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Home My WebLink About08-4259SPERO T. LAPPAS, Esquire Serratelli, Schiffman, Brown and Calhoon, P.C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 17110 (717) 540-9170 ATTORNEY FOR THE PLAINTIFF IN THE CO URT OF COMMON PLEAS OF CUMBERLAND COUNTY WILLIAM OBER, Plaintiff V. BRUCE BAR CLAY, Defendant CIVIL ACTION -- LAW NO. OS - J/.? S?4 JURY TRIAL DEMANDED COMPLAINT 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 or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. Complaint Page 1 YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 717-240-6200 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan ma's adelante en las siguientes paginas, debe tomar action dentro de los proximos veinte (20) dias despues de la notification de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objections a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar action Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demands o cualquier otra reclamation o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin ma's aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 2 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 717-240-6200 An adequate supply of forms containing the bilingual notices required by these Rules shall be furnished by the Dauphin County Bar Association to the office of the Prothonotary and shall be available for use by litigants and their attorneys. submitted, SERRATELLI, SCHIF , B AND CALHOON, P. C. By: SPERO PAS, ESQUIRE PA. SUPR M Cr. ID NO.25745 2080 LINGLESTOWN ROAD, SUITE 201 HARRISBURG, PA 17110-9670 (717) 540-9170 ATTORNEYS FOR THE PLAINTIFF Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. Complaint Page 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WILLIAM OBER, Plaintiff CIVIL ACTION -- LAW V. BRUCE BARCLAY, Defendant NO. OF- el,? 5 9 6,?a T?? JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff by and through SPERO T. I-APPAS, Esquire, and makes this Complaint against the above named Defendant, respectfully representing as follows 1. The Plaintiff is an adult individual. 2. The Defendant is an adult individual who resides in MONROE TOWNSHIP, CUMBERLAND COUNTY, PA 17870. 3. All of the Defendant's actions described within this Complaint either infra or supra, were intentional, malicious and taken in bad faith; in the alternative, those actions were reckless; in the alternative, those actions were negligent. None of those actions were privileged, or in the alternative, any privilege which would have Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 4 otherwise attached was lost through abuse of a conditionally privileged occasion. 4. All harms, damages, and injuries suffered by the Plaintiff were the direct, legal and proximate results of the wrongful acts of the defendant as described in this Complaint. 5. Between May 2007 and March 2008 the Plaintiff was a resident of the Defendant's home in Cumberland County. 6. During these visits, the Plaintiff would from time to time engage in private and intimate activities during which he desired to remain private and unobserved by others and for which he had a reasonable expectation of privacy. 7. At various times and dates between May 2007 and March 2008, the Defendant unlawfully videotaped or otherwise recorded visual images of the Plaintiffs private activities. 8. These videos contain and include surreptitious and unlawful image capture of the Plaintiff engaging in private activity. 9. Some of the activity which the Defendant surreptitiously Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 5 recorded involved consensual sexual conduct between the Plaintiff and another individual. 10. Some of the video images which the Defendant surreptitiously captured depict the Plaintiff in a full or partial state of undress. 11. The Plaintiff believes and therefore avers that the Defendant produced those recordings in order to satisfy and gratify his own sexual urges and desires, and that he has since observed those recordings for that illicit purpose. 12. On or about April 2, 2008, the Defendant confessed to the Plaintiff that he committed the acts charged in this Complaint. 13. All of the Defendant's conduct as described in this Complaint violates the law of this Commonwealth, including without limitation the Pennsylvania Crimes Code 18 Pa.C.S. §7040: (invasion of privacy). 14. The Defendant's conduct as described in this Complaint is outrageous in character and extreme to such a degree as to go beyond all possible bounds of decency. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 6 15. The Defendant's conduct as described in this Complaint is atrocious and utterly intolerable in a civilized community. 16. By all acts described in this Complaint, the Defendant has committed the tort of intrusion upon seclusion. 17. The intrusion described in this Complaint would be highly offensive to a reasonable person. 18. The Defendant has intentionally intruded upon the solitude or seclusion on this Plaintiff or his private affairs or concerns. 19. The Defendant is subject to liability to the Plaintiff for invasion of his privacy. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 7 Count I Invasion of Privacy 20. All prior paragraphs of this Complaint are hereby incorporated into this Count by referred thereto. 21. Wherefore, the Plaintiff requests that this Court enter judgment on his behalf and against the Defendant for compensatory and punitive damages in an amount in excess of the limits for compulsory arbitration. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 8 Count II Intrusion upon Seclusion 22. All prior paragraphs of this Complaint are hereby incorporated into this Count by referred thereto. 23. Wherefore, the Plaintiff requests that this Court enter judgment on his behalf and against the Defendant for compensatory and punitive damages in an amount in excess of the limits for compulsory arbitration. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 9 Count III Intentional Infliction of Emotional Distress 24. All prior paragraphs of this Complaint are hereby incorporated into this Count by referred thereto. 25. Wherefore, the Plaintiff requests that this Court enter judgment on his behalf and against the Defendant for compensatory and punitive damages in an amount in excess of the limits for compulsory arbitration. Respectfully s SERRATELLI, S By. SPERO T. D PA. SUPREME fitted, IROWN & CALHOON, P. C. ESQUIRE NO.25745 2080 LINGLESTOWN ROAD, SUITE 201 HARRISBURG, PA 17110-9670 (717) 540-9170 ATTORNEYS FOR THE PLAINTIFF Spero T. Lamas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page 10 VERIFICATION BASED UPON PERSONAL OUNSEL KNOWLEDGE AND INFORMATION SUPPLIED B 1. I verify that the averments in the foregoing COMPLAINT are based upon the information which has been gathered by my counsel in preparation of this lawsuit. 2. The language of this COMPLAINT is that of counsel and is not mine. 3. I have read the COMPLAINT and, to the extent that it 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. 4. To the extent'that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this Verification. 5. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsifications made to authorities. PLAINTIF Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Complaint Page -11- C l r.? r r cn r "-"% Johnson, Duffie, Stewart & Weidner By: Jeffrey B. Rettig, Esquire I.D. No. 19616 jbr@jdsw.com By: John R. Ninosky, Esquire I.D. No. 78000 jrn@jdsw.com 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone: (717) 761-4540 WILLIAM OBER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 08-4259 BRUCE BARCLAY Defendant JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: PLEASE enter the appearance of Jeffrey B. Rettig, Esquire and John R. Ninosky, Esquire as counsel of record for Defendant Bruce Barclay in the above-captioned matter. JOHNSON, DUFFIE, STEWART & WEIDNER By: Z?4 46M/? Date: July 28, 2008 Jeffey B. Rettig, Esquire Attorney I.D. No. 19616 John R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Barclay CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Entry of Appearance has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on July 28, 2008: Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Attorney for Plaintiff JOHNSON, DUFFIE, STEWART & WEIDNER By: _ 6 A /I L'&"A John R. Ninosky, Esquire 339317 '"_ _.? -: , ?:': L _?_ Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig, Esquire I.D. No. 19616 jbr@jdsw.com By: John R. Ninosky, Esquire I. D. No. 78000 jrn@jdsw.com 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone: (717) 761-4540 WILLIAM OBER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 08-4259 BRUCE BARCLAY Defendant JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND NOW, comes the Defendant, Bruce Barclay, by and through his counsel, Johnson, Duffie, Stewart & Weidner, P.C., who file this Motion for Protective Order by respectfully stating the following: 1. Plaintiff commenced this action with the filing of a Complaint on or about July 16, 2008. 2. Defendant filed Preliminary Objections in response to the Complaint, and the pleadings are not closed. 3. Paper discovery has not been issued by either party, and this case is not close to being placed upon a trial list. 4. Plaintiff unilaterally issued a Deposition Notice to take Defendant's deposition on September 10, 2008. A copy of the Deposition Notice is attached hereto as Exhibit A. 5. Defendant is the subject of an on-going criminal investigation by the Pennsylvania Office of Attorney General. 6. It is believed that Defendant will be asked questions at his deposition which are related to the on-going criminal investigation. Thus, any answers provided during a deposition may expose Defendant to possible criminal penalties. 7. To avoid possible criminal jeopardy, Defendant would be required to assert his Fifth Amendment Constitutional rights at his deposition. As such, the deposition would be a waste of time, effort and resources for the parties to this litigation. 8. It is believed that the criminal investigation will be resolved within a few months, although the timing of the investigation is obviously out of Defendant's control. 9. Defendant's counsel advised Plaintiff's counsel of the on-going criminal investigation via letter dated August 4, 2008, which is attached hereto as Exhibit B. This letter also requests that Plaintiff postpone Defendant's deposition until the criminal investigation was resolved. Additionally, Plaintiff's counsel was advised the Defendant's counsel were not available for a deposition on September 10, 2008. 10. By letter dated August 6, 2008, Plaintiffs counsel refused to postpone Defendant's deposition. A copy of the letter is attached hereto as Exhibit C. 2 11. Pennsylvania Rule of Civil Procedure 4012(a)(1) states, "Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following: that the discovery or deposition shall be prohibited." 12. The decision to grant a motion for protective order is within the sound discretion of the trial court. In re Estate of Roart, 390 Pa. Super. 38, 568 A.2d 182 (1989). 13. This Court is well within its discretion to enter an order preventing Defendant's deposition where Defendant is under criminal investigation and any testimony provided at a deposition exposes Defendant to potential criminal penalties. To protect his interests, Defendant would be required to invoke his Fifth Amendment rights and no meaningful information would be obtained by Plaintiff. Moreover, such a deposition would be a waste of time, effort and resources of the parties. 14. Additionally, the Defendant's deposition would likely need to be rescheduled after the resolution of the criminal investigation if Plaintiff desires to obtain any meaningful discovery from Defendant through a deposition. Consequently, it is submitted that the most practical and efficient use of the parties' time and resources would be to simply take the deposition after the criminal investigation is concluded. 3 15. Defendant acknowledges that the present Motion is requesting, at this point, an open-ended delay in scheduling Defendant's deposition. Thus, Defendant is willing to report to the Court the known status of the criminal investigation at whatever interval deemed appropriate by the Court. 16. Plaintiff's counsel does not concur in Defendant's request to postpone Defendant's Deposition. See, Exhibit C. 17. No judge has issued a ruling in this case. However, it is anticipated that non-Cumberland County judge will need to be appointed to this case due to Defendant's former status as a Cumberland County Commissioner. 18. It is anticipated that it will take some time to appoint a judge to determine the merits of this Motion, and Defendant's deposition is currently scheduled for September 10, 2008. 19. Pennsylvania Rule of Civil Procedure 4013 states, "The filing of a motion for protective order shall not stay the deposition, production, entry of land or other discovery to which the motion is directed unless the court shall order. The court for good cause shown may stay any or all proceedings in the action until disposition of the motion." 20. It is submitted that the potential time delay in obtaining a ruling on the merits of this Motion is good cause for this Court to stay Defendant's deposition pending a ruling on this Motion. Plaintiff would not be prejudiced by a stay since the pleadings 4 are not closed, no written discovery has been exchanged, and this case is not in any position to be listed for trial for the foreseeable future. WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order staying his deposition until there is a ruling on the merits of this Motion by the Court, and Defendant respectfully requests that this Honorable Court enter an Order precluding his deposition until there is a resolution to the on-going criminal investigation. Respectfully submitted, Date: August 15, 2008 341515 JOHNSON, DUFFIE, STEWART & WEIDNER By: j? A&wA Jeffr B. Retti , Esquire Attorney I.D. No. 19616 John R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Barclay 5 SPERO T. LAPPAS, Esquire Serratelli, Schiffman, Brown and Calhoon, P.C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 17110 (717) 540-9170 ATTORNEY FOR THE PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WILLIAM OBER, Plaintiff CIVIL ACTION -- LAW V. NO. 08-4259 BRUCE BAR CLAY, JURY TRIAL DEMANDED Defendant NOTICE TO TAKE ORAL DEPOSITIONS TO: ALL PARTIES AND THEIR COUNSEL PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure the following deposition(s) upon oral examination will be taken by the party named below, for the purposes of discovery and/or use at trial, before a Notary Public or other person authorized to administer oaths, on all matters not privileged which are relevant and material to the issues and subject matter involved in the above action; and the witness(es) is(are) directed to appear Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Notice to Take Oral Depositions at the designed time and place and submit to examination under oath. This deposition may be videotaped at the discretion of the party giving this notice. WITNESS(ES): Bruce Barclay DATE OF DEPOSITION: September 10, 2008 TIME OF DEPOSITION: 10:00a.m. PLACE OF DEPOSITION: 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 PARTY TAKING DEPOSITION: Plaintiff RESPECTFULLY SUBMITTED, SERRATELL I , SCHI FFMAN, BkOW, //4 CALHOON, P.C. By: SPERO T. LAPPAS, sq _e Pa. Supreme Ct. ID no. 25745 2080 Linglestown Road Suite 201 Harrisburg, PA 17110-9670 (717) 540-9170 ATTORNEYS FOR THE PLAINTIFF Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Notice to Take Oral Depositions Page 2 TERRY It. DUFFLE RICH,API) %J. STEIVART C. Ri)r VVEIDNER.;R. EDHLIND G. 1-VI ERS DAViD Vv. DELUCE- jowN A. STA.TLER [=PFLRSON! .. SHIP-INiAN• JEFFRE-t' B. RETTHi C. DUFFIE August 4, 2008 Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoun, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 Re: Ober v. Barclay, Docket No. 08-4259 Dear Spero: P?IELISSA PEEL GREF.VY ROBERT M. VTALKER WADE D. MAIvIEY ELIZABETH D. SNOVER KELii' L. BONANNO OF COUNSEL HORACE A. jo \1SCiN F L.F., SHIPMAN 2000 1 'WRITER's FV'. No, 1G5 E-MAIL jb1,ajd,,% (;om I acknowledge receipt of the Deposition Notices you unilaterally issued in the above referenced cases. Neither John Ninosky nor myself are available on that date. In my experience, it was unusual to receive a deposition notice when there has been no paper discovery nor are the pleadings closed. Additionally, as you know, Mr. Barclay is still under criminal investigation. At this point, we cannot voluntarily produce him for a deposition while the threat of criminal penalties is still a real possibility. It is hoped that we may have some resolution to the criminal proceedings within the next several months. As such, we ask that you agree to postpone Mr. Barclay's deposition until there is a resolution to the criminal proceedings. Barring an agreement, we will be forced to seek a protective order. We look forward to hearing from you concerning this issue. Very truly yours, JRN:mlb:340374 Jor?vsoN JOHNSON, D FFIE, STEWART & WEIDNER . Rettig ,EF DUFFIE JOHNSON, DUFF At l? ? i f.. -illfi9 EIDNER, P.C. August 6, 2008 Jeffrey B. Rettig, Esquire Johnson Duffie Law Offices 301 Market Street P.O. Box 109 SPERO T. LAPPAS Lemoyne, PA 17043-0109 (717) 635-2929 In Re: Ober v. Barclay Dear Jeff FAX: (717) 635-2949 slappasQssbc-law.com Please be advised that we do not accept the terms of your August 4, 2008 letter. I expect to see Mr. Barclay on September 10, 2008. If you wish to seek a protective order, please do so. SUITE 201 2080 LINGLESTOWN ROAD HARRISBURG, PA 17110-9670 FAX (717) 540-5481 STL/mlg Sincerely CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Protective Order has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on August 15, 2008: Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Attorney for Plaintiff JOHNSON, DUFFIE, STEWART & WEIDNER By: azA Jeff re B. Rettig, Esquire Attorney I.D. No. 19616 John R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Barclay ?:? ;?.? ? .?} is . - . -^? .?.... ? y..'.? c:, ) tM? ?; },- _ „ ?' ' ?-,'t "?1 ,-! ...._ f..!) „- C1.F .? •? Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig, Esquire I.D. No. 19616 jbr@jdsw.com By: John R. Ninosky, Esquire I. D. No. 78000 jrn@jdsw.com 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone: (717) 761-4540 WILLIAM OBER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 08-4259 BRUCE BARCLAY Defendant JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Bruce Barclay, by and through his counsel, Johnson, Duffie, Stewart & Weidner, P.C., who files these Preliminary Objections to Plaintiffs Complaint by respectfully stating the following: 1. Plaintiff commenced this action with the filing of a Complaint on or about July 16, 2008. 2. Defendant, through counsel, accepted service of the Complaint on July 28, 2008. 3. Plaintiff alleges that he was a resident of Defendant's home in Monroe Township, Cumberland County from May 2007 through March 2008. See, Plaintiffs Complaint ¶¶ 2 and 5. 4. Plaintiff alleges that during his stay at Defendant's home, he would from time to time engage in private and intimate activities which he desired to remain private. See, Plaintiffs Complaint ¶ 6. 5. Plaintiff claims that Defendant videotaped visual images of Plaintiffs private activities. See, Plaintiffs Complaint 17. 6. Plaintiff alleges that Defendant produced the recordings to satisfy his own sexual urges; however, there are no allegations that the alleged recordings were published to any individual other than Defendant. See, Plaintiffs Complaint ¶ 11. 7. Plaintiff does not allege to have suffered any physical harm, emotional harm, or economic harm as a result of Defendant's alleged conduct. 8. Count I of Plaintiffs Complaint is premised upon Invasion of Privacy. Count II of Plaintiffs Complaint is premised upon Intrusion upon Seclusion. Count III of Plaintiffs Complaint is premised upon Intentional Infliction of Emotional Distress. 9. Pennsylvania Rule of Civil Procedure governs the filing of preliminary objections. Pa.R.C.P. 1028(b) states, "All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading." 2 10. Pennsylvania Rule of Civil Procedure 1028(a)(4) states, "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: legal insufficiency of a pleading (demurrer)." 11. "Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint." White v. PennDot, 738 A.2d 27,31 (Pa.Commw. 1999). 12. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that that pleader will be unable to prove facts legally sufficient to establish the right to relief. Pacurariu v. Commonwealth, 744 A.2d 389 (Pa. Commw. 2000). 13. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Edwards v. Germantown Hospital, 736 A.2d 612 (Pa.Super. 1999). I. Preliminary Objections and Motion to Strike either Count I or Count II from Plaintiffs Complaint for being redundant 14. Plaintiff has asserted causes of action for Invasion of Privacy, Count I, and Intrusion upon Seclusion, Count II. 15. It is submitted that Intrusion upon Seclusion is one of the distinct torts which comprises a claim for Invasion of Privacy. As such, a claim for Intrusion upon Seclusion is redundant of the claim of Invasion of Privacy. 3 16. Pennsylvania Rule of Civil Procedure 1028(a)(2) states, "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter." 17. Allegations are scandalous and impertinent when they are immaterial and inappropriate to the proof of the cause of action. Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108 (Pa. Commw. 1998). 18. Counts I and II are redundant and as such it is respectfully requested that this Honorable Court strike either Count I or Count II as being scandalous and impertinent and/or failing to conform to law. III. Preliminary Objection in the nature of a demurrer to Plaintiffs cause of action for Intentional Infliction of Emotional Distress 19. Plaintiff has asserted a cause of action for Intentional Infliction of Emotional Distress. Section 46 of the Restatement (Second) of Torts outlines the tort of Intentional Infliction of Emotional Distress. However, this section of the Restatement has not been expressly adopted in Pennsylvania. Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 181, 754 A.2d 650, 652 (2000). 20. Therefore, a demurrer should be entered to Count III of Plaintiff's Complaint. 4 21. Although this cause of action has never been formally adopted in Pennsylvania, the Pennsylvania Supreme Court has cited Section 46 as setting forth the minimum requirements necessary to sustain such a cause of action. Taylor v. Albert Einstein Med. Ctr.. 562 Pa. 176, 754 A.2d 650 (2000). 22. Assuming, arguendo, that there is a viable cause of action for this tort in Pennsylvania, the elements of such a claim are as follows: Section 46 Outrageous Conduct Causing Severe Emotional Distress (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm. (Emphasis added). Restatement Second of Torts, Section 46 23. The nature of conduct which must be proven, in order to sustain a claim for Intentional Infliction of Emotional Distress, has been described as follows: The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in any civilized society ...It has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has 5 intended to inflict emotional distress, or even that his conduct has been characterized by 'malice' or a degree of aggravation that would entitle the Plaintiff to punitive damages for another tort. Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 753-754 (1998). 24. A plaintiff must also show physical injury or harm in order to sustain a cause of action for Intentional Infliction of Emotional Distress. Fewell v. Besner, 444 Pa. Super. 559, 664 A.2d 577 (1995). 25. In the present matter, Plaintiffs allegations do not rise to the level, consistent with Pennsylvania jurisprudence, to demonstrate a cause of action for Intentional Infliction of Emotional Distress. 26. Additionally, Plaintiff has not alleged any physical or other injury as a result of Plaintiffs alleged conduct. 27. Therefore, it is respectfully submitted that Plaintiff has failed to allege sufficient facts to demonstrate a cause of action for Intentional Infliction of Emotional Distress, and it is respectfully requested that this Honorable Court enter a dismiss Count III of Plaintiffs Complaint. 6 WHEREFORE, Defendant respectfully requests that this Honorable Court sustain his Preliminary Objections and that either Count I or Count II be stricken with prejudice, and that a demurrer be entered to Count III of Plaintiff's Complaint. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Jeff y 13. Rettig, Esquire Attorney I.D. No. 19616 John R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: s Attorneys for Defendant Barclay 341076 7 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Preliminary Objections has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on August 14, 2008: Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Attorney for Plaintiff JOHNSON, DUFFIE, STEWART & WEIDNER By: /,1Z 4.4111 Jeffre B. Rettig, Esquire Attorney I.D. No. 19616 John R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Barclay 341076 r ^' "t, { - r? fl"0 NO AUG 19 2008Cn WILLIAM OBER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 08-4259 BRUCE BARCLAY Defendant JURY TRIAL DEMANDED ORDER AND NOW, this 1"" day of , 2008, upon consideration of Defendant's Motion for Protective Order, and in noting an??out-of-county judge will need to be appointed to address the merits of said Motion, a stay is he eby orde d as to the taking or schedulin of Defendant's deposition-tie 4 _C? t> 4: > jv, yvtc-?? 40 B7 ?t7t ?JW 4tA- Distribution: • t-epero T, Lappas, Esquire, Seratelli, Schiffman, Brown & Calhoon, P.C.. 2080 Linglestown Road, Suite 201, Harrisburg, PA 17110 • ffrey B. Rettig, Esquire/John R. Ninosky, Esquire, Johnson, Duffie, Stewart & Ae Weidner, P.O. Box 109, Harrisburg, PA 17043-0109 )1X,. - q 1W ou, Ie 4n:74- R C C`4 E.7 SPERO T. LAPPAS, Esquire Serratelli, Schiffinan, Brown and Calhoon, P.C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 17110 (717) 540-9170 ATTORNEY FOR THE PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WILLIAM OBER, Plaintiff CIVIL ACTION -- LA W V. NO. 08-4259 BRUCE BARCLA Y, = JURY TRIAL DEMANDED Defendant Plaintiff's Answer to Defendant's Preliminary Obiections 1. Admitted as a matter of record. 2. Admitted as a matter of record. 3.-6. Plaintiff admits these averments to the extent that they are accurate citations to the Complaint. To the extent that the Defendant explains, interprets or mis-characterizes the averments of the Complaint those paragraphs are denied. 7. The Complaint speaks for itself. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Preliminary Objections Page 1 8. The Complaint speaks for itself. 9. Legal argument requiring no response. 10.-13. Legal argument requiring no response. 14. The Complaint speaks for itself. 15. Legal argument requiring no response. 16.-17. Legal argument requiring no response. 18. Counts I and II consist of pleading in the alternative which is allowed under the Pennsylvania Rules of Civil Procedure. Neither count is scandalous or impertinent. 19. The Complaint speaks for itself. The tort of intentional infliction of emotional distress is valid in this Commonwealth. 20. Denied. 21.-24. Legal argument requiring no response. 25. Plaintiffs allegations establish his entitlement to the relief sought in the Complaint and all its counts. 26. Plaintiffs Complaint speaks for itself and establishes his right to relief on all counts. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Preliminary Objections Page 2 27. Plaintiff's Complaint speaks for itself and establishes his right to relief on all counts. submitted, SERRATMIJ. By' CALHOON, P. C. SPE O T PAS, Esquzne Pa. Sdp-z eme Ct. ID no. 25745 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717) 540-9170 ATTORNEYSFOR THE PLAINTIFF Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. Plaintiff's Answer to Defendant's Preliminary Objections Page 3 CERTIFICATE OF SERVICE I hereby certify that on day of 4k?-_, 2008'1 served a true copy of the attached document upon the person(s) named below by mailing a copy addressed as follows, postage prepaid, deposited into the U. S. Mail at Harrisburg, Pa. Jeffrey B. Rettig, Esquire Johnson Duffie Law Offices 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Respectfully submitted, SERRATELLI, SCHIF N ROWNAND CALHOON, P. C. By SP . LAPPAS- E 1777 P-2. Supjwme Ct. ID no. 25745 2080 Lwglestown Boa d, Suite 201 Hamisburg, PA 17110-9670 (717) 540-9170 ATTORNEFSFOR TIMPLAINTIFF August 25, 2008 "`? ?-? `_ C?` <?:? .?a Y++« ` ,: ?^= ?3ftr v i ti d 4 ._ .... ?, ..-? F ?? #!' f ? ?" ?i,i V..-t KA ? ..a? SPERO T. LAPPAS, Esquire Serratelli, Schiffinan, Brown and Calhoon, P.C. 2080 Linglestown Road Suite 201 , Harrisburg, Pennsylvania 17110 (717) 540-9170 ATTORNEY FOR THE PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WILLIAM OBER, Plaintiff CIVIL ACTION -- LA W V. BRUCEBARCLAY, Defendant NO. 08-4259 JURY TRIAL DEMANDED Plaintiff's Answer to Defendant's Motion for Protective Order 1. Admitted as a matter of record. 2. Admitted as a matter of record. 3. Denied. Defendant's have issued requests for the production of documents and interrogatories. 4. Admitted that Plaintiff has issued a deposition notice. 5 Plaintiff is aware that the Defendant was, at one time, being investigated by the Attorney General and the Pennsylvania State Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Motion for Protective Order Page 1 Police. Plaintiff has not received a current status report of this investigation. 6. The Plaintiff intends to question the Defendant at deposition regarding all issues relevant to this case. Obviously, Plaintiff does not know what Defendant's answers will be to those questions. Therefore, Plaintiff does not know whether the Defendant will incriminate himself by giving truthful testimony at deposition. 7. Paragraph 7 is both argument and speculation. However, the Plaintiff notes that if truthful answers to deposition questions will incriminate the Defendant he will have a right under the Fifth Amendment to the United States Constitution and Article I to the Pennsylvania Constitution to decline to answer questions for that reason. However, neither of those constitutional provisions is a general grant of immunity against being sworn in at a deposition, and neither one protects the Defendant from answering non- incriminating questions. Furthermore, if the Defendant desires or needs to assert his privilege against self-incrimination, he must do that on the record at Spero T. Lappas, Esquire Serratelli, Schiff nan, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Motion for Protective Order Page 2 the deposition. 8. The Plaintiff has not received a current status report concerning the criminal investigation. 9. The August 4, 2008 letter speaks for itself. If the Defendant's attorneys are not available on September 10, 2008, the Plaintiff is willing to reschedule the deposition for another proximate date. 10. The August 6, 2008 letter speaks for itself. 11. Legal argument which requires no response. 12. Legal argument which requires no response. 13. Legal argument which requires no response. However, there is no law or constitutional protection that immunizes the Defendant from being sworn in at deposition, giving answers to non-incriminating questions, and asserting his Fifth Amendment and Article I rights on the record. 14. Legal argument which requires no response. 15. The Defendant's position is completely inconsistent and self- Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Motion for Protective Order Page 3 contradictory. The Defendant claims that there is no paper discovery on going and he has himself issued himself paper discovery along with the demand that the interrogatories and document requests be promptly answered (see Exhibit A and Exhibit B attached hereto). Also, he states that the criminal investigation will soon be concluded ("it is believed that the criminal investigation will be resolved within a few months" Defendant's Motion at paragraph 8) and yet he states that he requests "an open ended delay in scheduling Defendant's deposition." We assume that if the Defendant seeks an open ended delay in scheduling his deposition he will similarly seek an open ended delay in the filing of an answer (since answers to the averments of the Complaint may similarly incriminate him), and an open ended delay in the answering of paper discovery (since answering questions on paper may similarly incriminate him). In short, what he is attempting to do is to stay the entire case. The Attorney General and State Police have their interests in pursuing the criminal charges and this Plaintiff has an interest in pursuing his civil remedies. He should not be penalized simply because Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Motion for Protective Order Page 4 the Defendant's actions were not only tortious but also criminal. 16. Admitted. We do not concur. 17. Legal argument which requires no response. 18. Denied. This is simply another stalling tactic from this Defendant. Plaintiff notes that by admitting in this motion that truthful answers will incriminate himself, the Defendant has gone a long way toward admitting the truthfulness of Plaintiff's Complaint. 19. Legal argument requiring no response. 20. Denied. Any delay in this litigation prejudices the Plaintiff. The Defendant is wrong when he states that written discovery has not been exchanged, and the Plaintiff will be ready to list this case for trial as soon as the pleadings close. WHEREFORE, the Defendant's Motion should be denied. Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Motion for Protective Order Page 5 Respectfully SPAR RATELLI., ByO P. C. SPERO 1 3. -?PA,S; Esquire Pa. Supreme Ct. ID no. 25745 2080 Ivnglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717) 540-9170 ATTORNEYSFOR THEPLAINTIFF Spero T. Lappas, Esquire Serratelli, Schiff ran, Brown & Calhoon, P. C. Plaintiff's Answer to Defendant's Motion for Protective Order Page 6 CERTIFICATE OF SERVICE I hereby certify that on day of , 2008, I served a true copy of the attached document upon the person(s) named below by mailing a copy addressed as follows, postage pre-paid, deposited into the U. S. Mail at Harrisburg, Pa. Jeffrey B. Rettig, Esquire Johnson Duffie Law Offices 301 Market Street P.O. BOX 109 Lemoyne, PA 17043-0109 Respectfully submitted, SERRATELLI, SCHIFFMAN, BAOWNAND CALHOON, PC / 'A\/ t 14 By j SSPERJ5 PAS, Esquim Pa. Supiwme Ct. M no. 25745 2080 Lwfflestown Road, Suite 201 Harrisburg, PA 17110-9670 (717),640-9170 ATTO.FNEYSFOR TFIEPLAINTIFF August 25, 2008 _ r PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) WILLIAM OBER, PLAINTIFF vs. BRUCE BARCLAY, DEFENDANT No. _08-4259 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANT`S PRELIMINARY OBJECTIONS 2. Identify all counsel who will argue cases: (a) for plaintiffs: SPERO T. LAPPAS (Name and Address) HARRISBURG, PA 17110 (b) for defendants: JEFFREY RETTIG, ESQUIRE 301 MARKET STRFFT P Q Box 109 (Name and Address) LEMOYNE, PA 17043-0109 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. PLAINTIFF Attorney for Date: 9/4/08 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. SPERO T. LAPPAS, ESQUIRE Print your name C :) ^.? -- -, 4 , ?, ? ti,j t ?, r:T - ,? K •r> _..w .. . .^? r :: .. ,.,: ?`?:? WILLIAM OBER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW : NO. 08-4259 BRUCE BARCLAY Defendant JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: PLEASE mark the above-captioned matter as discontinued with prejudice. SERRATELLIa6CHIINFVAN, BROWN & CALHOON, P.C. By: S ero T. L pas, Esquire I.D. 45 2800 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717) 540-9170 Attorneys for Plaintiff Date: a-)/& !a 9 `?'?. ?' ..-a -? -' r„"? ' ?;. ? ; z? ?-- r N _ ?. 1: To w .-.i ?? _ ?a ,? :-C, ,? tr. ,