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Home My WebLink About03-23-01 (2)IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF GUARDIAN FOR : THE ESTATE OF : 21-01-92 MILDRED J. GERBER : : ORPHANS COURT DIVISION MOTION TO QUASH SUBPOENAS AND REQUEST FOR PRODUCTION OF DOCUMENTS DATED MARCH 19, 2001 SERVED UPON OREN H. KAUFFMAN, CHIEF OF POLICE, BOROUGH OF NEW CUMBERLAND, PATROLMAN ROBERT S. SMEE, PATROLMAN JAMES D. BURNS--AND PATROLMAN JOSEPH E. SPADACCINO TO THE HONORABLE, JUDGES OF SAID COURT: Andrew C. Sheely, Esquire, Solicitor for the Borough of New Cumberland, hereby files this Motion to Quash four (4) subpoenas and request for production of documents issued to the above- referenced police officers in the above captioned matter by Mari- lyn Gerber, Pro Se, and respectfully states as follows: 1. Petitioner is the Borough of New Cumberland, a municipal corporation and Employer of the New Cumberland Borough Police Department. 2. On March 20, 2001, Marilyn Gerber, an adult individual, served four subpoenas and requests for production of documents upon the above-referenced police officers. 3. The subpoena issued to Oren H. Kauffman, Chief of Police of the Borough of New Cumberland, directed his attendance at a hearing scheduled for March 22, 2001 in Courtroom No. 2 and di- rected that Chief Kauffman bring "all notes of Gerber family from beginning of time to present". A copy of the subpoena is attached hereto as Exhibit "A". 4. The subpoena issued to Robert S. Smee, Corporal, directed his attendance at a hearing scheduled for March 22, 2001 in Court- room No. 2 and directed that Corporal Smee bring "all notes on incident of responding to 911 call in on/or about Nov. 2000 at Pa" A copy of the subpoena is 623 Hilltop Drive, New Cumberland, . attached hereto as Exhibit "B". 5. The_subpoena_issued to James D. Burns, Patrolman, directed his attendance at a hearing Scheduled for March 22, 2001 in Court- room No. 2 and directed that Patrolman Burns bring "all notes and reports on incident at 623 Hilltop Drive, New Cumberland, Pa on/about July 12-13, 1998 with June Hollins and Marilyn Gerber & Mrs. Mildred Gerber". A copy of the subpoena is attached hereto as Exhibit "C". 6. The subpoena issued to Joseph E. Spadaccino, Patrolman, directed his attendance at a hearing scheduled for March 22, 2001 and directed that Patrolman Spadaccino bring "all notes on inci- dent at 623 Hilltop Drive, New Cumberland, bet you, Marilyn Gerber and Mildred Gerber. A copy of the subpoena issued to Patrolman Spadaccino is attached hereto as Exhibit "D". 7. The Borough of New Cumberland Police Department is not a party to the above captioned action. 8. No notice of intent is attached to the subpoenas. 9. The subpoenas were served in violation of Pa. R.C.P. No. 4009.22 which requires that non-parties be served with a notice of intent within twenty (20) days in advance of the date which the items sought are to be produced. 10. The information sought by the subpoenas is not a public record as defined by the Pennsylvania Open Records Act and is not subject to discovery pursuant to 65 P.S. Section 66.1, et al., Commonwealth v. Mines, 680 A.2d 1227 (Pa. Cmwlth.1996), petition for allowance of appeal denied, 547 Pa. 738, 690 A.2d 238 (1997), petition for cert. filed, Sullivan v. City of Pittsburgh, Depart- ment of Public Safety, 127 Pa. Cmwlth. 339, 561 A.2d 863 (1989), petition for allowance of appeal denied, 525 Pa. 591, 575 A.2d 120 (1990), and to the extent such is considered public information, the request is overly broad and irrelevant to the petition filed in the above-referenced matter. 11. No member of the police department is a party to the action commenced and docketed to the above-caption matter. 12. Chief Kauffman, Patrolman Smee, Patrolman Burns and Patrolman Spadaccino are not qualified and do not have the experi- ence to render a professional opinion as to the duration and extent of the mental or physical capacity of Mildred J. Gerber, an alleged incapacitated individual, as required by 20 Pa.C.S.A. Section 5518. 13. The attendance of Chief Kauffman, Patrolman Smee, Patrol- man Burns and Patrolman Spadaccino at any hearing in the above- referenced matter would constitute significant burden, expense and annoyance to the Borough of New Cumberland's ability to operate its police department. 14. The attached subpoenas serve no valid purpose relevant to the inquiries required by the petition for relief filed to the above-captioned matter other than for the purpose of unreasonable annoyance, burden and expense. 15. No witness fees or costs were tendered with the subpoenas. 16. The information sought in the subpoenas is overly broad 'and irreievant to the instant petition before the Court. WHEREFORE, Andrew C. Sheely, Esquire, Solicitor for the Borough New Cumberland, respectfully requests that this Honorable grant the Motion to Quash the attached subpoenas and requests for production of documents for the reasons set forth above. Respectfully submitted, Andrew C. Sheely, Esquire Solicitor, Borough of New Cumberland 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 (717) 697-7050 (717) 697-7065 (fax) 4 SUBI~)ENA Cumberle~nd Counl;y, SS: GREE~fING: We co:remand you and each of y~,u, ~that, setting aside aH manner of business and excuses, you be an~l appear in your proper person-b~fo-re ....... our Judge,,~ at Carlisle, at ,~ur County Court of Common Pleas, Orplaa~ts' Court Diwision, there to be hel.d in the County of Cumberland, on the Iprevailing 'time] of that ~ty, to,!~,[t~.'l~d~ngular those things which you shall know in a certain information four /- / -'F ~ "~ . -' Failu~ ,to appear may resullt In the initiation of contempt of court p, roceeding:~ against you and'or issuanc:~ ora bench warrant to secure P~ident Judg~ at Car~sle, ~e 1~ ~- [[] 3Dr'.",-.! 'q ',:,J' )'hi Bc-'.LG-t~LZ-LTL 80 :Zl: IgO~/gE/£0 SUBI~)ENA Cu .~.berl~m~t Coullty, SS: GREETING: We command you and each ot,~ you, ,that, s~tting aside all ..manner of business antd excuses, you be and appear in your proper person' before our Judges at CarlYle, at our County Court of Co~on Pl~, Orpihans' Court Division, there to be helfl in the Cou~y of Cumberland, on the [prevailing time] ,.f that day, t~:~~~i~~ ~g, which you shall .kfl~ow in a ceftin info,rr~fion for ~ ~:~ ~ ~ .... . ~ - . Failure' ~ api~/f~'l~in the initt~ion of contempt of court ~proceedin~s against you and/o~r iiss~,ance of~ bench warrant to secure WITNESS the Honorable G~rge E. Hoffer. Pmsi~]ent Jud~, at Carli~e, day o'f~m~ -.~N~: ......... - . SUBPO£,NA Cumberlza:.t County, SS: GREETING: We co:remand you and each of yeu, ~ihat, setting aside all manner of business .and excuses, you be an~t appear in your proper person b,~fore our Judge,,; at Carlisle, at our Co~mty Cou~ of Co--on ~, Orphan' Court Division, there to he held in the County of Cumberland, on the .,, Ip~vailing',ime] ,,f that ~ you shall ka~w in a cer~in infor~na~on fo~ , . , ~ / ~,~ ...... proceeding:i against you and/or issuance of a bench warrant to secure your presence. WITNESS the lonorable G~rge E. Hoffer, P~ident Judg~ at Carasle, th, [ M OOHA S' SUBI~)ENA Cumberlatnd County, SS: GREE'HNG: We coa:~mand you and each of yo,u, that, setting aside all manner of business .and excases, you be aad appear in 3tour proper person before our Judge~ at Carlisle, at .~ur C:otm~' Court of Co--on PI~, Orphan' Court DiviMon, there to be heid in ~e County of Cumberland, on the [prevailing time] of that day, ta te:~fy all and $~gMar th~ thin~ which you shall ]know In a certain l~or~n~tlon fo:r Failure ~ appear may result in the initiation of contempt of court proeeeding.s against you and/o~ i~ance o{ a bench warrant to secure your pres,ence. ~ ~,~~t~'~ 3-~>D W~NESS rite ~o~rable G~e E. Hoffer, P~sident J~g~at Car~le, ~e ~ ~ CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing MOTION TO QUASH SUBPOENA AND REQUEST FOR PRODUCTION OF DOCUMENTS upon the following named individual this day by first class mail, postage prepaid, from Carlisle, Pennsylvania, addressed as follows: NIARLIYN GERBER 42 DREXEL PLACE NEW CUMBERLAND PA 17070 Date: MARCH 21, 2001 -. Andrew C Sheely,~ire