise in shock and dismay. To the contrary, Plaintiff was permitted to move about the premises at all times relevant and maintained a cordial and appropriate demeanor. 28. Denied. It is specifically denied that Plaintiff, Robin Wiley, was detained at any time material hereto. With regard to the remaining allegations, after reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 28 of Plaintiffs' Complaint and the same are therefore denied. 29. Denied. Strict proof thereof demanded. 30. Denied. It is specifically denied that Defendant, Mr. Preston, did not ascertain which property was removed from the premises. To the contrary, Plaintiff, Robin Wiley, was permitted to dispute any item(s) being removed from the home. Strict proof of each allegation of paragraph 30 is demanded. 31. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 32 pertain to a party other than Defendants and therefore, no answer is required. 32. Denied. It is specifically denied that Defendants, Bernadine Wiley and Peggy Nieves, were alone and unsupervised. To the contrary, the search and removal of the belongings of Harold Wiley by Defendants, Bernadine Wiley and Peggy Nieves, carried out in the presence of Defendant, Mr. Preston. 33. Admitted with clarification. Plaintiff, David Wiley, arrived approximately 15 minutes after the arrival of Defendants. 34. Denied. Defendant, Mr. Kelley, specifically denies making any such statement to Plaintiff, David Wiley, as alleged. To the contrary, Defendant, Mr. Kelley, introduced himself to Plaintiff, David Wiley, and they both entered the house. Strict proof of each allegation of paragraph 34 is demanded. 35. Denied. Defendant, Mr. Kelley, specifically denies making any such statement to Plaintiff, David Wiley, as alleged. To the contrary, Defendant, Mr. Kelley, advised Plaintiff, David Wiley, of his role to maintain the peace while the property of Harold Wiley was being removed from the premises. Strict proof of each allegation of paragraph 35 is demanded. 36. Denied. It is specifically denied that Plaintiff, David Wiley, asked to see any court order or that the personal property of Plaintiffs were removed from the premises By way of further answer, it is specifically denied that Defendants were removing Plaintiffs' personal property from the premises. Strict proof of each allegation of paragraph 36 is demanded. 37. Denied. Defendant, Mr. Kelley, specifically denies making any such statement to Defendant, David Wiley, as alleged. Strict proof of each allegation of paragraph 37 is demanded. 38. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that Plaintiff, David Wiley, requested to see a Court Order. Strict proof of each allegation of paragraph 38 is demanded. 39. Denied. It is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. It is specifically denied that Plaintiffs requested to see any order as alleged. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, departed with any of Plaintiffs' personal property. Strict proof of each allegation of paragraph 39 is demanded. 40. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 40 of Plaintiffs' Complaint and the same are therefore denied. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, deny that they gave Plaintiff, David Wiley, a false impression of the existence of a Court Order, as Plaintiff, David Wiley, never requested to see a court order. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 41. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 41 state conclusions of law to which no answer is required. To the extent a further answer is required, at all times material hereto, Plaintiff, David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 42. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 42 state conclusions of law to which no answer is required. 43. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that they directed Plaintiffs and their children to remain outside any time material hereto. To the contrary, Plaintiffs, David and Robin Wiley, were permitted to move about as they pleased. In fact, the only time Plaintiff, Robin Wiley, went outside was so that she could smoke a cigarette. Furthermore, the children were playing outside at the discretion of Plaintiff, Robin Wiley. Strict proof of each allegation of paragraph 43 is demanded. 44. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that they directed Plaintiffs and their children to remain outside any time material hereto. To the contrary, Plaintiffs, David and Robin Wiley, were permitted to move about as they pleased. In fact, the only time Plaintiff, Robin Wiley, went outside was so that she could smoke a cigarette. Furthermore, the children were playing outside at the discretion of Plaintiff, Robin Wiley. Strict proof of each allegation of paragraph 44 is demanded. 45. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that they directed Plaintiffs and their children to remain outside any time material hereto. To the contrary, Plaintiffs, David and Robin Wiley, were permitted to move about as they pleased. In fact, the only time Plaintiff, Robin Wiley, went outside was so that she could smoke a cigarette. Furthermore, the children were playing outside at the discretion of Plaintiff, Robin Wiley. Strict proof of each allegation of paragraph 45 is demanded. 46. Admitted. 47. Admitted with clarification. Defendant, Mr. Kelley, collected all firearms in the house believed to be owned by Harold Wiley and placed them in the constables' vehicle. 48. Denied. It is specifically denied that two of the firearms were property of Plaintiffs. To the contrary, Plaintiff, Robin Wiley, confirmed that all of the firearms seized from the property were owned by Harold Wiley. Strict proof of each allegation of paragraph 48 is demanded. 49. Denied. It is specifically denied that two of the firearns were property of Plaintiffs. To the contrary, Plaintiff, Robin Wiley, confirmed that all of the firearms seized from the property were owned by Harold Wiley. Strict proof of each allegation of paragraph 49 is demanded. 50. Admitted with clarification. The firearms were turned over to Defendant, Peggy Nieves, after checking the firearms at the police station and removing all ammunition. 51. Admitted in part and denied in part. It is admitted that there was no list of Harold Wiley's possessions. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, looted Plaintiffs' home and personal property without a court order or providing supervision. To the contrary, Defendant, Mr. Preston, supervised the actions of Defendants, Peggy Nieves and Bernadine Wiley, at all times relevant. Furthermore, Plaintiffs were afforded the opportunity to, and did not dispute any items which were removed from the premises. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. Strict proof of each allegation of paragraph 51 is demanded. 52. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that the Plaintiffs' home was ransacked or that Defendants, Wiley and Nieves, searched the premises with "destructive abandon." To the contrary, Defendants were peaceably on the premises at all times and the property removed from the premises did not belong to Plaintiffs. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. Strict proof of each allegation of paragraph 52 is demanded. 53. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, indicated that they had a Court Order or otherwise acted improperly, making any such statements as alleged. To the contrary, Defendants, Mr. Kelley and Mr. Preston, advised Plaintiffs that their presence was to act as officers of the peace while the property of Harold Wiley was being removed from the premises. Strict proof of each allegation of paragraph 53 is demanded. 54. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, searched Plaintiffs' private residence and other buildings. To the contrary, Defendants, Mr. Kelley and Mr. Preston, supervised Defendants, Peggy Nieves and Bernadine Wiley, as well as Plaintiffs, so as to keep the peace. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. Strict proof of each allegation of paragraph 54 is demanded. 55. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, did not have any authority to enter the premises to search and seize personal property of Harold Wiley. To the contrary, Plaintiffs had no authority to refuse the entry of Defendants, Mr. Kelley and Mr. Preston, who were present as officers of the peace while the property of Harold Wiley was removed from the premises. Furthermore, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. Strict proof of each allegation of paragraph 55 is demanded. 56. Admitted in part and denied in part. Defendants, Mr. Kelley and Mr. Preston, did not have a list of the property of Harold Wiley. It is specifically denied that the absence of the list entitles Plaintiffs to any relief demanded in this Complaint. By way of further answer, Plaintiffs were afforded the opportunity to, and did not dispute any items which were removed from the premises. 57. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 57 of Plaintiffs' Complaint and the same are therefore denied. 58. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 58 of Plaintiffs' Complaint and the same are therefore denied. 59. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 59 of Plaintiffs' Complaint and the same are therefore denied. 60. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 60 of Plaintiffs' Complaint and the same are therefore denied. By way of further answer, it is specifically denied that Defendants, Mr. Kelley and Mr. Preston, invaded Plaintiffs' residence, ransacked it or otherwise took Plaintiffs' personal property. Strict proof thereof is demanded. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 61. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, did not have any authority to enter the premises to search and seize personal property of Harold Wiley. To the contrary, Plaintiffs had no authority to refuse the entry of Defendants, Mr. Kelley and Mr. Preston, who were present as officers of the peace while the property of Harold Wiley was removed from the premises. Furthermore, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 62. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, did not have any authority to enter the premises to search and seize personal property of Harold Wiley. To the contrary, Plaintiffs had no authority to refuse the entry of Defendants, Mr. Kelley and Mr. Preston, who were present as officers of the peace while the property of Harold Wiley was removed from the premises. Furthermore, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 63. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 63 state conclusions of law to which no answer is required. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, incorporate their answer to paragraph 62. 64. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 64 state conclusions of law to which no answer is required. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, incorporate their answer to paragraph 62. 65. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 65 state conclusions of law to which no answer is required. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, incorporate their answer to paragraph 62. 66. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 66 pertain to a party other than Defendants and therefore, no answer is required. 67. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 67 pertain to a party other than Defendants and therefore, no answer is required. 68. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 68 of Plaintiffs' Complaint and the same are therefore denied. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a tenant's right of possession of the property at any time material hereto such that an order of eviction was necessary. COUNT I - TRESPASS TO LAND Against All Defendants 69. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 68 of their answer above in response to paragraph 69 of Plaintiffs' Complaint. 70. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 70 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a right of possession and/or were lawful occupants of the property at any time material hereto. 71. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 71 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a tenant's right of possession of the property at any time material hereto. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 72. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 72 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 73. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 73 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 74. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 74 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 75. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 75 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that an award of punitive damages is warranted in this case. 76. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 76 state conclusions of law to which no answer is required. Strict proof of any alleged damages is demanded. 77. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 77 of Plaintiffs' Complaint and the same are therefore denied. Strict proof of any alleged damages is demanded. 78. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 78 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is necessary, it is specifically denied that Defendants, Mr. Kelley and Mr. Preston, in any way abused their authority or otherwise acted illegally. 79. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 79 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that an award of punitive damages is warranted in this case. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT II - CONVERSION Against Defendants. Peggy L. Nieves and Bernadine M. Wiley 80. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 79 of their answer above in response to paragraph 80 of Plaintiffs' Complaint. 81. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 81 pertain to a party other than Defendants and therefore, no answer is required. 82. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 82 pertain to a party other than Defendants and therefore, no answer is required. 83. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 83 of Plaintiffs' Complaint and the same are therefore denied. 84. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 84 state conclusions of law to which no answer is required. 85. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 85 state conclusions of law to which no answer is required. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT III - TRESPASS TO CHATTELS Against Defendants, Peggy L. Nieves and Bernadine M. Wiley 86. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 85 of their answer above in response to paragraph 86 of Plaintiffs' Complaint. 87. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 87 pertain to a party other than Defendants and therefore, no answer is required. 88. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 88 pertain to a party other than Defendants and therefore, no answer is required. 89. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 89 of Plaintiffs' Complaint and the same are therefore denied. 90. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 90 state conclusions of law to which no answer is required. 91. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 91 state conclusions of law to which no answer is required. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT IV - NEGLIGENCE Against Defendants, Kevin M. Kelley and Kevin W. Preston 92. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 91 of their answer above in response to paragraph 92 of Plaintiffs' Complaint. 93. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 93 state conclusions of law to which no answer is required. 94. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 94 state conclusions of law to which no answer is required. 95. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 95 state conclusions of law to which no answer is required. 96. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 96 state conclusions of law to which no answer is required. 97. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 97 state conclusions of law to which no answer is required. 98. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 98 state conclusions of law to which no answer is required. 99. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 99 state conclusions of law to which no answer is required. 100. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 100 state conclusions of law to which no answer is required. 101. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 101 state conclusions of law to which no answer is required. 102. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 102 state conclusions of law to which no answer is required. 103. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 103 state conclusions of law to which no answer is required. 104. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 104 state conclusions of law to which no answer is required. 105. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 105 state conclusions of law to which no answer is required. 106. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 106 state conclusions of law to which no answer is required. 107. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 107 state conclusions of law to which no answer is required. 108. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 108 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that an award of punitive damages is warranted in this case. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT V - FRAUD Against Defendants, Peggy L. Nieves and Bernadine M. Wiley 109. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 108 of their answer above in response to paragraph 109 of Plaintiffs' Complaint. 110. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 110 of Plaintiffs' Complaint and the same are therefore denied. 111. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 111 pertain to a party other than Defendants and therefore, no answer is required. 112. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 112 of Plaintiffs' Complaint and the same are therefore denied. 113. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 113 state conclusions of law to which no answer is required. 114. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 114 state conclusions of law to which no answer is required. 115. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 115 pertain to a party other than Defendants and therefore, no answer is required. 116. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 116 state conclusions of law to which no answer is required. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. NEW MATTER 117. Plaintiffs' claims against Defendants, Mr. Kelley and Mr. Preston, are barred by the doctrines of privilege and judicial immunity. 118. At all times material, Plaintiffs consented to the entry of Defendants, Mr. Kelley and Mr. Preston, onto the premises located at 2258 Pine Road, Newville, Pennsylvania. 119. At all times material, Plaintiffs did not have the authority, legal right or privilege to deny access of the Defendants, Mr. Kelley and Mr. Preston, onto the property and premises located at 2258 Pine Road, Newville, Pennsylvania. r • 120. At all times material, the property and premises located at 2258 Pine Road, Newville, Pennsylvania was owned and controlled by Harold F. Wiley. 121. Defendants, Mr. Kelley and Mr. Preston, did not remove any property owned by Plaintiffs. 122. To the extent any property was removed from the premises of Harold Wiley, said property was owned and possessed by Harold Wiley. 123. Defendants, Mr. Kelley and Mr. Preston, were acting within the scope of their authority as constables in that they were called upon to act as officers of the peace. 124. At all times material, Defendants, Mr. Kelley and Mr. Preston, acted lawfully and reasonably under the facts and circumstances of this case. 125. Plaintiffs have failed to state a cause of action against Defendants, Mr. Kelley and Mr. Preston, upon which relief can be granted. 126. Plaintiffs have failed to state a claim for punitive damages under the facts and circumstances of this case against Defendants, Mr. Kelley and Mr. Preston. 127. Plaintiffs' claims may be barred by the applicable statute of limitations. 128. Discovery may reveal that Plaintiffs' claims may be barred in whole or in part by one or more affirmative defenses set forth in Pa. R.C.P. 1030, which are incorporated herein by reference including, but not limited to, assumption of the risk, collateral estoppel, res judicata, release or immunity from suit. . i • WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: DENNIS J. BONETTI, Q1 RE ADAM L. SEIFERTH Counsel for the Defenda is A JURY TRIAL IS DEMANDED Kevin W. Preston and Kevin M. Kelley VERIFICATION I hereby affirm that the following facts are correct: I am a Defendant in the foregoing action. The attached Answer and New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer and New Matter is that of counsel and not of me. I have read the Answer and New Matter and to the extent that the Answer and New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer and New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer and New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: Kevin M. Kelley IP VERIFICATION I hereby affirm that the following facts are correct: I am a Defendant in the foregoing action. The attached Answer and New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer and New Matter is that of counsel and not of me. I have read the Answer and New Matter and to the extent that the Answer and New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer and New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer and New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: CERTIFICATE OF SERVICE That counsel for the Defendants, Kevin W. Preston and Kevin M. Kelley, hereby certifies that a true and correct copy of its ANSWER AND NEW MATTER OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFFS' AMENDED COMPLAINT has been served on all counsel of record, by first class ma 1, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the _ day of , 2007. James M. Robinson, Esquire Lorin Andrew Snyder Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Counsel for the Plaintiff Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Personal Counsel for Defendant, Kevin W. Preston Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel for Peggy L. Nieves and Bernadine M. Wiley Respectfully submitted, BY: CIPRIANI & WERNER, P.C. DENNIS J. BONET QUIRE QUIRE ADAM L. SEIFER Wdts, Counsel for the DeKevin W. Preston and Kevin M. Kelley r- t-? -n Wt -'1 n t E :tom David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW NOTICE TO: DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. AND" SNYDER, ESQUIRE David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON AND NOW, come Plaintiffs, David and Robin Wiley, by and through their attorneys, Turo Law Offices, and answer Defendants' New Matter as follows: 117. Paragraph 117 contains conclusions of law to which no response is required. To the extent that such an answer is required, no court order exists to provide Defendant constables with the shelter of immunity. 118. Denied. At no time did Plaintiffs give their willful, informed consent to the entry of Defendants Kelley and Preston, as said Defendants presented Plaintiffs with the false impression that they were acting pursuant to an existing court order. 119. Denied. Plaintiffs resided at 2258 Pine Road as tenants of Harold F. Wiley and had the right to deny access of Defendants Kelley and Preston onto the property in question and especially into their private residence. 120. Admitted in part and denied in part. It is admitted that the property and premises was owned by Harold F. Wiley; it is denied that it was controlled by Harold F. Wiley. Plaintiffs enjoyed control of the property, as well, as they were tenants of 2258 Pine Road. 121. Denied. Defendant constables personally removed guns owned by the Plaintiffs. 122. Denied. Defendants removed a multitude of property from the premises that was and is the exclusive property of the Plaintiffs. 123. Denied. Defendants Kelley and Preston were not acting within the scope of their authority, as they were not acting pursuant to the requisite court order which would allow for their aiding in the search and seizure of personal property from a private residence. 124. Denied. Defendants Kelley and Preston at no time acted lawfully and reasonably under the facts and circumstances of this case. From the very beginning, when said Defendants obtained entry onto the property for themselves and co- defendants under false pretenses of a court order, to their failure to "keep the peace" during the events in question, to their abetting the theft of Plaintiffs' property, to making false statements of authority, Defendants Kelley and Preston acted unlawfully and outrageously unreasonable. 125. Paragraph 125 contains conclusions of law to which no response is required. 126. Paragraph 126 contains conclusions of law to which no response is required. 127. Paragraph 127 contains conclusions of law to which no response is required. 128. Paragraph 128 contains conclusions of law to which no response is required. NEW MATTER 129. Paragraphs 1 through 128 are incorporated herein as if fully set forth. 130. Defendant Preston informed the undersigned counsel in a telephone conversation regarding a related case, prior to taking up this cause of action, in or around March 2007, that Defendant Preston knew there was no court order issued to Bernadine Wiley, or words precisely to that effect. 131. Defendants Preston and Kelley have known that no court order exists for at least six months before verifying and filing their Answer and New Matter on September 27, 2007, falsely stating, " ... it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order"'in paragraphs 17, 18, 20 and 51 of the Answer. 132. On July 9, 2007, Defendant Bernadine Wiley testified at a hearing in a related case before the Honorable Merle L. Ebert, Jr., of the Court of Common Pleas of Cumberland County, and stated that there is no court order and !,that she needed no court order, or words precisely to that effect. 133. Even if Defendant constables had not been previously aware that no court order exists, Defendants Preston and Kelley have had roughly two-and-a-half months after her sworn statements were made (and seven months after the incident) to converse with Defendant Wiley regarding the question of a court order. 134. Defendant Preston informed undersigned counsel during said conversation in or around March 2007 that he and Defendant Kelley aided Defendants Wiley and Nieves at the behest of Defendant Wiley, who told Defendant Preston that she and her brother, Plaintiff David Wiley, had made an agreement regarding the removal of Harold F. Wiley's belongings, or words precisely to that effect. 135. Defendant Wiley had never made any such agreement with either of the Plaintiffs. 136. The Plaintiffs were not even aware that Defendant Wiley had returned from her residence in Ohio until she appeared at their home on February 17, 2007. 137. Defendant Bernadine Wiley paid Defendant constables $200.00 to procure their personal services for February 17, 2007. WHEREFORE, Plaintiffs, David and Robin Wiley, respectflully request that this Honorable Court issue judgment in their favor and against Defendants, Kevin M. Kelley and Kevin W. Preston. 1o117a7 ire rli 17013 Qh (717) 245-6688 Attorney forC Plaintiffs VERIFICATION I verify that the statements made in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. M J Date kob#i Wiley Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Response to New Matter upon Adam L. Seiferth, Esquire, Karl E. Rominger, Esquire, ,and Marcus A. McKnight, III, Esquire, by depositing the same' e Unit d States Mail, first class, postage pre-paid on the f I day of , 2007, from Carlisle, Pennsylvania, addressed as follows: Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 ,TURD LAW Lo" rew Snyder, 28 reet Car isle, PA 17013 (717) 245-9688 Attorney for Plaintiffs t ?j ' ? ` ? ?t ? - ° -?; , t _,,,, .? ,? , -? ? -- ? ?. ?,_ _, ';?^ r., .! v%' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants TO: PLAINTIFFS, DAVID AND ROBIN WILEY YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED CASE NUMBER: 07-3670 Civil Term ISSUE NUMBER: PLEADING: PRELIMINARY OBJECTIONS OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFFS' NEW MATTER CODE AND CLASSIFICATION: FILED ON BEHALF OF: Kevin M. Kelley and Kevin W. Preston, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 Y r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants CASE NO: 07-3670 Civil Term JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFF'S NEW MATTER AND NOW, come the Defendants, Kevin M. Kelley and Kevin W. Preston, by and through their attorneys, Cipriani & Werner, P.C., and file Preliminary Objections in the nature of a Motion to Strike Plaintiffs' New Matter pursuant to Pa.R.C.P. 1028(a)(2) and, in support thereof, aver as follows: 1. Plaintiffs, David and Robin Wiley ("Plaintiffs"), filed a Complaint on or about June 19, 2007. 2. Thereafter, on September 11, 2007, Plaintiffs filed an Amended Complaint alleging trespass and negligence against Defendants, Mr. Kelley and Mr. Preston. A true and correct copy of Plaintiffs' Amended Complaint is attached hereto as Exhibit "A." 3. On September 27, 2007, Defendants, Mr. Kelley and Mr. Preston, filed an Answer with New Matter to Plaintiffs' Amended Complaint. A true and correct copy of Defendants' Answer with New Matter is attached hereto as Exhibit "B." 4. On October 17, 2007, Plaintiffs filed a Reply to the New Matter of Defendants, Mr. Kelley and Mr. Preston, and included therewith an additional pleading entitled "New Matter." A true and correct copy of Plaintiffs' Reply to New Matter of Defendants, Kevin M. Kelley and Kevin W. Preston, with New Matter is attached hereto as Exhibit "C." 5. Pennsylvania Rule of Civil Procedure 1017(a) sets forth the pleadings permitted in a civil action as follows: Except as provided by Rule 104 the pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto. Pa.R.C.P. 1017(a). 6. Plaintiffs' New Matter is an impermissible pleading, unauthorized by the Pennsylvania Rules of Civil Procedure, because Defendants, Mr. Kelley and Mr. Preston, have not asserted a Counterclaim against Plaintiffs. See, Pa.R.C.P. 1017(a); Cavrak v. Stanich, 56 Pa. D.&C. 2d 522, 524 (1972) ("... the Pennsylvania Rules of Civil Procedure seem to make no provision for the pleading of new matter in a reply to new matter...".); and, Campbell v. Deardorff 51 Pa. D.&C. 2d 452, 454 (1971) ("Several lower courts have also interpreted Pa.R.C.P. 1017 to prohibit plaintiff from pleading `new matter' in a reply unless there is a counterclaim raised in defendant's answer."). 7. Pursuant to Pa.R.C.P. 1028(a)(2), a Preliminary Objection may be filed to any pleading on the grounds that the pleading fails to conform to law or Rule of Court or includes scandalous or impertinent matters. Pa.R.C.P. 1028(a)(2). E 8. Plaintiffs' Reply to New Matter should be stricken because it fails to confirm to Rule 1017(a) of the Pennsylvania Rules of Civil Procedure. Campbell v. Deardorff, 51 Pa. D.&C. 2d 452, 454 (1971) 9. Furthermore, Plaintiffs' New Matter fails to allege any material facts beyond that which has already been pled in Plaintiffs' Amended Complaint. (See, Exhibit "A"). The allegations are, therefore, impertinent and should be stricken as surplusage. Pa.R.C.P. 1028(a)(2). 10. At best, Plaintiffs' New Matter is tantamount to pleading evidence. Evidence from which material facts may be inferred should not be alleged in a pleading. Indeed, the presence of immaterial facts, evidence, or conclusions of law in a pleading may be stricken. South v. Murphy, 21 Pa. D.&C. 41h 183, 187 (1993). WHEREFORE, Defendants, Kevin M. Kelley and Kevin W. Preston, respectfully request this Honorable Court to issue an Order granting their Preliminary Objection in the Nature of a Motion to Strike Plaintiffs' New Matter as pled in Plaintiffs' Reply to New Matter of Defendants. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: -DENNIS J. BONETTI, SIRE ADAM L. SEIFERTH Counsel for the Defend , A JURY TRIAL IS DEMANDED Kevin W. Preston and Kevin M. Kelley David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. : PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW NOTICE ca ^-', .? r, fTI YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 Bedford Street Carlisle, PA 17013 (717) 249-3166 David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW AMENDED COMPLAINT AND NOW come Plaintiffs, David and Robin Wiley, by and through their attorneys, Turo Law Offices, and represent as follows: 1. Plaintiffs, David Wiley and Robin Wiley, are husband and wife, and reside at 398 Centerville Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant Peggy L. Nieves is an adult individual and sister of Plaintiff David Wiley, and resides at 2258 Pine Road, Newville, Pennsylvania 17241. 3. Defendant Bernadine M. Wiley is an adult individual and sister of Plaintiff David Wiley, and resides in Halifax, Dauphin County, Pennsylvania. 4. Defendant Kevin M. Kelley is a Pennsylvania State Constable. 5. Defendant Kevin W. Preston is a Pennsylvania State Constable and Chief Constable of Dickinson Township, Cumberland County, Pennsylvania. 6. Plaintiffs, at the time complained of, were tenants of their father, Harold F. Wiley, and residents of property located at 2258 Pine Road, Newville, Pennsylvania 17241, in Penn Township, Cumberland County. 7. In a letter dated February 15, 2007, Harold F. Wiley informed Plaintiffs through his attorney of his desire that Plaintiffs vacate the property, as he wished to put it up for sale. (Exhibit "A", said letter, is attached and incorporated herein as if fully set forth.) 8. Plaintiffs received said letter on February 16, 2007. 9. Plaintiffs were in the process of peaceably relocating from the property within a lawful timeframe when Defendants Nieves and Wiley began systematic and malevolent acts of interference with Plaintiffs' performance of their removal. 10. On February 17, 2007, all four defendants entered the property and appeared at the door of Plaintiffs' Pine Road residence. 11. Plaintiffs retained a tenant's right of possession of the property as of February 17, it being a mere two days since the date of the letter by which they were first informed of Harold F. Wiley's intentions, and just one day following their receipt of that letter. 12. Plaintiff Robin Wiley was at that moment home alone with her three children. 13. Plaintiff Robin Wiley did not immediately allow the Defendants into her home. 14. Defendant Preston stated to Plaintiff Robin Wiley that Defendant Wiley had a power of attorney over Harold Wiley, and that, "We have a court order," to enter and retrieve the personal belongings of Harold Wiley. 15. Defendant Preston warned Plaintiff Robin Wiley, "Let them [Defendant Nieves and Defendant Wiley] do what they want to do so they can get out of your way." 16. When Plaintiff Robin Wiley asked to see the court order, Defendant Preston said that the Defendants would show it to her when they left. 17. It is averred that Plaintiff Robin Wiley would never have allowed Defendants Nieves and Wiley into her home if they had appeared alone, demanding to search Plaintiffs' home and belongings and remove property, particularly absent any presentation of an actual court order. 18. It is averred that Plaintiff Robin Wiley would have called the police had the event commenced akin to the scenario described in paragraph 17. 19. Plaintiff Robin Wiley would have called the police owing to the belligerent and hostile manner in which Defendants Nieves and Wiley have historically treated Plaintiffs, and because of her awareness of the criminal history of Defendant Nieves, involving theft-related charges. 20. Plaintiff Robin Wiley, under the false impression given by Defendant Preston that a court order existed, and that Defendant constables Preston and Kelly were at her home to enforce that court order, and particularly because of the compelling directives of Defendant constables, in whom she placed her trust as law enforcement officials, did not call the police and instead permitted the Defendants to enter her home. 21. Plaintiff Robin Wiley did not give her willful, informed consent to the entry of any of the Defendants' into her home. 22. Plaintiff Robin Wiley did not give her willful, informed consent to the search and seizure of her personal property by any of the four Defendants. 23. Defendant Nieves went first to Harold Wiley's room while Defendant Wiley went first to the kitchen cupboards. 24. Defendants Nieves and Wiley proceeded thereafter to literally ransack Plaintiffs' personal property and their entire home, emptying drawers, cabinets, dressers and the like, and actually throwing Plaintiff's belongings to the floor in the process. 25. Plaintiff Robin Wiley was sequestered in the living room and monitored by Defendant Kelley while Defendants Nieves and Wiley looted the rest of the house. 26. Defendant Kelley directed Plaintiff Robin Wiley not to get involved with events or "It will look bad for you." 27. Plaintiff Robin Wiley wept throughout her detainment in the living room at the shock and dismay of what was occurring in her home. 28. At one point, when Defendant Kelley went outside, Plaintiff Robin Wiley left her place of detainment and found Defendants Wiley and Nieves alone searching through her bedroom dresser drawers. 29. Plaintiff Robin Wiley pleaded with Defendant Preston to make Defendant Wiley stop; Defendant Preston complied but Defendants Wiley and Nieves were already finished, and Defendant Wiley walked away stating, "We already got what we needed." 30. Defendant Preston made no effort to stop Defendants Wiley and Nieves and ascertain what item or items they had procured from Plaintiff Robin Wiley's bedroom dresser drawers while in the Plaintiffs' home under the auspices of obtaining the property of Harold F. Wiley. 31. Despite their sole purported reasoning for their entry of acquiring Harold F. Wiley's property, Defendant Wiley also proceeded to take photographs throughout Plaintiffs' private residence. 32. Defendants Wiley and Nieves were alone and unsupervised during the majority of their search and removal of items in the Plaintiffs' home. 33. Plaintiff David Wiley arrived at the home mid-way through this episode and pulled his vehicle into the driveway. 34. Defendant Kelley approached Plaintiff David Wiley and stated, "Stay out of the house." 35. Defendant Kelley told Plaintiff David Wiley, "We have a court order to take certain items." 36. Plaintiff David Wiley asked to see the court order under which the Defendants had entered the property and were now searching and removing personal property from Plaintiffs' private residence. 37. Defendant Kelley responded that he would not show them the court order immediately, but, "You'll get a copy before we leave." 38. Plaintiff David Wiley later asked again to see the purported court order, and received the same response from both Defendant constables. 39. No court order was ever revealed to the Plaintiffs before the Defendants departed with a plethora of Plaintiffs' personal property, because no such court order ever existed. 40. Plaintiff David Wiley, under the false impression given by Defendants Preston and Kelley that the Defendants had entered the property pursuant to an existing court order with the assistance of law enforcement officers, believed that he was therefore helpless to stop the search and seizure of his property or to force the Defendants from his home. 41. Plaintiff David Wiley did not give his willful, informed consent to the entry of any of the four Defendants onto his private residence. 42. Plaintiff David Wiley did not give his willful, informed consent to the search and seizure of his personal property. 43. After Plaintiff David Wiley's arrival, Defendants Preston and Kelley directed Plaintiffs David and Robin Wiley and their children to remain outside in their driveway while Defendants Nieves and Wiley continued searching through Plaintiffs' entire home and belongings. 44. Plaintiffs and their children waited in their driveway in the cold for an hour. 45. Plaintiffs were finally allowed back inside when Plaintiff Robin Wiley asked to re-enter because their children were suffering from the cold. 46. Defendant Preston told Plaintiff Robin Wiley that no firearms were permitted in the home while the Defendant constables were present. 47. Defendant Preston collected and seized all of the firearms in the house and placed them in the Defendant constables' vehicle. 48. Two of the seized firearms were the property of the Plaintiffs. 49. Defendants Preston and Kelley did not return those firearms which were not the property of Harold F. Wiley to the Plaintiffs before leaving the premises. I •i !I I l 50. Defendants Preston and Kelley instead handed over all of the firearms to the possession of Defendant Nieves. 51. Defendants looted Plaintiffs' home and personal property without any court order, without any list of Harold Wiley's items, often without supervision, and without allowing Plaintiffs to verify the rightful ownership of the belongings being removed, all for a total of two-and-a-half hours. 52. At no point did Defendants Preston or Kelley call a halt to the obvious ransacking of Plaintiffs' home, despite the destructive abandon with which Defendants Wiley and Nieves searched the premises and the pleas of the Plaintiffs. 53. Defendant constables' response throughout was generally analogous to, "We have a court order," and, "Let them do what they came to do." 54. Defendants Kelley and Preston also participated in searching the Plaintiffs' private residence and other buildings, including the horse stable. 55. Defendant constables Kelley and Preston were issued no order or orders from any authority by which they were given any right to enter Plaintiffs' property and private residence, or to search and seize any personal property or facilitate the same, nor were there any such order or orders in existence. 56. Defendant constables were presented no list purporting to be the property of Harold F. Wiley for which Defendants should limit their search and their confiscation of property in Plaintiffs' possession in their private residence. 57. When Plaintiff David Wiley telephoned Defendant Nieves after the incident to ask her to return the property that Defendants had stolen from Plaintiffs property, Defendant Nieves stated, "You're not getting nothing. Don't call here again." 58. Defendants Wiley and Nieves, at some point, evidently communicated a brazen lie to Defendants Preston and Kelley in informing them, erroneously, that the Plaintiffs had made an oral agreement with Defendant sisters as to the removal of Harold F. Wiley's personal property. 59. The Plaintiffs had never made any such agreement with Defendants Wiley and Nieves. 60. As Defendants Nieves and Wiley expected, Plaintiffs were caught completely by surprise when all four Defendants invaded their home on February 17, 2007, ransacked it and absconded with Plaintiffs' personal property. 61. Defendants Kelley and Preston were issued no orders from any valid legal authority by which they had any right to invade Plaintiffs' privacy and search and seize Plaintiffs' property 62. Without authority they allowed themselves to be relegated to the status of little more than hired muscle to do the bidding of private citizens until Defendants Nieves and Wiley declared that they were content to be finished with their own designs. 63. Defendants Preston and Kelley, in egregious bad faith, either knowingly aided and abetted the malicious plans of Defendants Wiley and Nieves, or at the very least relied solely upon the unsubstantiated oral averments of Defendant private citizens to forcibly enter the private property of other private citizens, force them to stand in detainment, allow others to search through their personal property and literally loot their home with abandon, doing so without any list (legal or otherwise) dictating to whom belonged what particular property, and then to actually seize that property. 64. Defendants Preston and Kelley either knowingly lied to Plaintiffs repeatedly about the existence of a court order, or at the very least failed to verify that such an order did exist before making such bold statements of authority and proceeding to forcibly enter the private property of other private citizens, force them to stand in detainment, allow others to search through their personal property and literally loot their home with abandon, doing so without any list (legal or otherwise) dictating to whom belonged what particular property, and then to actually seize that property. 65. Ultimately, with the aid of Defendants Kelley and Preston, Defendants Nieves and Wiley absconded with a plethora of personal property, the rightful ownership and possession of which is vested in the Plaintiffs and no others. 66. On February 25, 2007, Defendants Nieves and Wiley returned again, this time without Defendants Kelley and Preston, and invaded Plaintiffs' property and private residence without consent and pilfered Plaintiffs' belongings. 67. At the incursion on February 25, 2007, Defendants Nieves and Wiley also changed the locks on Plaintiffs' home to bar Plaintiffs' further entry. 68. No formal order of eviction was ever issued. COUNT 1- TRESPASS TO LAND Against All Defendants 69. Paragraphs 1 through 68 are incorporated herein as if fully set forth. 70. Plaintiffs, on both February 17 and February 25, were the lawful occupants of the property which was their private residence at 2258 Pine Road, Newville, PA 17241. 71. Defendants Nieves, Wiley, Kelley and Preston, all with intent to do so, physically invaded Plaintiffs' property on February 17, 2007, and Defendants Nieves and Wiley, with intent to do so, physically invaded Plaintiffs' property on February 25, 2007. 72. Plaintiffs did not give willful, informed consent to the entrance onto the property or into their private residence to any of the four Defendants on either occasion. 73. The conduct in encroachment onto Plaintiffs' property by Defendants Nieves and Wiley was outrageous, in that Defendants Nieves and Wiley, under either false pretenses or by the conspiracy of all four Defendants, acquired and utilized the erroneous assistance of law enforcement officers to effectuate forceful entry into a private residence and remain therein. 74. The conduct in encroachment onto Plaintiffs' property by Defendants Kelley and Preston was outrageous, in that, either in an intentional and knowing conspiracy with Defendants Wiley and Nieves, or under the auspices of an intentional and grossly reckless adherence to the unsubstantiated averment of a false and, moreover, non-authoritative oral agreement between private citizens, they entered and aided entry of Defendants Nieves and Wiley in forcing their way into Plaintiffs' private residence and remained therein after Plaintiff David Wiley's arrival. 75. Such outrageous conduct is far in excess or ordinary negligence and warrants a judgment of punitive damages. 76. Plaintiffs also suffered monetary loss as a result of Defendants' trespass to land, insofar as the forceful invasion afforded Defendants Nieves and Wiley the opportunity to thieve Plaintiffs' personal property. 77. Plaintiff David Wiley has suffered a loss of business as a result of the theft of tools necessary for his employment. 78. Defendants Kelley and Preston, despite their identity as Pennsylvania State Constables, by their patent abuse of authority stand before the Court bearing the same liability for their illegal acts as if they were actors without the pretense of authority. ? ? II 79. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against all Defendants, to hold all Defendants jointly and severally liable for punitive damages as the Court deems just and proper, along with such compensatory damages for stolen person property, and along with the cost of suit and such other relief as the Court deems just and equitable. COUNT II - CONVERSION Against Defendants Peggy L. Nieves and Bernadine M. Wiley 80. Paragraphs 1 through 79 are included herein as if fully set forth. 81. Defendants Nieves and Wiley, with intent to do so and regardless of their fraudulent acquisition and abuse of Constabulary power, wrongfully acquired, in the manner of theft, a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in Plaintiffs. This property includes: a. Plaintiff Robin Wiley's gold diamond engagement ring b. Diamond accent bracelet c. Pfaltzgraff dishes d. 320' of hardwood flooring e. 12' x 15' (20 yards) piece of carpet f. 15'x 18' (30 yards) piece of carpet g. Vinyl flooring remnants h. Carpeting tools i. Tile cutter j. Craftsman 19.2 volt cordless kit with 11 tools k. Craftsman worm drive circular saw 1. Craftsman 4 x 24 belt sander M. 2 Craftsman palm sanders n. Craftsman router and bits o. 2 Craftsman cordless nailers p. Craftsman buffer q. Craftsman 12" compound miter saw r. Craftsman 1470 professional tool set s. Craftsman grease air gun t. Smoldering gun U. Multiple air tools v. Miscellaneous hand tools w. DeWalt jig saw kit X. DeWalt master drill bit kit Y. DeWalt cordless drill kit Z. Botsch air compressor aa. Diamond head grinder with blades bb. 2 Angle grinders cc. Carpet power stretcher dd. Steel chainsaw ee. 2 Black powder guns ff. Miller portable welder gg. Compound bow and accessories hh. Miscellaneous tools that were hanging in the garage ii. Food that was in the refrigerator and the pantry jj. Kitchen Aide mixer kk. Miscellaneous Tonka toys II. Propane heater mm. 25 boxes of Newville Little League baseball first aid supplies and totes, which were in the lawful possession of Plaintiffs, who are committee members of said league nn. Tax forms pertaining to Plaintiff David Wiley 82. Defendants continue to wrongfully possess Plaintiffs' personal property, which they have held for nearly seven months, and have given no indication that they intend any result but to permanently retain Plaintiffs' possessions. 83. Plaintiff David Wiley has lost business as a result of the Defendants' theft of tools he requires for work. 84. The intentional conduct of Defendants Wiley and Nieves in commanding the erroneous assistance of Defendant constables Preston and Kelley, either by knowingly false representations or by conspiracy, is an outrageous act of utilizing an abuse of authority to facilitate the conversion of Plaintiffs' personal property in deliberate disregard of the rights of the Plaintiffs. 85. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, in replevin of the personal property, or to pay the fair market value of the converted personal property, including punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT III - TRESPASS TO CHATTELS Against Defendants Peggy L. Nieves and Bernadine M. Wiley 86. Paragraphs 1 through 85 are incorporated herein as if fully set forth. 87. Defendants Nieves and Wiley, without willful, informed consent, regardless of their fraudulent acquisition and abuse of constabulary power, wrongfully interfered with the right to possession of a surfeit of Plaintiffs' personal property, the unmitigated right of immediate possession was and is vested only in the Plaintiffs. This property includes that listed in Paragraph 81, a - nn. 88. Defendants' intentional interference with Plaintiffs' right to possession of the personal property at issue has caused a loss of Plaintiffs' possessory right in said property. 89. Plaintiff David Wiley has lost business as a result of the Defendants' theft of a copious amount of tools he requires for work. 90. The intentional conduct of Defendants Wiley and Nieves in commanding the erroneous assistance of Defendant constables Preston and Kelley, either by knowingly false representations or by conspiracy, is an outrageous act of utilizing an abuse of authority to facilitate trespass to Plaintiffs' personal property in deliberate disregard of the rights of the Plaintiffs. 91. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants Nieves and Wiley, a judgment for damages from harm to property, if any, and/or the fair rental value of the property once returned, punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT IV - NEGLIGENCE Against Defendants Kevin M. Kelley and Kevin W. Preston 92. Paragraphs 1 through 91 are incorporated herein as if fully set forth. 93. Defendants Kelley and Preston owe to Plaintiffs a duty of care akin to the professional standard of a Pennsylvania State Constable when acting as constables. 94. Defendants Kelley and Preston, acting in concert, breached that duty when they intentionally, falsely and deceptively used a show of their constabulary authority and a false pronouncement of possession of a court order to forcibly enter the private property of other private citizens and remain there, to force them into a detainment, to allow others to search their personal property and literally loot their home with abandon, and to seize personal property, all knowingly without ever having been presented with a court order and without the existence of a court order, either in conspiracy with Defendants Wiley and Nieves or at the very least in a reckless reliance solely upon the unsubstantiated oral averment of Defendant private citizens. 95. Defendants Kelley and Preston also breached their duty when, upon entering the premises, Defendant constables failed to regulate the actions of Defendants Wiley and Nieves, who literally looted the entirety of Plaintiffs' private residence in a manner of destructive abandon. 96. Defendants Kelley and Preston further breached their duty in facilitating and allowing Defendants Wiley and Nieves to steal a plethora of Plaintiffs' personal property by a failure to require a list of property to be removed, or, at the very least, to regulate what property was being removed and to verify ownership before allowing Defendants Wiley and Nieves to abscond with said property. 97. This intentional and grossly reckless breach of duty on the part of both Defendants Kelley and Preston was the actual and proximate cause of damages to Plaintiffs, including but not limited to trespass to their land and the loss of their personal property. 98. The Defendant constables at all times acted intentionally and outrageously in a dereliction of duty and an abuse of authority, with reckless indifference to the rights of the Plaintiffs, David and Robin Wiley. 99. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to gain entrance into the Plaintiffs' private residence and to facilitate the entry of Defendants Wiley and Nieves into Plaintiffs' private residence, knowing that they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 100. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to detain the Plaintiffs away from the ongoing events while their private residence was searched and their property was seized, knowing they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 101. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to search the Plaintiffs' private residence and to facilitate the search of Defendants Wiley and Nieves of the Plaintiffs' residence, knowing they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 102. Defendants Preston and Kelley acted intentionally in using a show of their constabulary authority to seize the Plaintiffs' personal property and to facilitate the seizure of Plaintiffs' property by Defendants Wiley and Nieves, knowing they had never r been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 103. Defendants Preston and Kelley acted intentionally in making statements repeatedly to the Plaintiffs regarding the existence of a court order, to facilitate entry, detainment, search and seizure, knowing that they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 104. Defendant constables' intentional actions in gaining entry into Plaintiffs' private residence, making possible a search and seizure of their property, and making false averments of a court order, whether it be the result of the gross recklessness of relying on the oral averments of Defendants Wiley and Nieves, or the gross recklessness of the failure to verify that their actions were pursuant to issued order, or whether the evil motive of a conspiracy with Defendants Wiley and Nieves to harass Plaintiffs and steal their property, Defendants Preston and Kelley at all times relevant acted intentionally and in bad faith, with full knowledge of the risk that basic laws and Constitutional rights were being violated and in deliberate disregard of that knowledge. 105. In total, Defendants Preston and Kelley were led solely to do the bidding of Defendant private citizens and by a show of their constabulary authority at their exclusive behest, compelled the Plaintiffs into detainment while Defendant private citizens forced their way into Plaintiffs' private residence, ransacked their home, and searched for and removed property of their own choosing, all while knowing they had never been provided with a court order to do so, an outrageous act demonstrating a reckless indifference to the rights of the Plaintiffs. 106. The facts illustrate a clear picture of Pennsylvania constables taking orders from private citizens in the manner of private guards and armed enforcers. 107. Defendant constables acts are all intentional, knowing acts constituting a dereliction of duty and abuse of power that are substantially in excess of common negligence. 108. Punitive damages are warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs request respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Kelley and Preston jointly and severally liable for damages, as the Court deems just and proper, including punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. COUNT V - FRAUD Against Defendants Peggy L. Nieves and Bernadine M. Wiley 109. Paragraphs 1 through 108 are incorporated herein as if fully set forth. 110. Defendant Wiley issued a direct falsehood to Defendant Constables in the form of a brazen lie regarding a non-existent oral agreement about the Plaintiffs being in accordance with entry onto their property and the removal of chattels therefrom. 111. Defendant Nieves calculated to deceive as well, at the very least by her silence as to the truth, with full knowledge that there was no such agreement and that all four Defendants would catch Plaintiffs by complete surprise with their invasion of February 17, 2007. 112. In commanding the assistance of Defendant Constables Kelley and Preston with the known false representation regarding the erroneous existence of an oral agreement with the Plaintiffs, Defendants Nieves and Wiley calculated and intended to deceive Defendants Kelley and Preston, thus causing them to enter the Plaintiffs' property and otherwise conduct constabulary duties which they actually had no right to perform. 113. Defendants Kelley and Preston relied on the outright lie told to them by Defendants Nieves and Wiley, and in their capacity as Pennsylvania State Constables, aided and abetted Defendants Nieves and Wiley in trespassing on Plaintiffs' property and in the theft of Plaintiffs' personal property. 114. The resulting harm suffered by Plaintiffs was proximately caused by the Constables' reliance on the fraud perpetuated by Defendants Nieves and Wiley, with trespass to their private property and the theft of their personal belongings. 115. The conduct of Defendants Nieves and Wiley was intentional and outrageous in procuring the services of law enforcement officials either by false pretenses to enter Plaintiffs' private residence and search and remove Plaintiffs' personal property. 116. Punitive damages are also warranted, if not necessary, as a deterrent to this sort of unacceptable conduct, to prevent others from engaging in similar conduct that erodes the public's invaluable trust in authorities, law enforcement officials, and the rule of law itself. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue judgment in their favor and against Defendants, to hold Defendants Nieves and Wiley jointly and severally liable for damages, including punitive damages, along with the cost of suit, and such other relief as the Court deems just and equitable. Respectfully Submitted, Date TURO L?1 28 Ca (71 FICES .fdrew Snyder, Esquire b Pitt Street PA 17013 for Plaintiffs LAVd OFFICES (A- STEPHEN J. t OGG 1 ° S HANOVER STREET -SUITE 101 CARLISLE- PENNSYLVANIA 1701 TELEPHONE (717) 245-2698 February 15, 2007 David Wiley 225,81 Roar! Newville, PA 17241 Dear Mr. Wiley. I have been retained to represent Mr. Harold Wiley through the FA X (7)7) 245-0829 Cumberland County Office of Aging. Mr. Wiley has instructed me to ask you to vacate the premises. If you don't, he has the right to go through the District Justice to have you evicted. He has requested that you leave the house immediately. Sincerely, tephen J. Hogg, Esqui SJH? [EXHIBIT _.A VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. `-I l I Date David Wiley Plaintiff i Date Rob" Wiley Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Amended Complaint upon Adam L. Seiferth, Esquire, Karl Rominger, Esquire, and Marcus A. McKnight, Esquire, by depositing the same in the United States Mail, first class, postage pre-paid on the eleventh day of September, 2007, from Carlisle, Pennsylvania, addressed as follows: Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlsile, PA 17013 ?URO W,,bF ICES o drew n? der, Esquire S Pitt Str et Car sle, 170 3 (71 ) 245-968 Att rney for aintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND Cut 1NI'Y, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, CASE NUMBER: 07-3670 Civil Tern Plaintiffs ISSUE NUMBER: PLEADING: Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, ANSWER AND NEW MATTER OF DEFENDANTS, KEVIN M. KELLEY Defendants AND KEVIN W. PRESTON, TO' PLAINTIFFS' AMENDED COMPLAINT CODE AND CLASSIFICATION: TO: PLAINTIFFS, DAVID AND ROBIN WILEY YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTEIAD AGAINST YOU. DAM L. SEIFERTH, ES UI FILED ON BEHALF OF: Kevin M. Kelley and Kevin W. Preston, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite ?O1 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, CASE NO: 07-3670 Civil Term Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants- JURY TRIAL DEMANDED ANSWER, NEW MATTER AND CROSSCLAIM OF DEFENDANTS, KEVIN KELLEY AND KEVIN PRESTON TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, come the Defendants, Kevin M. Kelley ("Mr. Kelley") and Kevin W. Preston ("Mr. Preston"), by and through their attorneys, Cipriani & Werner, and answers Plaintiffs' Amended Complaint as follows: 1. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 1 of Plaintiffs' Complaint and the same are therefore denied. 2. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 2 of Plaintiffs' Complaint and the same are therefore denied. 3. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 3 of Plaintiffs' Complaint and the same are therefore denied. a 4. Admitted. 5. Admitted with clarification. The alleged position of Chief Constable of Dickinson Township of Cumberland County, Pennsylvania does not exist. 6. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 6 state conclusions of law to which no answer is required. To the extent an answer may be required, it is specifically denied that Plaintiffs were tenants of Harold F. Wiley at 2258 Pine Road, Newville, Pennsylvania or had any legal interest, rights or privileges with regard to said property. 7. Denied. The allegations of paragraph 7 are an attempt to interpret a written document which speaks for itself and the same is, therefore, denied. 8. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 8 of Plaintiffs' Complaint and the same are therefore denied. 9. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 9 of Plaintiffs' Complaint and the same are therefore denied. 10. Admitted. 11. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 11 of Plaintiffs' Complaint state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a tenant's right of possession of the property, or had any legal interest, rights or privileges with regard to said property at any time material hereto. 12. Denied. It is specifically denied that Plaintiff, Robin Wiley, was alone with her three children at any time material hereto. To the contrary, it is believed and, therefore, averred that a gentleman thought to be the father of Plaintiff, Robin Wiley, was also present on the property at all times relevant. 13. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that Plaintiff, Robin Wiley, did not immediately allow Defendants into her home. To the contrary, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 14. Denied. It is specifically denied that Defendant, Mr. Preston, made any such statements as alleged. To the contrary, Defendant, Mr. Preston advised Plaintiff, Robin Wiley, that his presence and the presence of Defendant, Mr. Kelley, were for purposes of maintaining the peace while the property of Harold Wiley was removed from the premises. 15. Denied. It is specifically denied that Defendant, Mr. Preston, warned Plaintiff, Robin Wiley, as alleged. To the contrary, Defendant, Mr. Preston advised Plaintiff, Robin Wiley, that his presence and the presence of Defendant, Mr. Kelley, were for purposes of maintaining the peace while the property of Harold Wiley was removed from the premises. 16. Denied. It is specifically denied that Defendant, Mr. Preston, refused to show Plaintiff, Robin Wiley, a court order, as alleged. To the contrary, Plaintiff, Robin Wiley, never asked to see a court order. 17. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 17 of Plaintiffs' Complaint and the same are therefore denied. By way of further answer, Plaintiff, Robin Wiley, did not have any interest in the property and, therefore, had no authority to refuse the entry of the Defendants who were on the property at the request of the owner, Harold Wiley. Even so, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order and that Defendant, Bernadine Wiley, notified Plaintiff, Robin Wiley, of the intention to remove the belongings of Harold Wiley on February 17, 2007. 18. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 18 of Plaintiffs' Complaint and the same are therefore denied. In no event did Plaintiff, Robin Wiley, call the police. By way of further answer, Plaintiff, Robin Wiley, did not have any interest in the property and, therefore, had no authority refuse the entry of the Defendants who were on the property at the request of the owner, Harold Wiley. Even so, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 19. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 19 of Plaintiffs' Complaint and the same are therefore denied. To the extent a further answer is required, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property and at no time called the police. 20. Admitted in part and denied in part. Defendants, Mr. Kelley and Mr. Preston, admit that Plaintiff, Robin Wiley, permitted the Defendants to enter the home. It is specifically denied that Plaintiff, Robin Wiley, had the authority to refuse the entry of Defendants into the premises. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, gave Plaintiff, Robin Wiley, a false impression that a Court Order existed. To the contrary, Plaintiff, Robin Wiley, never requested to see a court order. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 21. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 21 state conclusions of law to which no answer is required. To the extent a further answer is required, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 22. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 22 state conclusions of law to which no answer is required. To the extent a further answer is required, at all times material hereto, Plaintiff, Robin Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property so that the belongings of Harold Wiley could be removed. 23. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 23 pertain to a party other than Defendants and therefore, no answer is required. 24. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 24 pertain to a party other than Defendants and therefore, no answer is required. 25. Denied. Defendant, Mr. Kelley, specifically denies that he "sequestered" Plaintiff, Robin Wiley, at any time material hereto. To the contrary, Plaintiff, Robin Wiley, was permitted to move about the premises at all times relevant. 26. Denied. Defendant, Mr. Kelley, specifically denies that he made any such statement to Plaintiff, Robin Wiley, as alleged. 27. Denied. It is specifically denied that Plaintiff, Robin Wiley, was detained, wept, or was otherwise in shock and dismay. To the contrary, Plaintiff was permitted to move about the premises at all times relevant and maintained a cordial and appropriate demeanor. 28. Denied. It is specifically denied that Plaintiff, Robin Wiley, was detained at any time material hereto. With regard to the remaining allegations, after reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 28 of Plaintiffs' Complaint and the same are therefore denied. 29. Denied. Strict proof thereof demanded. 30. Denied. It is specifically denied that Defendant, Mr. Preston, did not ascertain which property was removed from the premises. To the contrary, Plaintiff, Robin Wiley, was permitted to dispute any item(s) being removed from the home. Strict proof of each allegation of paragraph 30 is demanded. 31. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 32 pertain to a party other than Defendants and therefore, no answer is required. 32. Denied. It is specifically denied that Defendants, Bernadine Wiley and Peggy Nieves, were alone and unsupervised. To the contrary, the search and removal of the belongings of Harold Wiley by Defendants, Bernadine Wiley and Peggy Nieves, carried out in the presence of Defendant, Mr. Preston. 33. Admitted with clarification. Plaintiff, David Wiley, arrived approximately 15 minutes after the arrival of Defendants. 34. Denied. Defendant, Mr. Kelley, specifically denies making; any such statement to Plaintiff, David Wiley, as alleged. To the contrary, Defendant, Mr. Kelley, introduced himself to Plaintiff, David Wiley, and they both entered the house. Strict proof of each allegation of parag -raph 34 is demanded. 35. Denied. Defendant, Mr. Kelley, specifically denies making; any such statement to Plaintiff, David Wiley, as alleged. To the contrary, Defendant, Mr. Kelley, advised Plaintiff, David Wiley, of his role to maintain the peace while the property of Harold Wiley was being removed from the premises. Strict proof of each allegation of paragraph 35 is demanded. 36. Denied. It is specifically denied that Plaintiff, David Wiley, asked to see any court order or that the personal property of Plaintiffs were removed from the premises By way of further answer, it is specifically denied that Defendants were removing Plaintiffs' personal property from the premises. Strict proof of each allegation of paragraph 36 is demanded. 37. Denied. Defendant, Mr. Kelley, specifically denies making any such statement to Defendant, David Wiley, as alleged. Strict proof of each allegation of paragraph 37 is demanded. 38. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that Plaintiff, David Wiley, requested to see a Court Order. Strict proof of each allegation of paragraph 38 is demanded. 39. Denied. It is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. It is specifically denied that Plaintiffs requested to see any order as alleged. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, departed with any of Plaintiffs' personal property. Strict proof of each allegation of paragraph 39 is demanded. 40. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 40 of Plaintiffs' Complaint and the same are therefore denied. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, deny that they gave Plaintiff, David Wiley, a false impression of the existence of a Court Order, as Plaintiff, David Wiley, never requested to see a court order. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 41. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 41 state conclusions of law to which no answer is required. To the extent a further answer is required, at all times material hereto, Plaintiff, David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 42. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 42 state conclusions of law to which no answer is required. 43. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that they directed Plaintiffs and their children to remain outside any time material hereto. To the contrary, 4 6 Plaintiffs, David and Robin Wiley, were permitted to move about as they pleased. In fact, the only time Plaintiff, Robin Wiley, went outside was so that she could smoke a cigarette. Furthennore, the children were playing outside at the discretion of Plaintiff, Robin Wiley. Strict proof of each allegation of paragraph 43 is demanded. 44. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that they directed Plaintiffs and their children to remain outside any time material hereto. To the contrary, Plaintiffs, David and Robin Wiley, were permitted to move about as they pleased. In fact, the only time Plaintiff, Robin Wiley, went outside was so that she could smoke a cigarette. Furthermore, the children were playing outside at the discretion of Plaintiff, Robin Wiley. Strict proof of each allegation of paragraph 44 is demanded. 45. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that they directed Plaintiffs and their children to remain outside any time material hereto. To the contrary, Plaintiffs, David and Robin Wiley, were permitted to move about as they pleased. In fact, the only time Plaintiff, Robin Wiley, went outside was so that she could smoke a cigarette. Furthermore, the children were playing outside at the discretion of Plaintiff, Robin Wiley. Strict proof of each allegation of paragraph 45 is demanded. 46. Admitted. 47. Admitted with clarification. Defendant, Mr. Kelley, collected all firearms in the house believed to be owned by Harold Wiley and placed them in the constables' vehicle. 48. Denied. It is specifically denied that two of the firearms were property of Plaintiffs. To the contrary, Plaintiff, Robin Wiley, confirmed that all of the firearms seized from the property were owned by Harold Wiley. Strict proof of each allegation of paragraph 48 is demanded. 4 6 49. Denied. It is specifically denied that two of the firearms were property of Plaintiffs. To the contrary, Plaintiff, Robin Wiley, confirmed that all of the firearms seized from the property were owned by Harold Wiley. Strict proof of each allegation of paragraph 49 is demanded. 50. Admitted with clarification. The firearms were turned over to Defendant, Peggy Nieves, after checking the firearms at the police station and removing all ammunition. 51. Admitted in part and denied in part. It is admitted that there was no list of Harold Wiley's possessions. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, looted Plaintiffs' home and personal property without a court order or providing supervision. To the contrary, Defendant, Mr. Preston, supervised the actions of Defendants, Peggy Nieves and Bernadine Wiley, at all times relevant. Furthermore, Plaintiffs were afforded the opportunity to, and did not dispute any items which were removed from the premises. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. Strict proof of each allegation of paragraph 51 is demanded. 52. Denied. Defendants, Mr. Kelley and Mr. Preston, specifically deny that the Plaintiffs' home was ransacked or that Defendants, Wiley and Nieves, searched the premises with "destructive abandon." To the contrary, Defendants were peaceably on the premises at all times and the property removed from the premises did not belong to Plaintiffs. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. Strict proof of each allegation of paragraph 52 is demanded: 53. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, indicated that they had a Court Order or otherwise acted improperly, making any such statements as alleged. To the contrary, Defendants, Mr. Kelley and Mr. Preston, advised Plaintiffs that their presence was to act as officers of the peace while the property of Harold Wiley was being removed from the premises. Strict proof of each allegation of paragraph 53 is demanded. 54. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, searched Plaintiffs' private residence and other buildings. To the contrary, Defendants, Mr. Kelley and Mr. Preston, supervised Defendants, Peggy Nieves and Bernadine Wiley, as well as Plaintiffs, so as to keep the peace. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. Strict proof of each allegation of paragraph 54 is demanded. 55. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, did not have any authority to enter the premises to search and seize personal property of Harold Wiley. To the contrary, Plaintiffs had no authority to refuse the entry of Defendants, Mr. Kelley and Mr. Preston, who were present as officers of the peace while the property of Harold Wiley was removed from the premises. Furthermore, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. Strict proof of each allegation of paragraph 55 is demanded. 56. Admitted in part and denied in part. Defendants, Mr. Kelley and Mr. Preston, did not have a list of the property of Harold Wiley. It is specifically denied that the absence of the list entitles Plaintiffs to any relief demanded in this Complaint. By way of further answer, Plaintiffs were afforded the opportunity to, and did not dispute any items which were removed from the premises. 57. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth. of the averments contained in paragraph 57 of Plaintiffs' Complaint and the same are therefore denied. 58. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 58 of Plaintiffs' Complaint and the same are therefore denied. 59. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 59 of Plaintiffs' Complaint and the same are therefore denied. 60. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 60 of Plaintiffs' Complaint and the same are therefore denied. By way of further answer, it is specifically denied that Defendants, Mr. Kelley and Mr. Preston, invaded Plaintiffs' residence, ransacked it or otherwise took Plaintiffs' personal property. Strict proof thereof is demanded. To the extent a further answer is required, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 61. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, did not have any authority to enter the premises to search and seize personal property of Harold Wiley. To the contrary, Plaintiffs had no authority to refuse the entry of Defendants, Mr. Kelley and Mr. Preston, who were present as officers of the peace while the property of Harold Wiley was removed from the premises. Furthermore, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 62. Denied. It is specifically denied that Defendants, Mr. Kelley and Mr. Preston, did not have any authority to enter the premises to search and seize personal property of Harold Wiley. To the contrary, Plaintiffs had no authority to refuse the entry of Defendants, Mr. Kelley and Mr. Preston, who were present as officers of the peace while the property of Harold Wiley was removed from the premises. Furthermore, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is required, it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order. 63. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 63 state conclusions of law to which no answer is required. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, incorporate their answer to paragraph 62. 64. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 64 state conclusions of law to which no answer is required. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, incorporate their answer to paragraph 62. 65. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 65 state conclusions of law to which no answer is required. By way of further answer, Defendants, Mr. Kelley and Mr. Preston, incorporate their answer to paragraph 62. 66. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 66 pertain to a party other than Defendants and therefore, no answer is required. 67. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 67 pertain to a party other- than Defendants and therefore, no answer is required. 68. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 68 of Plaintiffs' Complaint and the same are therefore denied. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a tenant's right of possession of the property at any time material hereto such that an order of eviction was necessary. COUNT I - TRESPASS TO LAND Against All Defendants 69. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs I - 68 of their answer above in response to paragraph 69 of Plaintiffs' Complaint. 70. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 70 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a right of possession and/or were lawful occupants of the property at any time material hereto. 71. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 71 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs retained a tenant's right of possession of the property at any time material hereto. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 72. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 72 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 73. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 73 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 74. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 74 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. 75. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 75 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that an award of punitive damages is warranted in this case. 76. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 76 state conclusions of law to which no answer is required. Strict proof of any alleged damages is demanded. 77. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 77 of Plaintiffs' Complaint and the same are therefore denied. Strict proof of any alleged damages is demanded. 78. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 78 state conclusions of law to which no answer is required. By way of further answer, at all times material hereto, Plaintiffs, Robin Wiley and David Wiley, gave Defendants, Mr. Kelley and Mr. Preston, consent to enter the property. To the extent a further answer is necessary, it is specifically denied that Defendants, Mr. Kelley and Mr. Preston, in any way abused their authority or otherwise acted illegally. 79. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 79 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that an award of punitive damages is warranted in this case. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT II - CONVERSION Against Defendants, Peggy L. Nieves and Bernadine M. Wiley 80. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 79 of their answer above in response to paragraph 80 of Plaintiffs' Complaint. 81. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 81 pertain to a party other than Defendants and therefore, no answer is required. 82. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 82 pertain to a party other than Defendants and therefore, no answer is required. 83. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 83 of Plaintiffs' Complaint and the same are therefore denied. 84. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 84 state conclusions of law to which no answer is required. 85. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 85 state conclusions of law to which no answer is required. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfiilly request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT III - TRESPASS TO CHATTELS Against Defendants, Peggy L. Nieves and Bernadine M. Wiley 86. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 85 of their answer above in response to paragraph 86 of Plaintiffs' Complaint. 87. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 87 pertain to a party other than Defendants and therefore, no answer is required. 88. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 88 pertain to a party other than Defendants and therefore, no answer is required. 89. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 89 of Plaintiffs' Complaint and the same are therefore denied. 90. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 90 state conclusions of law to which no answer is required. 91. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 91 state conclusions of law to which no answer is required. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT IV - NEGLIGENCE Against Defendants, Kevin M. Kelley and Kevin W. Preston 92. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs 1 - 91 of their answer above in response to paragraph 92 of Plaintiffs' Complaint. 93. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 93 state conclusions of law to which no answer is required. 94. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 94 state conclusions of law to which no answer is required. 95. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 95 state conclusions of law to which no answer is required. 96. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 96 state conclusions of law to which no answer is required. 97. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 97 state conclusions of law to which no answer is required. 98. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 98 state conclusions of law to which no answer is required. 99. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 99 state conclusions of law to which no answer is required. 100. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 100 state conclusions of law to which no answer- is required. 101. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 101 state conclusions of law to which no answer is required. 102. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 102 state conclusions of law to which no answer is required. 103. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 103 state conclusions of law to which no answer is required. 104. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 104 state conclusions of law to which no answer is required. 105. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 105 state conclusions of law to which no answer is required. 106. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 106 state conclusions of law to which no answer is required. 107. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 107 state conclusions of law to which no answer is required. 108. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 108 state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that an award of punitive damages is warranted in this case. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. COUNT V - FRAUD A,2ainst Defendants, PeELyy L. Nieves and Bernadine M. Wiley 109. Defendants, Mr. Kelley and Mr. Preston, incorporate paragraphs l - 108 of their answer above in response to paragraph 109 of Plaintiffs' Complaint. 110. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 110 of Plaintiffs' Complaint and the same are therefore denied. 111. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 111 pertain to a party other than Defendants and therefore, no answer is required. 112. Denied. After reasonable investigation, Defendants, Mr. Kelley and Mr. Preston, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 112 of Plaintiffs' Complaint and the same are therefore denied. 113. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph l l3 state conclusions of law to which no answer is required. 114. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 114 state conclusions of law to which no answer is required. 115. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 115 pertain to a party other than Defendants and therefore, no answer is required. 116. Denied. Defendants, Mr. Kelley and Mr. Preston, are advised by counsel and therefore aver that the allegations contained in paragraph 116 state conclusions of law to which no answer is required. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. NEW MATTER 117. Plaintiffs' claims against Defendants, Mr. Kelley and Mr. Preston, are barred by the doctrines of privilege and judicial immunity. 118. At all times material, Plaintiffs consented to the entry of Defendants, Mr. Kelley and Mr. Preston, onto the premises located at 2258 Pine Road, Newville, Pennsylvania. 119. At all times material, Plaintiffs did not have the authority, legal right or privilege to deny access of the Defendants, Mr. Kelley and Mr. Preston, onto the property and premises located at 2258 Pine Road, Newville, Pennsylvania. 120. At all times material, the property and premises located at 2258 Pine Road, Newville, Pennsylvania was owned and controlled by Harold F. Wiley. 121. Defendants, Mr. Kelley and Mr. Preston, did not remove any property owned by Plaintiffs. 122. To the extent any property was removed from the premises of Harold Wiley, said property was owned and possessed by Harold Wiley. 123. Defendants, Mr. Kelley and Mr. Preston, were acting within the scope of their authority as constables in that they were called upon to act as officers of the peace. 124. At all times material, Defendants, Mr. Kelley and Mr. Preston, acted lawfully and reasonably under the facts and circumstances of this case. 125. Plaintiffs have failed to state a cause of action against Defendants, Mr. Kelley and Mr. Preston, upon which relief can be granted. 126. Plaintiffs have failed to state a claim for punitive damages under the facts and circumstances of this case against Defendants, Mr. Kelley and Mr. Preston. 127. Plaintiffs' claims may be barred by the applicable statute of limitations. 128. Discovery may reveal that Plaintiffs' claims may be barred in whole or in part by one or more affirmative defenses set forth in Pa. R.C.P. 1030, which are incorporated herein by reference including, but not limited to, assumption of the risk, collateral estoppel, res judicata, release or immunity from suit. WHEREFORE, Defendants, Mr. Kelley and Mr. Preston, respectfully request that this Honorable Court dismiss Plaintiffs' Complaint. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: DENNIS J. BONETTI, UQ "R E ADAM L. SEIFERTH Counsel for the Defenda A JURY TRIAL IS DEMANDED Kevin W. Preston and Kevin M. Kelley VERIFICATION I hereby affirm that the following; facts are correct: I am a Defendant in the foregoing action. The attached Answer and New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer and New Matter is that of counsel and not of me. I have read the Answer and New Matter and to the extent that the Answer and New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer and New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer and New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. _71 Dated: -, J C f Kevin M. Kelley 0 • VERIFICATION I hereby affirm that the following facts are correct: I am a Defendant in the foregoing action. The attached Answer and New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer and New Matter is that of counsel and not of me. I have read the Answer and New Matter and to the extent that the Answer and New Matter is based upon information which 1 have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer and New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer and New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: r „ KK evi reston CERTIFICATE OF SERVICE That counsel for the Defendants, Kevin W. Preston and Kevin M. Kelley, hereby certifies that a true and correct copy of its ANSWER AND NEW MATTER OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFFS' AMENDED COMPLAINT has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the _ day of 2007. James M. Robinson, Esquire Lorin Andrew Snyder Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Counsel for the Plaintiff Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Personal Counsel for Defendant, Kevin W. Preston Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel fior Peggy L. Nieves anti Bernadine M. Wiley Respectfully submitted, BY: CIPRIANI & WERNER, P.C. DENNIS J. BONET , QUIRE ADAM L. SEIFER , E QUIRE Counsel for the Def d• ts, Kevin W. Preston and Kevin M. Kelley 4 a David WILEY and Robin WILEY, Plaintiffs i ii v. i i Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W PRESTON, it Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW NOTICE TO: DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER i j WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. LOON ANDREW SNYDER, ESQUIRE - ) C _ ? S' M cil j ..t tom' David WILEY and IN THE COURT OF COMMON PLEAS Robin WILEY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 07 3670 CIVIL TERM Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants CIVIL DIVISION - LAW PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANTS KEVIN M. KELLEY AND KEVIN W. PRESTON AND NOW, come Plaintiffs, David and Robin Wiley, by and through their attorneys, Turo Law Offices, and answer Defendants' New Matter as follows: 117. Paragraph 117 contains conclusions of law to which no response is required. To the extent that such an answer is required, no court order exists to provide Defendant constables with the shelter of immunity. 118. Denied. At no time did Plaintiffs give their willful, informed consent to the entry of Defendants Kelley and Preston, as said Defendants presented Plaintiffs with the false impression that they were acting pursuant to an existing court order. 119. Denied. Plaintiffs resided at 2258 Pine Road as tenants of Harold F. Wiley and had the right to deny access of Defendants Kelley and Preston onto the property in question and especially into their private residence. 120. Admitted in part and denied in part. It is admitted that the property and premises was owned by Harold F. Wiley; it is denied that it was controlled by Harold F. Wiley. Plaintiffs enjoyed control of the property, as well, as they were tenants of 2258 Pine Road. 121. Denied. Defendant constables personally removed guns owned by the Plaintiffs. 122. Denied. Defendants removed a multitude of property from the premises that was and is the exclusive property of the Plaintiffs. i? 123. Denied. Defendants Kelley and Preston were not acting within the scope of their authority, as they were not acting pursuant to the requisite court order which would allow for their aiding in the search and seizure of personal property from a private residence. 124. Denied. Defendants Kelley and Preston at no time acted lawfully and reasonably under the facts and circumstances of this case. From the very beginning, when said Defendants obtained entry onto the property for themselves and co- defendants under false pretenses of a court order, to their failure to "keep the peace" during the events in question, to their abetting the theft of Plaintiffs' property, to making false statements of authority, Defendants Kelley and Preston acted unlawfully and outrageously unreasonable. 125. Paragraph 125 contains conclusions of law to which no response is required. 126. Paragraph 126 contains conclusions of law to which no response is required. 127. Paragraph 127 contains conclusions of law to which no response is required. 128. Paragraph 128 contains conclusions of law to which no response is required. NEW MATTER 129. Paragraphs 1 through 128 are incorporated herein as if fully set forth. 130. Defendant Preston informed the undersigned counsel in a telephone conversation regarding a related case, prior to taking up this cause of action, in or around March 2007, that Defendant Preston knew there was no court order issued to Bernadine Wiley, or words precisely to that effect. 131. Defendants Preston and Kelley have known that no court order exists for at least six months before verifying and filing their Answer and New Matter on September 27, 2007, falsely stating, " ... it is believed and, therefore, averred that Defendant, Bernadine Wiley, was in possession of a court order" in paragraphs 17, 18, 20 and 51 of the Answer. 4 • 132. On July 9, 2007, Defendant Bernadine Wiley testified at a hearing in a related case before the Honorable Merle L. Ebert, Jr., of the Court of Common Pleas of Cumberland County, and stated that there is no court order and that she needed no court order, or words precisely to that effect. 133. Even if Defendant constables had not been previously aware that no court order exists, Defendants Preston and Kelley have had roughly two-and-a-half months after her sworn statements were made (and seven months after the incident) to converse with Defendant Wiley regarding the question of a court order. 134. Defendant Preston informed undersigned counsel during said conversation in or around March 2007 that he and Defendant Kelley aided Defendants Wiley and Nieves at the behest of Defendant Wiley, who told Defendant Preston that she and her brother, Plaintiff David Wiley, had made an agreement regarding the . removal of Harold F. Wiley's belongings, or words precisely to that effect. 135. Defendant Wiley had never made any such agreement with either of the Plaintiffs. 136. The Plaintiffs were not even aware that Defendant Wiley had returned from her residence in Ohio until she appeared at their home on February 17, 2007. 137. Defendant Bernadine Wiley paid Defendant constables $200.00 to procure their personal services for February 17, 2007. WHEREFORE, Plaintiffs, David and Robin Wiley, respectfully request that this Honorable Court issue judgment in their favor and against Defendants, Kevin M. Kelley and Kevin W. Preston. spectfully sub i ed, RO LAW-0541CES 1o1171ct7 28 b t,h Pitt-'Street Orrm ; ---17013 (717) 245-9688 Attorney for Plaintiffs Esquire VERIFICATION I verify that the statements made in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date Ro Wiley Plaintiff 4 ? ii CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Response to New Matter upon Adam L. Seiferth, Esquire, Karl E. Rominger, Esquire, and Marcus A. McKnight, III, Esquire, by depositing the same in tie Unit d States Mail, first class, It // postage pre-paid on the day of 2007, from Carlisle, Pennsylvania, addressed as follows: Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 TURO LAW Lo ' rew Snyder, Esq 28 treet Car isle, PA 17013 (717) 245-9688 Attorney for Plaintiffs c CERTIFICATE OF SERVICE That counsel for the Defendants, Kevin W. Preston and Kevin M. Kelley, hereby certifies that a true and correct copy of its PRELIMINARY OBJECTIONS OF DEFENDANTS, KEVIN M. KELLEY AND KEVIN W. PRESTON, TO PLAINTIFFS' NEW MATTER has been served on all counsel of record, by first class mail, postage re-paid, ccording to the Pennsylvania Rules of Civil Procedure, on the Ca Fk day of , 2007. James M. Robinson, Esquire Lorin Andrew Snyder Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Counsel for the Plaintiff Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Personal Counsel for Defendant, Kevin W. Preston Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel for Peggy L. Nieves and Bernadine M. Wiley Respectfully submitted, BY: CIPRIANI & WERNER, P.C. DENNIS J. BONETT, E RE ADAM L. SEIFERT QUIRE Counsel for the Defe da ts, Kevin W. Preston an evin M. Kelley ?..} .. _?., _r . - - --a ??'? -- ? -r: G1 _- +`t _? ., - ? ? ? ? 1 ti PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. -- - ---- - -- - ------------------ - -- - ------- - ------------ - ---- - -- - -- - ----------- - --------------- - --------- CAPTION OF CASE (entire caption must be stated in full) David Wiley and Robin Wiley (Plaintiff) VS. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston (Defendant) N0.07-3670 , Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary objections to Plaintiffs' New Matter 2. Identify counsel who will argue cases: (a) for plaintiff: Lorin A. Snyder, Esquire, 28 South Pitt Street, (Name and Address) Carlisle, PA 17013 (b) for defendant: Adam L. Seiferth, Esquire, 1011 Mumma Road, (Name and Address) Suite 201, Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argurnent. 4. Argument Court Date: A Signature Date: [ L -U &ODI' Adam L. Seifeirtll, Esquire Print your name Defendants, Kevin M. Kelley and Attorney for Kevin W. Preston f a CERTIFICATE OF SERVICE That counsel for the Defendants, Kevin W. Preston and Kevin M. Kelley, hereby certifies that a true and correct copy of its PRAECIPE FOR LISTING CASE FOR ARGUMENT has been served on all counsel of record, by first class mail, postage pre- aid, according to the Pennsylvania Rules of Civil Procedure, on the day of /?-?- L- 2007. James M. Robinson, Esquire Lorin Andrew Snyder Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Counsel for the Plaintiff Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Personal Counsel for Defendant, Kevin W. Preston Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel for Peggy L. Nieves and Bernadine M. Wiley Respectfully submitted, BY: CIPRIANI & WERNER, P.C. DENNIS J. BONETTI, S VRR-E' ADAM L. SEIFERTH, VSS UI RE Counsel for the Defend, Kevin W. Preston and Kevin M. Kelley -7 r - C David WILEY and IN THE COURT OF COMMON PLEAS Robin WILEY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 07 - 3670 CIVIL TERM Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants CIVIL DIVISION - LAW MOTION TO WITHDRAW NEW MATTER AND NOW, come Plaintiffs, David Wiley and Robin Wiley, by and through their attorneys, Turo Law Offices, and file the following Motion to Withdraw New Matter, and aver the following: 1. Plaintiffs filed a Complaint on June 19, 2007. 2. Plaintiffs filed an Amended Complaint on September 11, 2007. 3. Defendants Kelley and Preston filed an Answer and New Matter on September 27, 2007. 4. Plaintiffs filed an Answer to Defendants' New Matter on October 17, 2007, and included therein New Matter presenting factual averments illustrating contradictions evidencing defendant constables' lack of credibility as well fellow defendants' private payment for the constables' services. 5. Defendants Kelley and Preston filed Preliminary Objections to the New Matter on November 6, 2007. 6. While Plaintiffs' pleading may be technically improper under Rule 1017, it is arguably permissible under Rule 1030, as expressed in Campbell v. Deardorff, 51 Pa. D. & C.2d 452, 454-55 (1971). 7. Rather than amend the Complaint yet again and thus require another full responsive pleading to the Complaint in its entirety, Plaintiffs opted for a more straightforward approach. 8. As discussed in Campbell, the pleading at issue was entered with the objective of making Defendants aware of the particular facts upon which Plaintiffs intend to attack Defendants' arguments in defense. Campbell v. Deardorff, 51 Pa. D. & C.2d 452, 455 (1971). 9. While it is believed to be a valid argument that Plaintiffs' error was harmless and would be allowed to stand under Campbell, it would not be economical for Plaintiffs to draft further pleadings, a brief, and argue this point in court, when the information contained in Plaintiffs New Matter can be raised by other means. 10. A judge has yet to rule on any matter in this cause of action. 11. Opposing counsel, Adam L. Seiferth, Esq., has not been reached for concurrence, but such concurrence is presumed considering Defendants' Preliminary Objections and formal request that the subject New Matter be stricken from the pleading. WHEREFORE, Plaintiffs request this Honorable Court to allow Plaintiff to withdraw the New Matter included in their Answer to Defendants' New Matter. Date Lori drew yder, Esq. 28 out Street C , PA 013 (717) 245-968 Fax: 717.245.2165 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Motion to Withdraw New Matter upon Adam L. Seiferth, Esquire, Karl E. Rominger, Esquire, and Marcus A. McKnight, III, Esquire, by depositing the same in the United States Mail, first class, postage pre-paid on the ?Ck day of November, 2007, from Carlisle, Pennsylvania, addressed as follows: Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 TURO LAW OFFICES Lorin rew S der, Esquire r,. 28S t i treet Carl. A (717) 245-9688 Attorney for Plaintiffs i ?l 1 ? 4' CY1 99 t_4t ?r?m r L i?44( DAVID WILEY and ROBIN WILEY, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PEGGY L. NIEVES, BERNADINE M. WILEY, : KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants CIVIL ACTION - LAW NO. 07-3670 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS KEVIN M. KELLEY AND KEVIN M. PRESTON TO PLAINTIFFS' NEW MATTER and PLAINTIFFS' MOTION TO WITHDRAW NEW MATTER BEFORE OLER, J. ORDER OF COURT AND NOW, this Wh day of December, 2007, upon consideration of the preliminary objections to Plaintiff's new matter contained in a reply to new matter in a responsive pleading of Defendants Kelley and Preston, and of Plaintiffs' motion to withdraw the said new matter, Plaintiffs' motion is granted, the said new matter is deemed withdrawn, and the said preliminary objections are deemed moot. BY THE COURT, J Wesley O er, Jr., J. James M. Robinson, Esq. /orin A. Snyder, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiffs P? ! 1 e' 11 33,0 Ci? David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Lorin Andrew Snyder, Esq., counsel for the Plaintiffs in the above-captioned action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiffs in the action is $50,000.00. The counterclaim of the Defendants in the action is: N/A. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Adam L. Seiferth, Esq. Cipriani & Werner Suite 201, 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esq. Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, Esq. Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. 0 ? r// /d P' Date Respectfully submitted, CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Petition for Appointment of Arbitrators upon Adam L. Seiferth, Esq., Karl E. Rominger, Esq., and Marcus A. McKnight, Esq., by depositing the same in the United States Mail, first class, i ?- postage pre-paid on the ?d day of March, 2008, from Carlisle, Pennsylvania, addressed as follows: Adam L. Seiferth, Esq. Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esq. Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, III, Esq. Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 TURO LA 28S t eet Ca isl A 17013 (71 245-9688 Attorney for Plaintiffs , Esq. P-l rri ?.' -° o r David WILEY and IN THE COURT OF COMMON PLEAS Robin WILEY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. NO. 07 - 3670 CIVIL TERM Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants CIVIL DIVISION - LAW ORDER OF COURT AND NOW, this I0-?t- day of ?1 2008, in consideration of the foregoing petition, IJAZP n 0 04.tf , Esq., 7 1r?P? `M. /?)", Esq., and k, U_)&jko t , Esq., are appointed arbitrators in the above-captioned action as prayed for. B e Cou 1- t W"C" i .J. V? ESQ er, Pao L Aa AJ ? E• ??'? boll, L) i'.J D C: 5 E-1v H ?!,Vvl HE >> `:l#i C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, CASE NUMBER: 07-3670 Civil Term ISSUE NUMBER: PLEADING: PRAECIPE FOR WITHDRAWAL OF APPEARANCE Defendants CODE AND CLASSIFICATION: FILED ON BEHALF OF: KEVIN M. KELLEY and KEVIN W. PRESTON, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa.ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, CASE NO: 07-3670 Civil Term Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly withdraw my appearance on behalf of the defendants, KEVIN M. KELLEY AND KEVIN W. PRESTON, in the above-captioned matter. Respectfully submitted, CIPRIANI &NERNER, P.C. BY: J. BONETTI, ESQUIRE Counsel for the Defendant, A JURY TRIAL IS DEMANDED KEVIN M. KELLEY AND KEVIN W. PRESTON CERTIFICATE OF SERVICE That counsel for the Defendants, KEVIN M. KELLEY AND KEVIN W. PRESTON, hereby certifies that a true and correct copy of its PRAECIPE FOR WITHDRAWAL OF APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the day of 2008. James M. Robinson, Esquire Lorin Andrew Snyder Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Counsel for the Plaintiff Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Personal Counsel for Defendant, Kevin W. Preston Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel for Peggy L. Nieves and Bernadine M. Wiley Respectfully submitted, & WERNER, P.C. BY: AD L. SEIFERTH, ESQUIRE D IS J. BONETTI, ESQUIRE Counsel for the Defendant, KEVIN M. KELLEY and KEVIN W. PRESTON C? ? -rr Plaintiff y Defendant In The Court of Common County, Pennsylvania No. Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Co States and the Constitution of this Commonwealth and that we will discharge th with fideliy. Signature -? Signature Signal t ??s j &6- 90 Name (Chairman) Name Name of Cumberland r 6n O ,titution of the United duties of our office h/ Law Firni" Law Firm Law Firm - - Address Address Address (OVA !70l3 C 1+ aA I ??t 413 City, Zip city, zip City, Zip 1 1'7"1 - Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note- Ifd ages for delay are awarded, they shalle s aratell stated.) v 6 --fl:jZ92 -?Z-4 Q-& ? L'o -0 ?,J:o pkalr- ('?IV X40 4e- . Arbitra or, dissents. (Inert name if applicable.) Date of Hearing: 09-1 Chauman) . Date of Award: g Z, r.- OF` Notice of Entry of Award Now, the?day of , 200 $_, at 2:3 1 the above award was entered upon the docket and notice there f given by mail to the parties or their alto eys. Arbitr4tors' compensation to be paid upon appeal: $ SU, 6(? IL - By: Prothonotary Deputy e? W r?. Zoe Plaintiff d Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. 07- .36 '70, Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fideli y? Signatur Signature Signature 4?Aa?//' 5 'Nkm Ro&eT7 Of. k1,414me Name (Chairman) Name Name Law Firni, ' Address 4"- /7©13 city, zip Law Firm aw ti. 32' 4 sr. Address N' fill CK«w + 1 1I• a I city, zip J O trJN SdW 1?u FFi? Law Firm mi I' of *zk6T- S7-. Address .Lemd yya 1, Pik / ?Dy3 city, zip ~ Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note- If dAmages for delay are awarded, they shale separately stated.) ?2 ?w. e+.?cr? d we I1I?111II111f11111'I1111I11t111 -,-sP0111T ez-ea-9ss?o-6T6o? exoz,r -tea ? ?® r atdtomadod OI 3116(dNn p, 038S32dQ01d Sti 3" Q0d1d3Al'13a ION 02 1.•A ad=K= 01 Ntlnl3li 0004631598 Al 00/SO/60 9o T Ott 94T 32XI4 MAILEDFROMZIPC 0 7 _ 76 cjv, / BERNADINE M. WILEY,N1ti1hS?+'''-109 NORTH BALTIMORE MOUNT HOLLY SPRING , PA 170 d??BDOZ j;t, .1y raj 1 %u-St;9k* 0 $g W 1111111111111,11111111111111111/111111111:1f11I1/11i1111l11111 Plaintiff ? Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. © !- & 47 Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fideli y. Signatur Signature Signature LZI Ot S t&6,jL w- t go&,eT- te. k//?Ck62 Name (Chairman) Name _ Name 719MNs r"i Law Firm Law Firm Law Firm ??. 3e2'?? Sr. ? [ ?1nd?rtX? s'? .3 114 Address Address Address 4411, 7'ot3 C? ? , AR t?•?? lem eYWE . P/d- / 74 1-3 City, zip city, zip city, zip Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note- If damages for delay are awarded, they sha)l a separately stated.) /I Ij j A/ /9- X? o,? . W, er/ee ? AII0?o,4,lrtda?i.,?.t 1! _ CURTIS R. LONG Prothonotary Cumberland Count ALED-4OFFCc Dne CourthouseGIZI P"C',rHoRjjOTARY Carlisle, PA 17013 20"P SEP 16 13: a7- 34'76 PEGGY L. NIEVES 109 NORTH BALTIMORE STREET MOUNT HOL """I"I^" ^^ 4-7^&lr, SAP PON. A PITNEY ROVW_5 02 1A $ 00.420 0004631598 AUG28 2008 MAILED FROM ZIP CODE 1 701 3 FORWARD TIME EXP RTN TO SEND NIEVES 22SO PINE RD NEWVILLE PA 17241-9526 RETURN TO SENDER 11111,1, Iii, 1111,11111111,,111 David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W PRESTON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION -LAW NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is hereby given that Plaintiffs, David Wiley and Robin Wiley, appeal from the award from the award f the board of arbitrators in this case on August 27, 2008. A jury trial is ( is not( ) demanded. I hereby certify that the compensation of the arbitrators had. Date Lq ndrew Sn r, Esq. ttorne for intiffs/Appellants e .D. No. 203199 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 4 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Petition for Appointment of Arbitrators upon Adam L. Seiferth, Esq., Karl E. Rominger, Esq., and Marcus A. McKnight, Esq., by depositing the same in the United States Mail, first class, postage pre-paid on the Twenty-sixth day of September, 2008, from Carlisle, Pennsylvania, addressed as follows: Adam L. Seiferth, Esq. Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Karl E. Rominger, Esq. Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Marcus A. McKnight, III, Esq. Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Lori ZA"New Sny r, Esq. 28 outh et 96rlisle, P 013 71 -9688 Attorney for Plaintiffs N n C 11? G w i v W Til Fr. ': qCJ 4' C ' ?r PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. > for trial without a jury. ---- - -- - ------------- - -------- - - - --------- - - -- - -------------- - ------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) David Wiley and Robin Wiley (Plaintiff) VS. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley and Kevin W. Preston (Defendant) VS. ? Civil Action - Law ® Appeal from arbitration 0 (other) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due S days before pretrials No. Dl-,3( 0?0 Term Indicate the attorney who will try case for the party who files this praecipe: Adam L. Seiferth, Esquire, Cipriani & Werner, 1011 Mumma Road, Suite 201, Lemoyne, PA 17043 Indicate trial counsel for other parties if known: See Attached Sheet This case is ready for trial. Signed: Print Name: Adam L. S e i f r h, E s q. Date: 0?°' Op1- ? Attorneyfor: Defendants, Kevin M. Kelly & Kevin W. Preston + + Lorin Andrew Snyder, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Counsel for Plaintiffs Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel for Defendants, Peggy L. Nieves and Bernadine M. Wiley , A %? - CERTIFICATE OF SERVICE That counsel for the Defendants, KEVIN M. KELLEY AND KEVIN W. PRESTON, hereby certifies that a true and correct copy of its PRAECIPE FOR LISTING CASE FOR TRIAL has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the day of )2009. Lorin Andrew Snyder, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Counsel for the Plaintiffs Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel for Peggy L. Nieves and Bernadine M. Wiley Respectfully submitted, CIPRIANI & WERNER, P.C. BY: SAM L. SEIFERTH, ES'QUI E Counsel for the Defendants, KEVIN M. KELLEY and KEV W PRESTON 0 'n oa r??rs ?- t, cr, N Co t. 1 Y David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW MOTION FOR LEAVE TO WITHDRAW AS COUNSEL FQR PLAINTIFFS AND NOW comes Turo Law Offices, counsel for Plaintiffs, who moves for leave to withdraw as counsel, averring the following: 1. Plaintiffs filed a Complaint in the above-captioned matter on June 19, 2007. 2. Plaintiffs are in substantial arrears in their legal bill with Turo Law Offices and have failed substantially to meet their financial obligations to their attorneys. 3. Plaintiffs have made no payment against their outstanding bill for five months. 4. Plaintiffs, throughout the case, have failed repeatedly to make payments and have continually received notice that failure to satisfy their financial obligations will result in the firm's withdrawal from the case. 5. Turo Law Offices cannot ethically continue to represent Plaintiffs in this matter and increase Plaintiffs' sizeable debt. 6. The Rules of Professional Conduct state that a lawyer may withdraw from representing a client if "the client fails substantially to fulfill an obligation to the lawyer A , regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." Pa. R.P.C. § 1.16(b)(5) WHEREFORE, Turo Law Offices respectfully requests this Honorable Court to grant Turo Law Offices and Lorin A. Snyder, Esquire, leave to withdraw as counsel for Plaintiffs. r2/1ofO.9 Date Respectfully submitted, TURO LAW OFFICES t6ri&245- ny er, Esquire 28 Str et Carl13 (717 for Plaintiffs T CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Answers to Interrogatories upon Adam L. Seiferth, Esquire, and Karl E. Rominger, Esquire, by i depositing the same in the United States Mail, first class, postage pre-paid on the Eighteenth day of February, 2009, from Carlisle, Pennsylvania, addressed as follows: David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Plaintiffs Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Attorney for Defendants Preston and Kelley Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendants Nieves and Wiley TURO LAA( OFFICES Lorin drew Sny er, Esquire 28 Ys ut Pitt Str t Car le, 17 13 (71 ) 245- 8 Atto or Plaintiffs r ?a ?' wry C71) ^{ R DAVID WILEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, BERNADINE M. WILEY, KEVIN M. KELLEY, and KEVIN W PRESTON, Defendants ORDER OF COURT AND NOW, this 18`x' day of February, 2009, a pretrial conference in the above matter is scheduled for Wednesday, May 6, 2009, at 3:15 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Thursday, May 28, 2009, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Lorin A. Snyder, Esq. Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiffs Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendants Peggy L. Nieves and Bernadine M. Wiley IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3670 CIVIL TERM BY THE COURT, if W Z ,r, b18 8 1 83A 6DOZ A -4 ?Adam L. Seiferth, Esq. 1101 Mumma Road Suite 201 Lemoyne, PA 17043 Attorney for Defendants Kevin M. Kelley and Kevin W. Preston Court Administrator -- `miof ? 021a/?% :rc (26F ES rnZllccL a1 ? S1o? 4 David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW AMENDMENT TO MOTION FOR LEAVE TO WITHDRAW AS COUNSEL FOR PLAINTIFFS AND NOW comes Turo Law Offices, counsel for Plaintiffs avers the following as an appendage to the Motion for Leave to Withdraw as Counsel, filed February 18, 2009: 7. Adam L. Seiferth, Esquire, counsel for Defendants Kevin Preston and Kevin Kelley, was contacted and concurs with the Motion upon the condition that the trial set for May 28, 2009, is not continued. 8. Karl E. Rominger, Esquire, counsel for Defendants Peggy Nieves and Bernadine Wiley, was contacted and concurs with the Motion. 9. The Honorable J. Wesley Oler, Jr., issued an Order in this matter on February 18, 2009 scheduling a Pre-Trial Conference for May 6, 2009 and a trial for May 28, 2009. WHEREFORE, Turo Law Offices respectfully requests this Honorable Court to grant Turo Law Offices and Lorin A. Snyder, Esquire, leave to withdraw as counsel for Plaintiffs. Respectfully submitted, TURD LAW SUFFICES '0:0 /9 Date n w Snyder, Esq. outh Pitt Street Carl le, PA 17013 (717 45 88 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Amendment to Motion for Leave to Withdraw as Counsel for Plaintiffs upon Adam L. Seiferth, Esquire, and Karl E. Rominger, Esquire, by depositing the same in the United States Mail, first class, postage pre-paid on the O'day of March, 2009, from Carlisle, Pennsylvania, addressed as follows: David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Plaintiffs Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Attomey for Defendants Preston and Kelley Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Aitomey for Defendants Nieves and Wiley TURO LAW rew S Carlisle, P M013 (717) 24 6 Attv for Plaintiffs 4 J ` ; Or", DAVID WILEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, BERNADINE M. WILEY, : KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3670 CIVIL TERM ORDER OF COURT AND NOW, this 12th day of March, 2009, upon consideration of the Motion for Leave To Withdraw as Counsel for Plaintiffs and of the Amendment to Motion for Leave to Withdraw as Counsel for Plaintiffs, a Rule is hereby issued upon Plaintiff and Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of the date of this order. BY THE COURT, ./ Lorin A. Snyder, Esq. 28 South Pitt Street Carlisle, PA 17013 A omey for Plaintiffs Adam L. Seiferth, Esq. Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Attorney for Defendants, Kevin W. Preston and Kevin M. Kelley J 57 UJQ? 6:5 1 ./ Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Peggy L. Nieves and Bernadine M. Wiley David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Plaintiffs :rc l.Opie,s rn7L?k.? J 3/? 3?oY David WILEY and Robin WILEY, Plaintiffs, V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW MOTION TO MAKE RULE ABSOLUTE AND NOW comes Turo Law Offices and Lorin A. Snyder, Esquire, who aver the following in moving to make absolute the Rule to Show Cause: 1. On February 18, 2009, a Motion for Leave To Withdraw As Counsel For Plaintiffs was filed on behalf of Lorin A. Snyder, Esquire, and Turo Law Offices in the above-captioned matter. 2. On March 6, 2009, an Amended Motion for Leave To Withdraw As Counsel For Plaintiffs was filed on behalf of Turo Law Offices and Lorin A. Snyder, Esquire, in the above-captioned matter. 3. On March 12, 2009, the Honorable J. Wesley Oler, Jr., entered an Order issuing a Rule upon the parties to show cause, if any, why the Motion should not be granted, Rule returnable within 14 days. (A true and correct copy of the Order of March 12, 2009 is attached hereto as Exhibit "A" and incorporated herein by reference as if fully set forth.) 4. More than 14 days have passed and no party has lodged any objection to the Motion to Withdraw as Counsel. WHEREFORE, Turo Law Offices and Lorin A. Snyder, Esquire request this Honorable Court to make the March 12, 2009 Rule to Show Cause absolute and grant the motion of Turo Law Offices and Lorin A. Snyder, Esquire, for leave to withdraw as counsel for Plaintiffs 4 4fa 2-109 Date Respectfully submitted, TUROJAWOFF b grin Andre Snyder, Esq. 28 outh Pi Street Car ' le, P P(17013 (717)\246-9688 DAVID WILEY and ROBIN WILEY, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PEGGY L. NIEVES, BERNADINE M. WILEY, : KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants CIVIL ACTION - LAW NO. 07-3670 CIVIL TERM ORDER OF COURT AND NOW, this 12" day of March, 2009, upon consideration of the Motion for Leave To Withdraw as Counsel for Plaintiffs and of the Amendment to Motion for Leave to Withdraw as Counsel for Plaintiffs, a Rule is hereby issued upon Plaintiff and Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of the date of this order. BY THE COURT, onn A. Snyder, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiffs Adam L. Seiferth, Esq. Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Attorney for Defendants, Kevin W. Preston and Kevin M. Kelley ? J 4?$4 :Karl E.- Rominger, Esq. _ 155 South Hanover Street Carlisle, PA 17013 Attorney for Peggy L. Nieves and Bernadine M. Wiley David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Plaintiffs :rc CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Motion to Make Rule Absolute upon Plaintiffs David and Robin Wiley, Adam L. Seiferth, Esquire, and Karl E. Rominger, Esquire, by depositing the same in the United States Mail, first class, postage pre-paid on the Second day of April, 2009, from Carlisle, Pennsylvania, addressed as follows: David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Plaintiffs Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Attorney for Defendants Preston and Kelley Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendants Nieves and Wiley TURO SLAW OFFI Fin Andrew S yder, Esquire South Pitt S reet lisle, PA 013 q) 2 88 o rrtev for Plaintiffs 1% If .. %?-U Y APR 0 J tu+ David WILEY and Robin WILEY, Plaintiffs V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W PRESTON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW ORDER OF COURT AND NOW, this day of 2009, it is hereby ORDERED that Turo Law Offices and Lorin A. Snyder, Esquire, are granted leave to withdraw as counsel for the Plaintiffs, David and Robin Wiley. BY THE COURT, L J. c.c. rin A. Snyder, Esq. Adam L. Seiferth, Esq. Karl E. Rominger, Esq. David & Robin Wiley , t F.S ma L ( ICC "y?f69 9i LU f . c 'k U C= CV t r David WILEY and Robin WILEY, Plaintiffs, V. Peggy L. NIEVES, Bernadine M. WILEY, Kevin M. KELLEY, and Kevin W. PRESTON, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3670 CIVIL TERM CIVIL DIVISION - LAW PRAECIPE TO WITHDRAW AS COUNSEL FOR PLAINTIFFS TO THE PROTHONOTARY: Please withdraw my appearance for Plaintiffs David Wiley and Robin Wiley in accordance with the Order of April 6, 2009. Service of papers for the Plaintiffs should be made at 109 High Mountain Road, Shippensburg, PA 17257. Respectfully submitted, TURD LAWQFFICES Date rin Andre Snyder, Esq. South Pi Street sle, 13A 17013 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Praecipe to Withdraw as Counsel for Plaintiffs upon Plaintiffs, David and Robin Wiley; Adam L. Seiferth, Esquire; and Karl E. Rominger, Esquire, by depositing the same in the United States Mail, first class, postage pre-paid on the Eighth day of April, 2009, from Carlisle, Pennsylvania, addressed as follows: David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Plaintiffs Adam L. Seiferth, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Attorney for Defendants Preston and Kelley Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendants Nieves and Wiley TURQ LAkGFFICES Lorl,?nd w Snyder, Esquire 28 Sou Pitt Street C e, PA 17013 (717) 245-9688 FILE r-011-FICE OF THE F ITHN4TARY 2009 APR -8 PM 2: 48 r DAVID WILEY and ROBIN : IN THE CUMBERLAND COURT WILEY COUNTY, PENNSYLVANIA , Plaintiffs . v CIVIL ACTION - LAW PEGGY L. NIEVES, BERNADINE M. WILEY, KEVIN M. KELLEY, and KEVIN: W. PRESTON, Defendants 07-3670 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler in the above-captioned case on Wednesday, May 6, 2009. Both Plaintiffs were present representing themselves; Defendants Nieves and Wiley were represented by Karl E. Rominger, Esquire; and Defendants Kelly and Preston were represented by Adam L. Seiferth, Esquire. This is an action for conversion and trespass against Defendants Nieves and Wiley, and trespass and negligence against Defendants Kelley and Preston. This will be a nonjury trial, which has been scheduled by separate Order of Court for May 28, 2009. The estimated duration of trial is 1 day. Defendants Kelly and Preston have raised issues in their pretrial memorandum respecting immunity, Plaintiffs' right to recover for mental anguish and distress, and Plaintiffs' right to recover punitive damages in this matter. Briefs are requested with respect to these issues at least 5 days prior to commencement of the trial. No pretrial memorandum was submitted by Plaintiffs, as a consequence of which the Court will entertain such motions as Defendants deem appropriate to limit the witnesses called by Plaintiffs. ? ? :s l CV ter` . i6, y Lo CL c?.a ? Plaintiffs have indicated at the pretrial that they may be filing a motion to withdraw the action as it relates to Defendant Bernadine M. Wiley. With respect to settlement negotiations, it does not appear to the Court that a settlement in the case is likely. Robin and David Wiley 109 High Mountain Road Shippensburg, PA 17257 o se Plaintiffs ,,'/Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 For Defendants Peggy L. Nieves and Bernadine M. Wiley am L. Seiferth, Esquire 1101 Mumma Road Suite 201 Lemoyne, PA 17043 For Defendants Kevin M. Kelley and Kevin W. Preston :mae COr tlp-.T MvIL 1 By the Court, DAVID WILEY and ROBIN WILEY, Plaintiffs V. PEGGY L. NIEVES, BERNADINE M. WILEY, : KEVIN M. KELLEY, and KEVIN W. PRESTON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3670 CIVIL TERM ORDER OF COURT AND NOW, this 28t` day of May, 2009, upon consideration of the attached letter from Adam L. Seiferth, Esq., attorney for Defendants, and with a verbal concurrence from the pro Se Plaintiffs on May 27, 2009, the nonjury trial previously scheduled in the above matter for May 28, 2009, is cancelled. BY THE COURT, esley Ol Jr., J. ?David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Plaintiffs Adam L. Seiferth, Esq. Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Attorney for Defendants, Kevin W. Preston and Kevin M. Kelley 0D t -es en.'a t' &J--' I s?ze o9 7'J ! LI t r { i ? S ?? 1 I y ?Yk tS i ,," Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Peggy L. Nieves and Bernadine M. Wiley :rc 05/27/2009 11:14 7179753846 CIPRIANIWERNER PAGE 02/02 4 CIPR.I,ANI & WERNER A PROFESSIONA1, CORPORATION ATTORNEYS AT LAW ADAM L. SE:1rERTH &'Wj rlhrl'C'w18%S"Cnm 101 1 Mumma Rnad. Suite 201 Lemoyne, Pennsylvania 17043,1145 . I'deThone (717) 97$-9600 Fax: (711) 975.3946 wwwC'-w1.Aw.C6111 May 27, 2009 Via Fax Ortlyr: 717-240.6462 The Honorable J. Wesley Oler, Jr., Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 PitnhurRh Office: 'Telephone (412) 563.2500 Philadelphia OlrrCe* To1cphnne (610) 567.07M Scranton Office: •I'dephone (570) 347-16(1[1 Nbrlron Office: I'Oephonc (356) 761.3800 RE: David Wiley and Robin Wiley v. Petty L, Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston Docket No: 07-3670 Claim No.: 127946/ 127794 Our File No.: 1053-18912H Dear.ludge Oler: 1 am pleased to advise that this matter has been settled in its entirety. Therefore, the bench trial scheduled for tomorrow, May 28, 2009, should be cancelled, In speaking with your office. it has been recommended that continuation of the settlement should be acknowledged by thepr0 se P'laintiff's as well, and 1 anticipate that you will receive the same by fax today. Should your offlice have any questions or concerns, please fccl free to contact me. ALS/meh cc: Robin and David Wiley, via regular mail Karl F. Rominger, Esquire, via Iax only (717-241-6878) Very truly yours, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION David Wiley and Robin Wiley, CASE NO: 07-3670 Civil Term Plaintiffs V. Peggy L. Nieves, Bernadine M. Wiley, Kevin M. Kelley, and Kevin W. Preston, Defendants PRAECIPE TO DISCONTINUE TO: PROTHONOTARY OF CUMBERLAND COUNTY Please mark the above-captioned matter as settled, discontinued, and ended with prejudice against all Defendants. Respectfully submitted, BY: ?" ?v* DAVID WILEY, pro sVPlaintiff Date: -rS=D? BY: ROBR WILEY, pro se Plainti Date: ??- CERTIFICATE OF SERVICE That counsel for the Defendants, KEVIN M. KELLEY AND KEVIN W. PRESTON, hereby certifies that a true and correct copy of their PRAECIPE TO DISCONTINUE has been served on all parties and counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the I y A day of 2009. David and Robin Wiley 109 High Mountain Road Shippensburg, PA 17257 Pro Se Plaintiffs Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Counsel for Peggy L. Nieves and Bernadine M. Wiley Respectfully submitted, CIPRIANI & WERNER, P.C. BY: (o,a L- , ADAM L. SEIFERTH, E Counsel for the Defendan KEVIN M. KELLEY and KEVIN W. PRESTON ALE'" 'D t 20,09 JUN 16 PH f - 5 :'