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Home My WebLink About10-1135L i F I L EC j "r' 2010 FEB 17 AN 11: Z 0 Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve_law@comcast.net t. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS DAUPHIN CUMBERLAND PENNSYLVANIA SCOTT GARDNER Plaintiff v. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE Defendant JURY TRIAL DEMANDED f 2 `lArOl ff- WRIT OF SUMMONS To Norman H. Fromm, President IN Pazzo, Inc. d/b/a Brew House Grille, 2050 State Road Camp Hill, PA 17011 You are hereby notified that Plaintiff, Scott Gardner, by and through his Attorney, Steven R. Snyder, Esquire, has commenced an action against you. Date: e -1 5' ? z ?1?5 " 4 r Steven R. Snyder, Es uire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Attorneys for Plaintiff fp -tf 1 ) ( 44? LA4 Docket No. ZA ( o - 1( 2.1r- Civil Action - LAW R5 R? 2?3?GS?f 4 M Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve_law@comcast.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS DAUPHIN CUMBERLAND PENNSYLVANIA SCOTT GARDNER Plaintiff V. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE Defendant Docket No. Civil Action - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I Steven R. Snyder, Esquire hereby certify that a true and correct copy of the forgoing document was served on the parties listed below by depositing same in United States Mail, in Harrisburg, Pennsylvania. Norman H. Fromm, President LN Pazzo, Inc. d/b/a Brew House Grille, 2050 State Road Camp Hill, PA 17011 Date: f / / ZO/ a Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Attorneys for Plaintiff Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS Court of Common Pleas SCOTT GARDNER Plaintiff Vs. LN PAZZO, INC. DB/A BREW HOUSE GRILLE 2050 STATE ROAD CAMP HILL, PA 17011 NORMAN H. FROMM, PRESIDENT Defendant No 10-1135 CIVIL TERM In CivilAction-Law To LN PAZZO, INC. DB/A BREW HOUSE GRILLE, You are hereby notified that SCOTT GARDNER the Plaintiff(s) has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) David D. Buell, Prothonotary By Date FEBRUARV,17. 2010 Attorney: Name: STEVEN R. oSNYDER Address: 4292 EMILY DRIVE HARRISBURG, PA 17112 Attorney for: Plaintiff Telephone: 717-695-2271 Supreme Court ID No. 90994 Deputy FILED-:;=~ i(:,~ ZDiO ~Ai~ i I Figs 3~ i 2 Johnson, Duffle, Stewart 8~ Weidner By: Jeffrey 6. Rettig I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com CL'~r } . ~~~:1~J ~ Y Attorneys for Defendant LN Pazzo, Inc. d/b/a Brew House Grille SCOTT GARDNER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. Plaintiff NO. 2010-1135 v. CIVIL ACTION -LAW LN PAZZO, INC. d/b/a BREW HOUSE GRILLE, JURY TRIAL DEMANDED Defendant PRAEC/PE FOR ENTRY OF APPEARANCE To the Prothonotary of Cumberland County: Kindly enter my appearance on behalf of Defendant, LN Pazzo, Inc. d/b/a Brew House Grille, in the above-captioned action. Respectfully submitted, JO NSO D , S W RT & WEIDNER B' r B. Rettig, Es uir ttorney I.D. No. 196 6 301 Market Street Lemoyne, Pennsylvania 17043 717-761-4540 jbrtu'~.idsw.com Attorney for Defendant 394755 CERTIFICATE OF SERVICE AND NOW, this /d day of March, 2010, the undersigned does hereby certify that he did this date serve a copy of the foregoing Praecipe for Entry of Appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Steven R. Snyder, Esquire 4292 Emily Drive Harrisburg, PA 17112 Counsel for Plaintiff JOHNSO~UFFIE, STEI~VART & WEIDNER BY~ ~ ~ J ey B. Rettig F~LEG~E.~~~-:-r~.JC 2010 f~AY 13 ~1~ 1 ~ 59 Steven R. Snyder, Esquire ~~~~~~" ;'°~`~' `~~~~ '~ PA Attorney License No. 90994 r'~~~SvSY~V,t~`~-a~i 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Steve law@comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff v. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Docket No. 2010-1135 Civil Action -LAW JURY TRIAL DEMANDED PRAECIPE TO FILE AMENDED COMPLAINT TO THE PROTHONOTARY: Kindly file the attached Amended Complaint in the above-captioned matter. I have secured the concurrence of the defendants to file same. Date May 12, 2010 By Steven R. Snyder, squire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve_law@comcast. net Attorney for the Plaintiff Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Steve law@comcast.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff Docket No. 2010-1135 v. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I Steven R. Snyder, Esquire hereby certify that a true and correct copy of the forgoing document was served on the parties listed below by depositing same in United States Mail, in Harrisburg, Pennsylvania. Jeffrey B. Rettig, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street ~ P.O. Box 109 Lemoyne, PA 17043-0109 Brandon Smith 306 Montebello Farm Rd. Duncannon, Pennsylvania 17020 Civil Action -LAW Justin Enders 541 Good Hope Road Mechanicsburg, Pennsylvania, 17050 Date: May 12, 2010 L r "' ~~ Steven R. Snyder, Esq e PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Attorneys for Plaintiff t o C ~i~ Steven R. Snyder, Esquire PA Attorney License No. 90994 {fir rW~~~,~v ,~~~ ~~?Y 1,: ~'GVPv~iYl.Vr~t''J~d; 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Steve law@comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff v. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Docket No. 2010-1135 Civil Action -LAW JURY TRIAL DEMANDED N O T I C E YOUHAVEBEENSUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU. DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court House Court Administrator 1 Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 N O T I C I A Le han demandado a usted en la torte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la facha de la demanda y la notification. Usted debe presentar una apariencia escrita o en Persona o por abogado y archivar en la torte en forma escrita sus defensas o sus objectiones a las demandas encontra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Court House Court Administrator 1 Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Steve law@comcast.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff Docket No. 2010-1135 v. Civil Action -LAW LN PAZZO, INC. d/b/a/ JURY TRIAL DEMANDED BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants AMENDED COMPLAINT NOW COMES, Plaintiff, Scott Gardner, by and through his attorney, Steven R. Snyder, Esquire and files the within Amended Complaint with the concurrence of the Defendants, and in support thereof, avers the following: 1. Plaintiff is Scott Gardner, and adult individual with his permanent residence at 1007 North Blue Ribbon Avenue, Harrisburg, Dauphin County, Pennsylvania 17112. 2. Defendant LN Pazzo, Inc, d/b/a Brew House Grille (hereinafter referred to as "Brew House Grille") is a Pennsylvania registered corporation in the business of selling food and alcoholic beverages to the public located at 2050 State Road Camp Hill, (:umberland County. Pennsylvania, 17011. 3. Defendant Brandon Smith (hereinafter referred to as "Smith") is an adult individual with his current address located at 306 Montebello Farm Rd., Duncannon, Pennsylvania 17020. who at the time the incidents occurred which gave rise to this Complaint, was an employee and bartender working for Defendant Brew House Grille. 4. Defendant Justin Enders (hereinafter referred to as "Enders") is an adult individual with his current address located at 541 Good Hope Road, Mechanicsburg, Pennsylvania, 17050, who at the time the incidents occurred which gave rise to this Complaint, was an employee and server working for Defendant Brew House Grille. 5. On the evening of Friday, February 5, 2010 Plaintiff was a customer at the Brew House Grille 6. At approximately eleven forty-five (11:45) P.M. Plaintiff informed Smith that he was ready to leave and asked for his check so that he could pay his bill. 7. At that time, a customer at the end of the bar yelled at Plaintiff that he should "pay his bill and get the (expletive) out of here, old man." 8. As Plaintiff was getting his coat, Defendant Smith joined the man at the end of the Bar and sat on bar stools next to him. 9. As Plaintiff went to leave the bar, one of the individuals struck him several times and then Defendant Smith held Plaintiff from behind around his arms and mid section, in a "full nelson" hold while Defendant Enders struck Plaintiff continually about the face and right eye. 10. As a result of Defendant Smith restraining Plaintiff and Defendant Enders punching Plaintiff repeatedly about the face and eye, Plaintiff sustained serious lacerations, bruising and swelling of his face and eye as well as prolonged pain and suffering: See exhibit A, photographs of Plaintiff s injuries. COUNTI PLAINTIFF V. BRANDON SMITH AND JUSTIN ENDERS ASSAULT AND BATTERY 11. Paragraphs 1 through 10 are incorporated herein as though fully set forth at length. 12. Assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person." Cohen v. Lit Brothers, 166 Pa. Super. 206, 209, 70 A.2d 419, 421 (1950). 13. Defendants Smith and Enders did commit assault and battery against Plaintiff when Smith held Plaintiff, restraining his arms and intentionally preventing him. from defending himself, while Enders did continually hit Plaintiff with his fists about Plaintiff's head and eye. 14. As a direct result of Defendants Smith and Enders committing assault and battery against Plaintiff, Plaintiff sustained serious injuries to his face and eye and serious pain and suffering. See Exhibit A. photographs of Plaintiff's injuries as a direct result of the assault and battery committed by Defendants Smith and Enders. WHEREFORE, Plaintiff requests both actual and punitive damages in an amount in excess of the limits of arbitration and such other relief as the court may deem proper. COUNT II PLAINTIFF V. BRANDON SMITH AND JUSTIN ENDERS CONSPIRACY TO COMMIT INTENTIONAL TORT ASSAULT AND BATTERY 15. Paragraphs 1 through 14 are incorporated herein as though fully set forth at length. 16. A civil conspiracy is an agreement between two or more parties to deprive a third party of legal rights in combination with some overt act in furtherance of the plan. See, Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498, 506 (1974). 17. Defendants Smith and Enders did enter into a conspiracy to commit the intentional tort of assault and battery, when they did meet at the bar to discuss the assault and battery against Plaintiff and then Smith restrained Plaintiff while Enders continually struck Plaintiff with his fists about Plaintiff s head and eye. 18. As a direct result of Defendants Smith and Enders conspiracy to commit the intentional tort of assault and battery against Plaintiff, Plaintiff sustained serious injuries to his face and eye as well a serious pain and suffering. See Exhibit A. WHEREFORE, Plaintiff requests both actual and punitive damages in an amount in excess of the limits of arbitration and such other relief as the court may deem proper. COUNT III PLAINTIFF V. BREW HOUSE GRILLE EMPLOYER VICARIOUS LIABILITY 19. Paragraphs 1 through 18 are incorporated herein as though fully set forth at length. 20. Defendants, Smith and Enders are employees of Defendant Brew House Grille. 21. Liability attaches to an employer by reason of an employee's negligent injury of a third person when the employee is acting within the scope of his employment." See, Cesare v. Cole, 210 A.2d 491, 493 (Pa.1965). 22. Defendants, Smith and Enders, on the evening of Friday, February 5, 2010 were both acting within the scope of their employment, and in the furtherance of their employer's business when Smith held Plaintiff, restraining his arms and intentionally preventing him from defending himself, while Enders did continually hit Plaintiff with his fists about Plaintiff s head and eye, thus committing assault and battery and when Defendants Smith and Enders did conspire to commit assault and battery. 23. As a direct result of Defendants Smith and Enders conspiracy to commit the intentional tort of assault and battery against Plaintiff, Plaintiff sustained serious injuries to his face and eye as well as serious pain and suffering. See Exhibit A. WHEREFORE, Plaintiff requests both actual and punitive damages in an amount in excess of the limits of arbitration and such other relief as the court may deem proper. COUNT III PLAINTIFF V. BREW HOUSE GRILLE NEGLIGENT FAILURE TO PROPERLY SUPERVISE EMPLOYEES 24. Paragraphs 1 through 23 are incorporated herein as though fully set forth at length. 25. An employer providing services through the employ of employees is subject to liability for harm resulting from negligence or recklessness in the supervision of the employee's conduct. See, Heller v. Patwil Homes, 713 A.2d 105, (Pa. Super. 1998) quoting Section 213 of the Restatement (Second) of Agency. 26. Defendant Brew House Grille had a duty to supervise its employees so that they do not commit assault and battery against its customers. 27. Defendant Brew House Grille breached its duty when it failed to supervise its employees so as to prevent then from assaulting and battering Plaintiff. 28. As a direct and foreseeable result of Defendant Brew House Grille's negligent failure to properly supervise its employees to prevent them from assaulting and battering Plaintiff, Plaintiff sustained serious injury to his face and eye as well as pain and suffering. See Exhibit A. WHEREFORE, Plaintiff requests both actual and punitive damages in an amount in excess of the limits of arbitration and such other relief as the court may deem proper. Respectfully submitted, Date Ma 12, 2010 B // L Y Y Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve_law@comcast.net Attorneys for Plaintiff VERIFICATION I, Scott Gardner, verify that the statements made in this Complaint are true and correct to the best of my knowledge or information and belief. I understand that statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date ~ ~ ~ r v Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve law@comcast.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff v. Docket No. 2010-1135 LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Civil Action -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I Steven R. Snyder, Esquire hereby certify that a true and correct copy of the forgoing document was served on the parties listed below by depositing same in United States Mail, in Harrisburg, Pennsylvania. Jeffrey B. Rettig, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street ~ P.O. Box 109 Lemoyne, PA 17043-0109 Brandon Smith 306 Montebello Farm Rd. Duncannon, Pennsylvania 17020 Justin Enders 541 Good Hope Road Mechanicsburg, Pennsylvania, 17050 Date: May 12, 2010 ~ / '~ 1, Steven R. Snyder, Esq 're PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Attorneys for Plaintiff EXHIBIT A . • J. SCOTT GARDNER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA V. LN PAZZO, INC. d/b/a BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS, DEFENDANTS NO. 10-1135 CIVIL IN RE: MOTION TO COMPEL ORDER OF COURT AND NOW, this 23~d day of June, 2010, upon consideration of the Defendant's Motion to Compel Plaintiff to Answer Discovery; IT IS HEREBY ORDERED AND DIRECTED that the Motion is GRANTED. Plaintiff shall provide full, complete and verified answers to the Defendants' Interrogatories and Request for Production of Documents on or before July 23, 2010. Failure to comply with this Order of Court will subject the Plaintiff to sanctions pursuant to Pa.R.C.P. No. 4019. Steven R. Snyder, Esquire Attorney for Plaintiff 4292 Emily Drive Harrisburg, PA 17112 Jeffrey B. Rettig, Esquire Andrew J. Petsu, Jr., Esquire Attorneys for LN Pazzo, Inc. d/b/a Brew House Grille bas ~JiQ,S ~~t`~ L ~~ ~o ~1 ~~ By the Court, ~~, M. L. Ebert, Jr., J. ~, ~}T(^. 4 ..~,' r- ~ '~ ~-S1 -.J ~ G7 ~ ~,,~ ~ c) ~~, ~ ~ ~~' ~~ w ~rn w ~~ ~:_ 2010 ~~ `~ ! ~ i3~ 3~ ~~+ Steven R. Snyder, Esquire C~i~ t.. ~. • , -;~~"~• PA Attorney License No. 90994 r~~- , •_ ~~'~y~:'~•, ~t, 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Steve law@comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff v. LN PAZZO, INC. d!b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Docket No. 2010-1135 Civil Action -LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER NOW COMES, Plaintiff, Scott Gardner, by and through his Attorney, Steven R. Snyder, Esquire and files the within Answer to New Matter contained in Defendants' Answer to Plaintiff s Original Complaint. It is acknowledged that Plaintiff filed an Amended Complaint wherein the only change was a correction in the date the incidents which are the subject of this suit occurred, from February 5, 2009 to February 5, 2010. Plaintiff and Defendants have agreed that a new Answer is not necessary. This Answer will serve as a response to what would have been Defendants' Answer with New Matter to Plaintiff's Amended Complaint and in response thereof, Plaintiff avers the following: 1. - 28. No response is required to paragraphs 1 through 28 of Defendant's Answer with New Matter as they are response to Plaintiffl s Amended Complaint. 29. Denied. At no time was Defendant's property in any danger of being damaged and so Defendants' defense to property defense is denied. 30. Denied. At no time did Plaintiff ever attack or attempt to attack or assault Defendant Enders. 31. Denied. Plaintiff does clearly state a claim for punitive damages for which relief may be granted. 32. Denied. Punitive damages are not contrary to the U.S. or Pennsylvania Constitution. 33. Denied. Plaintiff was insulted by a patron, asked for his bill, paid and on his way out was assaulted by Defendants and one other patron. Even if Defendants can prove that Plaintiff was asked to leave the bar, which Plaintiff denies, that does not give Defendants' the authority to assault him. 34. Denied. Plaintiff denied that he put his finger in a patron's ear. Even if Defendant can prove Plaintiff put his finger in Defendant's ear, which Plaintiff denies, that does not give Defendants' the authority to assault him. 35. Denied. Plaintiff made no attempt to attack anyone in the bar and was not acting unruly and so it was unnecessary for defendants to grab or put their hands on Plaintiff. 36. Denied. Defendant Enders stood in front of Plaintiff while Defendant Smith held Plaintiff and Enders repeatedly punched Plaintiff in the face. 37. Denied. Plaintiff was unable to defend himself because he was being restrained with both hands held behind him by Smith. 38. Denied. As stated previously, Smith held Plaintiff with his arms behind him while Enders repeatedly punched Plaintiff in the face. WHEREFORE, Plaintiff respectful requests this Court DISMISS Defendants' New Matter and find in favor of Plaintiff. Respectfully submitted, Date July 8, 2010 gy Steven R. Snyder, Es ire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717)695-2271 FAX (717) 695-2279 steve_law@comcast.net Attorneys for Plaintiff r Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve_law@comcast.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff Docket No. 2010-1135 v. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Civil Action -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Steven R. Snyder, Esquire hereby certify that a true and correct copy of the forgoing document was served on the parties listed below by depositing same in United States Mail, in Harrisburg, Pennsylvania. Jeffrey B. Rettig, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street ~ P.O. Box 109 Lemoyne, PA 17043-0109 Defendant for the Defendants Date: July 8, 2010 Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Attorneys for Plaintiff Ds Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve law@comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff V. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Docket No. 2010-1135 Civil Action - LAW JURY TRIAL DEMANDED MOTION FOR JUDGMENT ON THE PLEADINGS AND SANCTIONS AS TO DEFENDANTS' INTENTIONAL SPOLIATION OF EVIDENCE NOW COMES, Plaintiff J. Scott Gardner, by and through his Attorney, Steven R. Snyder, Esquire, and files the within Motion for Judgment on the Pleadings and Sanctions as to Defendants Intentional Spoliation of Evidence, an in support thereof avers the following: 1. Plaintiff is J. Scott Gardner, and adult individual who at the time of the incidents which are the subject of the above docketed Complaint, resided at 1007 North Blue Ribbon Avenue, Harrisburg, Dauphin County, Pennsylvania 17112. 2. Defendant, LN Pazzo, Inc, d/b/a Brew House Grille (hereinafter referred to as "Brew House Grille") is a Pennsylvania registered corporation in the business of selling food and alcoholic beverages to the public located at 2050 State Road Camp Hill, Cumberland County. Pennsylvania, 17011. 3. Defendant, Brandon Smith (hereinafter referred to as "Smith") is an adult individual with his current address located at 306 Montebello Farm Rd., Duncannon, Pennsylvania 17020. who at the time the incidents occurred which gave rise to this Complaint, was an employee and bartender working for Defendant Brew House Grille. 4. Defendant, Justin Enders (hereinafter referred to as "Enders") is an adult individual with his current address located at 541 Good Hope Road, Mechanicsburg, Pennsylvania, 17050, who at the time the incidents occurred which gave rise to this Complaint, was an employee and server working for Defendant Brew House Grille. 5. On the evening of Friday, February 5, 2010 Plaintiff was a customer at the Brew House Grille. 6. At approximately eleven forty-five (11:45) P.M. Plaintiff informed Smith that he was ready to leave and asked for his check so that he could pay his bill. 7. At that time, a customer at the end of the bar yelled at Plaintiff that he should "pay his bill and get the (expletive) out of here, old man." 8. As Plaintiff was getting his coat, Defendant Smith joined the man at the end of the Bar and sat on a bar stools next to him. 9. As Plaintiff went to leave the bar, one of the individuals struck him several times and then Defendant Smith held Plaintiff from behind around his arms and mid section, in a "full nelson" hold while Defendant Enders struck Plaintiff continually about the face and right eye. 10. As a result of Defendant Smith restraining Plaintiff and Defendant Enders punching Plaintiff repeatedly about the face and eye, Plaintiff sustained serious lacerations, bruising and swelling of his face and eye as well as prolonged pain and suffering. See exhibit A of Plaintiff's Amended Complaint, photographs of Plaintiffs injuries. 11. After the fight ended, Defendant Smith questioned Plaintiff and other witnesses and made a tape-recording of the interviews. See Exhibit A - Statement of Defendant Brandon Smith taken by Defendant Brew House Grille's Insurance Carrie on February 23, 2010, Page 14 and 15. 12. During that interview, Defendant Smith admits to making tape recordings of his interview with the Plaintiff and states that he has saved the said recordings. See Exhibit A. 13. The individual questioning Defendant Smith on behalf of Defendant's Insurance Carrier asked Smith if he had saved the recording and Smith stated that he did. See Exhibit A. 14. The individual then instructed Smith not destroy the recordings and Smith agrees that he will not destroy the recordings. See Exhibit A at page 15. 15. On November 10, 2010, Plaintiff deposes Smith wherein he asks Smith if he still has the said recordings. See Exhibit B, Deposition of Brandon Smith, November 10, 2010, Pages 24 through 26. 16. Defendant Smith testified under oath that Defendants' attorney, Jeffrey B. Rettig, instructed him to destroy the tape-recording, in spite of the fact that the recording contained relevant, discoverable evidence and in spite of the fact that Defendant's insurance carrier instructed Mr. Smith not to destroy the tape-recording. See Exhibit B. 17. When Smith was asked during the deposition why his attorney instructed him to destroy the tape-recording, Attorney Rettig objected and would not allow Smith to answer the question. See Exhibit B. 18. Attorney Rettig did admit that he instructed his client to destroy the tape-recording, stating that he did not specialize in criminal law, but that he believed it was illegal to tape-record the conversation and therefore he instructed his client, Smith to destroy the said recordings. INTENTIONAL SPOLIATION OF EVIDENCE BY DEFENDANT 19. Paragraphs 1 through 18 are incorporated herein as though fully set forth at length. 20. Defendants knowingly and intentionally, engaged in the spoliation of evidence, by inter alia, Defendants' attorney instructing Defendant Smith to destroy the audio tape-recordings made by Smith on the night of the incident, after Defendant's Insurer specifically instructed Smith not to destroy the recordings, and by Smith destroying the said recordings, thereby altering, losing and/or otherwise destroying evidence relevant to Plaintiffs suit. 21. Plaintiff avers that he is entitled to judgment on the pleadings as a sanction for the intentional spoliation of evidence. 22. Defendant, reasonably anticipating litigation, had an affirmative duty to preserve the relevant evidence. 23. Moreover, Defendant's destruction of the evidence was not inadvertent or unintentional or even negligent, it was admittedly intentional. 24. Plaintiff further avers that the Defendants' attorney purposely ordering Defendant Smith to destroy relevant evidence constitutes a violation of the Pennsylvania Rules of Professional Responsibility and should be reported to the Disciplinary Board of the Supreme Court of Pennsylvania. 25. As a direct and proximate result of Defendant's intentional destruction of the evidence contained on the said tape-recordings, Plaintiff is and will be significantly impaired in his suit against Defendants. 26. The Pennsylvania Supreme Court has outlined the factors to be considered in determining whether summary judgment is appropriate for failure to preserve evidence: "(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing parry, and (3) the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct." Schroeder v. Department of Transportation, 551 Pa. 243, 250, 710 A.2d 23, 27 (1998), (adopting the test of the Third Circuit in Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3rd Cir. 1994)). 27. It is uncontested that Defendant's attorney intentionally instructed Smith to destroy the tape-recordings which contained evidence which Plaintiff believes would have been helpful to his case. Defendants are completely at fault in the intentional destruction of the said evidence. 28. Since the Defendants knew what was on the tapes, and still proceeded to intentionally destroy them, Plaintiff can only assume that the contents of the tapes would have been beneficial to Plaintiffs case and would have been detrimental to the Defendants' defense. 29. Defendants' intentional spoliation of relevant evidence will significantly prejudice Plaintiffs case. 30. As states previously, since Defendants knew what was on the tapes which they destroyed, and since it can only be assumed that the information on the tapes was beneficial to Plaintiff s case and detrimental to Defendants' defense, Plaintiff believes and therefore avers that the only appropriate sanction should be Summary Judgment in Plaintiff's favor. 31. Plaintiff further believes and therefore avers that based on the obvious willful and intentional nature of Defendants' actions in destroying the tape-recording after being instructed by Defendants' insurer not to destroy the tapes, Judgment in Plaintiff s favor is the only appropriate sanction that will both protect Plaintiffs rights and deter future similar conduct. WHEREFORE, Plaintiff request this Honorable Court issue Judgment in Plaintiffs favor and award Plaintiff damages in an amount in excess of the fifty thousand dollars ($50,000) statutory limits of arbitration pursuant to Cumberland County Local Rule 1301-1, and such other relief as may be in the interest of justice. Respectfully submitted, Date November 16, 2010 By 4?? /fj, Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve-law@comcast.net Attorneys for Plaintiff Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve law@comcast.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff Docket No. 2010-1135 V. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Civil Action - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I Steven R. Snyder, Esquire hereby certify that a true and correct copy of the forgoing document was served on the parties listed below by depositing same in United States Mail, in Harrisburg, Pennsylvania. Jeffrey B. Rettig, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street - P.O. Box 109 Lemoyne, PA 17043-0109 Date: November 16, 2010 e%/? Steven R. Snyder, squire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Attorneys for Plaintiff EXHIBIT A Insured: The Brew House Grill Claim No.: 010171079562 DOL: February 5, 2010 R/S of Brandon Smith Line of Business: UFX fitternew Brandon Smith on February23, 2010 at 10:00 a.m. Q. Brandon, do I have. your permission to record our interview? A. Yes. Q. Can you state your full name and spell your last name. A. Brandon Colt Smith S-M-I-T-H Q. And your address? A. 306 Montebello Farm Road, Duncannon, PA 17020 Q. And your phone number? A. 717-991-4445 Q. And your date of birth? A. August 7, 1981 Q. And you're employed by The Brew House Grill A. That is correct. Q. And how long have you worked there? A. Two years. Q. And how old are you? A. 28 Q. And what is your position at Brew House? A. Bartender. A. To the best of my knowledge. Now whether or not he did; I don't know if he cooperated, but you know I came back out once ...you know this is 20 minutes after the issue, just to talk to the guy. Q. Right. A. You know. Look man, I want to make sure that you know what I mean; everything's alright like you know you should've just left. Q. Right. A. You know, but you know you gotta understand like and that's you... all the further I got and it was right back to the same situation as he was before. I said alright I'm not going to waste my time and I just turned around went outside. I tried to explain myself you know. Q. Right. And then did Scott finally leave at that point? A. Ali I went back outside; at some point he did leave. Q. Okay. A. But I didn't physically see him leave the building. Q. Alright. At any point did you tape record some of this incident or? A. I did. When I came back in the second time to try to talk to him. I did. Q. So this was after the fighting had stopped? A. Yeah. Q. And you had come inside? A. Yeah. Q. And done the incident reports? A. Because. Q. And then gone back? A. Yeah and then I came back inside the final time. I didn't know he was still in here and he started with that again so basically I'd walked up you know and he was right over the service side of the bar here. Walked up, tried to talk to him. He started on about that. I turned around; I walked back to the like ramp to go back down. Hit record on my phone and turned around and walked back up to the ramp and let him start. He basically provided all the information. I just asked a simple questions. I didn't. Q. D) st- you love, a r g on your cell -phme from that might? A. Yes. Q. From that point in time? A. Yes. At the end of the night. Q. Alright. Can you save that ply and sive it doesn't '? get A. Vilely. Q. Alright. Were there any video cameras out on the deck? Would anything have recorded this incident? A. I don't know. Not inside, now once we got to the door, I don't know how far that sees. You know there are video cameras outside, but I don't know how. Q. Has anybody that you know of looked at those video tapes to see if any of this is recorded? A. Not to the best of knowledge. Q. Okay. Anything else you want to add about what happened? A. I don't believe so. Q. Do you verify the answers you gave me were true and correct? A. Absolutely. Q. And you understand I recorded our conversation? A. Yep. Q. And I had your permission to do that? A. Sure. Q. Alright I'll turn the tape off now. Transcribed by: H2 Transcription, Inc. Transcribed on: March 14, 2010 EXHIBIT B 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA J. SCOTT GARDNER, PLAINTIFF VS LN PAZZO, INC., D/B/A BREW HOUSE GRILLE, BRANDON SMITH AND JUSTIN ENDERS, DEFENDANTS NO. 10-1135 CIVIL DEPOSITION OF: BRANDON C. SMITH TAKEN BY: PLAINTIFF BEFORE: DONNA J. FOX, REPORTER NOTARY PUBLIC DATE: NOVEMBER 10, 2010, 9:38 A.M. PLACE: JOHNSON, DUFFIE, STEWART & WEIDNER 301 MARKET STREET LEMOYNE, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 APPEARANCES: LAW OFFICE OF STEVEN R. SNYDER BY: STEVEN R. SNYDER, ESQUIRE 4292 EMILY DRIVE HARRISBURG, PA 17112 717-695-2271 FOR - PLAINTIFF JOHNSON, DUFFIE, STEWART & WEIDNER BY: JEFFREY B. RETTIG, ESQUIRE 301 MARKET STREET LEMOYNE, PA 17043 717-761-4540 FOR - DEFENDANTS GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be one item at a time. BY MR. SNYDER: Q You're behind Scott, holding onto him at this point, correct? A Yes. Q And Justin is the only person in front of him? A Yes. Q The other document that I gave you a copy of we're calling P-2. On the top it says "The Brew House Grille". It has a Claim Number; DOL -- I'm going to assume that's date of loss -- February 5th; and it has your name, Brandon Smith; and Line of Business, UFX. I don't know what that means. Do you recall providing this statement? A Yes. Q It says, Interview Brandon Smith on February 23rd at 10 a.m. Where was this statement given? A At the Brew House. Q You were at the Brew House and you gave this statement? A Yes. Q Who was asking the questions? A The insurance company. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q An insurance company individual? A Yes. Q You don't remember that person's name? A I do not. Q I don't see it anywhere on here. You testified in this document -- and it's going to be the -- MR. RETTIG: They're numbered in the upper right-hand corner. MR. SNYDER: Okay. Page 15. A I don't have any numbers. BY MR. SNYDER: Q Yes. They're just tiny. Last page. A Okay. Q The first question at the top of the page, "Question: Okay so you have a recording on your cell phone from that night?" And you testify, "Yes." Where is that recording? A It's erased. Q You were asked further down, "All right. Can you save that please and make sure it doesn't get deleted?" And you said, "Absolutely." A Okay. Q So at that point, you still had the recording, is that correct? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A That is correct. Q Your insurance agent asked you to save that. MR. RETTIG: Objection to the reference to his insurance agent. BY MR. SNYDER: Q The insurance agent asked you to save that. Why did you delete it? A I was told that... Q You're under oath. You just have to -- A I know. Q It's all right. A I was told by my attorney that -- Q Your attorney, Mr. Rettig, who's sitting next to you? MR. RETTIG: What I advise him is subject to attorney-client privilege, and I'm not going to let him tell you what I told him. He told you he was advised by his attorney to delete it. Beyond that, that's attorney-client privilege and what advice I give him is privileged. BY MR. SNYDER: Q Do you know Harry Williams? A I do. Q Is he a regular? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 Johnson, Duffie, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SCOTT GARDNER, Plaintiff v. LN PAZZO, INC. d/b/a BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS toy N w}rte Attorneys for Defend a .. 1 r~z IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 2010-1135 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD TO: Plaintiff c/o Steven R. Snyder, Esquire 4292 Emily Drive Harrisburg, PA 17112 You are hereby notified to file a written response to the enclosed Reply of Defendants to Plaintiff's Motion for Judgment on Pleadings and Sanctions with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, JOHNSON, DUFFI_, _TEWART & WEIDNER Jeffrey B. Rettig, Eire Attorney I.D. No, 1 16 301 Market Street, P. O. Box 109 Lemoyne, PA 17043-0109 717-761-4540 Attorney for Defendants Johnson, Duffie, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com SCOTT GARDNER, Plaintiff Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 2010-1135 v. LN PAZZO, INC. d/b/a BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY OF DEFENDANTS TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND SANCTIONS AND NOW come the Defendants, by their attorneys, Johnson, Duffie, Stewart & Weidner, and respond to Plaintiff's Motion for Judgment on the Pleadings and for Sanctions as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted with clarification. Mr. Enders had gone off duty several minutes before the incident which gives rise to Plaintiff's Complaint. 5. Admitted. 6. Denied. To the contrary, Plaintiff was advised that it was time for him to leave because of his behavior. 7. Denied. It is denied that anyone yelled at Plaintiff. It is admitted that Plaintiff and another patron were arguing. 8. Denied. Defendant Smith sat between Plaintiff and another customer at the bar in order to try to assure that the situation did not escalate. Defendant Smith told the Plaintiff that it was time for him to go. Plaintiff said he had to go get his coat so Plaintiff stood up and walked towards his coat followed by Mr. Smith. In the process of doing so, he stopped behind another customer at the bar and gave that customer a "wet willy". There were then punches and pushes exchanged between those two. Mr. Smith and Mr. Enders were in the process of trying to stop the fight which had been instigated by the Plaintiff. Plaintiff received two punches after Plaintiff grabbed Mr. Enders and Mr. Enders responded to defend himself. 9. Denied. The answer to paragraph 7 above is incorporated herein by reference thereto. It was only after Plaintiff gave another patron of the bar a "wet willy" that Defendant Smith tried to grab Plaintiff in order to take him outside to make sure the situation did not escalate further It is admitted that Defendant Enders struck Plaintiff twice in his face after Plaintiff grabbed and ripped Mr. Enders' shirt. Mr. Enders has testified that he responded in self defense. 10. Denied. Plaintiff never received medical care for his supposed "serious" lacerations. It is admitted that Mr. Enders struck Plaintiff twice in self-defense. The balance of the allegations are denied. 11 Denied It is admitted that Defendant Smith recorded certain statements made well after the fight had concluded. It is denied that Defendant Smith recorded any "interviews" of the Plaintiff or any other witnesses. 12. Denied as stated. It is admitted that Defendant Smith acknowledged when being questioned by an insurance adjuster to making a recording after the incident was over and retaining it. 13. Denied as stated. To the contrary, the adjuster asked Mr. Smith "can you save that please and make sure it doesn't get deleted" and he responded "absolutely" 14. Admitted. However, the individual who instructed Smith to not delete the recording was unaware that it had likely been recorded illegally. 15. It is admitted that the transcript is accurate. 16. Denied. The deposition transcript speaks for itself. It is denied that the recording contained relevant discoverable information. To the contrary, it was the understanding of defense counsel that the recording was made contrary to the laws of the Commonwealth of Pennsylvania. 17. Denied. The transcript of the deposition testimony speaks for itself. 18. Denied as stated. Attorney Rettig told Plaintiff's counsel that he told Mr. Smith that he (Attorney Rettig) was not a criminal lawyer and was not representing Mr. Smith in that capacity but that if Attorney Rettig was Mr. Smith, he would delete the tape recording because he understood it was illegally recorded and that its use would compound the illegality of the recording. INTENTIONAL SPOLIATION OF EVIDENCE BY DEFENDANT 19. The answers to paragraphs 1 through 18 above are incorporated herein by reference thereto. 20. Denied. The audiotape was deleted for the reasons set forth in answer to paragraph 18 above. The audiotape included the statements of the Plaintiff who is still free to testify as to those statements. Moreover, the recording took place well after the incident itself and thus would be of little to no relevance in any event. 21. Denied. No evidence has been "spoliated" as suggested. To the contrary, Plaintiff is free to testify to what he said after the incident as he did in the recording. 22. Denied. The recording was evidently illegally recorded and thus would not have been of any effect as an evidentiary tool. Moreover, Plaintiff is free to testify as to what he said after the incident had concluded. 23. Denied as stated. The response to paragraph 18 above is incorporated herein by reference thereto. Moreover, the act of recording and its subsequent deletion was done by Defendant Smith and not by any other Defendant. 24. Denied. It is denied that Defendant's attorney ordered Defendant Smith to destroy the evidence as alleged. Moreover, when Plaintiff's attorney voiced his concerns about this to undersigned counsel during a telephone conversation of November 18, 2010, he asked if this case could be settled before he had to file a report with the Disciplinary Board. He was immediately advised that he should file a report to the Disciplinary Board if he felt that was appropriate. A copy of undersigned counsel's correspondence to Plaintiff's counsel following the telephone conversation of November 18, 2010 is attached hereto and marked as Exhibit A. 25. Denied. To the contrary, Plaintiff will not be impaired at all. His attorney never asked Mr. Smith what was contained on the recording but it is understood to consist of Plaintiff's own statements as to what had occurred a half hour before in the course of the altercation. Plaintiff can still testify as to what he said to Mr. Smith and others after the incident ended. 26. It is admitted that the cited case stands for the proposition for which it is cited. However, Plaintiff's attorney is now seeking summary judgment. 27. Denied as stated. It is denied that the recording contained anything other than statements of the Plaintiff which he can certainly still testify to. As to what Defendant's attorney told Smith, the answer to paragraph 18 above is incorporated herein by reference thereto. 28. Denied. It is denied that any Defendant other than Mr. Smith knew what was on the tape. To the undersigned's knowledge, Mr. Smith and Plaintiff are the only people who know what was stated and recorded after the altercation. As to whether those statements would be beneficial to Plaintiff's case, that would be up to Plaintiff to decide since the Plaintiff presumably knows what he said. 29. Denied. The recording would have no relevance to this case as the Plaintiff can testify as to what he said. Moreover, the statements were made well after the incident took place and would have no relevance to the primary issue in this case, that being whether the altercation was instigated by the Plaintiff when he gave a "wet willy" to another bar patron (which Plaintiff denies) and whether the actions of Defendants Smith and Enders were reasonable under the circumstances in order to prevent the escalation of the altercation. Defendants did not intentionally spoliate any evidence. It is admitted that Mr. Smith erased the recording. Plaintiff will not be prejudiced whatsoever since Plaintiff is still entitled to testify as to what he said. Moreover, if Plaintiff's attorney truly felt the recorded statements were of some relevancy, one might have expected him to question Mr. Smith about the content of those statements. However, Plaintiff's attorney never questioned Mr. Smith about the content of the statements he recorded. 30. Denied. No Defendant other than Mr. Smith (and the Plaintiff of course) know what was on the tape. It is denied that there was any information on the tape that was beneficial to Plaintiff's case but he can certainly testify as to what he said at the time. Summary judgment in this case would be inappropriate for many reasons, including the fact that the recording was recorded without permission and could not be used as evidence, the fact that the audiotape has nothing to do with the incident which lead to the alteration to which there are numerous witnesses and the fact that Plaintiff's attorney has not moved for summary judgment. In further answer, seen answer to paragraph 29 above. 31. Denied. The insurance adjuster for L N Pazzo did not know that the audiotape had been illegally recorded when she advised Mr. Smith to not delete it. The undersigned counsel was aware of that when he stated what is indicated in answer to paragraph 18 above. It is denied that judgment in Plaintiff's favor against any Defendant, including Defendant Smith, would be appropriate since no prejudice has been asserted by Plaintiff as the recorded statement were statements made by Plaintiff which he can testify to. It is notable that Plaintiff's counsel never bothered to ask Mr. Smith what statements were on the audio recording. Had Plaintiff's counsel been interested in learning what the contents of the audio recording were, he could have and should have questioned Mr. Smith about their content. WHEREFORE, Defendants request that Plaintiff's Motion be dismissed without cost to it. NEW MATTER 32. Under §5703(2) of the Crimes Code, it is a crime if a person "intentionally discloses... to any other person the contents of any... oral communication, or evidence derived therefrom, knowing... that the information was obtained through the interception of a... oral communication." 33. Section 5702 of the Crimes Code defines "Intercept" as the "...acquisition of the contents of any... oral communication through the use of any electronic... device." 34. Pursuant to these provisions, Mr. Smith could have been exposed to criminal sanctions if he intentionally disclosed to anyone the contents of the recording he made. WHEREFORE, Defendants request that Plaintiff's Motions be dismissed. Respectfully submitted, JOHNSON, DUFFIE, STEW ART & WEIDNER Jtd(oney B. ttig I. No: 19616 16 301 Market Street Lemoyne, Pennsylvania 17043-0109 717-761-4540 Attorney for Defendants 422233 Y? F? EXIJ1131T A NCIi:1.tl? 1V_ S C. I"M IG'I.'D Ii111N .A ?T1'T EN II:FPI I t '3 R i i IG 1i;Utl{ (? I?L??I IF. lolrV I, A ?1' C) l_ I l C L S -- o SON ..DUFFIE November 18, 2010 Steven R. Snyder, Esquire 4292 Emily Drive Harrisburg, PA 17,112 ?1L1 ,tiff ? P!:L:L ( .rE1 Y G F. D. M,:I LI?.I' }.i.1%'rf.l?l ff D. S???C)1T.1; V P. I)GI I_,1IA ? -\ii F. Ifol I [:1S 1 0I ?N'I(Cl, w1 a I? I_PL S[IIP?'IA?' f l'J67200?iRe: Scott Gardner v. L. N. Pazzo, Inc., d/b/a Brew House Grille, et. al. Cumberland County C.C.P. Docket No. 2010-1135 Dear Steve. I thought it appropriate after our conversation during the morning of November 17, 2010 to document what was said. You mentioned that your telephone call was off the record or words to that effect, that you had spoken to a friend who is a Judge and that you were troubled by the testimony given by Mr. Smith to the effect that I told him to erase the audio recording he had made some time after this incident. You stated during our telephone conversation that you felt that you may have to file a Motion for Summary Judgment based on spoliation and might have to report me to the Disciplinary Board because of my advice. You then said words to the effect of "is there anyway we could get this case settled to avoid the need for doing either of those things " I told you that if you felt you had a legal basis to seek summary judgment, that you should proceed to file a Motion for Summary Judgment. I will be filing a Praecipe Listing the Case for Trial as soon as you give me the identity of your trial experts. You agreed to do that following the depositions of Mr. Enders and Mr. Smith. With respec* to your belief that you should report my conduct to the Disciplinary Board, I encouraged you to make such a report if you felt it was appropriate. Indeed, there is a Rule of Professional Conduct that speaks to that subject. That is Rule 8.3. I can assure you that I will not be the least bit troubled if you decide to do so. What does trouble me is that you coupled your "concern" about my ethical conduct with the suggestion that we shculd try to set ie ihis c se. Although you did not specifically link my all,Ogud ethiuai probiems io your question about settlement, I certainly came away with the impression that if my clients came up 301 MARKET SUF,F.'r P.O. BO.S 100 LE1IOYNF, PE,A'.ASlLVAM:\ 170-13-0109 1? W' 1V J19V.CO\I 717 7(i1.4340 FA X? 717 01,3015 11A11, I)S11'.C_ NI JOHNSON, DUCFl E, S1"1 ?V;11 'I' 1 i:IDN F1R, P C. Steven R. Snyder, Esquire November 18, 2010 Page 2 with money for you and your client that you might overlook my perceived ethical transgressions. If it was your intent to try to extract a settlement offer by threatening to report me to the Disciplinary Board, then you might want to consider mentioning that to the Disciplinary Board as well. I look forward to receiving your list of witnesses and your summary judgment promptly so that this matter is riot further delayed. Very truly yours, NSON, DyFFIE, STEWART & WEIDNER ettig JBR:csjA21879 CERTIFICATE OF SERVICE AND NOW, this day of November, 2010, the undersigned does hereby certify that he did this date serve a copy of the foregoing Reply of Defendants to Plaintiff's Motion for Judgment on Pleadings and Sanctions upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Steven R. Snyder, Esquire 4292 Emily Drive Harrisburg, PA 17112 Counsel for Plaintiff JOHNSON, DUFFIE, STEWART & WEIDNER Jeffrey B. Rettig-7 ?/ 6P / _TL FILED-OFFICE OF THE PROTHONOTARY PRAECIPE FOR LISTING CASE FOR TRIA 010 DEC-1 PM 12: 28 (Must be typewritten and submitted in triplica'SMBERLAND COUNTY TO THE PROTHONOTARY OF CUMBERLAND COUNTY PENNSYLVANIA Please list the following case: Q 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) SCOTT GARDNER (other) (Plaintiff) VS. LN PAZZO, INC. d/b/a BREW HOUSE GRILLE, BRANDON SMITH and JUSTIN ENDERS vs. (Defendant) The trial list will be called on 1/4/2011 and Trials commence on 1/31/2011 Pretrials will be held on 1/19/2011 (Briefs are due S days before pretrials No. 2010 Indicate the attorney who will try case for the party who files this praecipe: Jeffrey B. Rettig, Esquire Print Indicate trial counsel for other parties if known: Steven R. Snyder, Esquire This case is ready for trial. Si Date: Id. ?.?0 C'ICtt 35? 70 (check one) 0 Civil Action - Law ? Appeal from arbitration 1135 Term Esquire Attorney for: Defendants Off/g FILED-OFFICE OF THE PROTHONOTARY 2010 DEC - 6 PM 2* 11 Steven R. Snyder, Esquire CUMBERLAND COUNTY PA Attorney License No. 90994 PENNSYLVANIA 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve law@comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff V. IN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Docket No. 2010-1135 Civil Action - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER CONTAINED IN DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND SANCTIONS AS TO DEFENDANTS INTENTIONAL SPOLIATION OF EVIDENCE NOW COMES, Plaintiff J. Scott Gardner, by and through his Attorney, Steven R. Snyder, Esquire, and files the within Response to Defendant's New Matter contained in Defendant's Response to Plaintiff's Motion for Judgment on the Pleadings and Sanctions as to Defendants Intentional Spoliation of Evidence, an in support thereof avers the following: RESPONSE TO DEFENDANT'S NEW MATTER 32. Paragraph 32 of Defendant's Response to Plaintiff's Motion for Judgment on the Pleadings and Sanctions makes reference to a Pennsylvania Statute which speaks for itself and as such no response is required. 33. Paragraph 32 of Defendant's Response to Plaintiff's Motion for Judgment on the Pleadings and Sanctions makes reference to a Pennsylvania Statute which speaks for itself and as such no response is required. A Plaintiff does not argue that Defendant Smith should not have made recordings of the events which are the subject of this suit or that those recordings may have been made in violation of the Pennsylvania Crimes Code. By way of further response, whether or not the recordings made by Smith were in violation of the Crimes Code or not, is not relevant to Plaintiff's Motion for Judgment on the Pleadings and Sanctions. Defense Attorney Rettig advised his client to destroy relevant, discoverable evidence, in violation of the Pennsylvania Rules of Civil Procedure and the Pennsylvania Rules of Professional Responsibility. As such, and as set forth in Plaintiff's Motion and Memorandum of Law, Plaintiff is entitled to Judgment in his favor as a result of Defendant's spoliation of evidence. Moreover, Defense Attorney Rettig's insinuation that Plaintiff's Attorney called him to somehow extract a settlement out of him is completely unfounded and disingenuous. Plaintiff's Attorney voiced his concern regarding Attorney Rettig's conduct when it was first admitted at Smith's deposition that Rettig advised his client to destroy the tape-recording. Plaintiff's Attorney's November 18, 2010 telephone call to Rettig was made as a professional courtesy. Plaintiff advised Rettig at that time that he had already drafted the Motion for Judgment on the Pleadings and Sanctions and a Complaint to the Supreme Court Disciplinary Board and asked Rettig if he was interested in discussing settlement prior to his filing the Motion. In either event, Plaintiff's Attorney intended to file the Complaint with the Disciplinary Board. See Plaintiff's Attorney's letter in Response to Attorney Rettig's Letter of November 18, 2010 attached as Exhibit A A WHEREFORE, Plaintiff request this Honorable Court issue Summary Judgment in Plaintiffs favor and award Plaintiff damages in an amount in excess of the fifty thousand dollars ($50,000) statutory limits of arbitration pursuant to Cumberland County Local Rule 1301-1, and such other relief as may be in the interest of justice. Respectfully submitted, Date December 1, 2010 By Steven R. Snyder, squire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve-law@comcast.net Attorneys for Plaintiff r EXHIBIT A ' Steven R. Snyder, Esquire Attorney at Law 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2271 steve?__Iaw@comcast.net November 22, 2010 Jeffrey B; Rettig, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 RE. Scott Gardner v. LN Pazzo, Inc., d/b/a/ Brew House Grille, at al. Cun and County: , Court of Common Pleas, Docket No. 2010-1135 Dear Attorney Rettig: In response to your November 18, 2010 correspondence wherein you insinuate that I was samehow atternpting to extract a settlement offer from you in threatening.to report you to the Pennsylvania Supreme Court. Disciplinary Board, be assured that that was not my intent and was notwhat I said. Contrary to. your letter, I did not say that, "I may have to file a Motion for Summary Judgment" or that, "I might have to report you to the Disciplinary Board." -I. told 304 .,that I had drafted a Motion for Summary Judgment and Sanctions for Spoliation of Evidence and a Complaint to the Disciplinary Board" and I was calling you to inform you of that fact. As I informed you on the telephone, I took no pleasure in haying to making the report to the Disciplinary -Board regarding your conduct. My telephone call to you was merrily a professional courtesy which I would hope you would have afforded me had I instructed my client to destroy evidence which may have been relevant to the case and which he was already advised not to. destroy by his employer's insurance carrier. Any effort on your part to portray my telephone call to you as anything else is completely unfounded and disingenuous. Give the fact that my Motion for Summary Judgment ?? anent and Sanctions is still pending, I would offer that your listing the case for trial is premature at this time. Moreover, given the pendency of my Motion, I do not have a final list of witnesses I will be calling at trial. Upon the Court's determination of the pending Motion, and assuming that liability is not determined at that time by the Court, I will comply with your request for my list of witnesses and concur with listing the.. case for trial. Sincerely, Steven R Snyder, Esquire W?' Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 steve_law@comcast.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA J. SCOTT GARDNER Plaintiff V. LN PAZZO, INC. d/b/a/ BREW HOUSE GRILLE, BRANDON SMITH, and JUSTIN ENDERS Defendants Docket No. 2010-1135 Civil Action - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I Steven R. Snyder, Esquire hereby certify that a true and correct copy of the forgoing document was served on the parties listed below by depositing same in United States Mail, in Harrisburg, Pennsylvania. Jeffrey B. Rettig, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street - P.O. Box 109 Lemoyne, PA 17043-0109 Date: December 1, 2010 Steven R. Snyder, Esquire PA Attorney License No. 90994 4292 Emily Drive Harrisburg, PA 17112 (717) 695-2271 FAX (717) 695-2279 Attorneys for Plaintiff C A-1 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) 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) c7 J. Scott Gardner, Plaintiff r1l Co -z rn " cn t 7 vs. -.. LN Pazzo, Inc., d/b/a/ Brew House Grille, Brandon Smith, and Justin Enders, Defendants =" No. 2010 1135 .r- CD w m °: 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer td, complaint, etc.): Plaintiffs Motion for Judgment on the Pleadings and.Sanctions as to Defendants' Intentional Spoliation o Evidence 2. Identify all counsel who will argue cases: (a) for plaintiffs: Steven Snyder, Esquire, 4292 Emily Drive, Harrisburg, PA 17112 (Name and Address) (b) for defendants: Jeffrey B. Rettig, Esquire, 301 Market Street, Lemoyne, PA 17043 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 14,2011 Print your name Date: 12/9/10 Jeffrey B. Rettig, Esquire Attorney for Defendants a -i r i-n cp --tom cy :Z) INSTRUCTIONS: 1. Original and two copies of all briefs must be filedwith 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. SCOTT GARDNER, Plaintiff v LN PAZZO, INC., D/B/A BREW HOUSE GRILLE, BRANDON SMITH AND JUSTIN ENDERS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 10-1135 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 4th day of January, 2011, upon consideration of the call of the civil trial list, and no person having called the above-captioned case for trial, it is stricken from the trial list. `Steven R. Snyder, Esquire 4292 Emily Drive Harrisburg, PA 17112 For Plaintiff ,/Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 For Defendant Court Administrator :mae 0 W, 1-41 '00 - By the Court,