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HomeMy WebLinkAbout09-2517 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., CIVIL DIVISION Plaintiff, No. 04- -7517 cc?-,/ TQ _. V. VERIFIED COMPLAINT JOHN A. SCHEIDLER, Defendant. Filed on behalf of Plaintiff Bank of America, N.A. Counsel of Record for these Parties: ,,Brad A. Funari Pa. I.D. No. 89575 Bryan C. Brantley Pa. I.D. No. 93396 Matthew D. Monsour Pa. I.D. No. 208648 McGuireWoods LLP 625 Liberty Avenue, 23rd Floor Pittsburgh, Pennsylvania 15222 (412) 667-6000 NOTICE TO PLEAD: To Defendant John A. Scheidler: You are hereby notified to file a written response to the enclosed Verified Complaint within twenty (20) days of service hereof or a default judgment may be entered against you. McGuir Woods LLP Bra A. Funari IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., Plaintiff, V. JOHN A. SCHEIDLER, Defendant. CIVIL DIVISION No. NOTICE TO DEFEND 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 AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., Plaintiff, V. JOHN A. SCHEIDLER, Defendant. CIVIL DIVISION No. 0q- 6?7 ?? Tz VERIFIED COMPLAINT Plaintiff Bank of America, N.A. (the "Bank"), by and through its undersigned counsel, McGuireWoods LLP, files this Verified Complaint and in support thereof states as follows: 1. INTRODUCTION 1. This action arises out of Defendant John A. Scheidler's ("Scheidler" or "Defendant") repeated transmission of harassing electronic mail messages to Bank employees wherein he threatens their lives and well-being. 2. Scheidler's a-mails are so extreme and go beyond all bounds of decency in that they promise serious physical violence and are laced with coarse and offensive language designed to unduly influence, intimidate, and bully Bank employees. 3. Scheidler's persistent and escalating harassment and threats directed to Bank employees, including Bank Chairman, Chief Executive Officer and President Kenneth D. Lewis, has caused Bank employees to suffer severe mental anguish as they live in perpetual fear for their lives and well-being. 4. Moreover, Scheidler's transmittal of these a-mails unlawfully interferes with the Bank's electronic mail system which is intended to serve a legitimate business purpose, not serve as an instrument for Defendant's illegal conduct. 5. Scheidler should be enjoined from engaging in such conduct. II. PARTIES 6. The Bank is a Delaware corporation with its principal place of business at 100 North Tryon Street, Charlotte, North Carolina 28255. 7. Upon information and belief, Scheidler is an individual residing at 118 Abolition Street, Enola, Pennsylvania and holds shares of the Bank's common stock. III. JURISDICTION AND VENUE 8. This action arises under the laws of the Commonwealth of Pennsylvania and is within the subject matter jurisdiction of this Court. 9. Venue is proper within this Court pursuant to Pa.R.Civ.P. 1006(a)(1) because: (i) Defendant resides and may be served within Cumberland County; (ii) Plaintiffs causes of action arose in Cumberland County; and (iii) the transactions and occurrences out of which Plaintiffs causes of action arise occurred within Cumberland County. IV. FACTUAL BACKGROUND 10. In late 2008, Scheidler began e-mailing threatening and profane communications to Bank employees and representatives in North Carolina. 11. Upon information and belief, Scheidler was sending these communications from his home in Enola, Pennsylvania. 12. On December 19, 2008, Scheidler sent Lee McEntire, the Bank's Senior Vice President, an e-mail wherein he warned: 2 Your piece of [s----] company is getting out performed by small banks! What do you have to say about that? I am losing [sic] much money on your Company. You and your board of Directors Better start watching yourself [sic]!! Google my name and see what you had better be afraid of! J. Scheidler A copy of the December 19, 2008 e-mail is attached hereto as Exhibit A. 13. On January 25, 2009, Scheidler sent another e-mail through the Bank's e-mail system to McEntire. In this e-mail, Scheidler wrote: I am coming to the next share holder meeting! I WANT Ken Lewis [sic] RESIGNATION NOW!!! You people better make some changes or I will [sic] There at the meeting! ! You can't run a bank from the Hospital! ! A copy of the January 25, 2009 e-mail is attached hereto as Exhibit B. 14. Scheidler's January 25 e-mail expresses his intention to travel to the Bank's next shareholder meeting, April 28-29, 2009, and physically harm McEntire and Bank CEO Kenneth Lewis to the point where both men will be in need of medical attention if Bank employees, including Lewis, do not comply with Scheidler's demands. 15. On February 4, 2009, Scheidler sent yet another e-mail through the Bank's e-mail system to McEntire, in which his tone and threats escalate. Scheidler warns: You piece of [5----] ! ! ! Us [sic] share holders are sick and tired of your lying [a--]!! I will start by taking back some of my property tomorrow I am sure you will here [sic] about it from our bank that I take it from! ! ! By the way when I see you I will break your [f------] jaw!!! That is what you get for lying to me and it cost me Thousands! Any one that knows me knows better then [sic] to [f----] me over because I break them. NOW I WILL BREAK YOU!!! I am not waiting till the next share holders [sic] meeting! ! [F------] pieces of [s---] P Bend over and kiss your [a--] goodnight! ! J. Scheidler 3 A copy of the February 4, 2009 e-mail is attached hereto as Exhibit C. 16. In response to Scheidler's e-mails, the Bank searched public records for information regarding Defendant. 17. The Bank has determined that Scheidler has a history of violence, including the commission of assault and harassment crimes. 18. Scheidler has been a defendant in state criminal court cases in Pennsylvania involving charges of assault, harassment, and theft. Specifically, and upon information and belief, Scheidler pled guilty to the charge of assault in a matter styled Com v. John Allen Scheidler, CP-22-CR-0001331-2000 (Cumberland County). 19. For this crime, Scheidler served a sentence from September 11, 2000 to February 14, 2001. 20. Scheidler's criminal history and the seriousness of his threats have caused the Bank great concern for the safety of its employees, and McEntire and Lewis in particular, who have suffered and continue to suffer significant emotional distress from Defendant's conduct and fear for their safety and welfare. COUNTI (Invasion of Privacy) 21. Plaintiff hereby incorporate by reference the allegations set forth in paragraphs 1 through 20 above, as if set forth fully herein. 22. Scheidler has intentionally intruded upon the solitude, seclusion and private affairs of the Bank and its employees by communicating the threatening, harassing and profane e-mails through the Bank's e-mail system as outlined above. 23. Scheidler's intrusion is highly offensive to a reasonable person and a reasonable person would find Sceidler's conduct objectionable. 4 24. Scheidler's repeated harassment amounts to the hounding of the Bank, McEntire and Lewis and has become a substantial burden to the Bank's business affairs. 25. Bank employees, including McEntire and Lewis, have sustained and continue to endure mental suffering in the form of a perpetual fear for their lives and well-being. 26. As a result of Scheidler's criminal and tortious conduct, the Bank has suffered, and will continue to suffer, irreparable injury that cannot be completely and adequately compensated by money damages, and which gives rise to injunctive relief. WHEREFORE, Plaintiff Bank of America, N.A., respectfully requests that judgment be entered in favor of the Plaintiff and against Defendant for: (1) injunctive relief sought by the motion for special injunction stated above and permanent injunctive relief; (2) all equitable and injunctive relief that it is entitled to under the facts and applicable law; and (3) compensatory damages, punitive damages, attorneys' fees, pre judgment and post judgment interest, and costs based on the claims for relief set forth above and any and all other relief this court deems proper. COUNT II (Trespass to Chattels) 27. Plaintiff hereby incorporate by reference the allegations set forth in paragraphs 1 through 30 above, as if set forth fully herein. 28. The Bank's computer and e-mail system are the sole and exclusive property of the Bank. 29. By engaging in the conduct described above, Scheidler has intentionally intermeddled and interfered with the Bank's exclusive possession of the e-mail system. 30. Scheidler continues to unlawfully interfere with the Bank's property by using its e-mail system to commit criminal acts against Bank employees in the attempt to extort from the Bank. 5 31. As a result of Scheidler's criminal and tortious conduct, the Bank has suffered and will continue to suffer irreparable injury that cannot be completely and adequately compensated by money damages, and which gives rise to injunctive relief. WHEREFORE, Plaintiff Bank of America, N.A respectfully requests that judgment be entered in favor of the Plaintiff and against Defendant for: (1) injunctive relief sought by the motion for preliminary injunction stated above and permanent injunctive relief; (2) all equitable and injunctive relief that it is entitled to under the facts and applicable law; and (3) compensatory damages, punitive damages, attorneys' fees, pre judgment and post judgment interest, and costs based on the claims for relief set forth above and any and all other relief this court deems proper. COUNT III (Private Nuisance) 32. Plaintiff hereby incorporate by reference the allegations set forth in paragraphs 1 through 35 above, as if set forth fully herein. 33. The Bank's computer and e-mail system are the sole and exclusive property of the Bank. 34. Scheidler criminally and improperly uses the Bank's property to intentionally and unreasonably interfere with the Bank's private possession of this property in an attempt to injure the Bank and the rights of its employees, representatives, customers, and shareholders. 35. Scheidler's conduct violates Pennsylvania law. 36. Specifically, Scheidler has committed the crime of Harassment as defined by 18 Pa.C.S.A. § 2709, which states that: (a) A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: 6 (1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same; (2) follows the other person in or about a public place or places; (3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose; (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures; (5) communicates repeatedly in an anonymous manner; (6) communicates repeatedly at extremely inconvenient hours; or (7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6). 18 Pa.C.S.A. § 2709 37. Moreover, Scheidler's conduct is also in violation of 18 Pa.C.S.A. § 2709.1 which makes it a crime in this Commonwealth to "... engage[] in a course of conduct or repeatedly communicate[] to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person." 38. As a result of Scheidler's criminal and tortious conduct, the Bank has suffered and will continue to suffer irreparable injury that cannot be completely and adequately compensated by money damages, and which gives rise to injunctive relief. WHEREFORE, Plaintiff Bank of America, N.A respectfully requests that judgment be entered in favor of the Plaintiff and against Defendant for: (1) injunctive relief sought by the motion for preliminary injunction stated above and permanent injunctive relief; (2) all equitable 7 and injunctive relief that it is entitled to under the facts and applicable law; and (3) compensatory damages, punitive damages, attorneys' fees, pre judgment and post judgment interest, and costs based on the claims for relief set forth above and any and all other relief this court deems proper. PRAYER FOR RELIEF WHEREFORE, Plaintiff Bank of America, N.A. requests that this Honorable Court enter an injunction pursuant to Pennsylvania Rule of Civil Procedure 1531(a). Plaintiff requests that this Court: (1) Enjoin Scheidler from attending or otherwise interfering with the Bank of America shareholder meeting to be held April 28-29, 2009 in Charlotte, North Carolina; (2) Enjoin Scheidler from communicating in any manner with Bank employees, including Lee McEntire or Kenneth D. Lewis; (3) Enjoin Scheidler from transmitting in any manner to Bank of America, N.A. or its banking centers, employees, officers, directors, agents or members of its Board of Directors communications that are threatening, immoral, unethical, oppressive, unscrupulous, harassing, abusive, or annoying; (4) Enjoin Scheidler from coming within 300 yards of Lee McEntire, Kenneth D. Lewis, or any other of Bank of America, N.A.'s officers or directors. 8 (5) Award compensatory damages, punitive damages, attorneys' fees, pre judgment and post judgment interest, and costs based on the claims for relief set forth above and any and all other relief this court deems proper. Respec Ily submitted, Brad A. Funari Pa. I.D. No. 89575 Bryan C. Brantley Pa. I.D. No. 93396 Matthew D. Monsour Pa. I.D. No. 208648 McGuireWoods LLP 625 Liberty Avenue, 23rd Floor Pittsburgh, Pennsylvania 15222 (412) 667-6000 Attorneys for Plaintiff Bank of America, N.A. Dated: April 21, 2009 9 Page I of 2 From: arscheidler@juno,com To: McEntire, Lee Sent: Fri Dec 19 18:02:112008 Subject: RE: I am a Shares holder. (KMM93255041I18386LOKM) ? m i?nnn EXHIBIT A Page 2 of 2 Your piece of shit company is getting out performed by small banks! What do you have to say about that? I am losing to much money on your Company. You and your board of Directors Better start watching yourseIP ! Google my name and see what you had better be afraid of! J. Scheidler ......- arn }(aur asst ciatc s_crtr? it al Ott .Oce deice and *, ??rt, sour_Caro er training Way, 1) in/lAnn Page 1 of I Raulerson, Tanya C From: Malone, Mark M Sent: Monday, January 26, 2009 9:12 AM To: Raulerson, Tanya C Subject: FW: I am a very upset shareholder Tanya.. Lee received another email from John. The previous email was during the holidays, Dark From: McEntire, Lee Sent: Sunday, January 25, 2009 4:43 PM To: Malone, Mark M Subject: Fw: I am a very upset shareholder This guy and his threat again Sent from my BlackBerry Wireless Handheld From: arscheldler@juno.com To: McEntire, Lee Sent: Sun Jan 25 26:40:53 2009 Subject: I am a very upset shareholder I am coming to the next share holder meeting! I WANT Ken Lewis RESIGNATION NOW ! ! ! You people better make some changes or I will There at the meeting! ! You can't run a bank from the Hospital! ! John IAe sure}our slimmer gets 04 clean. C?lick_i (".fora higligmAlit , "Jim filter, 1) 10 t1) nno EXHIBIT g From: arscheidler@iuno.com To: McEntire, Lee; Subject: Us Shareholders. Date: Wednesday, February 04, 2009 5:21:52 PM You piece of Sh it! ! ! ! Us share holders are sick and tired of your lying ass!! I will start by taking back some of my property tomorrow I am sure you will here about it from our bank that I take it from!!! By the way when I see you I will break your fucking jaw!!! That is what you get for lying to me and it cost me Thousands! Any one that knows me knows better then to fuck me over because I break them . NOW I WILL BREAK YOU!!! I am not waiting till the next share holders meeting!! Fucking pieces of Shit!! Bend over and kiss your ass goodnight!! J. Scheidler Cheap Diet Help Tips. Click here. http://thirdr)artyoffers.juno.com/TGL2141/fc/ PnY6rw3Eg6iUYKGrbbGwCISW mzZrhxx2XwAgPiLEhYRCYX9LOzaIo/ EXHIBIT G VERIFICATION I, Lee McEntire, verify that I am authorized to verify this pleading on behalf of Bank of America, N.A. and that the statements made in this Verified Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. 1'ffy Lee cEntire FlLF?--C'= ;F Y OF THE 2009 APR 22 A3 10: 2 8 Yd. ?7?? ? 3y3&'7G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., CIVIL DIVISION Plaintiff, v. JOHN A. SCHEIDLER, Defendant. No. o4- -? -5?i7 0,;d T4-. MOTION FOR SPECIAL AND/OR PRELIMINARY INJUNCTION Filed on behalf of Plaintiff Bank of America, N.A. Counsel of Record for these Parties: Brad A. Funari Pa. I.D. No. 89575 Bryan C. Brantley Pa. I.D. No. 93396 Matthew D. Monsour Pa. I.D. No. 208648 McGuireWoods LLP 625 Liberty Avenue, 23rd Floor Pittsburgh, Pennsylvania 15222 (412) 667-6000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., Plaintiffs, V. JOHN A. SCHEIDLER, Defendant. CIVIL DIVISION No. D y .75/7 Ccvz(Tu MOTION FOR SPECIAL AND/OR PRELIMINARY INJUNCTION Plaintiff Bank of America, N.A. (the "Bank"), by and through its undersigned counsel, McGuireWoods LLP, moves this Honorable Court, pursuant to Rule 1531 of Pennsylvania Rules of Civil Procedure, to issue an Order enjoining Defendant John A. Scheidler ("Scheidler" or "Defendant") from further communicating with Bank employees and from attending the Bank's shareholder meeting and in support thereof states as follows: I. INTRODUCTION 1. Contemporaneous with the filing of this Motion for Special and/or Preliminary Injunction ("Motion"), the Bank filed its Verified Complaint with this Court seeking, inter alia, injunctive relief enjoining Defendant's wrongful conduct. 2. As averred in the Complaint and the Affidavit of Lee McEntire, attached hereto as Exhibit A, Scheidler's persistent and escalating harassment and threats directed at Bank employees, including Mr. McEntire and Bank Chairman, Chief Executive Officer and President Kenneth D. Lewis, promise serious physical violence and are laced with coarse and offensive language designed to unduly influence, intimidate, and bully Bank employees regarding banking activities. 3. Scheidler's conduct has caused, and if not immediately enjoined will continue to cause, Bank employees to suffer severe mental anguish as they live in perpetual fear for their lives and well-being. 4. Scheidler's conduct must also be immediately enjoined because his transmittal of electronic communications unlawfully interferes with the Bank's electronic mail system which is intended to serve a legitimate business purpose, not serve as an instrument of Defendant's illegal conduct. II. FACTUAL BACKGROUND 5. In late 2008, Scheidler began e-mailing threatening and profane communications to Bank employees and representatives from his home in Enola, Pennsylvania to the Bank's corporate offices in North Carolina. (McEntire Affidavit, IT 6-9) (Verified Complaint, ¶ 10). 6. On December 19, 2008, Scheidler sent Lee McEntire, the Bank's Senior Vice President, an e-mail wherein he warned: Your piece of [s----] company is getting out performed by small banks! What do you have to say about that? I am losing [sic] much money on your Company. You and your board of Directors Better start watching yourself [sic]!! Google my name and see what you had better be afraid of! J. Scheidler (McEntire Affidavit, 16) (Verified Complaint, ¶ 11). A copy of the December 19, 2008 e-mail is attached to the Verified Complaint as Exhibit A. 7. On January 25, 2009, Scheidler sent another e-mail through the Bank's e-mail system to McEntire. In this e-mail, Scheidler wrote: I am coming to the next share holder meeting! I WANT Ken Lewis [sic] RESIGNATION NOW!!! You people better make some changes or I will [sic] There at the meeting! ! You can't run a bank from the Hospital! ! 3 (McEntire Affidavit, ¶ 8) (Verified Complaint, ¶ 12). A copy of the January 25, 2009 e-mail is attached to the Verified Complaint as Exhibit B. 8. Scheidler's January 25 e-mail expresses his intention to travel to the next shareholder meeting and physically harm Lewis and McEntire to the point where both men are in need of medical attention if Bank employees, including Lewis, do not comply with Scheidler's demands. (McEntire Affidavit, ¶ 11) (Verified Complaint, ¶ 13). 9. On February 4, 2009, Scheidler sent yet another e-mail through the Bank's e-mail system to McEntire, in which his tone and threats escalate. Scheidler warns: You piece of [S----]!!! Us [sic] share holders are sick and tired of your lying [a--]!! I will start by taking back some of my property tomorrow I am sure you will here [sic] about it from our bank that I take it from! ! ! By the way when I see you I will break your [f------] jaw!!! That is what you get for lying to me and it cost me Thousands! Any one that knows a knows better then [sic] to [f---] a over because I break them. NOW I WILL BREAK YOU! ! ! I a not waiting till the next share holders [sic] meeting! ! [F------] pieces of [s---] ! ! Bend over and kiss your [a--] goodnight! ! J. Scheidler (McEntire Affidavit, 19) (Verified Complaint, 114). A copy of the February 4, 2009 e-mail is attached to the Verified Complaint as Exhibit C. 10. In response to Scheidler's e-mails, the Bank searched public records for information regarding Defendant. (McEntire Affidavit, 112) (Verified Complaint, ¶ 15). 11. The Bank has determined that Scheidler has a history of violence, including the commission of assault and harassment crimes. (Verified Complaint, ¶ 16). 12. Scheidler has been a defendant in state criminal court cases in Pennsylvania involving charges of assault, harassment, and theft. Specifically, and upon information and 4 belief, Scheidler pled guilty to the charge of assault in a matter styled Com v. John Allen Scheidler, CP-22-CR-0001331-2000 (Cumberland County). (Verified Complaint, 117). 13. For this crime, Scheidler served a sentence from September 11, 2000 to February 14, 2001. (Verified Complaint, 118). 14. Scheidler's criminal history combined with the seriousness of his threats against the Bank's employees has caused the Bank great concern for the safety of its employees, and McEntire and Lewis in particular, who have suffered and continue to suffer significant emotional distress from Defendant's conduct and fear for their safety and welfare. (McEntire Affidavit, TT 14-16) (Verified Complaint, T 19). II. ARGUMENT 15. A special or preliminary injunction is appropriate when the moving party sufficiently can establish the following five elements: (a) an injunction is necessary to prevent immediate and irreparable harm; (b) greater injury would result from refusing an injunction than from granting it; (d) an injunction would properly restore the parties to their status immediately prior to the alleged wrongful conduct; (e) the movant is likely to prevail on the merits of the action; (f) the requested injunction is reasonably suited to abate the offending activity; and (g) an injunction would adversely affect the public interest. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003). 16. A preliminary injunction is proper in these circumstances because all elements necessary to establish the injunction have been clearly established by Plaintiffs in their Verified Complaint and the affidavit of Lee McEntire, attached hereto as Exhibit A. 5 17. First, the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages because McEntire and Lewis are in imminent danger of being physically harmed by Scheidler. 18. Further, the Bank's e-mail system is being continuously and unlawfully used by Scheidler in the attempt to extort the Bank. 19. Second, in light of Scheidler's threatening a-mails and his past history of violence, greater injury would result from refusing an injunction than from granting one. Moreover, the issuance of the injunction will not substantially harm any other interested parties in the proceedings, namely Scheidler, as the injunction will simply order him to end his criminal behavior. 20. Third, the preliminary injunction will properly restore the parties to their status as it existed immediately prior the alleged wrongful conduct - Bank employees will be free from harassment and Scheidler will be placed back in a position of directing no threats to them. 21. Fourth, the Bank is likely to prevail on the merits of its claims as Scheidler is clearly engaging in extreme and outrageous conduct which is not only criminal, but also intrudes upon Bank employees' private affairs, causing them to suffer mental anguish. 22. Additionally, Scheidler has undoubtedly interfered in an unlawful manner with the Bank's exclusive right of possession in its e-mail system. See Exhibits B, C and D to Verified Complaint. 23. The injunction Plaintiff seeks is reasonably suited to abate the offending activity. 24. If Scheidler is prevented from further communicating with Plaintiff, attending the shareholder meeting or coming within the proximity of Bank employees, he can do no harm to them. 6 25. Further, the injunction does not substantially curtail Scheidler in any meaningful way as he is free to do what he pleases so long as he does not attend a shareholder meeting in North Carolina or communicate with Bank employees. 26. Finally, a special and/or preliminary injunction will not adversely affect the public interest. 27. To the contrary, the public interest will be furthered by the granting of the preliminary injunction as it will put an end to unlawful, extreme, and outrageous conduct. WHEREFORE, Plaintiff Bank of America, N.A. requests this Court to enter a special and/or preliminary injunction, in the form attached hereto, enjoining Defendant John A. Scheidler from: (1) Communicating in any manner with Bank employees, including Lee McEntire or Kenneth D. Lewis; (2) Attending or otherwise interfering with the Bank of America shareholder meeting to be held April 28-29, 2009 in Charlotte, North Carolina; (3) Transmitting in any manner to Bank of America, N.A. or its banking centers, employees, officers, directors or agents communications that are threatening, immoral, unethical, oppressive, unscrupulous, harassing, abusive, or annoying; (4) Coming within 100 feet of Bank employees Lee McEntire, Kenneth D. Lewis, or any other of Bank of America, N.A.'s officers and directors. Because it is likely that Plaintiff Bank of America, N.A. will suffer immediate and irreparable injury before notice can be given to Defendant John A. Scheidler or a hearing held on the matter, Plaintiffs request that this Court grant a special injunction without a hearing and without notice. 7 Respectfully submitted, Brad A. Funari U Pa. I.D. No. 89575 Bryan C. Brantley Pa. I.D. No. 93396 Matthew D. Monsour Pa. I.D. No. 208648 McGuireWoods LLP 625 Liberty Avenue, 23rd Floor Pittsburgh, Pennsylvania 15222 (412) 667-6000 Attorneys for Plaintiffs Bank of America, N.A. Dated: April 21, 2009 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., Plaintiff, V. JOHN A. SCHEIDLER, Defendant. CIVIL DIVISION No. Lee McEntire, being duly sworn, deposes and says: 1. I have personal knowledge of the facts set forth in this affidavit. 2. 1 am currently employed as Senior Vice President by Bank of America, N.A. (the "Bank"). 3. I am familiar with business records that were generated and maintained in the ordinary course of the Bank's business based on the responsibilities and duties of my employment. 4. The Bank owns and maintains communications systems, including electronic mail systems, computers and computer modems, for its use in the ordinary course of its business. 5. Pursuant to my employment with the Bank, I am authorized to use the Bank's electronic mail systems, computers and computer modems. I have been issued an electronic mail account and maintain a computer for use in the course of the Bank's business. 6. On December 19, 2008, I received an e-mail from arscheidler@juno.com. A copy of the December 19, 2008 e-mail is attached to the Verified Complaint as Exhibit \8874836.1 E EXHIBIT A and incorporated herein by reference. The December 19, 2009 e-mail contained the following communication: Your piece of [s---] company is getting out performed by small banks! What do you have to say about that? I am losing to [sic] much money on your Company. You and your board of Directors Better start watching yourself [sic]!! Google my name and see what you had better be afraid of! J. Scheidler 7. Upon information and belief, J. Scheidler is John Scheidler who uses the e-mail address arscheidler@juno.com. 8. On January 25, 2009, I received another e-mail from arscheidler@juno.com. A copy of the January 25, 2009 e-mail is attached to the Verified Complaint as Exhibit B and incorporated herein by reference. In the January 25, 2009 e- mail, Scheidler wrote the following: I am coming to the next share holder meeting! I WANT Ken Lewis [sic] RESIGNATION NOW!!! You people better make some changes or I will [sic] There at the meeting!! You can't run a bank from the Hospital!! 9. On February 4, 2009, I received yet another e-mail from arscheidler@juno.com. A copy of the February 4, 2009 e-mail is attached to the Verified Complaint as Exhibit C and incorporated herein by reference. In the February 4, 2009 e-mail, Scheidler wrote the following: You piece of [5----]!!!! Us [sic] share holders are sick and tired of your lying [a-- ]!! I will start by taking back some of my property tomorrow I am sure you will here [sic] about it from our bank that I take it from! ! ! By the way when I see you I will break your [f------] jaw! ! ! That is what you get for lying to me and it cost me Thousands! Any one that knows e knows better then [sic] to [f----] a over because I break \8874836.1 them. NOW I WILL BREAK YOUM I a not waiting till the next share holders [sic] meeting!! [F------] pieces of [s-- -jH Bend over and kiss your [a--] goodnight!! J. Scheidler 10. Upon information and belief, Scheidler is a resident of Enola, Pennsylvania and sent the communications listed above from Pennsylvania to North Carolina. 11. I believe Scheidler has threatened in the communications to do bodily harm to me and Bank Chairman, Chief Executive Officer and President Ken Lewis. 12. Based on Scheidler's communications, the Bank has had to assign resources to investigate Scheidler's threats and take security precautions to protect the Bank and members of the Board. The Bank will also need to increase security measures at the Board meeting in response to Scheidler's threats at considerable cost to the Bank. 13. Scheidler has communicated to me his intent to inflict physical bodily harm to me and members of the Board. 14. Based on Scheidler's communications, I believe Scheidler poses an imminent threat to me and other Bank employees. 15. Scheidler has intruded upon my solitude, seclusion and private affairs. 16. 1 have sustained and continue to endure mental suffering in the form of perpetual fear for my life and well-being. [SIGNATURE ON FOLLOWING PAGE] \8874836.1 This the 2 to day of April, 2009. Lee cEntir Sworn and subscribed to before me this ;Z 1'6' day of April 2009. Uil,A, t. P. IIX ? Notary Public My Commission expires: NATAUE B. HMWWEDI G"M Oo0114t, W CMVW On \ 8874836.1 r, I?it , <#/8 al PYOW no k ?j ?r?? ia'32 PO Oam 6 N 0 i? BANK OF AMERICA, N.A., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOHN A. SCHEIDLER NO. 09-2517 CIVIL TERM ORDER OF COURT AND NOW, this 23rd day of April, 2009, upon consideration of Plaintiffs Motion for Special and/or Preliminary Injunction, a hearing is scheduled for Monday, April 27, 2009, at 11:00 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Brad A. Funari, Esq. ? tO Bryan C. Brantley, Esq. by Matthew D. Monsour, Esq. McGuire Woods LLP 625 Liberty Avenue 23`d Floor Pittsburgh, PA 15222 Attorney for Plaintiff John A. Scheidler ? 118 Abolition Street Enola, PA 17025 Defendant, pro Se BY THE COURT, 4 01 000),00 :rc ",F VIA f j , i, ^JA. 4 2009 APR 23 P 3. 36 5t r 0- . NB BANK OF AMERICA, N.A., Plaintiff v JOHN A. SCHEIDLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-2517 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SPECIAL AND/OR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 27th day of April, 2009, upon consideration of Plaintiff's Motion for Special and/or Preliminary Injunction, and following a proceeding in court, at which the Defendant did not appear, and based upon the affidavit filed with the motion, which is hereby made a part of the record in the case, a special injunction is hereby issued on an ex parte basis enjoining Defendant John A. Scheidler from any of the following conduct: 1. Communicating in any matter with Plaintiff's employees, including Lee McEntire or Kenneth D. Lewis; 2. Attending or otherwise interfering with the Bank of America shareholder meeting to be held April 28 - 29, 2009, in Charlotte, North Carolina; 3. Transmitting in any matter to Bank of America, N.A. or its banking centers, employees, officers, directors or agents communications that are threatening,, oppressive, harassing, abusive, unreasonably annoying or obscene, and; 4. Coming within 300 yards of bank employees Lee McEntire, Kenneth D. Lewis, or any other bank of America N.A.'s officers and directors. A hearing on the continuation, modification or Co a) L:a La.. G3.. [1 GL C\j LLJ r CT . C C-i V termination of this ex parte special injunction is scheduled for Friday, May 1, 2009, at 9:15 a.m., in Courtroom Number 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Plaintiff shall post a bond or cash in this matter pursuant to the Rules of Civil Procedure in the amount of $1.00. By the Court, ./Brad A. Funari, Esquire 625 Liberty Avenue 23rd Floor Pittsburgh, PA 15222-3142 For Plaintiff ? John A. Scheidler 118 Abolition Street Enola, PA 17025 Defendant mae Co Fi F -s ni-al k 411;t 7/0? BANK OF AMERICA, N.A., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW JOHN A. SCHEIDLER, Defendant NO. 09-2517 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SPECIAL AND/OR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 1st day of May, 2009, upon consideration of Plaintiff's Motion for Special and/or Preliminary Injunction, and a special or preliminary injunction having been entered ex parte on April 27, 2009, following a proceed=ing at which the Defendant did not appear, and the Court having conducted a proceeding on today's date for purposes of consideration of whether the said special or preliminary injunction should be continued, modified or terminated, and it appearing that the Defendant has still not been formally served in this matter, but that various reasonable attempts to notify him of the proceeding were made by the Plaintiff, and the Plaintiff having at today's proceeding requested that the special or preliminary injunction be continued with one modification, Plaintiff's request is granted, and the special or preliminary injunction entered on April 27, 2009, is hereby continued in full force and effect; provided that paragraph 2 of that order is deleted as moot by virtue of the passage of time. The Court will hold a hearing on the further continuation, modification or termination of this special or preliminary injunction promptly upon request of the Defendant. By the Court, Z J. esley 01 Jr., J. '//Brad A. Funari, Esquire 625 Liberty Avenue 23rd Floor Pittsburgh, PA 15222-3142 For Plaintiff ? John A. Scheidler 118 Abolition Street Enola, PA 17025 Defendant mae ?o t?< <? 0 :I i WV S- IN 6002 aNi JO Sheriffs Office of Cumberland County R Thomas Kline 00V of 4uinGrrt ? Edward L Schorpp Sheri Solicitor Ronny R Anderson Jody S Smith Chief Deputy OFF--F T?-- s?E_ ;.IFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 05/07/2009 R. Thomas Kline, Sheriff, who being duly sworn according to law, states that on May 7, 2009, hours this Motion for special and/or preliminary injunction and order of court to be served upon defendant John A. Scheidler is returned not served. Despite numerous attempts, the defendant was not located at the address provided. It is believed that the defendant has been avoiding service. SHERIFF COST: $56.80 SO ANSWERS, May 07, 2009 R THOMAS KLINE, SHERIFF 2009-2517 Bank of America N.A. VS John A. Scheidler n ? 0 jr j J 0 fTl