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HomeMy WebLinkAbout10-6282AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se la advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 t KOPE 8~ ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com Attorney for Plaintiff JOYCE SHELLENBERGER, Plaintiff, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. ~Q y G~~~ (Civil Term) CHRISTENSEN CHIROPRACTIC, and BARBARA CHRISTENSEN, :JURY TRIAL DEMANDED Defendant. COMPLAINT AND NOW comes the Plaintiff, JOYCE SHELLENBERGER, by and through her attorney, Hilary P. Vesell, Esq:, and files this Complaint and in support thereof, avers the following: INTRODUCTION This is a civil action brought by Plaintiff, Joyce Shellenberger (hereinafter "Plaintiff'), against Defendant, Barbara Christensen (hereinafter "Defendant"), for damages resulting from the action of defamation that said Defendant committed arising out of certain false and. misleading statements made by representatives of Christensen Chiropractic regarding Joyce Shellenberger and her work at Christiansen Chiropractic. Page 3 of 8 PARTIES 1. Plaintiff Joyce Shellenberger is an adult individual residing at 51 Fairway Drive, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant Barbara Christensen is an adult individual who resides at 73 Sharon Road, Enola, Cumberland County, Pennsylvania. 3. Christensen Chiropractic is believed to be a sole proprietorship existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 354 East Penn Drive, Enola, Cumberland County, Pennsylvania. 4. At all times relevant hereto, it is believed and therefore averred that Defendant was acting as sole owner, proprietor, and managing agent of Christensen Chiropractic and was acting on its behalf as well as individually in all the actions described in this Complaint. JURISDICTION AND VENUE 5. This action arises under the laws of the Commonwealth of Pennsylvania and is within the subject matter jurisdiction of this Honorable Court. 6. Venue is proper in the Court of Common Pleas for Cumberland County under Rules 1006(b) and 2179(a) of the Pennsylvania Rules of Civil Procedure, in that the transaction at issue took place in Cumberland County. FACTS 7. On or about November of 2006, Plaintiff was hired by Christensen Chiropractic to work as an office manager. Page 4 of 8 e 8. Plaintiff worked at Christensen Chiropractic until November of 2009; then, on or about November 15, 2009, Plaintiff was frivolously accused of embezzlement and her employment was consequently terminated. 9. No evidence whatsoever, financial records or otherwise, was produced to indicated that Plaintiff embezzled money from Defendants. 10. Although threatened therewith, no legal action was ever taken against Plaintiff, criminally or civilly. 11. Defendant subsequently made false and defamatory statements to friends, former coworkers, and other potential employers in the community regarding the above; Specifically, that Plaintiff had engaged in an indictable criminal offense by embezzling from Defendants. 12. There is absolutely no truth to any of these statements, which have resulted in severe economic and business reputation damage to Joyce Shellenberger. 13. As a direct and proximate result of Defendants' false, misleading, and defamatory statements, Plaintiff cannot find employment. 14. Plaintiff has also accrued medical bills from stress, depression, and anxiety as a result of being defamed within the community. COUNTI DEFAMATION 15. The averments set forth in the preceding paragraphs are incorporated herein by reference as if fully set forth herein. Page 5 of 8 .~ 16. Defendant Barbara Christensen, in her capacity as owner of Christensen Chiropractic and as an individual, intentionally and knowingly defamed and slandered Plaintiff by communicating to third parties that Ms. Shellenberger embezzled money from Christensen Chiropractic while employed there as an office manager. 17. Defendants intentionally and knowingly defamed and slandered Plaintiff by communicating to third parties that Plaintiff embezzled money from Christensen Chiropractic in her role as office manager. 18. Defendants' statements to third parties, including but not limited to other Christensen Chiropractic clients and staff, were not a matter of public concern. 19. Defendants' statements were defamatory and adversely affected Plaintiff's professional reputation. 20. Defendants' statements were of or concerning Plaintiff in the view of a reasonable listener. 21. Defendants' statements were communicated to third persons, including, but not limited to other local employers and Plaintiff s friends. 22. Defendant's statements were false and untrue. 23. Defendants' statements adversely reflected Plaintiff's professional conduct. 24. Defendants' statements caused damage to Plaintiff in that she lost her job and income. 25. Defendants' statements imputing an indictable criminal offense are categorized as slander per se in Pennsylvania where injury to reputation is presumed without proof of special damages. Page 6 of 8 WHEREFORE, Plaintiff, Joyce Shellenberger, prays this Honorable Court to enter judgment in her favor and against Defendant Barbara Christensen, individually and in her capacity as owner of Christensen Chiropractic, and, in so doing, grant the following: 1. Monetary damages not to exceed $35.102..00. 2. Reasonable costs, interests and expenses including, but not limited to, reasonable attorney's fees in connection to this action; 3. Punitive and/or exemplary damages, as determined by this Honorable Court; 4. Any other remedy that this Honorable Court may deem appropriate. Respectfully Submitted, Date: ~' ~ ~ ~ KOPE ~ ASSOCIATES, LLC Hilary P. Vese Esq. Page 7 of 8 Sep 2910 07:25p Joyce Shellenberger (717) 732-7979 p.8 ~. Er'. VER{FICATION I, Joyce Shellenberger, the Plaintiff in this matter, have read the foregoing Complaint. 1 verify that my averments in this Complaint are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. § 49D4 relating to unsworn falsifications to authorities. Dated: Q,~~o, ~o ~,~.~~.~~ ~ Q~_ ,t. Joyce Shellenberger Page 8 of 8 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny RAnderson ~}~-~-~lFl"I~~ Sheriff "' .~ ~~~ P~i~ i i~~t~F~~JT~P'~ ~4~,~~tr of ~rr,p~,rrrd~~ Jody S Smith ~~ t ~ d~~ ~ ( ~~ ~t : Chief Deputy ~ .~ ~` Richard W Stewart ~ i ~`~ ~~ ~:L~i~E~~ ~~ ~~~~ ~ ~'~ Solicitor cFF(cecr=-F~s~~RIF~ 6~~!aic,~~t ~~ ~a~1~ Joyce Shellenberger vs. Barbara Christensen Case Number 2010-6282 SHERIFF'S RETURN OF SERVICE 10/18/2010 04:50 PM -Michael Garrick, Deputy Sheriff, who being duly sworn according to law, states that on October 18, 2010 at 1650 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Barbara Christensen, by making known unto herself personally, at 354 E. Penn Drive, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to her personally the said true and correct copy of the same. MICHAEL BARRICK, DEPUTY SHERIFF COST: $41.94 October 19, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF (cj CountySuito Sheriff. Teloosoft. Inc. aµ' S t dom. ? ? ... Kimberly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Plaintiff (717) 232-8000 JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN, NO. 10-6282 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS CHRISTENSEN CHIROPRACTIC AND BARBARA CHRISTENSEN Defendants Christensen Chiropractic and Barbara Christensen ("Dr. Christensen") (together, the "Christensen Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, file the following Preliminary Objections to the Complaint of, Plaintiff Joyce Shellenberger. 1. On or about October 1, 2010, Plaintiff commenced this action by filing a Complaint against Christensen Chiropractic and Dr. Christensen. 2. The Complaint alleges that Plaintiff was the office manager for Christensen Chiropractic from November 2006 until November 2009. See Complaint, ¶¶ 7, 8. 3. The Complaint further alleges that, on or around November 15, 2009, "Plaintiff was frivolously accused of embezzlement and her employment was consequently terminated." See Complaint, ¶ 8. Preliminary Objection Pursuant To Pa.R.C.P. No. 1028(a)(3) (Insufficient Specificity in Pleading) and 1028(a)(4) (Demurrer) 4. In the Complaint, Plaintiff asserts a cause of action for defamation against the Christensen Defendants. See Complaint. 5. To state a cause of action for defamation, Plaintiff must set forth facts demonstrating: "(1) The defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and, (7) abuse of a conditionally privileged occasion." Moore v. Cobb- Nettleton, 889 A.2d 1262, 1267-68 (Pa. Super. Ct. 2005). 6. Pa.R.C.P. No. 1028(a)(3) permits a party to assert a preliminary objection for lack of specificity in a pleading. See Pa.R.C.P. No. 1028(a)(3). -2- 7. Pa.R.C.P. No. 1028(a)(4) permits a party to assert a preliminary objection based upon the legal insufficiency of a pleading. See Pa.R.C.P. No. 1028(x)(4). A. Lack of Specificity Regarding the Content of the Alleged Defamatory Communication. 8. Plaintiff's defamation claim is legally insufficient and insufficiently specific, as it fails to identify specifically and with particularity the alleged communication that Plaintiff claims is defamatory. 9. Specifically, in the Complaint, Plaintiff alleges that Dr. Christensen made false and defamatory statements that "Plaintiff had engaged in an indictable criminal offense by embezzling from Defendants," and that Plaintiff had "embezzled money" from Christensen Chiropractic while employed there as an office manager. See Complaint, ¶¶ 11, 16, 17. 10. A plaintiff asserting a claim for defamation must allege with particularity "the content of the oral or written statements claimed to have been made, the identity of the person or persons making those statements... [and] the identity of the person or persons to whom the statements were made." Gross v. United Engineers and Constructors, Inc., 302 A.2d 370, 371 (Pa. Super. Ct. 1973). 11. The complaint must specify the "substance of the spoken words; the purport of the spoken words is necessary." Itri v. Lewis, 422 A.2d 591, 593 (Pa. Super. Ct. 1980). -3- 12. "The sufficiency of the Complaint is governed by the facts alleged therein and the fact that the lacking information subsequently was or could be supplied is not governing." Gross 302 A.2d at 371. 13. Nowhere in the Complaint does Plaintiff allege with any particularity either the exact words allegedly spoken by Dr. Christensen or the substance of the spoken words. See Complaint. 14. To the contrary, Plaintiff only vaguely alleges that Dr. Christensen told others that Plaintiff embezzled money. See Complaint. 15. Because the Complaint fails to allege the content or the substance of Dr. Christensen's alleged defamatory statements with any particularity, as is required by Pennsylvania law, Plaintiff's claim for defamation against the Christensen Defendants is deficient as a matter of law. B. Plaintiffs Failure to Identify the Recipients of The Alleged Defamatory Communication. 16. Plaintiff's defamation claim is also legally insufficient and insufficiently specific, as it fails to identify specifically and with particularity the recipients of the alleged defamatory communication. 17. Significantly, nowhere in the Complaint does Plaintiff specifically identify any of the recipients of Dr. Christensen's alleged defamatory communications. See Complaint. -4- 18. To the contrary, Plaintiff alleges only that Dr. Christensen made false and defamatory statements "to friends, former coworkers, and other potential employers." See Complaint, ¶ 11. 19. Furthermore, Plaintiff vaguely alleges, with absolutely no detail, that Dr. Christensen made statements to unidentified "third parties," "other Christensen Chiropractic clients and staff," "other local employers" and to "Plaintiff's friends." See Complaint, ¶¶ 16-18, 21. 20. Plaintiff fails to identify even one individual who heard Dr. Christensen's allegedly defamatory communications. See Complaint. 21. Plaintiff is prohibited from curing these defects by subsequent discovery; to the contrary, the sufficiency of a claim for defamation is governed by the facts as alleged in the complaint. Gross 302 A.2d at 371-72. 22. Plaintiff's utter failure to identify with any specificity or particularity the recipients of Dr. Christensen's alleged defamatory communication makes her claim for defamation legally and factually insufficient. C. Plaintiffs Failure to Allege the Identity of the Person Making the Defamatory Communication. 23. To state a legally sufficient claim for defamation, a plaintiff must allege with particularity the identity of the person or persons making the alleged defamatory communications. See Gross, 302 A.2d at 371. 24. In the Introductory paragraph of her Complaint, Plaintiff alleges "certain false and misleading statements made by representatives of Christensen Chiropractic -5- regarding Joyce Shellenberger and her work at Christensen Chiropractic." See Complaint, Introduction (emphasis added). 25. Plaintiff's vague reference to statements made by "representatives of Christensen Chiropractic" fails to identify with any particularity the individuals who allegedly made such defamatory statements. 26. For all of the reasons identified above, Plaintiff's Complaint should be dismissed or, in the alternative, Plaintiff should be required to replead to set forth specifically and with particularity: the alleged statement upon which her claim of defamation purports to be based; the specific identity of each and every individual to whom the communication was allegedly made; and, the specific identity of each and every individual who made the allegedly defamatory communication. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request that the Court sustain this Preliminary Objection, dismiss Plaintiff Joyce Shellenberger's Complaint, and order Plaintiff to plead her claim for defamation with sufficient specificity. Preliminary Objection Pursuant to Pa.R.C.P. No. 1028(a)(4): Legal Insufficiency of the Pleading (Motion to Strike) 27. Pa.R.C.P. No. 1028(a)(4) permits a party to assert a preliminary objection based upon the legal insufficiency of a pleading. See Pa.R.C.P. No. 1028(a)(4). 28. Plaintiff's Complaint asserts a cause of action against the Christensen Defendants for defamation. See Complaint. -6- 29. In the ad damnum clause of Count I, Plaintiff seeks reasonable attorneys' fees. See Complaint, ad damnum clause. 30. Under Pennsylvania law, attorneys' fees can only be recovered if there is a specific agreement between the parties to that effect or if the recovery of fees is provided for in a relevant statute. 31. Plaintiff has alleged no contractual agreement supporting the award of attorneys' fees. See Complaint. 32. Plaintiff has alleged no statutory basis for the award of attorneys' fees. See Complaint. 33. Plaintiff is not entitled to recover attorneys' fees on a claim for defamation. 34. Plaintiff's claim for attorneys' fees in the Complaint is, therefore, legally insufficient. 35. As Plaintiffs claim for attorneys' fees is legally insufficient, it should be stricken. WHEREFORE, if Plaintiff's Complaint is not stricken in its entirety for failing to state a legally and factually sufficient claim for defamation, Defendants Christensen Chiropractic and Barbara Christensen request that the Court sustain this Preliminary Objection and strike Plaintiffs demand for attorneys' fees as impertinent matter. Preliminary Objection Pursuant to Pa.R.C.P. No. 1028(a)(4): Legal Insufficiency of the Pleading (Motion to Strike) 36. In the ad damnum clause following Count I, Plaintiff seeks an award of punitive and/or exemplary damages. See Complaint. -7- 37. In addition to the Christensen Defendants' First and Second Preliminary Objections set forth above, the Christensen Defendants assert that Plaintiff's claim for punitive damages is legally insufficient as Plaintiff has pleaded no basis in fact or in law which would entitle her to recover punitive damages. 38. In order to recover punitive damages in a private person defamation action, the plaintiff must establish facts which show that the defendant either knew that the defamatory statement was false or that the defendant entertained serious doubts about the truth of the communication. See Geyer v. Steinbronn, 506 A.2d 901, 915-16 (Pa. Super. Ct. 1986). 39. Plaintiff has failed to plead any facts to support a finding that the Christensen Defendants knew that the alleged defamatory statement that Plaintiff embezzled money was false, or even that they entertained any doubts about the truth of the communication. See Complaint. 40. Simply because Plaintiff alleges that no legal action was taken by the Christensen Defendants against Plaintiff with regard to the alleged embezzlement does not support: a finding that the Christensen Defendants knew that the alleged defamatory statement was false. See Complaint, ¶ 10. 41. Under Pa.R..C.P. No. 1028(a)(4), a party may present the issue of legal insufficiency by the filing of a preliminary objection to a pleading. 42. Accordingly, in the event that this Court does not dismiss Plaintiff's Complaint in its entirety, this Court should strike the claim for punitive and/or exemplary damages in the Complaint, as such claim is legally insufficient. -8- WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request that this Court sustain the Preliminary Objection and strike Plaintiff's demand for punitive and/or exemplary damages asserted in the ad damnum clause in the Complaint, based on legal insufficiency/demurrer pursuant to Pa.R.C.P. No. 1028(a)(4). McNEES WALLACE & NURICK LLC _ By-_ I J Kimberl A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attorneys for Defendants Dated: November 5, 2010 -9- CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint Johns Church Road Suite 101 Camp Hill, PA 17011 11 d Kimberly A. Selemba Dated: November 5, 2010 FILED-OFFICE OF THE PROTHONOTARY Kimberly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 2010 NCY 29 PM 1:07 CUMBERLAND COUNTY PENNSYLVANIA Attorneys for Plaintiff JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-6282 Civil CHRISTENSEN CHIROPRACTIC and CIVIL ACTION - LAW BARBARA CHRISTENSEN, JURY TRIAL DEMANDED Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS CHRISTENSEN CHIROPRACTIC AND BARBARA CHRISTENSEN TO PLAINTIFF'S AMENDED COMPLAINT Defendants Christensen Chiropractic and Barbara Christensen ("Dr. Christensen") (together, the "Christensen Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, file the following Preliminary Objections to the Amended Complaint of Plaintiff Joyce Shellenberger. 1. On or about October 1, 2010, Plaintiff commenced this action by filing a Complaint against Christensen Chiropractic and Dr. Christensen. 2. The Christensen Defendants filed Preliminary Objections to the Complaint on or about November 6, 2010. 3. Plaintiff filed an Amended Complaint on or about November 18, 2010. 4. The Amended Complaint alleges that Plaintiff was the office manager for Christensen Chiropractic from November 2006 until November 2009. See Amended Complaint, ¶¶ 7, 8. 5. The Complaint further alleges that, on or around November 15, 2009, "Plaintiff was frivolously accused of embezzlement and her employment was consequently terminated." See Amended Complaint, ¶ B. Preliminary Objection Pursuant To Pa.R.C.P. No. 1028(a)(3) (insufficient Specificity in Pleading) and 1028(a)(4) (Demurrer) 6. In the Amended Complaint, Plaintiff asserts a cause of action for defamation against the Christensen Defendants. See Amended Complaint. 7. To state a cause of action for defamation, Plaintiff must set forth facts demonstrating: "(1) The defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and, (7) abuse of a conditionally privileged occasion." Moore v. Cobb- Nettleton, 889 A.2d 1262, 1267-68 (Pa. Super. Ct. 2005). -2- 8. Pa.R.C.P. No. 1028(a)(3) permits a party to assert a preliminary objection for lack of specificity in a pleading. See Pa.R.C.P. No. 1028(a)(3). 9. Pa.R.C.P. No. 1028(a)(4) permits a party to assert a preliminary objection based upon the legal insufficiency of a pleading. See Pa.R.C.P. No. 1028(a)(4). A. Lack of Specificity Regarding the Content of the Alleged Defamatory Communication. 10. Plaintiffs defamation claim is legally insufficient and insufficiently specific, as it fails to identify specifically and with particularity the alleged communication that Plaintiff claims is defamatory. 11. Specifically, in the Amended Complaint, Plaintiff alleges that Dr. Christensen made false and defamatory statements that "Plaintiff had engaged in an indictable criminal offense by embezzling from Defendants," and that Plaintiff had "embezzled money" from Christensen Chiropractic while employed there as an office manager. See Amended Complaint, ¶¶ 11, 16. 12. A plaintiff asserting a claim for defamation must allege with particularity "the content of the oral or written statements claimed to have been made, the identity of the person or persons making those statements... [and] the identity of the person or persons to whom the statements were made." Gross v. United Engineers and Constructors. Inc., 302 A.2d 370, 371 (Pa. Super. Ct. 1973). 13. The complaint must specify the "substance of the spoken words; the purport of the spoken words is necessary." Itri v. Lewis, 422 A.2d 591, 593 (Pa. Super. Ct. 1980). -3- 14. "The sufficiency of the Complaint is governed by the facts alleged therein and the fact that the lacking information subsequently was or could be supplied is not governing." Gross 302 A.2d at 371. 15. Nowhere in the Amended Complaint does Plaintiff allege with any particularity either the exact words allegedly spoken by Dr. Christensen or the substance of the spoken words. See Amended Complaint. 16. To the contrary, Plaintiff only vaguely alleges that Dr. Christensen told others that Plaintiff embezzled money. See Amended Complaint. 17. Because the Amended Complaint fails to allege the content or the substance of Dr. Christensen's alleged defamatory statements with any particularity, as is required by Pennsylvania law, Plaintiffs claim for defamation against the Christensen Defendants is deficient as a matter of law. B. Plaintiffs Failure to Identify the Recipients of The Alleged Defamatory Communication. 18. Plaintiffs defamation claim is also legally insufficient and insufficiently specific, as it fails to identify specifically and with particularity the recipients of the alleged defamatory communication. 19. Significantly, nowhere in the Amended Complaint does Plaintiff specifically identify any of the recipients of Dr. Christensen's alleged defamatory communications. See Amended Complaint. -4- 20. To the contrary, Plaintiff alleges only that Dr. Christensen made false and defamatory statements "to friends, former coworkers, and other potential employers in the community." See Amended Complaint, ¶ 11. 21. Furthermore, Plaintiff vaguely alleges, with absolutely no detail, that Dr. Christensen made statements to unidentified "third parties," "other Christensen Chiropractic Employees," "other Christensen Chiropractic staff members," "clients of Christensen Chiropractic," and "friends of Joyce Shellenberger." See Amended Complaint, ¶¶ 16-19. 22. Plaintiff fails to identify, with any particularity, even one individual who heard Dr. Christensen's allegedly defamatory communications. See Amended Complaint. 23. Plaintiff is prohibited from curing these defects by subsequent discovery; to the contrary, the sufficiency of a claim for defamation is governed by the facts as alleged in the complaint. Gross 302 A.2d at 371-72. 24. Plaintiffs utter failure to identify with any specificity or particularity the recipients of Dr. Christensen's alleged defamatory communication makes her claim for defamation legally and factually insufficient. C. Plaintifrs Failure to Allege the Identity of the Person Making the Defamatory Communication. 25. To state a legally sufficient claim for defamation, a plaintiff must allege with particularity the identity of the person or persons making the alleged defamatory communications. See Gross, 302 A.2d at 371. -5- 26. In the Introductory paragraph of her Amended Complaint, Plaintiff alleges "certain false and misleading statements made by representatives of Christensen Chiropractic regarding Joyce Shellenberger and her work at Christensen Chiropractic." See Amended Complaint, Introduction (emphasis added). 27. Plaintiffs vague reference to statements made by "representatives of Christensen Chiropractic" fails to identify with any particularity the individuals who allegedly made such defamatory statements. 28. For all of the reasons identified above, Plaintiffs Amended Complaint should be dismissed or, in the alternative, Plaintiff should be required to replead to set forth specifically and with particularity: the alleged statement upon which her claim of defamation purports to be based; the specific identity of each and every individual to whom the communication was allegedly made; and, the specific identity of each and every individual who made the allegedly defamatory communication. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request that the Court sustain this Preliminary Objection, dismiss Plaintiff Joyce Shellenberger's Amended Complaint, and order Plaintiff to plead her claim for defamation with sufficient specificity. Preliminary Objection Pursuant to Pa.R.C.P. No. 1028(a)(4): Legal Insufficiency of the Pleadina (Motion to Strike) 29. Pa.R.C.P. No. 1028(a)(4) permits a party to assert a preliminary objection based upon the legal insufficiency of a pleading. See Pa.R.C.P. No. 1028(a)(4). -6- 30. Plaintiff' Amended Complaint asserts a cause of action against the Christensen Defendants for defamation. See Amended Complaint. 31. In the ad damnum clause of Count I, Plaintiff seeks reasonable attorneys' fees. See Amended Complaint, ad damnum clause. 32. Under Pennsylvania law, attorneys' fees can only be recovered if there is a specific agreement between the parties to that effect or if the recovery of fees is provided for in a relevant statute. 33. Plaintiff has alleged no contractual agreement supporting the award of attorneys' fees. See Amended Complaint. 34. Plaintiff has alleged no statutory basis for the award of attorneys' fees. See Amended Complaint. 35. Plaintiff is not entitled to recover attorneys' fees on a claim for defamation. 36. Plaintiffs claim for attorneys' fees in the Amended Complaint is, therefore, legally insufficient. 37. As Plaintiffs claim for attorneys' fees is legally insufficient, it should be stricken. WHEREFORE, if Plaintiffs Amended Complaint is not stricken in its entirety for failing to state a legally and factually sufficient claim for defamation, Defendants Christensen Chiropractic and Barbara Christensen request that the Court sustain this Preliminary Objection and strike Plaintiffs demand for attorneys' fees as impertinent matter. -7- Preliminary Objection Pursuant to Pa.R.C.P. No. 1028(a)(4): Leaal Insufficiency of the Pleading (Motion to Strike) 38. In the ad damnum clause following Count I, Plaintiff seeks an award of punitive and/or exemplary damages. See Amended Complaint. 39. In addition to the Christensen Defendants' First and Second Preliminary Objections set forth above, the Christensen Defendants assert that Plaintiffs claim for punitive damages is legally insufficient as Plaintiff has pleaded no basis in fact or in law which would entitle her to recover punitive damages. 40. In order to recover punitive damages in a private person defamation action, the plaintiff must establish facts which show that the defendant either knew that the defamatory statement was false or that the defendant entertained serious doubts about the truth of the communication. See Geyer v. Steinbronn, 506 A.2d 901, 915-16 (Pa. Super. Ct. 1986). 41. Plaintiff has failed to plead any facts to support a finding that the Christensen Defendants knew that the alleged defamatory statement that Plaintiff embezzled money was false, or even that they entertained any doubts about the truth of the communication. See Amended Complaint. 42. Simply because Plaintiff alleges that no legal action was taken by the Christensen Defendants against Plaintiff with regard to the alleged embezzlement does not support a finding that the Christensen Defendants knew that the alleged defamatory statement was false. See Amended Complaint, ¶ 10. -8- 43. Under Pa.R.C.P. No. 1028(a)(4), a party may present the issue of legal insufficiency by the filing of a preliminary objection to a pleading. 44. Accordingly, in the event that this Court does not dismiss Plaintiffs Amended Complaint in its entirety, this Court should strike the claim for punitive and/or exemplary damages in the Amended Complaint, as such claim is legally insufficient. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request that this Court sustain the Preliminary Objection and strike Plaintiffs demand for punitive and/or exemplary damages asserted in the ad damnum clause in the Amended Complaint, based on legal insufficiency/demurrer pursuant to Pa.R.C.P. No. 1028(a)(4). McNEES WALLACE & NURICK LLC By a Kimberly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attorneys for Defendants Dated: November 24, 2010 -9- CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint Johns Church Road Suite 101 Camp Hill, PA 17011 a. Ili, Kimberly A. Selemba Dated: November 24, 2010 KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com OF THE ? P OTN,19? Ae y 2010 DEC -9 PM 1: 13 CUMBERLAIN rU?J , 4, P E'N'('i Attorney for Plaintiff JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. NO. 10-3562'- (Civil Term) CHRISTENSEN CHIROPRACTIC, and : BARBARA CHRISTENSEN, : JURY TRIAL DEMANDED Defendant. NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 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 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se la advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 AMERICAN WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the American with Disabilities Act of 1990. For more information about accessible facilities and reasonable accommodations available for disabled individuals having business before the Court, please contact the Court of Common Pleas of Cumberland County. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. You must attend the scheduled conference of hearing. KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com JOYCE SHELLENBERGER, Plaintiff, Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. NO. 10-3? L (Civil Term) CHRISTENSEN CHIROPRACTIC, and BARBARA CHRISTENSEN, : JURY TRIAL DEMANDED Defendant. SECOND AMENDED COMPLAINT AND NOW comes the Plaintiff, JOYCE SHELLENBERGER, by and through her attorneys, Hilary P. Vesell, Esq. and Kope & Associates, LLC, and files this Second Amended Complaint and in support thereof, avers the following: INTRODUCTION This is a civil action brought by Plaintiff, Joyce Shellenberger (hereinafter "Plaintiff'), against Defendant, Barbara Christensen (hereinafter "Defendant"), for damages resulting from the action of defamation that said Defendant committed arising out of certain false and misleading statements made by representatives of Christensen Chiropractic regarding Joyce Shellenberger and her work at Christiansen Chiropractic. Page 3 of 9 PARTIES 1. Plaintiff Joyce Shellenberger is an adult individual residing at 51 Fairway Drive, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant Barbara Christensen is an adult individual who resides at 73 Sharon Road, Enola, Cumberland County, Pennsylvania. 3. Christensen Chiropractic is believed to be a sole proprietorship existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 354 East Penn Drive, Enola, Cumberland County, Pennsylvania. 4. At all times relevant hereto, it is believed and therefore averred that Defendant was acting as sole owner, proprietor, and managing agent of Christensen Chiropractic and was acting on its behalf as well as individually in all the actions described in this Complaint. JURISDICTION AND VENUE 5. This action arises under the laws of the Commonwealth of Pennsylvania and is within the subject matter jurisdiction of this Honorable Court. 6. Venue is proper in the Court of Common Pleas for Cumberland County under Rules 1006(b) and 2179(a) of the Pennsylvania Rules of Civil Procedure, in that Defendant Barbara Christensen resides and regularly conducts business in Cumberland County. Further, the business at issue, Christensen Chiropractic, is located in Cumberland County. FACTS 7. On or about November of 2006, Plaintiff was hired by Christensen Chiropractic to work as an office manager. Page 4 of 9 8. Plaintiff worked at Christensen Chiropractic until November of 2009; then, on or about November 15, 2009, Plaintiff was frivolously accused of embezzlement and her employment was consequently terminated. 9. No evidence whatsoever, financial records or otherwise, was produced to indicated that Plaintiff embezzled money from Defendants. 10. Although threatened therewith, no legal action was ever taken against Plaintiff, criminally or civilly. 11. Defendant subsequently made false and defamatory statements to friends, former coworkers, and other potential employers in the community regarding the above; Specifically, that Plaintiff had engaged in an indictable criminal offense by embezzling from Defendants. 12. There is absolutely no truth to any of these statements, which have resulted in severe economic and business reputation damage to Joyce Shellenberger. 13. ? As a direct and proximate result of Defendants' false, misleading, and defamatory statements, Plaintiff cannot find employment. 14. Plaintiff has also accrued medical bills from stress, depression, and anxiety as a result of being defamed within the community. COUNT I DEFAMATION 15. The averments set forth in the preceding paragraphs are incorporated herein by reference as if fully set forth herein. Page 5 of 9 16. Defendant Barbara Christensen, in her capacity as owner of Christensen Chiropractic and as an individual, intentionally and knowingly defamed and slandered Plaintiff by communicating to third parties that Mrs. Shellenberger embezzled money from Christensen Chiropractic while employed there as an office manager. See Exhibit "A." 17. Defendant Barbara Christensen's statements to third parties, including but not limited to other Christensen Chiropractic Employees, were not a matter of public concern. Defendant Barbara Christensen's statements were defamatory and adversely affected Mrs. Shellenberger's professional reputation. 18. Defendant Barbara Christensen's statements were of or concerning Mrs. Shellenberger in the view of a reasonable listener. 19. Defendant Barbara Christensen's statements accusing Mrs. Shellenberger of embezzlement from Christensen Chiropractic were communicated to third persons, including, but not limited to other Christensen Chiropractic staff members, clients of Christensen Chiropractic, and friends of Joyce Shellenberger such as Shannon Towe whom Ms. Christensen hired to take care of her pet. 20. Defendant Barbara Christensen's statements were false and untrue. 21. Defendant Barbara Christensen's statements adversely reflected Mrs. Shellenberger's professional conduct. 22. Defendant Barbara Christensen's statements were the cause of damage to Mrs. Shellenberger, damages that manifested in the loss of Mrs. Shellenberger's job and income. 23. Defendant Christensen's statements were slander per se. Page 6 of 9 WHEREFORE, Plaintiff, Joyce Shellenberger, prays this Honorable Court to enter judgment in her favor and against Defendant Barbara Christensen, individually and in her capacity as owner of Christensen Chiropractic, and, in so doing, grant the following: 1. Monetary damages not to exceed $42,358.00. 2. Reasonable costs, interests and expenses including, but not limited to, reasonable attorney's fees in connection to this action; 3. Punitive and/or exemplary damages, as determined by this Honorable Court; 4. Any other remedy that this Honorable Court may deem appropriate. Respectfully Submitted, Date: 1 *0 d KOPE & ASSOCIATES, LLC 8- Hilary P. Ve , Esq. Page 7 of 9 Dec 07 10 05:50p Joyce Shellenberger (717) 732-7979 p.1 VERIFICATION 1, Joyce Shellenberger, the Plaintiff in this matter, have read the foregoing Second Amended Complaint. I verify that my averments in this Second Amended Complaint are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. Dated: \'a.. ?. to Joyce Shellenberger Page 8 of 9 CERTIFICATE OF SERVICE I, Hilary P. Vesell, Esquire of Kope & Associates, LLC, hereby certify that a true copy of the foregoing Second Amended Complaint was served this date upon the below- referenced individual at the below listed addresses by way of first class mail, postage pre- paid: Kimberly A. Selemba McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 KOPE & ASSOCIATES, LLC By: hkA?j 0,!,Vj HILARY P. ELL, Esq. I. D. 308358 - 395 St. Johns Church Road Camp Hill, PA 17011 (717) 761-7573 Date: l d y ll6 Page 9 of 9 Joyce, My atty advised me to simply send the cease and desist letter, and not to contact you in any other way. This is my last contact w/you personally. You make me sick. I can't sleep or eat. I haven't slept well in years, worrying over financial problems YOU were causing. You have only one way to stay out of prison. It is a program called ARD I believe, look it up. If you can qualify for this program, and I do not fight it, you, unfortunately, remain free. 18 months or so later, you don't even end up with a record. Again, unfortunate. Your atty (you need one) will tell you about it. If I don't hear a bunch of lies about me, slander, backstabbing, I won't fight it. If you think for an instant you wouldn't be proven guilty, you are living in a dream world. This program takes place, I guess, instead of a trial. You are a horrible person. The only goal you seemed to have was to bankrupt me so that I would never discover all of the ways you were ripping me off. You took more and more cash, padded the checks and then, the unemployment. Sickening. "she doesn't care what happens to me..." while you were robbing and trying to bankrupt me. I have something you don't know about, a list of all of the $ I've taken out of the box. Comparing this list to the cash that never hit the bank, big trouble. You walked out of my office, with my cash, day in and day out. Hiding cash from me, in my office. Cash that never got deposited. You walked out w/cash, how did that feel? How did it feel when I gave you a bonus out of kindness, while you were robbing me? How did it feel to see my writhing in pain, doing everything I could possibly do to keep helping people, and keep my office afloat... while you walked past that door w/my cash??? You did it even b/w the injury and the surgery, all of it, while I suffered. You must have dropped out of HS before learning Shakespeare. "Methinks the lady doth protest too much." The more and more you mentioned "change," the less I took out, and the better my records. I only took MY money, when you had me so broke, that I could not access my accounts, "saving up" for your over inflated payroll. The only other major reason for taking money, listed on my records, is prescriptions, giving cash to someone to pick them up. I told you over and over, I have to take my money out of the box, I have no access to money at all. I told you about weekends during which I had only $50 or $75 to live on, including gas. I stressed over not being able to get a furnace, to fix my own teeth. 8 yrs of school, hard, hard work, and always broke. You also must have dropped out before learning what CHANGE is, it is a process by which you would have ended up with MORE money here, not less. Erin would say you were complaining about not having change, as in that $100 bill incident. Since I hadn't at that point taken anything over milk and cookie money for 5 Y months, yes read that again, 5 % months, and since I saw cash on top of many deposits, your "change" bullshit argument would only make sense if the $ was in the bank. A separate envelope, hiding cash that I earned, from me. Let's look at 2008, Greg thinks you are the stupidest felon he's ever met. You don't take ALL of the cash if you steal it, other felons take SOME. You don't take all, it's too obvious. Total payments in Ez-Bis (yes, Einstein, I have 2 systems): 243,463.23 Reported in Ez-Bis as cash 6421.49 Total income in Quickbooks 232,012.28 Difference (changed from cash to check...) 5,029.46 Total amount of cash missing 11,450.95 Amount I took, =/- milk, cookies... 1,640.00 Window washing 220.48 Generous slush, for incidental expenses 2,000.00 Money you walked out of here with: A minimum of: 7,590.95 YTD 2009, more than that already -You made so many arrogant statements to me, about YOU putting MY money in the bank, like I was a thief. My money. My atty does not feel I'm exposed at all, it's such a small amount, and when you had me to the point of having to use a credit card, pay interest on $ just to keep the business open, that amount I dropped in is more that I EVER took of my own money, out of that box. -YTD 2009, you have already "worked" almost a 100 hours more than you did in all of 2008. Funny, with a month and a half left. More and more greedy, hoping to bankrupt me. -A more detailed evaluation will reveal more, I'm sure, this is scratching the surface. -1 don't yet know all of the scams you have pulled here, the detectives will help me with that. -You may be able to buy your way out of this mess, but I am getting close to $50K, and just started looking. Start evaluating your options to acquire this money or you go to prison. I'm sure there is more. -The only thing I know about pills is that you had a series of surgeries, your Dr prescribed meds you weren't taking. This is important. Now, that I've seen what you've done w/my signature, I know in my heart, there was no Dr involved. You either had a prescription pad, stole one... I don't know, but at the time I trusted you, and would never get involved in anything like that. I could have bought them online, but wasn't sure that was legal, and certainly I have NEVER done anything that I knew was a FELONY. My atty says my exposure to that is very low, it is just an attempt to blackmail me. YOUR exposure (and I pray to God you never involved anyone else) is very high, it too, is a felony. You can't buy your way out of that one. I would delete any reference to pills, as you are bringing up more criminal behavior, giving yourself up for something no one knows about. Stupid, again. -1 also know about Aflac, I watched a commercial the other day and figured that one out. At the time I signed the forms, I trusted you. I am quite certain you filed Aflac while I was out of work d/t disability. There may be more. Haven't reported that one yet, go ahead and push me by telling lies about me. -Oh, how depressed you were when you lost MY $700 earring. On a cruise, you buy $700 earrings, and I can barely buy groceries. -Don't let me hear ONE bad word about myself. You know I am kind and generous to everyone. You watched my heart break over my family betraying me, while you were robbing me. Talking about "personal errands" and not getting "gas money" makes you look even more like an idiot. You'd get me food, ON THE CLOCK because my leg is partially paralyzed, and I was in pain. I'm sure I could get anyone to "run errands" for $16, sometimes $17 an hour. Mentioning it makes you look even more like a heartless bitch. -Now, since I've told the pts that you aren't working here anymore, more is coming out, how you were short w/them, "couldn't" get them in, usually in situations in which it would mean YOU'D have to stay. They always wondered how a grown woman could walk around in society, not noticing that adults don't wear pig-tails or ribbons in their hair. The ribbons, everyone mentions it. Big gobs of 1980 high school eye shadow. It looks scary. Most have no idea why you aren't here, but I have heard very few mentions that they would miss you. The entire Deardorff family will now be in, they got frustrated with your attitude. -You were systematic, but stupid, the entire scheme depended on the fact I trusted you, I trusted you, and you robbed me blind. The payroll was a big shock (as was the fact that you really did not think I'd fire you,) the unemployment, made me physically shake, but the cash, that's personal. The Chubbs pay cash, but it's almost all in as CHECKS. The cash... like a stake in the heart. I can only thank God that I was wise enough to keep records, as I was stupid enough to trust you all along. Read the letter, contact me in any way, and I call 911. Save up, or I will be visiting the prison just to spit on the glass that separates the free from the felons Nov 10 10 12:13p Joyce Shellenberger (717) 732-7979 p.4 Joyce From: 7175801539@mms.att.net Sent: Wednesday, February 03, 2010 7:04 PM To: joyceashell@com cast net Subject: Fw: You will a) stay away from me b)... ------ 5M5 Text ------ You will a) stay away from me b) say nothing bad a out me and I will do whatever it takes to retrieve the $ through my "dishonest employee" policy. Talk about pills all you want, you lied to your dr, I just tried to keep my business open I pain. YOU ROBBED me out of an average of 12 hours a WEEK! At least $500 a month. That is fact. Greg saw in a glance. I found an old "time card" that you were supposed to be filling out every week, clearly demonstrating you knew the hours you acually worked. And, you AL50 manipulated your rate of pay, when I raised you from 15 to 16 hrs a wk, you were already paying yourself 15.5. Also a check C 17111 I also believe you had me sign of lac claims, fraudulantly, and went behind my back to fife unemloyment. You have overpaid yourself, I trusted ou, at 12 hours week. Stay away from me. It is so obvious that it took Greg Eri on! a few minutes realize it. $9200 this YTD, I cannot eat, sleep... Nor pay my bills. Just try to blackmail me, i'll call aflac, I think there has been a mistake. I am filing the claim tomorrow, dishonest employee, and will follow their lead. $9200 while you listen to me cry about being broke!! Do not txt me back, do not try to blackmail me, working in agony, while you robbed me. I will get your stuff back to you. $9200 this ytd and you think I care what you have to say??? At least $7k last year, this all started about 3 mops into your employment. Do not kid yourself, you are a liar, a thief_.. I trusted you, and I was robbed. ?c,A_t. - l ? . a2 _ Lam. 1 Feb 03 10 08:06p Jim Shellenber (717) 732-7979 p,2 Joyce From: 7175801539@mms.att.net Sent: Wednesday, February 03, 2010 7:05 PM To: joyceashell@comcast.net Subject: Fw: If you have not contacted Rick... ------ SM5 Text ------ If you have not contacted Rick tomorrow by 11:00 AM, he will be paving the way, for my meeting w/the DA in the afternoon & you are DONE!!! You will be a felon en route to prison by 11:00. I have sooooooo much evidence!!! Done!!! So many witnesses!!! Finished. If you do not contact Rick (who last saw you at Atlantic City, gambling my $$$ away!!!) by 11:00 am I will be on my way to take you down!!! He, an atty, is shocked, he told me tonight... she stole every penny out of YOUR pocket!!! Your profit... Even the 5r partners, loving me, HURTING for me, the full resources of the firm, behind me!!! This powerful firm has my back!!! Judy & Brenda work there (and love me) Janie used to work there, Rick & his senior partner work there, love me, my work, and will unite to SAVE my business by revealing the truth!!! Either your bullshit cheap-ass atty contacts the best firm in town, by 11:00 am tomorrow, or you are done, kiss your freedom good-bye you sociopath... You have a few hours, I KNOW sooooo much, and I will, in the absence of my hard- earned $$$, the fruit of all of my love for my patients, take joy in delivering the justice you deserve!!! Illiterate txts to me & Erin "she don't care what happens to ME.., I (me. me,me, me-the only thing that matters to you cornered, is YOU) could go to prison.... ,Did you think you, would go to prison for $264??Did you txt Erin, you'd rather DIE than go to prison over $264??? No, you ADMITTED then, and know now, you robbed me BLIND!!! A total sociopath, you will be a FELON by tomorrow!!!.? Can't wait to see you on the news!!! BTW, your mom will get a bill for nearly $700 this week, she pays it or she is a co-defendant, up to you. Finally, your "lawyer" calls the most powerful f irm by 11:00 am, or you are done!!! And some of the most influential people in this town, will unite (I have one HELL of a team, all uniting w/love for me & what I do) and absolutely ensure that you will be locked up for a good, good, long time!!! 11:00 tomorrow, & if not, you are donel!I!!! You come up w/some way to give me MY $_$ MY $$$, no, of course I "don't care" what happens to YOU, who gives a 5HIT, what happens to a FELON w/MY $$$, give me back i? Feb 03 10 08:07p Jim Shellenber (717) 732-7979 p,3 MY hard/earned $$ or make a plan to do so by 11::00. NO ONE will ever trust a word out of your mouth, no one cares about a LYING felon, NO ONE!(! You have until 11:00, yes you are an idiot, a liar, a thief fl!! This might be the most important 12 hrs of your life, it will change the course of your life forever_ I guarantee you a conviction. Guarantee!!l What will you do??! The rest of' your life is LITERALLY @ stake!!!} Feb 03 10 08:07p Jim Shellenber (717) 732.7979 p.4 Joyce From: 7175801539@mms.att.net Sent: Wednesday, February 03, 2010 7:03 PM To: joyceasherl@comcast.net Subject: Fw: Txt me back, ------ 5M5 Text ------ Txt me back, you violate the "do not contact order" and I cal! 911. You see; the honest are free, lying, stealing sociopaths such as yourself are not. First, I guess I should "thank" you. I sent out a newsletter telling my pts you were gone, and I have had e least 30 reactivations so far!! The biggest influx of pts I ever had!! "not friendly, rude about nonsensible bills, WIERD hair, ribbons, crazy looking pig- tails, tan all of the time, never trusted her, never came in because of her...". Me figuring out, finally. that I trusted, cared about, was kind to, was generous to, a blatant liar, a crazy absolute sociopath... in the end, after shock, near bankruptsy, hellish betrayal and anguish, probably saved me. You f inally decided you need an atty, and told him, "I didn't do it". You are bsolutely, pinned in your web of lies: "I thought I was working more" to me, cou tered by what you told my now friend e unemployment "I ONLY work 3 days a week...". Your payroll games ALONE account for $24,400. This is FIRMLY documented, as is your little self-given pay raises. ILLEGAL!! My current data fully supports the $# I demanded, and Greg assures me, we will find much, much more!!! You are the slime on the bottom of the most bottom-feeding urchin, you are a mops t er. THIS you must know, on Wednesday, the MOST powerful law f irm in the state, has advised me to go to the DA. The DA is waiting to hear from me, and have assured my attys; they will take this and run with it!!! Once I go there, I cannot, even if I wanted to, retract the charges. It will be beyond my con? ol, and the evidence is solid. I actually loved you, as I freely love those in my life. Wednesday, my hand will be played, and me and the DA will explore every single $ you took. Looking @ the mess of unpaid & unpursued claims, you cost me, just being horrible @ your job was bad enough, you never followed up... Why would you care??? You paid yourself soco well!! Wednesday by 8:00 AM, it all gets out of my hands, and into the judicial system, you'd better think of something better than "I didn't do it" to tell your lawyer by tomorrow. My pts, Tommy Dearforff, the Chubbs, George Irwin, and others are preparing statements to the effect that they ONLY paid CASH. Their Feb 03 10 08:08p Jim Shellenber (717) 732-7979 p.5 accounts, ALL falsified, and they are PISSED and more than willing to help!! You were evil, but not smart, anal about check #s except when you lied!! A simple report gives me all "check" payments w/out #s. I have sooooo much evidence and a forensic accountant, directed by Greg, will find soooo much more!!! "I don't understand why I can't make a living at this... I am so brake..." i cried to you, over and over.- You, a heartless pathological liar, "it is because you are too kind, too generous, you give too many breaks...". YOU knew my soul, my kindness, and NO! NO! NO! That was not why I was broke, IT WAS BECAUSE you, the devil encarnate, I trusted YOU!!! By Wednesday, it is out out of my hands, and I will do everything in my power to bring you down, I'll f inally have a chat w/aflac, I will have to. pay $4k to find your patient payment deletions, every single "check" without a number, every penny you took from my hard, kind, loving work. Wednesday!! I loved you at the time, never ONCE cheated you out of a penny, trusted you. I advised you, do not let me hear ONE bad word about me, but Tammy Bennet, my friend, a good Christian, who you tried to get to your so-called parties, said, "I don't even know her, wish she'd realize I deal w/her ONLY to see you," she told me you said you "quit," you could not "take it anymore". If by IT you mean my cash, yes, you had to leave, how in the hell could you afford to work honestly?? I sent full payroll reports to the UC commission, you lying thiefl! Think of the tax-paying ,fury, hearing about that!l! Al! of the ties you told Erin, go to hell!!! Wednesday it is out of my hands, good riddance to bad garbage. I was kind, I loved you, cared about you, and you STOLE my livelihood, my business from me!! I cannot remember anything I liked about you, you destroyed me, so stop lying 10 your so-called lawyer, and face what you did!!! I know soo much more than you think I do! Much more!! You have 24 hours to realize what you are up against. After that, you are done!!! Pages and pages of facts, numbers, the truth. 24 hours. A lot of bad things have happened to me, meeting you, hiring you, trusting you is the WORST thing that ever occured in my life. I am a good, hard-working, kind person, you are the worst thing that ever happened to me. You have 24 hours. rr - -OFFICE OF TIDE PR0THON0TAR Y Kimberly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 2310 DEC 14 AM 11: 27 "UMBERLAND COUNTY PENINSYLVA,?I A Attorneys for Plaintiff JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN, Defendants : NO. 10-6282 Civil CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS CHRISTENSEN CHIROPRACTIC AND BARBARA CHRISTENSEN TO PLAINTIFF'S SECOND AMENDED COMPLAINT Defendants Christensen Chiropractic and Barbara Christensen ("Dr. Christensen") (together, the "Christensen Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, file the following Preliminary Objections to the Second Amended Complaint of Plaintiff Joyce Shellenberger. 1. On or about October 1, 2010, Plaintiff commenced this action by filing a Complaint against Christensen Chiropractic and Dr. Christensen. 2. The Christensen Defendants filed Preliminary Objections to the Complaint on or about November 6, 2010. 3. Plaintiff filed an Amended Complaint on or about November 18, 2010. 4. On or about November 29, 2010, the Christensen Defendants filed Preliminary Objections to the Amended Complaint, objecting to the same deficiencies that were pled in the initial Complaint. 5. Plaintiff filed a Second Amended Complaint on or about December 9, 2010, still failing to correct any of the deficiencies in either the initial Complaint or the Amended Complaint. 6. The Second Amended Complaint alleges that Plaintiff was the office manager for Christensen Chiropractic from November 2006 until November 2009. See Second Amended Complaint, ¶¶ 7, 8. 7. The Second Amended Complaint further alleges that, on or around November 15, 2009, "Plaintiff was frivolously accused of embezzlement and her employment was consequently terminated." See Second Amended Complaint, 18. Preliminary Objection Pursuant To Pa.R.C.P. No. 1028(a)(3) (Insufficient Specificity in Pleadina) and 1028(a)(4) (Demurrer) 8. In the Second Amended Complaint, Plaintiff asserts a cause of action for defamation against the Christensen Defendants. See Second Amended Complaint. -2- 9. To state a cause of action for defamation, Plaintiff must set forth facts demonstrating: "(1) The defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and, (7) abuse of a conditionally privileged occasion." Moore v. Cobb- Nettleton, 889 A.2d 1262, 1267-68 (Pa. Super. Ct. 2005). 10. Pa.R.C.P. No. 1028(a)(3) permits a party to assert a preliminary objection for lack of specificity in a pleading. See Pa.R.C.P. No. 1028(a)(3). 11. Pa.R.C.P. No. 1028(a)(4) permits a party to assert a preliminary objection based upon the legal insufficiency of a pleading. See Pa.R.C.P. No. 1028(a)(4). A. Lack of Specificity Regarding the Content of the Alleged Defamatory Communication. 12. Plaintiffs defamation claim is legally insufficient and insufficiently specific, as it fails to identify specifically and with particularity the alleged communication that Plaintiff claims is defamatory. 13. Specifically, in the Second Amended Complaint, Plaintiff alleges that Dr. Christensen made false and defamatory statements that "Plaintiff had engaged in an indictable criminal offense by embezzling from Defendants," and that Plaintiff had "embezzled money" from Christensen Chiropractic while employed there as an office manager. See Second Amended Complaint, ¶¶ 11, 16. -3- 14. A plaintiff asserting a claim for defamation must allege with particularity "the content of the oral or written statements claimed to have been made, the identity of the person or persons making those statements... [and] the identity of the person or persons to whom the statements were made." Gross v. United Engineers and Constructors. Inc., 302 A.2d 370, 371 (Pa. Super. Ct. 1973). 15. The complaint must specify the "substance of the spoken words; the purport of the spoken words is necessary." Itri v. Lewis, 422 A.2d 591, 593 (Pa. Super. Ct. 1980). 16. "The sufficiency of the Complaint is governed by the facts alleged therein and the fact that the lacking information subsequently was or could be supplied is not governing." Gross 302 A.2d at 371. 17. Nowhere in the Second Amended Complaint does Plaintiff allege with any particularity either the exact words allegedly spoken by Dr.. Christensen or the substance of the spoken words. See Second Amended Complaint. 18. To the contrary, Plaintiff only vaguely alleges that Dr. Christensen told others that Plaintiff embezzled money. See Second Amended Complaint. 19. Because the Second Amended Complaint fails to allege the content or the substance of Dr. Christensen's alleged defamatory statements with any particularity, as is required by Pennsylvania law, Plaintiffs claim for defamation against the Christensen Defendants is deficient as a matter of law. -4- B. Plaintifrs Failure to Identify the Recipients of The Alleged Defamatory Communication. 20. Plaintiffs defamation claim is also legally insufficient and insufficiently specific, as it fails to identify specifically and with particularity each and every recipient of the alleged defamatory communication. 21. Significantly, throughout the entire Second Amended Complaint, Plaintiff fails to identify with any specificity the identity of each of the recipients of Dr. Christensen's alleged defamatory communications. See Second Amended Complaint. 22. To the contrary, Plaintiff alleges only that Dr. Christensen made false and defamatory statements "to friends, former coworkers, and other potential employers in the community." See Second Amended Complaint, % 11. 23. Furthermore, Plaintiff vaguely alleges, with absolutely no detail, that Dr. Christensen made statements to unidentified "third parties," "other Christensen Chiropractic Employees," "other Christensen Chiropractic staff members," "clients of Christensen Chiropractic," and "friends of Joyce Shellenberger." See Second Amended Complaint, ¶¶ 16-19. 24. Although the Christensen Defendants' filed two sets of Preliminary Objections, the only change Plaintiff made from her previous pleadings is the identification of Shannon Towe as an example of a recipient of Dr. Christensen's alleged defamatory statements. See Second Amended Complaint, 119. 25. Despite her identification of Shannon Towe as an example of a recipient of Dr. Christensen's alleged defamatory statements, Plaintiff still fails to narrow down each -5- and every recipient of Dr. Christensen's alleged defamatory statements in violation of Pennsylvania law, which requires a plaintiff in a defamation claim to allege with particularity the identity of the person or persons to whom the statements were made. Gross v. United Engineers and Constructors, Inc., 302 A.2d 370, 371 (Pa. Super. Ct. 1973). 26. With the exception of her identification of Shannon Towe as an example of a recipient of Dr. Christensen's alleged defamatory statements, Plaintiff pleads only vague and ambiguous references to unidentified third parties, leaving open the possibility that Plaintiff can later identify individuals after the expiration of the statute of limitations. 27. Notably, Plaintiff is prohibited from curing these defects by subsequent discovery; to the contrary, the sufficiency of a claim for defamation is governed by the facts as alleged in the complaint. Gross 302 A.2d at 371-72. 28. Plaintiffs utter failure to identify with any specificity or particularity each and every recipient of Dr. Christensen's alleged defamatory communication makes her claim for defamation legally and factually insufficient. C. Plaintiffs Failure to Allege the Identity of the Person Making the Defamatory Communication. 29. To state a legally sufficient claim for defamation, a plaintiff must allege with particularity the identity of the person or persons making the alleged defamatory communications. See Gross, 302 A.2d at 371. -6- 30. In the Introductory paragraph of her Second Amended Complaint, Plaintiff alleges "certain false and misleading statements made by representatives of Christensen Chiropractic regarding Joyce Shellenberger and her work at Christensen Chiropractic." See Second Amended Complaint, Introduction (emphasis added). 31. Plaintiffs vague reference to statements made by "representatives of Christensen Chiropractic" fails to identify with any particularity the individuals who allegedly made such defamatory statements. 32. For all of the reasons identified above, Plaintiffs Second Amended Complaint should be dismissed or, in the alternative, Plaintiff should be required to replead to set forth specifically and with particularity: the alleged statement upon which her claim of defamation purports to be based; the specific identity of each and every individual to whom the communication was allegedly made; and, the specific identity of each and every individual who made the allegedly defamatory communication. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request that the Court sustain this Preliminary Objection, dismiss Plaintiff Joyce Shellenberger's Second Amended Complaint, and order Plaintiff to plead her claim for defamation with sufficient specificity. Preliminary Objection Pursuant to Pa.R.C.P. No. 1028(x)(4): Legal Insufficiency of the Pleadina (Motion to Strike) 33. Pa.R.C.P. No. 1028(a)(4) permits a party to assert a preliminary objection based upon the legal insufficiency of a pleading. See Pa.R.C.P. No. 1028(a)(4). -7- 34. Plaintiffs Second Amended Complaint asserts a cause of action against the Christensen Defendants for defamation. See Second Amended Complaint. 35. In the ad damnum clause of Count I, Plaintiff seeks reasonable attorneys' fees. See Second Amended Complaint, ad damnum clause. 36. Under Pennsylvania law, attorneys' fees can only be recovered if there is a specific agreement between the parties to that effect or if the recovery of fees is provided for in a relevant statute. 37. Plaintiff has alleged no contractual agreement supporting the award of attorneys' fees. See Second Amended Complaint. 38. Plaintiff has alleged no statutory basis for the award of attorneys' fees. See Second Amended Complaint. 39. Plaintiff is not entitled to recover attorneys' fees on a claim for defamation. 40. Plaintiffs claim for attorneys' fees in the Second Amended Complaint is, therefore, legally insufficient. 41. As Plaintiffs claim for attorneys' fees is legally insufficient, it should be stricken. WHEREFORE, if Plaintiffs Second Amended Complaint is not stricken in its entirety for failing to state a legally and factually sufficient claim for defamation, Defendants Christensen Chiropractic and Barbara Christensen request that the Court sustain this Preliminary Objection and strike Plaintiffs demand for attorneys' fees as impertinent matter. -8- Preliminary Objection Pursuant to Pa.R.C.P. No. 1028(a)(4): Leaal Insufficiency of the Pleadina (Motion to Strike) 42. In the ad damnum clause following Count I, Plaintiff seeks an award of punitive and/or exemplary damages. See Second Amended Complaint. 43. In addition to the Christensen Defendants' First and Second Preliminary Objections set forth above, the Christensen Defendants assert that Plaintiffs claim for punitive damages is legally insufficient as Plaintiff has pleaded no basis in fact or in law which would entitle her to recover punitive damages. 44. In order to recover punitive damages in a private person defamation action, the plaintiff must establish facts which show that the defendant either knew that the defamatory statement was false or that the defendant entertained serious doubts about the truth of the communication. See Geyer v. Steinbronn, 506 A.2d 901, 915-16 (Pa. Super. Ct. 1986). 45. Plaintiff has failed to plead any facts to support a finding that the Christensen Defendants knew that the alleged defamatory statement that Plaintiff embezzled money was false, or even that they entertained any doubts about the truth of the communication. See Second Amended Complaint. 46. Simply because Plaintiff alleges that no legal action was taken by the Christensen Defendants against Plaintiff with regard to the alleged embezzlement does not support a finding that the Christensen Defendants knew that the alleged defamatory statement was false. See Second Amended Complaint, % 10. -9- 47. Under Pa.R.C.P. No. 1028(a)(4), a party may present the issue of legal insufficiency by the filing of a preliminary objection to a pleading. 48. Accordingly, in the event that this Court does not dismiss Plaintiffs Second Amended Complaint in its entirety, this Court should strike the claim for punitive and/or exemplary damages in the Second Amended Complaint, as such claim is legally insufficient. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request that this Court sustain the Preliminary Objection and strike Plaintiffs demand for punitive and/or exemplary damages asserted in the ad damnum clause in the Second Amended Complaint, based on legal insufficiency/demurrer pursuant to Pa. R. C. P. No. 1028(a)(4). McNEES WALLACE & NURICK LLC Ba Kim erly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attomeys for Defendants Dated: December 13, 2010 -10- CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint Johns Church Road Suite 101 Camp Hill, PA 17011 a. I?ja Kimberl A. Selemba Dated: December 13, 2010 PRAECIPE FOR LL /STING 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) JOYCE SHELLENBERGER r-X vs. CHRISTENSEN CHIROPRACTIC and BARBARA ' :Z!CD CHRISTENSEN = _ No. 10-6282 - -- = erriP --------- , 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Second Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Hilary P. Vessell, Esquire, Kope & Associates, LLC, 395 Saint Johns Church Road, Suite 101, (Name and Address) Camp Hill, PA 17011 (b) for defendants: Kimberly A. Selemba, Esquire, McNees Wallace & Nurick LLC:, 100 Pine Street, P.O. Box 1166 (Name and Address) Harrisburg, PA 17108-1166 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Ala J1/4 Date: Kimberly A. Selemba Print your name Defendants Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint Johns Church Road Suite 101 Camp Hill, PA 17011 Kimberly A. Selemba Dated: December 21, 2010 n , Sri f`?'-()F ,._ ROT ?C d Kimberly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 uPfi -3 P11 IFS RLA ,19 C061 h, I Attorneys for Plaintiff JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 10-6282 Civil CHRISTENSEN CHIROPRACTIC and CIVIL ACTION - LAW BARBARA CHRISTENSEN, : JURY TRIAL DEMANDED Defendants MOTION FOR CONTINUANCE AND NOW, comes Defendants Christensen Chiropractic and Barbara Christensen ("Dr. Christensen") (together, the "Christensen Defendants"), by and through their counsel, McNees Wallace & Nurick LLC, and file this Motion for Continuance as follows: On or about October 1, 2010, Plaintiff commenced this action by filing a Complaint against Christensen Chiropractic and Dr. Christensen. 2. The Christensen Defendants filed Preliminary Objections to the Complaint on or about November 6, 2010. 3. Plaintiff filed an Amended Complaint on or about November 18, 2010. 4. On or about November 29, 2010, the Christensen Defendants filed Preliminary Objections to the Amended Complaint, objecting to the same deficiencies that were pled in the initial Complaint. 5. Plaintiff filed a Second Amended Complaint on or about December 9, 2010, still failing to correct any of the deficiencies in either the initial Complaint or the Amended Complaint. 6. On or about December 14, 2010, the Christensen Defendants filed Preliminary Objections to the Second Amended Complaint. 7. On or about December 22, 2010, the Christensen Defendants filed a Praecipe to List its Preliminary Objections to the Second Amended Complaint for Argument. 8. By letter dated December 27, 2010, the Prothonotary of Cumberland County listed the Christensen Defendants' Preliminary Objections to the Second Amended Complaint for argument on January 14, 2010. 9. On January 14, 2010, beginning at 10:00 a.m., Kimberly A. Selemba, counsel for the Christensen Defendants, is scheduled to attend a mediation in another matter. This mediation has been previously scheduled for two months, and involves four parties and an out-of-town mediator. Re-scheduling this mediation at this late date will involve significant hardship on all parties and individuals involved in the mediation. 10. Upon receipt of the Prothonotary's December 27, 2010 letter on January 3, 2011, Kimberly A. Selemba informed Hillary Vessell, counsel for Plaintiff, of counsel's -2- conflict described in paragraph 9, above, and sought her continuance in the Christensen Defendants' Motion for Continuance. 11. Ms. Vessell has indicated that she concurs in the Christensen Defendants' Motion for Continuance. 12. The Christensen Defendants, therefore, respectfully request that, given the Christensen Defendants' counsel's scheduling conflict on January 14, 2011, which conflict cannot easily be remedied by rescheduling the mediation described above, the Court reschedule argument on the Christensen Defendants' Preliminary Objections to the Second Amended Complaint, and list this matter for disposition on the Court's next argument list. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request that the Court grant their Motion for Continuance. McNEES WALLACE & NURICK LLC By--?J - Ki erly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attomeys for Defendants Dated: January 3, 2011 -3- CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint Johns Church Road Suite 101 Camp Hill, PA 17011 a. fw._? Kimberl A. Selemba Dated: January 3, 2011 J ? FILED-OF r? IM?ERLAtaC ?.U4U?? `. JOYCE SHELLENBERGER, 'JAN 0 4 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN, : NO. 10-6282 Civil : CIVIL ACTION -LAW JURY TRIAL DEMANDED Defendants f ORDER AND NOW, this J day of January, 2011, upon consideration of Defendants' Motion for Continuance of argument on their Preliminary Objections to the Second Amended Complaint, which is scheduled for January 14, 2011, the Motion is hereby GRANTED. BY THE COURT: J ?I{?lury P. Vesell , '? M?Nees, Walla , Nuriek, LW /? ,,, M PRAECIPE FOR LISTING CASE FOR ARGUMENT? (Must be typewritten and submitted in triplicate) :°w TO THE PROTHONOTARY OF CUMBERLAND COUNTY Argument Court.) CAPTION OF CASE (entire caption must be stated in full) JOYCE SHELLENBERGER vs. CHRISTENSEN CHIROPRACTIC and BARBARA CHIRISTENSEN zrn -? (List the within matter for(%Fne)dV r- X r? c? No. 10-6282 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Second Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Hilary Vesell, Kope & Associates, LLC, 395 St. Johns Church Road, Suite 101, Camp Hill, PA (Name and Address) 17011 (b) for defendants: Kimberly Selemba, McNees Wallace & Nurick LLC, 100 Pine Street, P.O. Box 1166 (Name and Address) Harrisburg, PA 17108-1166 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: y 1 `l Signature ?a I Print your nam Plaintiff Attorney for ?rn rn CD? -? CD z -? M INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com JOYCE SHELLENBERGER, Plaintiff, V. Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 10-6282 (Civil Term) CHRISTENSEN CHIROPRACTIC, and : BARBARA CHRISTENSEN, : JURY TRIAL DEMANDED Defendant. CERTIFICATE OF SERVICE I, Hilary P. Vesell, Esquire do hereby certify that on this 19th day of April, 2011, 1 served a true and correct copy of Praecipe for Listing Case for Argument via first Class mail, postage prepaid, addressed as follows: Kimberly A. Selemba McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (Attorney for Defendants) KOPE & ASSOCIATES, LLC J(.W4 I Hilary P. Ves Esq. 395 St. Johns hurch Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 I . D. 308358 (Attorney for Plaintiff) I , 1 JOYCE SCHELLENBERGER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CHRISTENSEN : CIVIL ACTION CHIROPRACTIC, and m BARBARA CHRISTENSEN, : =rn mar= Defendants Co NO. 10-6282 CIVIL TERM =2 E IN RE: DEFENDANTS' PRELIMINARY y © °' OBJECTIONS TO PLAINTIFF'S SECOND '' AMENDED COMPLAINT BEFORE OLER, EBERT and MASLAND, JJ. ORDER OF COURT AND NOW, this 11th day of July, 2011, upon consideration of Defendants' Preliminary Objections to Plaintiff's Second Amended Complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendants' preliminary objection in the nature of a demurrer is dismissed. 2. Defendants' preliminary objections requesting a more specific pleading, relating to a purported lack of specificity as to the content of the alleged defamatory communication, a failure to sufficiently identify the recipients of the communication, and a failure to sufficiently identify the person making the defamatory statements, are dismissed. 3. Defendants' preliminary objection in the form of a motion to strike, relating to Plaintiff's claim for punitive damages, is dismissed. 4. Defendants' preliminary objection in the nature of a motion to strike, relating to Plaintiff's claim for attorneys' fees, is sustained, and that claim is stricken. 5. Defendants are afforded a period of 20 days from the date of this order to file an answer to Plaintiff's Second Amended Complaint. J ? Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint John's Church Road Suite 101 Camp Hill, PA 17011 Attorney for Plaintiff ? Kimberly A. Selemba, Esquire Alexis I. Snyder, Esquire McNees, Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorneys for Defendants OPie-S 1 gal rt 1 00 rn M C_ ' =-n te a r c r, ~° cn ?T N rn O -? rza :may = ? O - ? c n CD ) ;ZF 3 BY THE COURT, JOYCE SCHELLENBERGER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CHRISTENSEN CHIROPRACTIC, and BARBARA CHRISTENSEN, Defendants CIVIL ACTION NO. 10-6282 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE OLER, EBERT and MASLAND, JJ. OPINION and ORDER OF COURT OLER, J., July 11, 2011. In this civil action, Plaintiff has sued Defendants for defamation as the result of Defendant Barbara Christensen's purported communication to others that Plaintiff had embezzled money from Plaintiff's employer, Defendant Christensen Chiropractic. Presently before the court are preliminary objections to Plaintiffs Second Amended Complaint in the nature of a demurrer, a request for a more specific pleading in several respects, a motion to strike a claim for attorneys' fees, and a motion to strike a claim for punitive damages. The matter was argued on May 27, 2011. For the reasons stated in this opinion, Defendants' preliminary objections will be sustained in part and dismissed in part. STATEMENT OF FACTS The facts alleged in Plaintiff's Second Amended Complaint may be summarized as follows:' Plaintiff is Joyce Schellenberger, an adult individual residing in Camp Hill, Cumberland County, Pennsylvania.2 Defendants are Christensen Chiropractic, an enterprise with its principal place of business in Enola, Cumberland County, Pennsylvania,3 and Barbara Christensen, an adult individual residing in Enola, Cumberland County, Pennsylvania.4 At all times pertinent to Plaintiffs cause of action Defendant Barbara Christensen appeared to be acting as sole owner, proprietor and managing agent of Christensen Chiropractic and to be acting on its behalf.5 Plaintiff was employed by Defendant Christensen Chiropractic as an office manager6 from November 2006 until her termination on November 15, 2009 as the result of an accusation of embezzlement.' Defendant Barbara Christensen "intentionally and knowingly defamed and slandered Plaintiff by communicating . . . that [Plaintiff] 1 In relating the allegations of Plaintiffs Second Amended Complaint, the court is not, of course, expressing any view as to the truth of the averments. z Plaintiffs Second Amended Complaint, ¶ 1, filed December 9, 2010 (hereinafter Pl.'s Sec. Am. Compl.). 3 Pl.'s Sec. Am. Compl., ¶3. 4 Pl.'s Sec. Am. Compl., ¶2. 5 Pl.'s Sec. Am. Compl., ¶ 4. 6 Pl.'s Sec. Am. Compl., ¶ 7. Pl.'s Sec. Am. Compl., ¶ 8. 2 embezzled money from Christensen Chiropractic while employed there as an office manager. ,8 Defendant Barbara Christensen's statements regarding Plaintiff's purported embezzlement were communicated to "other Christensen Chiropractic staff members, clients of Christensen Chiropractic, and friends of [Plaintiff] such as Shannon Towe."9 Defendant Barbara Christensen's statements were false.10 As a consequence of the foregoing, Plaintiff suffered injury to her business reputation," incurred medical bills, 12 and was deprived of employment. 13 She requests compensatory and punitive damages as well as attorneys' fees. Defendants' preliminary objections to Plaintiffs Second Amended Complaint were filed on December 14, 2010.14 Defendants' demurrer is premised upon the absence in the pleading of a verbatim rendition of the purportedly defamatory language employed by the individual Defendant, 15 upon the failure of the pleading to identify each of the alleged recipients of the defamatory communication, 16 and upon its purported failure to 8 Pl.'s Sec. Am. Compl., ¶ 16. 9 Pl.'s Sec. Am. Compl., ¶ 19. 10 Pl.'s Sec. Am. Compl., ¶ 20. 11 Pl.'s Sec. Am. Compl., ¶ 12. 12 Pl.'s Sec. Am. Compl., ¶ 14. 13 Pl.'s Sec. Am. Compl., ¶¶13, 22. 14 Preliminary Objections of Defendants Christensen Chiropractic and Barbara Christensen to Plaintiff's Second Amended Complaint, filed December 14, 2010 (hereinafter Prelim. Obj. of Defs.). " Prelim. Obj. of Defs., ¶ 14-19. 16 Prelim. Obj. of Defs., ¶ 20-28. 3 identify the person making the allegedly defamatory communication." Defendants' motion to strike attorneys' fees is premised upon Plaintiff's failure to allege a contractual or statutory basis supporting an award of attorneys' fees. 18 Defendants' motion to strike punitive damages is premised upon Plaintiff's purported failure to allege that Defendants knew that the defamatory communication was false. 19 DISCUSSION STATEMENT OF LAW Preliminary objection in nature of demurrer -- general. The Pennsylvania Rules of Civil Procedure permit a party to assert a preliminary objection based upon the legal insufficiency of a pleading (demurrer). Pa. R.C.P. No. 1028(a)(4). A demurrer to a complaint should be sustained only where the complaint is clearly insufficient to establish the pleader's right to relief. McClellan v. HMO, 413 Pa. Super. 128, 134, 604 A.2d 1053, 1056 (1992) (citing Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976)). Preliminary objection based upon insufficient specificity in pleading -- general. The Pennsylvania Rules of Civil Procedure provide that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa. R.C.P. No. 1419(a). "Malice, intent, knowledge, and other conditions of mind may be averred generally." Pa. R.C.P. No. 1019(b). A party to a civil action is permitted to assert a preliminary objection based upon a lack of specificity in a pleading. Pa. R.C.P. No. " Prelim. Obj. of Defs., ¶ 29-32. is Prelim. Obj,. of Defs., ¶ 33-41. 19 Prelim. Obj. of Defs., ¶ 42- 48. 4 1028(a)(3). However, a complaint is sufficiently specific if it provides enough facts to enable the defendant to frame a proper answer and prepare a defense. Banfield v. Cortes, 922 A.2d 36, 50 (Pa. Commw. Ct. 2007). Preliminary objection inform of motion to strike. A preliminary objection in the form of a motion to strike is the appropriate means to challenge a party's prayer for relief. Hudock v. Donegal Mutual Ins. Co., 438 Pa. 272, 278, 264 A.2d 668, 671 (1970). "Under the American Rule, applicable in Pennsylvania, a litigant cannot recover counsel fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established exception." Trizechahn Gateway LLC v. Titus, 601 Pa. 637, 652, 976 A.2d 474, 482-83 (2009). In addition, a party must aver actual malice or "knowledge of or recklessness as to falsity of the publication," in order to be awarded punitive damages in a defamation action. Geyer v. Steinbronn, 351 Pa. Super. 536, 562, 506 A.2d 901, 915 (1986). Elements of defamation action. "In a defamation case, a plaintiff must prove: `(1) [t]he defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; [and] (5) the understanding by the recipient of it as intended to be applied to the plaintiff[.]"' Moore v. Cobb-Nettleton, 2005 PA Super 426, 889 A.2d 1262, 1267 (citing Porter v. Joy Realty, Inc., 2005 PA Super 129, ¶6 n. 6, 872 A.2d 846, 849 n.6 (2005)). Specificity regarding content of alleged defamatory communication. In the context of a determination of whether a communication is capable of a defamatory meaning, the Pennsylvania Superior Court has noted that the proper test to be applied involves an 5 examination of "the effect the [communication] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate." Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 306, 483 A.2d 456, 462 (1984). The Court has also observed that "[a]ccusations of dishonesty or theft by an employee, even if indirect, have consistently been held to meet the test of defamatory." Geyer, 351 Pa. Super. at 550, 506 A.2d at 909. In determining whether a pleading in this context is sufficiently specific, the Superior Court has held that, "[a]lthough it is preferable that the exact words be stated in the complaint, often the exact words are not known. However, although the exact words need not be stated, the complaint must specify the substance of the spoken words; the purport of the spoken words is necessary." Itri v. Lewis, 281 Pa. Super. 521, 524, 422 A.2d 591, 592 (1980). A generic, boilerplate complaint sounding in defamation is not sufficient in terms of an expression of the content of the oral or written statements. Spain v. Vicente, 315 Pa. Super. 135, 140, 461 A.2d 833, 836 (1983). Identification of recipients of alleged defamatory communication. Pennsylvania courts have held that "[a] complaint for defamation must, on its face, identify exactly to whom the allegedly defamatory statements were made." Jaindl v. Mohr, 432 Pa. Super. 220, 229, 637 A.2d 1353, 1358 (1994); see also Suppan v. Kratzer, 660 A.2d 226, 229 (Pa. Commw. Ct. 1995). Where a complaint "merely avers that the alleged defamatory material was published `to third persons' ... it is defective." Raneri v. Depolo, 65 Pa. Commw. 183, 186, 441 A.2d 1373, 1375 (1982). 6 Identification of person making defamatory communication. In addition to the elements laid out by the Moore court, ideally a plaintiff should identify "the person or persons making [the allegedly defamatory] statements." Gross v. United Engineers and Constructors, Inc., 224 Pa. Super. 233, 234, 302 A.2d 370, 371 (1973). APPLICATION OF LAW TO FACTS Demurrer. In the court's view, Plaintiff's Second Amended Complaint is legally sufficient to withstand a demurrer in terms of (a) the content of the allegedly defamatory communication, (b) the identification of recipients of the defamatory communication and (c) the identification of the person making the defamatory statement. With respect to the content of the defamatory communication, Plaintiff, according to Moore, must show the defamatory character of the communication. An allegation of embezzlement is a serious allegation, attacking the trustworthiness and honesty of an individual. Embezzlement is also a crime and an allegation of criminal activity will likely produce negative feelings in those to whom the allegation is communicated. Since an allegation of embezzlement, would likely cause the recipient to question Plaintiff's honesty, a reasonable inference is that Plaintiff's reputation suffered as a result. The Geyer court held that accusations of theft or dishonesty have frequently been held to meet the test for defamatory meaning. With respect to identification of the recipients of the allegedly defamatory communication, Plaintiff has identified one alleged recipient by name and has identified others by narrow category. With respect to identification of the person making the defamatory statements, Plaintiff has named Defendant Barbara Christensen. 7 Under these circumstances, it cannot be said that, as a matter of law, Plaintiff can not recover on her claim, and Defendants' demurrer to Plaintiff's Second Amended Complaint will be dismissed. Insufficient specificity in pleading. Plaintiff's Second Amended Complaint is also sufficiently specific, in the court's view, with respect to its allegations concerning (a) the content of the defamatory communication, (b) the identification of recipients of the defamatory communication and (c) the identification of the person making the defamatory statement. With respect to Defendants' preliminary objections regarding the content of the defamation, according to Itri, a complaint sounding in slander need not state the exact words used by defendant because the exact words are often not known by the plaintiff. Plaintiff alleges that Defendant told certain individuals that Plaintiff embezzled money from Defendant. This wording is sufficiently specific to allow Defendants to frame a proper answer and prepare a defense. With. respect to the identification in the pleading of the recipients of the defamatory communication, Plaintiff has named Shannon Towe as one recipient and has described others by narrow category. Further specification of recipients may be relegated to the discovery process. With respect to identification of the declarant of the defamatory communication, Plaintiff's complaint names the person as Defendant Barbara Christensen. A more specific pleading in this regard would be difficult to imagine. For the foregoing reasons, Defendants' request for a more specific pleading will be denied. 8 Motion to strike. Plaintiff alleges that Defendant Barbara Christensen intentionally and knowingly uttered a statement or statements of a defamatory nature that were false and untrue. Since allegations of malice may be generally averred, this averment is legally sufficient to support a prayer for relief in the form of punitive damages and, therefore, Defendant's motion to strike Plaintiff's request for punitive damages will be dismissed. With respect to Defendants' motion to strike attorneys' fees, Plaintiff fails to assert a written agreement between the parties, statutory authority, or other exception to the general rule of exclusion that would allow her to recover reasonable attorneys' fees. In the absence of the same, Plaintiff cannot, under the American Rule as adopted by Pennsylvania, recover attorneys' fees. Accordingly, Defendants' motion to strike Plaintiff's request for attorneys' fees will be sustained. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 1 I`t' day of July, 2011, upon consideration of Defendants' Preliminary Objections to Plaintiff's Second Amended Complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendants' preliminary objection in the nature of a demurrer is dismissed. 2. Defendants' preliminary objections requesting a more specific pleading, relating to a purported lack of specificity as to the content of the alleged defamatory communication, a failure to sufficiently identify the 9 recipients of the communication, and a failure to sufficiently identify the person making the defamatory statements, are dismissed. 3. Defendants' preliminary objection in the form of a motion to strike, relating to Plaintiff's claim for punitive damages, is dismissed. 4. Defendants' preliminary objection in the nature of a motion to strike, relating to Plaintiff's claim for attorneys' fees, is sustained, and that claim is stricken. 5. Defendants are afforded a period of 20 days from the date of this order to file an answer to Plaintiff's Second Amended Complaint. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler Jr., J. Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint John's Church Road Suite 101 Camp Hill, PA 17011 Attorney for Plaintiff Kimberly A. Selemba, Esquire Alexis I. Snyder, Esquire McNees, Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorneys for Defendants 10 Kimberly A. Selemba I.D. No. 93535 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants ..A M m M =;30 r- F cn < N UD oC3 -? )> n = 7z' C) r. rv , W JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN, Defendants NO. 10-6282 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: JOYCE SHELLENBERGER, Plaintiff and HILARY P. VESSELL, ESQUIRE, her attorney: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC By x'Jld. 11. Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attorneys for Defendants Dated: July 28, 2011 Kimberly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants JOYCE SHELLENBERGER, Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-6282 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S SECOND AMENDED COMPLAINT Defendants Christensen Chiropractic and Barbara Christensen ("Dr. Christensen") (together, the "Christensen Defendants"), by and through their attorneys, McNees Wallace & Nurick LLC, file the following Answer with New Matter to the Second Amended Complaint: PARTIES 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, it is admitted that Dr. Christensen is the sole owner of Christensen Chiropractic. JURISDICTION AND VENUE 5. The averments of Paragraph 5 constitute a legal conclusion to which no answer is required. To the extent an answer is deemed required, the same is denied, and strict proof thereof is demanded at trial. 6. The averments of Paragraph 6 constitute a legal conclusion to which no answer is required. To the extent an answer is deemed required, the same is denied, and strict proof thereof is demanded at trial. FACTS 7. Admitted. 8. It is admitted that Plaintiff worked at Christensen Chiropractic until November of 2009 and her employment was terminated. It is denied that on or about November 15, 2009, Plaintiff was frivolously accused of embezzlement, and strict proof thereof is demanded at trial. 9. The averments of Paragraph 9 are denied, and strict proof thereof is demanded at trial. 10. Admitted. By way of further answer, Defendants are currently working with police to press criminal charges against Plaintiff. -2- 11. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any false and defamatory statements to friends, former coworkers, and other potential employers in the community regarding Plaintiff. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. 12. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any false and defamatory statements to friends, former coworkers, and other potential employers in the community regarding Plaintiff. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. Further answering, it is denied that Plaintiff has suffered any economic damage or damage to her business reputation. Strict proof thereof is demanded at trial. 13. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Defendants made any false, misleading or defamatory statements regarding Plaintiff. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. -3- 14. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Defendants defamed Plaintiff within the community. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. Further answering, Defendants are without knowledge or information sufficient to form a belief about the truth of the remaining averments of this paragraph, and as such the same are denied. Strict proof thereof is demanded at trial. COUNTI DEFAMATION 15. The answers set forth in Paragraphs 1 through 14 are incorporated herein by reference as if fully set forth herein. 16. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen intentionally and knowingly defamed and slandered Plaintiff by communicating to third parties that Plaintiff embezzled money from Christensen Chiropractic while employed there as an office manager. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. -4- 17. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any statements to third parties, including other Christensen Chiropractic employees, that were defamatory to Plaintiff or that adversely affected Plaintiffs professional reputation. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. 18. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any statements to third parties that were defamatory to Plaintiff or that adversely affected Plaintiffs professional reputation. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. 19. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any statements to third parties, including other Christensen Chiropractic staff members, clients of Christensen Chiropractic, and friends of Plaintiff (including Shannon Towe), that were defamatory to Plaintiff or that adversely affected Plaintiffs professional reputation. Strict proof thereof is demanded at trial. By way of further answer, to the extent such -5- statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. 20. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any statements about Plaintiff that were false and untrue. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. 21. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any statements about Plaintiff that adversely reflected Plaintiffs professional conduct. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. 22. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen made any defamatory statements about Plaintiff. It is also denied that any statement made by Dr. Christensen, which statements are denied, caused any damage to Plaintiff or caused Plaintiff to lose her job or income. Strict proof thereof is demanded at trial. By way of -6- further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of defamation. 23. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dr. Christensen committed slander per se, and it is denied that Dr. Christensen made any defamatory statements about Plaintiff. Strict proof thereof is demanded at trial. By way of further answer, to the extent such statements were made, which are denied, the statements are true. Truth is a complete defense to claims of slander and/or slander per se. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request this Court to enter judgment in their favor and against Plaintiff Joyce Shellenberger, and request that they be awarded the costs of suit and such other relief as this Court may deem appropriate. NEW MATTER 24. The answers set forth in Paragraphs 1 through 23 are incorporated herein by reference as if fully set forth herein. 25. Plaintiff has failed to state a claim for defamation upon which relief may be granted. 26. Plaintiffs claims are barred, in whole or in part, by the doctrine of waiver. 27. Plaintiffs claims are barred, in whole or in part, by the doctrine of unclean hands. 28. Plaintiffs claims are barred, in whole or in part, by the doctrine of estoppel. -7- 29. Plaintiff has suffered no damage as a result of any action, inaction, or omission of Dr. Christensen or Christensen Chiropractic. 30. To the extent that Plaintiff has suffered any damages, which is denied, Plaintiff has failed to mitigate her damages. 31. Dr. Christensen did not make any false or defamatory statements about Plaintiff to any third party. 32. To the extent that Dr. Christensen made any statements regarding Plaintiff, which statements are denied, Dr. Christensen's statements were true. 33. Truth is a complete defense to a claim for defamation. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen respectfully request this Court to enter judgment in their favor and against Plaintiff Joyce Shellenberger, and request that they be awarded the costs of suit and such other relief as this Court may deem appropriate. McNEES WALLACE & NURICK LLC By Kimb rly A. Selemba I.D. No. 93535 Alexis I. Snyder I.D. No. 308778 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attorneys for Defendants Dated: July 28, 2011 -8- VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, I certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. ra Dated: ? I ?"?I ) CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint Johns Church Road Suite 101 Camp Hill, PA 17011 Kimberl A. Selemba Dated: July 28, 2011 KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com i lL rj Ti p O T HONOTAr,,,y 213! 1 AUG -9 AM 11: 25 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Plaintiff JOYCE SHELLENBERGER, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. IQ 2&Q2 (Civil Term) CHRISTENSEN CHIROPRACTIC, and : BARBARA CHRISTENSEN, : JURY TRIAL DEMANDED Defendant. ANSWER TO NEW MATTER 24. No response required. 25. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. 26. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. 27. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. 28. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. 29. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. 30. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. 31. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. By way of further answer, a witness to said defamation in named within the Second Amended Complaint. 32. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. Page 2 of 4 33. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that a response is deemed required said averments are denied. Respectfully Submitted, KOPE & ASSOCIATES, LLC Date: Hilary P. Ve I, sq. Page 3 of 4 CERTIFICATE OF SERVICE I, Hilary P. Vesell, Esquire of Kope & Associates, LLC, hereby certify that a true copy of the foregoing Answer to New Matter was served this date upon the below- referenced individual at the below listed addresses by way of first class mail, postage pre- paid: Kimberly A. Selemba, Esquire McNees, Wallce & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-116 KOPE & ASSOCIATES, LLC By: HILARY P. ELL, Esq. I.D. 308358 395 St. Johns Church Road Camp Hill, PA 17011 (717) 761-7573 Date: e/s1ll Page 4 of 4 Debra R. Mehaffie, Esquire Hynum Law 2608 North 3,d Street Harrisburg, PA 17110 Tele: (717) 774-1357 Fax: (717) 774-0788 Debm@hynumpc.com OF THE FR QTHONO1APy 2011DEC22 AM11:21 1;UhtB RLANQ COUNTY PE MAMA JOYCE SHELLENBERGE , : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA -v- CHRISTENSEN CHIROP CTIC : NO. 10-3592-(.Civil Term) and BARBARA CHRIST SEN, Defendants : JURY TRIAL DEMANDED NOW COMES, the Olaintiff Joyce Shellenberger, by and through her counsel, Hynum Law, who files the following Motion to Compel Discovery and in support thereof avers as follows: 1. Plaintiff is Joyce Shellenberger an adult individual residing at 51 Fairway Drive, Camp Hill, Cumberland Cd ty, Pennsylvania. 2. Defendant Barb a Christensen is an adult individual who resides at 73 Sharon Road, Enola, Cumberland County„ Pennsylvania. 3. Defendant Chri$ ensen Chiropractic is a sole proprietorship existing under the laws of the Commonwealth of Pe@ ylvania, with a principal place of business located at 354 East Penn Drive, Enola, Cumberland I , Pennsylvania. A , 4. The above-captio defamation as a result of Deg that Plaintiff had embezzled Chiropractic. 5. Defendants vrevi matter was brought by Plaintiff against Defendants for Barbara Christensen's purported communication to others money from Plaintiff's employer, Defendant Christensen filed preliminary objections to Plaintiff's Second Amended Complaint in the nature of aIdemurrer, a request for a more specific pleading, a motion to strike a claim for attorney's fees, and a motion to strike a claim for punitive damages. 6. Defendants' preliminary objections were briefed by the parties and oral argument was held on May 27, 2011 1 efore Judges Wesley Oler, Jr., M.L. Ebert, Jr., and Albert H. Masland. On July 11, 2011, udge Oler entered an Opinion and Order of Court dismissing all preliminary objections, exc t Defendant's preliminary objection in the nature of a motion to strike relating to Plaintiff's laim for attorney fees. Defendants were afforded 20 days to file an answer to Plaintiff's Second) Amended Complaint. 7. Defendants subs&auently filed an Answer with New Matter to Plaintiff's Second Amended Complaint and Plaintiff filed a response to Defendants' New Matter. 8. On August 29, 20 11 Plaintiff s former counsel served Plaintiff s First Request for Production of Documents Od Plaintiff's First Set of Interrogatories upon Defendants' counsel. A true and correct copy of the transmittal letter forwarded by counsel's office is attached hereto and marked Exhibit "A." 9. On October 5, 2 1. l Defendants' counsel requested a 30 day extension for Defendants to serve objections, answers and responses to Plaintiff's Interrogatories and Request for Production of Documents. true and correct copy of Attorney Selemba's letter is attached hereto and marked Exhibit "B". } 10. On November 7,'I2011 Defendants' Objections and Responses to Plaintiff's Interrogatories and Requests for Production of Documents were served upon Plaintiff's former counsel along with a request for Plaintiff to sign a Stipulated Protective Order. A true and correct copy of Attorney Franklin's Exhibit "C". 11. Defendant's extended period of time to letter and the discovery responses are attached hereto and marked responses were incomplete despite that Defendant had an full and complete responses. 12. On November 17, 2011 Defendant Christensen sent correspondence and documents to Plaintiff's former attornc claiming that she has "plenty more evidence where this came from." Defendant further stated that she would send it "little by little" until the case is dropped. A true and correct copy of l 13. Based upon intended to purposefully information in her Plaintiff to incur additional discovery is vexatious and esi 14. In an effort to re to frustrate the discovery process. this discovery dispute prior to filing this Motion, Plaintiffs counsel wrote to Attorney $ lemba on December 8, 2011 requesting full and complete discovery responses, setting forth Plaintiff s position on signing a protective order, and providing ten (10) additional days for Defend it to provide full and complete discovery responses. A true and 's letter is attached hereto and marked Exhibit "D" made by Defendant Christensen, it is believed that she information in discovery and will continue to withhold and / or under her control for the specific purpose of causing ttornev fees and costs. It is averred that Defendant's conduct in correct copy of the undersig ed's letter dated December 8, 2011 is attached hereto and marked Exhibit "E". A a 15. On or about December 15, 2011 Defendant Christensen called the undersigned's office and stated that she is going to be meeting with a district attorney to prosecute Plaintiff. 16. Despite requests and several extensions, Defendants have failed to provide full and complete responses to Plaintiff s discovery within the thirty day period mandated by Pennsylvania law. 17. Given that Defe dants have failed to provide full and complete responses to Interrogatories and Request or Production of Documents within the applicable time frame, no additional extension of time has been granted, no motion for a protective order granted, and Defendant Christensen has onducted herself in a manner that shows a purposeful intent to withhold information, Plaintiff seeks an order to compel and sanctions against Defendants for failure to comply with Pa. R. Civ. P. 4019 and the following: a.) Plaintiff requests that Defendants be compelled to produce full and complete responses to he Interrogatories and Request for Production of Documents to the undersigned' ithin ten (10) days from this Court's Order or suffer further sanctions, including contempt; b.) Plaintiff requests that Defendants be compelled to pay Plaintiff's reasonable attorney fees and costs, which are currently estimated to be $500.00 and will be supported by reasonable documentation at the hearing; and c.) Plaintiff req sts that this Honorable Court grant any such other relief as deemed appropriate and authorized by the Pennsylvania Rules of Civil Procedure. 18. Defendants do 0 t concur in the filing of this Motion. y submitted: Law Date: V - V By: ) Ta . Mehaffie, Esquire . 90951 orth 3`d Street urg, PA 1 7110 Tele: (717) 774-1357 Fax: (717) 774-0788 Debm@hynumpc.com CERTIFICATE OF SERVICE I hereby certify that n thi bday of December, 20111 served the foregoing Motion for Sanctions, by first class !mail, postage prepaid upon the individual(s) indicated below, addressed as follows: Kimberly A. Selemba, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. B x 1166 Harrisburg„ P 17108-1166 I Date: W D ra R. Mehaffie, Esquire No. 90951 um Law 2 N. Third Street arrisburg, PA 17110 Tele: (717) 774-1357 Fax: (717) 774-0788 debm@hynumpc.com Y K O P E ASSOCIATES L:-'_"iii OFF[CrS LLG Kimberly A. Selemba McNees, Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Shane B. Kope, Esq. ¦ Jacob M. Jividen, Esq. Julie A. Wehnert, Esq. ¦ Hilary P. Vesell, Esq. r' RE: Joyce Shellenberger v Dear Attorney Selemba: Enclosed please find Plaintiff's first Interrogatories with regards to the should you have any questions or ci August 29, 2011 Chiropractic and Barbara Christensen est for Production of Documents and Plaintiff's first set of referenced matter. Do not hesitate to contact our office is with the enclosed. Thank you for your attention to this matter. Sincerely, KOPE & ASSOCIATES, LLC Renee M. Steinour Paralegal Enclosures cc: Joyce Shellenberger file Smart Representation Main: 395 St. Johns Church Road ¦ Suite 101 ¦ Camp Hill, PA 17011 York: 11 East Market Street ¦ Suite 102 ¦ York, PA 17401 P 717.761.7573 ¦ F 717.761.7572 ¦ kopelaw.com Mc ees Wallace N8, crick LL C 100 Rine Street ® PC Box 1166 - Harrisburg, PA 17108-1166 Tel: 717.232.8000 - Fax: 717.237.5300 October 5, 2011 Hilary P. Vesell, Esquire Kope & Associates, LLC 395 Saint Johns Church Roa?, Suite 101 Camp Hill, PA 17011 Kimberly A. Selemba Direct Dial: 717.237.5359 Direct Fax: 717.260.1740 kselemba@mwn.com Re: Shellenberger . Christensen Chiropractic and Barbara Christensen Court of Common Pleas of Cumberland County No. 10-6282 (Civil Term) Dear Hilary: The purpose of this co respondence is to update you regarding the status of Defendants' objections, answers and responses to Plaintiffs Interrogatories and Requests for Production of Documents. Unexpectedly, s nce the service of Plaintiffs discovery requests, our client spent a few days in the hospital receiving treatment for pneumonia. She is only now getting back on her feet. Therefore, only recently was our client able to begin gathering documents and information responsive and relevant to Plaintiff s aforementioned discovery requests. I expect to receive all such documents and information from her in the near future. Given this unexpected event, would you please consent to an extension of thirty (30) days from the date of this correspo dence for Defendants to serve objections, answers and responses to Plaintiffs Interrogatories and Request for Production of Documents? Thank you in advance your professional courtesy and understanding. Very truly yours, McNEES WALLACE & NURICK LLC )4 1)4 B y Kimberly A. Selemba KAS/msb C, Dr. Barbara Christen n www.mwn.com McNees 100 Fine Street * PG Box 1166 - Harrisbt?lrg, P:; 17108-1166 7-1, G ^ 3 a. V ?'w pDC-1 F 7 l?U ? c1J{. ? 1 ! tw ilJU? November 7, 2011 Hilary P. Vesell, Esquire Kope & Associates, LLC 395 Saint Johns Church R Camp Hill, PA 17011 d, Suite 101 James J. Franklin Direct Dial: 717.237.5375 Direct Fax: 717.260.1784 jfranklin@mwn.com Re: Shellenberger . Christensen Chiropractic and Barbara Christensen Court of Common Pleas of Cumberland County No. 10-6282 (Civil Term) Dear Hilary: Enclosed please find efendants' Objections and Responses to Plaintiffs Interrogatories and Requests for Production of Documents. Due to the sensitive nature of the information and documents sought in Plaintiffs aforementioned discovery requests, we submit entry of a protective order is appropriate in this matter. Accordingly, also enclosed is a proposed Stipulated Protective Order. If the Prote tive Order is satisfactory, please let me know and we will sign it and send a copy to you for filing with the Court. We will supplement our discovery answers and responses and serve our document production as soon as the Order is entered. Thank you in advance for your professional courtesy and understanding. Very truly yours, McNEES WALLACE & NURICK LLC By James J. Franklin JJF/msb Enclosures C., Dr. Barbara Christense www.mwn.com Kimberly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 McNees Wallace & Nuric 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-11 (717) 232-8000 LLC Attorneys for Defendants JOYCE SHELLENBERGER"", Plaintiff V. CHRISTENSEN CHIROP CT BARBARA CHRISTENSE , Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-6282 Civil C and CIVIL ACTION - LAW JURY TRIAL DEMANDED )NS AND RESPONSES TO PLAINT REQUEST FOR PRODUCTION OF DOCUMENTS Defendants Christensen Chiropractic and Barbara Christensen (collectively, "Defendants") by and throu h their attorneys, McNees Wallace & Nurick LLC, offer the following Objections and R sponses to the First Request for Production of Documents served by Plaintiff Joyce S ellenberger ("Plaintiff'). PRELIMINAR STATEMENTS AND GENERAL OBJECTIONS Defendants incorporate herein by reference the Preliminary Statements and General Objections set fort in their Objections and Answers to Plaintiffs First Set of Interrogatories directed to Defendants. NS AND RESPON All gross present. RESPONSE: RODUCTION receipts for Christensen Chiropractic from 2006 to the Objection. Defendants object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence at trial. Subject to said objection Defendants answer as follows: Subject to the execution and entry of an appropriate confidentiality agreement, and based u on a reasonable search of their files, Defendants will provide all relevant, non- rivileged documents responsive to this Request. 2. All docume from 2006 to the present. schedules, receipts, business taxes. RESPONSE: Objection. DefendE documents that may be p attorney work product do extent that it is overbroac irrelevant and not reason evidence at trial. Subject Subject to the exec agreement, and based up provide all relevant, non-i relating in any way to the taxes of Christensen Chiropractic is should include, but not be limited to all tax forms, tax and all other documents in any way relating to Defendants' nts object to this Request to the extent that it seeks rotected by the attorney-client privilege and/or the ;trine. Defendants object to this Interrogatory to the and unduly burdensome or seeks information that is ibly calculated to lead to the discovery of admissible to said objection, Defendants answer as follows: tion and entry of an appropriate confidentiality n a reasonable search of their files, Defendants will ivileged documents responsive to this Request. -2- 3. All correspondences between you and any third parties regarding Joyce Shellenberger from 2006 ?to the present. RESPONSE: Objection. Defen ants object to this Request to the extent that it seeks documents that may be protected by the attorney-client privilege and/or the attorney work product octrine. Defendants object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence at trial. Subje t to said objection, Defendants answer as follows: Subject to the execution and entry of an appropriate confidentiality agreement, and based upon a reasonable search of their files, Defendants will provide all relevant, non privileged documents responsive to this Request. 4. All losses, and or business RESPONSE: Objection. Defenc documents that may be attorney work product d extent that it is overbroA irrelevant and not reasoi evidence at trial. Subjec dence between you and any person concerning the profits, of Christensen Chiropractic from 2006 to the present. rots object to this Request to the extent that it seeks rotected by the attorney-client privilege and/or the ctrine. Defendants object to this Interrogatory to the and unduly burdensome or seeks information that is ably calculated to lead to the discovery of admissible to said objection, Defendants answer as follows: Subject to the exe ution and entry of an appropriate confidentiality agreement, and based u on a reasonable search of their files, Defendants will provide all relevant, none rivileged documents responsive to this Request. 5. All documents in your possession necessary to complete your personal tax returns from 2006 to the present. RESPONSE: Objection. Defendants object to this Interrogatory to the extent that it is overbroad and unduly bu densome or seeks information that is irrelevant and not -3- reasonably calculated tol lead to the discovery of admissible evidence at trial. Subject to said objection, Defendants answer as follows: Subject to the exe ution and entry of an appropriate confidentiality agreement, and based u on a reasonable search of their files, Defendants will provide all relevant, non rivileged documents responsive to this Request. 6. Any documents in your possession relied upon by you in completing the business taxes of Christensen Chiropractic from 2006 to the present. RESPONSE: Objection. Defendants object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not reasonably calculated to ead to the discovery of admissible evidence at trial. Subject to said objection, Defendants answer as follows: Subject to the exec tion and entry of an appropriate confidentiality agreement, and based upon a reasonable search of their files, Defendants will provide all relevant, non- rivileged documents responsive to this Request. 7. All statements, including but not restricted to those defined by Pa. R.C.P. 4003.5, signed statements, transcripts of recorded statements or interviews of any party, person or witness, or heir agents or employees, who have any knowledge or information of the facts concerning or pertaining to the incident, the subject matter, the claims, the damages, or any other matter involved in or pertaining to this case. RESPONSE: Objection. Defendai documents that may be pr attorney work product doc extent that it is overbroad irrelevant and not reasons evidence at trial. Subject 1 :s object to this Request to the extent that it seeks tected by the attorney-client privilege and/or the rine. Defendants object to this Interrogatory to the nd unduly burdensome or seeks information that is ly calculated to lead to the discovery of admissible said objection, Defendants answer as follows: -4- Subject to the exe ution and entry of an appropriate confidentiality agreement, and based upon a reasonable search of their files, Defendants will provide all relevant, non privileged documents responsive to this Request. 8. Your curriculum vitae and one as to each expert or experts you have retained to testify on your behalf at the trial of this case. RESPONSE: Objection. Defend documents that may be F attorney work product do Defendants have not ides Defendants will supplemi 9. A copy of the Request for Production No. RESPONSE: Objection. Defend, documents that may be p attorney work product do Defendants have not iden Defendants will suppleme 10. All docume ants object to this Request to the extent that it seeks irotected by the attorney-client privilege and/or the ,ctrine. Without waiving the foregoing objection, itified what experts, if any, it will call to testify at trial. ?nt this Response when that information is obtained. expert report for each expert identified in response to 8. nts object to this Request to the extent that it seeks •otected by the attorney-client privilege and/or the ;trine. Without waiving the foregoing objection, tified what experts, if any, it will call to testify at trial. nt this Response when that information is obtained. prepared by you or any insurer(s), representative(s), agent(s) or anyone acting on your behalf, except your attorney(s), during an investigation of any aspect Of the incident in question. Such documents shall include any documents made or prepared through the present time with the exclusion of mental impressions, conclusions orlopinions respecting the value or merit or defense or respecting strategy or tactics. (NOTE: as referred to herein, "documents" includes written, printed, typed, recorded or graphic matter, however produced or reproduced, -5- including correspondence; telegrams, other written communications, data processing storage units, tapes, videos, films, microfilm, microfiche, contracts, agreements, notes, memoranda, summaries, analyses, projections, indices, work papers, studies, test reports, test results, surveys,) diaries, calendars, films, photographs, videos, movies, diagrams, drawings, sketches, minutes of meetings or any other writing [including copies of the foregoing, regardless of whether the parties to whom this request is addressed is not in the possession, custody or control of the original] now in the possession, custody or control of Defendants' former or present counsel, agents, employees, officers, insurers for any other person acting on their behalf.) RESPONSE: Objection. Defendan s object to this Request to the extent that it seeks documents that may be protected by the attorney-client privilege and/or the attorney work product doct ine. Defendants object to this Interrogatory to the extent that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of ad issible evidence at trial. Subject to said objection, Defendants answer as follows: Subject to the execut on and entry of an appropriate confidentiality agreement, and based upo a reasonable search of their files, Defendants will provide all relevant, non-pri ileged documents responsive to this Request. 11. If not otherwise Oovered by the above Requests, any and all documents regarding your investigation of the subject matter of the Complaint. RESPONSE- Objection. Defendant documents that may be prat attorney work product docti extent that it is overbroad ai irrelevant and not reasonabl evidence at trial. Subject to ; object to this Request to the extent that it seeks )cted by the attorney-client privilege and/or the ne. Defendants object to this Interrogatory to the d unduly burdensome or seeks information that is calculated to lead to the discovery of admissible Said objection, Defendants answer as follows: -6- Subject to the execution and entry of an appropriate confidentiality agreement, and based up n a reasonable search of their files, Defendants will provide all relevant, non-p ivileged documents responsive to this Request. 12. All documents relating in any way to all damages and losses sustained by Defendants. This should include, but not be limited to insurance claim forms, appraisals, invoices, recei Defendants' alleged damag RESPONSE: Objection. Defenda documents that may be pi attorney work product doi extent that it is overbroad irrelevant and not reasonz evidence at trial. Subject , and all other documents in any way relating to and losses. s object to this Request to the extent that it seeks :ected by the attorney-client privilege and/or the ine. Defendants object to this Interrogatory to the id unduly burdensome or seeks information that is y calculated to lead to the discovery of admissible said objection, Defendants answer as follows: Subject to the execution and entry of an appropriate confidentiality agreement, and based upo a reasonable search of their files, Defendants will provide all relevant, non-pr vileged documents responsive to this Request. 13. All documents Or exhibits which you intend to offer or identify as exhibits and/or evidence at any depositions. or at the trial of this matter. RESPONSE: Objection. Defendan object to this Request to the extent that it seeks information that may be pro ected by the attorney-client privilege and/or the attorney work product doct ine. Further, Defendants' investigation of this matter is still ongoing. Without wo ving the foregoing objections, Defendants have not yet determined which docu' ents or exhibits they intend to introduce at any trial of this matter. Defendants reserve the right to supplement this response. -7- 14. All Plaintiff against Defendants RESPONSE: which would support any claims of embezzlement by Objection. Defendants object to this Request to the extent that it seeks documents that may be protected by the attorney-client privilege and/or the attorney work product doctrine. Defendants object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence at trial. Further, Defendants' investigation of this matter is still ongoing. Subject to said objection, Defendants answer as follows: Subject to the exec tion and entry of an appropriate confidentiality agreement, and based up n a reasonable search of their files, Defendants will provide all relevant, non-p ivileged documents responsive to this Request. 15. Any document* referenced in your Answers to Plaintiff Joyce Shellenberger's In RESPONSE: Objection. Defendants object to this Request to the extent it exceeds the scope of permissible discovery under Pennsylvania Rule of Civil Procedure 4009.1 et seq. and seeks information protected by the attorney-client privilege or the attorney work product doctrine. Subject to said objection, Defendants answer as follows: Subject to the execu ion and entry of an appropriate confidentiality agreement, and based upon a reasonable search of their files, Defendants will provide all relevant, non-pr vileged documents responsive to this Request. 16. Any documents referenced or relied upon by you in formulating your Answers to Plaintiff Joyce Shellenberger's Interrogatories. RESPONSE: Objection. Defendants object to this Request to the extent it exceeds the scope of permissible disco ery under Pennsylvania Rule of Civil Procedure 4009.1 et seq. and seeks information protected by the attorney-client privilege or -8- the attorney work product doctrine. Subject to said objection, Defendants answer as follows: Subject to the execution and entry of an appropriate confidentiality agreement, and based up' n a reasonable search of their files, Defendants will provide all relevant, non-p ivileged documents responsive to this. Request. McNEES WALLACE & NURICK LLC B Y Kimberly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attorneys for Defendants Dated: November 7, 2011 -9- VERIFICATION I verify that the stater to the best of my knowledge are made subject to the pen to authorities. This verification is bei verification could be obtainer sources of the information ar from a multitude of sources which are otherwise privilegE )ents made in the foregoing document are true and correct information and belief. I understand that all statements ilties of 18 Pa C.S. §4904, relating to unsworn falsification g made by Counsel for Defendants because Defendants' in the time required for the filing of this pleading. The i beliefs set forth in the foregoing are documents obtained id other sources which constitute attorney work product ames J. Franklin Attorney for Defendants Date: ? 7/// CERTIFICATE OF SERVICE The undersigned foregoing document was certifies that on this date a true and correct copy of the by first-class mail, postage prepaid, upon the following: ilary P. Vessell, Esquire ope & Associates, LLC a5 Saint Johns Church Road cite 101 amp Hill, PA 17011 ??-?'rmes J. Franklin Dated: November 7, 2011 Kimberly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 McNees Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-116 (717) 232-8000 -LC Attorneys for Defendants JOYCE SHELLENBERGE , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-6282 Civil CHRISTENSEN CHIROP CTIC and CIVIL ACTION - LAW BARBARA CHRISTENSE , JURY TRIAL DEMANDED Defend ants DEFENDANTS' OBJEC IONS AND ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES Defendants Christen en Chiropractic and Barbara Christensen (collectively, "Defendants") by and throu h their attorneys, McNees Wallace & Nurick LLC, offer the following Objections and Answers to the Interrogatories served by Plaintiff Joyce Shellenberger ("Plaintiff'). PRELIMINARY STATEMEI A. By providing the information requested, Defendants do not waive any objection to the admission o the information in evidence on the grounds of relevance, materiality, or on any other roper grounds for objection, nor do Defendants submit to the instructions and definitio s listed at the beginning of the discovery requests, except as those instructions and de finitions conform to the Pennsylvania Rules of Civil Procedure and applicable ca se law. Specific objections are noted without waiver of the General Objections reserve herein. B. The information supplied herein is not based solely upon the knowledge of the individual(s) who execut d these responses, but comes from various sources, including Defendants' agents , employees and representatives, and, unless privileged, attorneys. The word usage a nd sentence structure is that of the attorneys who prepared these responses a d does not purport to be the exact language of the executing person. C. Defendants res rve the right to correct, amend, or supplement these responses if and when it has other, or more accurate, information with respect to these interrogatories prior to trial. D. Words and term s used in the following responses shall be construed in accordance with their normal meanings or connotations, and shall in no way be interpreted as terms of art or statutorily defined terms. E. Subject to the fo llowing General Objections and conditions and subject to the understanding that by res ponding to the interrogatories Defendants do not waive any objection asserted herein Defendants restate below each of Plaintiffs interrogatories verbatim, follo ed by its responses and/or objections thereto, as follows: -2- GENERAL OBJECTIONS 1. Defendants bject to the definitions to the interrogatories to the extent that they impose, or attempt to impose, obligations and demands beyond those contemplated by the Pennsylvania Rules of Civil Procedure. 2. Defendants ?bject to these interrogatories to the extent that they demand discovery of persons or entities other than the Defendants and those within its direct control. 3. Defendants object to each request for production to the extent that it seeks the production of documents that are not within the present possession, custody, or control of Defendants, o that are not available after a reasonable search and investigation, or that are not readily available to Defendants. 4. Defendants object to these discovery requests to the extent they seek information that is not relev ant to a claim or defense of any party and is not reasonably calculated to lead to the discovery of admissible evidence. 5. Defendants o ject to these discovery requests to the extent they are unreasonably vague, broad, repetitious, unduly burdensome, or purport to require the disclosure of information beyond the scope of permissible discovery under the Pennsylvania Rules of Civil Procedure. 6. Defendants object to these discovery requests to the extent they seek confidential, proprietary or trade secret information. 7. Defendants o ject to these discovery requests to the extent they purport to require the disclosure of ocuments or information that is protected from discovery by -3- the attorney-client, work pr protected from disclosure. oduct, or other privilege, or that is otherwise immune or Defendants do not intend to waive any protections or privileges by the supplying of information in response hereto. 8. Defendants bject to these discovery requests to the extent they seek information equally available to Plaintiffs. Defendants incorporate each of the General Objections set forth above into each of its specific responses to he discovery requests. In addition to these General Objections, Defendants will also state specific objections to discovery requests where appropriate, including objections that may not be generally applicable to all of the discovery requests. By setting forth such specific objections, Defendants do not limit or restrict the General Objections set forth above. To the extent Defendants respond to discovery requests to which it objects, its objections are not waived by furnishing information or providing documents. In addition, the inadvertent disclosure of privileged information or release of privileged documents shall not constitute a waiver of any applicable privilege. OBJECTION AND ANSWERS TO INTERROGATORIES 1. Please state: (a) Your full nam (b) Each other n, known; (c) Your present (d) Date of your k , if any, which you have used or by which you have been pation and the name and address of your employer; -4- (e) The schools you have attended and the degrees or certificates awarded, if any. (f) The licenses lyou hold, if any. ANSWER: Objection. Defend nts object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not reasonably calculated to ead to the discovery of admissible evidence at trial. Subject to and without waiving these objections, Defendants answer as follows: Dr. Barbara Chris nsen, Chiropractor, Christensen Chiropractic, 354 East Penn Drive, Enola, PA 17025, Doctor of Chiropractic. 2. If, during six years preceding the mater, upon which this action is based, you were self-employed, identify the business, the nature of the business, and your exact income, gross and net, from the business for each of the six years stating specifically the income during each year and the income earned during the calendar year in which the incident ANSWER: rred upon the time thereof. Objection. Defenda is object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not reasonably calculated to I ad to the discovery of admissible evidence at trial. Subject to and follows: Christensen Chirop execution and entry of an documents to be provided Documents. waiving these objections, Defendants answer as ictic, providing chiropractic services. Subject to the ppropriate confidentiality agreement, see also n response to Plaintiffs Request for Production of -5- 3. For the six years prior to the subject matter which constitutes the basis for this action and for each of toe six years since that date, state the name in which your federal income tax return was filed, your gross income, adjusted taxable net income, and for each such year, the aggregate gross income stated on W-2 forms attached to your federal income tax return; if you did not file a federal income tax return, supply the requested information as contained on your state and local income tax returns. ANSWER: Objection. Defenda is object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not reasonably calculated to I ad to the discovery of admissible evidence at trial. Subject to and without waiving these objections, Defendants answer as follows: Subject to the exec tion and entry of an appropriate confidentiality agreement, see document to be provided in response to Plaintiffs Request for Production of Documents. 4. Identify any insurance company or liability carrier to which your company is currently affiliated with or has been affiliated with in the past six years. ANSWER: Objection. Defenda is also object to this Interrogatory to the extent that it seeks information that is it elevant and not reasonably calculated to lead to the discovery of admissible ev dence at trial. Subject to and follows: Subject to the execui agreement, see documents Production of Documents. waiving these objections, Defendants answer as ion and entry of an appropriate confidentiality to be provided in response to Plaintiffs Request for -6- 5. If anyone has ever filed suit against you for any purpose including, without limitation, a claim for injury, damage, property damage, or disability, workmen's compensation or occupational compensation to obtain benefits, identify the claim or suit, the nature of the injuries alleged in each such suit, and if said suit has been terminated, state the results of the trig settlement, if any. ANSWER: Objection. Defent seeks information that n the attorney work produ to the extent that it seek or irrelevant and not rea evidence at trial. Subject to and follows: or settlement, including the amounts of each recovery or ants object to this Interrogatory to the extent that it ay be protected by the attorney-client privilege and/or I doctrine. Defendants also object to this Interrogatory information that it is overbroad and unduly burdensome onably calculated to lead to the discovery of admissible waiving these objections, Defendants answer as Subject to the execution and entry of an appropriate confidentiality agreement, see docume is to be provided in response to Plaintiffs Request for Production of Documen 9. 6. Please ide Christensen Chiropractic. ANSWER: Objection. Defendz seeks information that rnz the attorney work product to the extent that it seeks calculated to lead to the d your reasons for firing Mrs. Shellenberger from nts object to this Interrogatory to the extent that it y be protected by the attorney-client privilege and/or doctrine. Defendants also object to this Interrogatory information that is irrelevant and not reasonably scovery of admissible evidence at trial. Subject to and without waiving these objections, Defendants answer as follows: -7- Plaintiff abused position as office mans( use of business funds a Answer with New Maffei confidentiality agreemei Request for Production 7. Please ident Shellenberger had been ANSWER: privileges of her employment, took advantage of her ?r, and engaged in questionable activity regarding her d, credit cards, and time cards. See also Defendants' and subject to the execution and entry of an appropriate documents to be provided in response to Plaintiffs f Documents. all individuals you informed of the fact that Mrs. by you from her employment at Christensen Chiropractic. Objection. Defendants object to this Interrogatory to the extent that it seeks information that may be protected by the attorney-client privilege and/or the attorney work product doctrine. Defendants also object to this Interrogatory to the extent that it see information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence at trial. Subject to and follows: See Defendants' supplement this respo 8. Please ide Shellenberger had alleg ANSWER: out waiving these objections, Defendants answer as to New Matter. Defendants reserve the right to all individuals who were told by you that Mrs. stolen or embezzled funds from Christensen Chiropractic. Objection. Defend nts object to this Interrogatory to the extent that it seeks information that m y be protected by the attorney-client privilege and/or the attorney work product doctrine. Defendants also object to this Interrogatory to the extent that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence at trial. Subject to and with {?ut waiving these objections, Defendants answer as follows: See Defendants' Answer to New Matter. Defendants reserve the right to supplement this respons -8- 9. Please embezzled or stolen from ANSWER: Objection. Defei seeks information that the attorney work prod to the extent that it is o that is irrelevant and n( admissible evidence at still ongoing. all documentation evidencing that funds were allegedly hristensen Chiropractic by Mrs. Shellenberger. ants object to this Interrogatory to the extent that it ay be protected by the attorney-client privilege and/or t doctrine. Defendants also object to this Interrogatory ?rbroad and unduly burdensome or seeks information reasonably calculated to lead to the discovery of ial. Further, Defendants' investigation of this matter is Subject to and wit out waiving these objections, Defendants answer as follows: Subject to the exe ution and entry of an appropriate confidentiality agreement, see docume' is to be provided in response to Plaintiffs Request for Production of Documen 10. If you have obtained from any person any oral or written statements or documents concerning the /incident upon which this action is based or if you have given any such statements or documents to anyone, specify the identity of each such person, when, where and by whom leach such statement or documents was obtained or made, whether each such statement or document was oral or written and the identity of the person who has custody or /possession of each such statement or document. ANSWER: Objection. Defendants object to this Interrogatory to the extent that it seeks information that may be protected by the attorney-client privilege and/or the attorney work produa doctrine. Defendants also object to this Interrogatory to the extent that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence at trial. -9- Subject to and wi?hout waiving these objections, Defendants answer as follows: Subject to the exe ution and entry of an appropriate confidentiality agreement, see documents to be provided in response to Plaintiffs Request for Production of Documents. 11. To the extent that you have not already done so, identify and describe in detail, every fact, document, item or evidence or piece of information that is in your possession or under you c ntrol that in any manner, directly or indirectly, relates to this case. ANSWER: Objection. Defendants object to this Interrogatory to the extent that it seeks information that may be protected by the attorney-client privilege and/or the attorney work product doctrine. Defendants also object to this Interrogatory to the extent that it is overbroad and unduly burdensome or seeks information that is irrelevant and not easonably calculated to lead to the discovery of admissible evidence at tr al. Subject to and wit out waiving these objections, see Answer with New Matter, and subject to the execution and entry of an appropriate confidentiality agreement, documents t be provided in response to Plaintiffs Request for Production of Document. 12. Identify all persons who you know or believe have knowledge of any part of the subject matter upon which this action is based or have any knowledge of the damages claimed as a result of the said incident. ANSWER: Objection. Defendants object to this Interrogatory to the extent that it seeks information that may be protected by the attorney-client privilege and/or the attorney work produG doctrine. Defendants also object to this Interrogatory to the extent that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence at trial. Further, Defendants' investigation of this matter is still ongoing and discovery in this matter is not complete. -10- Subject to and without waiving these objections, Defendants answer as follows: (1) Barbara Christensen; (2) Joyce Shellenberger; (3) ADA John Daley. Subject to the e) agreement, see also do for Production of Docu ts. i and entry of an appropriate confidentiality is to be provided in response to Plaintifrs Request Defendants reserve 13. Identify each of this case, and for each the substance of the facts to ANSWER: right to supplement this response. n you intend to call as a non-expert witness at the trial identified state your relationship with the witness and which the witness is expected to testify. Objection. Defendants object to this Interrogatory to the extent that it seeks information that may be protected by the attorney-client privilege and/or the attorney work product doctrine. Further, Defendants' investigation of this matter is still ongoing. As of the date of this Response, Defendants have not fully identified non-expert witnesses it may call at any trial of this matter. Subject to and without waiving these objections, Defendants answer as follows: (1) Barbara Christensen; (2) Joyce Shellenoerger (as on cross). Subject to the execu ion and entry of an appropriate confidentiality agreement, see also docu ents to be provided in response to Plaintiffs Request for Production of Documen s. Defendants reserve toe right to supplement this response. -11- 14. Identify each-expert you intend to call as a witness at the trial of this matter, and for each expeo state: (a) The subject matter about which the expert is expected to testify; and (b) The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (Note: You may file as your answer to this Interrogatory the report of the expert or have the Interrogatory answered by your ANSWER: Objection. Defend for the disclosure of info also object to the extent not discoverable pursuai Rules of Civil Procedure. extent that it seeks inforr privilege and/or the attori foregoing objections, Del testifying expert in this c, response. 15 admission(s). ANSWER: ert.) nts object to this Interrogatory to the extent that it calls nation protected by Pa.R.Civ.P. 4003.3. Defendants its Interrogatory calls for the disclosure of information : to Pa.R.Civ.P. 4003.5, or otherwise protected by the Defendants further object to this Interrogatory to the ation that may be protected by the attorney-client ey work product doctrine. Without waiving the mdants have not yet determined whether it will retain a se. Defendants reserve the right to supplement this If you intend to use any admission(s) of a party at trial, identify such Defendants' investi this matter is not complet time. Defendants will sup Rules of Civil Procedure. lation of this matter is still ongoing and discovery in Therefore, Defendants are unable to respond at this element this as answer required by the Pennsylvania -12- 16. Identify all individuals, insurance adjusters, parties or others who have conducted any investigation with respect to the issues involved in this case and whether you will produce the result of such an investigation. ANSWER: Objection. Defend nts object to this Interrogatory to the extent that it seeks information that may be protected by the attorney-client privilege and/or the attorney work product doctrine. Further, Defendants' investigation of this matter is still ongoing. Subject to and wit out waiving these objections, Defendants answer as follows: (1) Defendants; (2) ADA John Daley. Subject to the execution and entry of an appropriate confidentiality agreement, see a'Iso doc ments to be provided in response to Plaintiffs Request for Production of Documents. Defendants reserve the right to supplement this response. 17. Please identify each document which you intend to introduce at the time of the trial of this matter, and give a brief description of the contents of the document(s) and attach copies of your answers to these Interrogatories. -13- ANSWER: Objection. Defen seeks information that the attorney work produ matter is still ongoing. have not yet determined this matter. Defendants nts object to this Interrogatory to the extent that it ? be protected by the attorney-client privilege and/or doctrine. Further, Defendants' investigation of this thout waiving the foregoing objections, Defendants hich documents they intend to introduce at any trial of serve the right to supplement this response. McNEES WALLACE & NURICK LLC By G Kimberly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attorneys for Defendants Dated: November 7, 2011 -14- I VERIFICATION I verify that the stag to the best of my knowledc are made subject to the PE to authorities. ;ments made in the foregoing document are true and correct le, information and belief. I understand that all statements ?nalties of 18 Pa C.S. §4904, relating to unsworn falsification This verification is being made by Counsel for Defendants because Defendants' verification could be obtained in the time required for the filing of this pleading. The sources of the information and beliefs set forth in the foregoing are documents obtained from a multitude of source and other sources which constitute attorney work product which are otherwise privile ed. ames J. Franklin Attorney for Defendants Date: [(/7//( CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Hilary P. Vessell, Esquire Kope & Associates, LLC 395 Saint Johns Church Road Suite 101 Camp Hill, PA 17011 l ? mes J. Franklin Dated: November 7, 2011 4 ChristonsenC H I R 0 P R A C T I C November 17, 2011 Dear Hilary, You represent Joyce 5hellei business person, as am t. 1 continue a case you cannot ger in a so-called defamation of character case against me. You are a Idn't take a patient I could not help, and I assume you don't want to For a full year, I have asked y attorney to do one thing: send evidence to you. All I wanted was for her to inform you I have plen of evidence that your client is guilty of fraud. Truth is the absolute defense to defamation. I ha a piles evidence, very neatly organized. Yet, I am now $8K into defending this frivolous case, I have many friends who are attorneys, and they have provided me with options in reference to recov ring these legal fees. i believe she hired you as a c iminal defense attorney shortly after I fired her for fraud. "Falsely accused" people, who just to their jobs, do not generally hire defense attorneys. If you allege that you personally had no knowledge that she was guilty when you filed this case, as of this letter, you will know definitively that she was in fa fired for cause. Your complaint mentions a co versation I had with a then mutual friend. This conversation took place when 1 was in shock. I had tr sted Joyce during a desperate time in my life, I was very seriously injured. When I opened Quic Books and looked at payroll, I was in for the surprise of my life. At the time of that call, I had only fou d the payroll fraud, and the fact that she was on/off Unemployment whenever she wanted to be. he underreported her income dramatically in order to obtain benefits she was not entitled to. (In fact, I I ter found out, that a kind graduation gift to her son, a $1001month bonus I gave her to give her son at c ttege for spending money, was reported to Unemployment as her only income at my office. Talk abo t a big slap in the face, fraudulently using my kind giftll) I only spoke of these matters; I was betrayed, shocked, and bewildered. 1 would have no reason whatsoever to fabricate other crimes. In fact, many others occurred, but at that time I was unaware of them. I am a devout Christian; I do not lie, nd certainly did not on this occasion. As a direct result of the fact th t this case, which sues the victim, simply will not go away, you have forced my hand and / will now o forward with the prosecution. I will be meeting with the ADA, the Police Chief, and the detective early next week. You might not be aware that the only reason she was not prosecuted initially is ecause East Penn and the ADA demanded that I pay for forensic accounting, which would cost p to $15K. They assured me that after spending this additional money, I would only likely receive very s all restitution checks in return. 1 will not pursue the mystery of all of the missing cash, and will not nee a forensic accountant to prove nearly $30K of theft by deception. You see, you filed a so-called efamation case, against the victim of her crimes, 11 months into a 5- year statute. Now, you will hav plenty of work to do for her, just not on this case. I have piles of evidence, much of which is no in the hands of Detective Cotton. You will become familiar with the remainder of the evidence, thro gh the course of criminal proceedings. I am only sending enough for you to understand that absolut ly no defamation took place. Her callus indifference to her culpability, the audacity to sue her victim, as not been well-received by the authorities. 354 East Penn Drive • #nola, PA. 17025 . Office: (717) 728-1990 ? Fax: (717) 728-9930 1 I feel that the following evide ce is enough to prove to you that you will lose this case. If you feel differently, I can forward mor . 1) The 2009 payroll. I have documented that your client only worked here 3 days a week at a pay rate of $15.00 per hour. A comparison of my documentation and the records from her other employers (Marshall's department store and another doctor's office) will verify that the hours she used to calculate payroll were grossly inflated. Records from a local tanning salon and Planet itness make the same point. Detective Cotton feels that by far the easiest part of this case to prove is the fact that she gave and took away raises over a six- month period. No reasonable civil or criminal jury would ever conclude that I personally authorized these changes to her pay rate. Her reported hours would imply that she worked an average of 13 ours per day at an office that is only open 10 hours. According to her calculations, she would have had to leave here each and every night at nearly 10 PM. Yet, she was at the gy across town, average check-in time, 6:30 PM. I have many witnesses, including the managers at Subway, who never once saw my office open at 9:00 PM when they leave. -I also now have vailable, 1 % years of payroll records for her replacement. Betsy does work F=riday morni gs, Joyce did not. Betsy's average 2-week payroll is for 61 hrs. Joyce's, for 3 days, 78. iii difference, at the same business, working the same job. 2) Documentation of forgery and insurance fraud: All signatures are forged, check the dates and the other data entered on the forms. Not only fraudulent, but inconsistent between each one Think I would print my name "Doctor Christensen?" Might also want to check my signature, compare it to where I sign this letter. Erin Magill was never her "employer" and ce ainly did not sign that form. 3) Texts from you client: You produced texts I sent to her, so certainly, you have read the texts she sent me. So, in her own words she admits that she did payroll and she was overpaid. She left me a check for nearly $300 for overpayment on one two-week pay period, she offered to pay me back "little by little..." Yet, you advised her to file a civil suit against me? 3) The police repo initiated when Joyce texted a co-worker, "I would rather die than go to prison; if Barb call the cops I will kill myself," I am certain any member of any jury would understand, "false accused" people do not threaten suicide if the police become involved. 4) The report of 5) Office of Unem Sure, her text says she "di change one's rate of pay U computer. She did not, bu 58 hours. Want proof that payroll checks were for dre laughing stock of Unemplo friend, who is willing to test She told a bold-faced lie to Unemployment fraud. 's mother's account: $660 fraud Compensation determinations of fraud- Jn't do it on purpose," but there simply is NO WAY to accidentally p and down. She was supposed to be keeping a time card on the t I did find a time card document that she did not destroy, and it indicates she lies? She told a state agency that she was my drug dealer, that her ,gs!! She screwed up big time with this lie, as not only was she the yment, but the woman she said this to goes to my church. She is a ify. That, by the way, is an example of real defamation of character. a state agency, defamed my character, in order to try to weasel out of 4 J You might not be aware t at other mistakes Joyce made at my office spawned 2 other lawsuits against me, and cost me ver $17K. Now, that these are settled, and as a direct result of your lawsuit, I am forced to focus on the prosecution. I was overwhelmed by lawsuits shortly after she was fired. This woman has cost me way too much, yet the poor thing claims "emotional distress'T And if the only way I can recoup the $8K wasted on this frivolous suit is to get tiny restitution checks for the rest of my life, that s how I'll do it. You cannot win a defam; convicted felon. Truth is. sense, how much more v more do you want to had soon. If you review this e against me, let me know, "little by little" until you dr I appreciate your considi your client. I deserve so simply can't justify the e; need an attorney if this fi after piece after piece of Sincerely, on case against me, and she certainly won't be claiming defamation as a ie absolute defense to defamation. I am appealing to your business rk do you want to put into a case which cannot be won? How much s the victim of her crimes? You will be very busy, on her behalf, very dente and are not satisfied that you will never win a defamation case sere is plenty, plenty more evidence where this came from. I will send it this case against me. ation of this matter. I have been through way too much as a result of ie peace. Feel free to contact me directly if you have any questions. I ,erase of having you speak with my attorney. I certainly wouldn't even sco ever made it to court. I would just stand there and present piece vidence, proving everything 1 ever said about her is true. (that is what my signature actually looks like) Christensen Chiro Payroll Summary 2009 Fay-Date Hours Rate Amount Bonus 1111 /2009 78.00 1/26/2009 80.00 219/2009 76.00 2/2312009 76.00 319/2009 78.00 3123/2009 78.00 4/OW% 72.00 412012009 75.00 5/412009 79.00 511812009 79.00 51112009 79.00 6115/2009 79.00 612912009 79.00 711.312009 79.00 7127/2009 79.00 8/612009 80.00 8/2412009 40.00 91342009 60.00 9/1712009 78.00 10/5/2009 78.00 10119/2009 78.00 11/2/2009 78.00 1111612009 75,00 11/30/2009 - 12114/2009 - 12/28/2009 - 100.00 100.00 100.00 100.00 15.00 $ 1,170.00 15.00 1,200.00 15,00 1,140.00 15.00 1,140.00 15.00 1,170.00 15.00 1,170.00 15.00 1,080.00 15,00 1,125,00 15.00 1,185.00 15.00 1,185.00 15.00 1,185.00 15.00 1,185,00 15.50 1,224.50 15.50 1,224-50 15.50 1,224.50 16.00 1,280.00 17.00 680.00 16.00 960.00 16.00 1,248.00 16.00 1,248.00 16.00 1,248.00 16.00 1,248.00 16.00 1,216.00 $ 26,736.50 $ 400.00 1,734.00 $ 27,136.50 Daily (3 davs?week) !Lomurs W3148S 13.00 $ 195.00 13.33 $ 200.00 12.87 $ 190.00 12.67 $ 190.00 13.00 $ 195.00 13.00 $ 195.00 12.00 $ 180.00 12.50 $ 187.50 13.17 $ 197.50 13.17 $ 197.50 13.17 $ 197.50 13.17 197.50 13.17 $ 204.08 13.17 $ 204.08 13.17 $ 204.08 13.$3 $ 213.33 e;67- $ 10.00 $ 160.00 13,00 $ 208.00 13.00 $ 208.00 13.00 $ 208.00 13.00 $ 208.00 12.67 $ 202,67 Real Answers. HYN[UM LAW ....................... Michael A. Hynum, E quire Shauna Bedell, Paralegal Brian K. Miner, Es, re Debra R. Mehaf(ie, Ls ui Eric J, Bialas, Esquire December 8, 2011 Via E-mail Kimberly A. Se McNees Walla( 100 Pine Street P.O. Box 1166 Harrisburg, PA Mail mba & Nurick LLC 7108-1166 Eric Patrick, Of Counsel RE: Joyce Shellenberger v. Christensen Chiropractic, et al. No. 10-3502 (Cumberland County) Dear Ms. Selemba: Ms. She lenberger has retained me to represent her in the above- referenced matter. Enclosed please find a copy of the Praecipe to Withdraw Appearance an Praecipe to Enter Appearance that was filed with the Cumberland County Court of Common Pleas. Please direct all further communication egarding this matter to me. I have re iewed the file in this matter and note that your client has failed to provide complete discovery responses. Even though your client was given an extensi n of time to complete the discovery, she failed to produce relevant documents in her possession and / or under her control. Enclosed you will find a copy of 'a letter dated November 17, 2011 from your client to Ms. Shellenberger's former attorney. Attached to the letter are documents that your client provided in attempt to prove points in her letter. To my owledge, none of these documents were provided in discovery. Based upon statements contained in this letter, we believe that your client intends to rag her feet and withhold information necessary to move this matter forward. I am awa e that you are requesting that my client sign a protective order prior to providing discovery responses. I do not believe that is necessary in this case for several reasons. First, you will note that most of the documents provided by your client with her November 17t" letter do not contain ,( proprietary information. Second, your client has already provided me with one document evide cing some type of payroll record. Therefore, she may have waived any confidentially claim she wished to raise. Additionally, in reviewing the pleadings and evidence available to me so far, I see very little that would requ re a confidentiality agreement / order. However, if there are specific docume is that you believe must be protected, we suggest that you and I meet to review those documents. If it is agreed that protection is necessary, then we can discuss how to best protect the information. Beyond that, 1 do not believe it is necessary to protect the confidentiality of any other information in this case. Accordin ly, please advise your client that she has ten (10) days from the date of this letter to provide me with full and complete discovery responses. If I d not receive complete responses I will move forward with a motion to compel and request that Ms. Christensen pay my client's attorney fees and costs to take this action. Addition lly, I would like to schedule your client's deposition for sometime in Jan ary. Please provide me with dates and times that you and your client are av ilable so that we can get that scheduled. I will ah that Ms. Shelle still works for information. Thank Enclosures Cc: Joyce Shel be deposing Erin, who was also employed during the period erger worked for your client. Kindly advise whether Erin ,our client and provide me with Erin's current contact for your time and xfte ion in this matter. Ve y truly rs, ebra R. Mehaffie 2 Kimberly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 FILED-OFFICE or , HE PROTHONOTARY 2011 DEC 28 AM 10` 0Q COPENN YLVANUA TY JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-6282 Civil CHRISTENSEN CHIROPRACTIC and CIVIL ACTION - LAW BARBARA CHRISTENSEN, : JURY TRIAL DEMANDED Defendants PETITION TO WITHDRAW AS COUNSEL AND NOW come Petitioners, Kimberly A. Selemba, Esquire, James J. Franklin, Esquire and the law firm of McNees Wallace & Nurick LLC (collectively, "Petitioners"), attorneys for Defendants Christensen Chiropractic and Barbara Christensen in the above-captioned matter (collectively "Defendants"), and hereby respectfully request this Honorable Court grant their Petition to Withdraw as Counsel, and in support thereof aver the following: 1. Petitioners are licensed attorneys at McNees Wallace & Nurick LLC, with a business address of 100 Pine Street, P.O. Box 1166, Harrisburg, Dauphin County, Pennsylvania 17108-1166. 2. On or about February 1, 2010, Petitioners undertook representation of Defendants in the above-captioned matter, in which Plaintiff Joyce Shellenberger asserted a cause of action for defamation. 3. In this case, Petitioners' representation of Defendants, inter alia, has included preparing and arguing Preliminary Objections to Plaintiffs Complaint, answering Plaintiffs Amended Complaint, and responding to Plaintiffs discovery requests. 4. Over the course of their attorney-client relationship, certain issues have arisen between Petitioners and Defendants which cause Petitioners to believe they are no longer able to represent Defendants in this matter, and that Defendants' interests would be best served by Petitioners' withdrawal as their counsel in this matter. 5. Specifically, Petitioners and Defendants have fundamental and irreconcilable differences about the manner in which Defendants' defense should be conducted. 6. Despite multiple requests to do so, Defendants have not paid Petitioners for their reasonable legal fees. Defendants have offered no assurance they would satisfy this outstanding balance. The vast majority of the total outstanding balance is more than one hundred twenty (120) days past due. If ordered by the Court, Petitioners will provide documentation regarding Defendants' failure to compensate Petitioners for their legal services to date. 7. Based upon these circumstances, which in Petitioners' professional opinion render their ability to continue to represent Defendants effectively impossible, Petitioners have good cause under Rule of Professional Conduct 1.16(b) and -2- Pennsylvania Rule of Civil Procedure 1012 for requesting leave to withdraw as Defendants' counsel in this matter. See Rule of Professional Conduct 1.16 (b)(4)-(6). 8. Defendants will not be prejudiced by Petitioners' withdrawal in this case, nor will Petitioners' withdrawal have a material adverse effect on Defendants' interests. See Rule of Professional Conduct 1.16(b)(1). 9. Because discovery in this matter is in its early stages and no depositions have yet taken place, Petitioners submit Defendants would have ample time to secure new counsel, if they desire to do so, without having a material adverse effect on their defense and without significant delay of this matter. 10. On December 20, 2011, Plaintiff filed a Motion to Compel Discovery, specially seeking full and complete responses to Interrogatories and Requests for Production of from Defendants. 11. Given the pendency of this Petition to Withdraw as Counsel, Petitioners respectfully request that the Court stay Plaintiffs Motion to Compel Discovery until Defendants can secure new counsel should this Petition to Withdraw be granted. 12. Debra R. Mehaffie, Esquire, Plaintiffs current counsel, has been advised of Petitioners' intention to file this Petition and Attorney Mehaffie indicated on December 15, 2011 that she HAS NO OBJECTION to Petitioners' request to be granted leave to withdraw. 13. Petitioners certify that notice of this Petition and proposed Order were sent to Defendants via facsimile on December 15, 2011. True and correct copies of that letter and proposed consent are attached hereto as Exhibit "A." -3- 14. As of the date of this Petition, Defendants failed to return a signed copy of the consent. 15. Defendants' current address is as follows: Dr. Barbara Christensen Christensen Chiropractic 345 East Penn Drive Enola, PA 17025 16. The relief requested by this Petition is authorized by Pennsylvania Rule of Civil Procedure 1012 and Pennsylvania Rule of Professional Conduct 1.16. WHEREFORE, Petitioners, Kimberly A. Selemba, Esquire, James J. Franklin, Esquire, and McNees Wallace & Nurick LLC respectfully request this Honorable Court to allow them to withdraw their appearance as counsel for Defendants Christensen Chiropractic and Barbara Christensen in the above-captioned matter. Respectfully submitted, McNEES WALLACE & NURICK LLC By q-VJ, __ Kim erly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Dated: December 27, 2011 -4- CERTIFICATION AND VERIFICATION I, Kimberly A. Selemba, pursuant to 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, hereby certify that on the 15th day of December, 2011, 1 disclosed the full text of this Petition and the proposed order to Defendants Christensen Chiropractic and Barbara Christensen. I also verify that the statements made in the foregoing Petition are true and correct to the best of my personal knowledge, information and belief. Date: December 27, 2011 q lb Kimberly A. Selemba -5- 6yg (r, I -F McNees Wallace & Nur ck LL 100 Pine Street * PO Box 1166 « Harrisburg, PA 17108-11661 Tel: 717.232,8000 e Fax: 717.37.5300 FAX COVER LETTER DATE: December 15, 2011 Routing #276 Client #29277-0001 PLEASE DELIVER THE FOLLOWING PAGES: TO: Dr. Barbara Christensen FAX 717.728.9930 FROM: Kimberly A. Selemba, Esquire Direct Dial TOTAL NUMBER OF PAGES, INCLUDING THIS COVER LETTER 717.237.5359 MESSAGE: Barb: Attached for your review is a Petition to Withdraw as Counsel that we intend to file. Please note that the Petition contains a Consent that we would appreciate you signing and faxing back to us. Also attached is a letter we received from Joyce's new attorney, who intends to press forward with this matter. We are filing this Petition because, for the reasons stated therein, we do not feel we can continue representing you. Kimberly A. Selemba Direct Fax Number: 717.260.1740 SECRETARY RESPONSIBLE: Michele Beery TELEPHONE: 717.237.5286 *****CONFIDENTIALITY NOTE***** The information and documents accompanying this transmission contain information from the law firm of McNees Wallace & Nurick LLC which is confidential and/or legally privileged. The information is intended solely for the use of the individual or entity named on this transmission sheet. If you are not the designated recipient, you are hereby notified that any disclosure, copying, distribution or taking of any action in reliance on the contents of this information is prohibited. If you have received this transmission in error, please notify us by telephone immediately so that we can arrange for the return of the original documents to us at no cost to you and with reimbursement for cost you may have incurred in responding to this notification. www.mwn.com HARRISBURG, PA s LANCASTER, PA • STATE COLLEGE, PA s HAZLETON, PA 0 COLUMBUs, OH 0 WASHINGTON, DC JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-6282 Civil CHRISTENSEN CHIROPRACTIC and CIVIL ACTION - LAW BARBARA CHRISTENSEN, JURY TRIAL DEMANDED Defendants CONSENT We, Christensen Chiropractic and Barbara Christensen, Defendants in the above-captioned matter, hereby certify that we are in agreement with the requested relief, and furthermore, we join the Petition of Kimberly A. Selemba, Esquire and James J. Franklin, Esquire, and request this Honorable Court allow Petitioners to withdraw as our counsel in this matter. We further certify that the foregoing is true and correct to the, best of our knowledge, information, and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: Christensen Chiropractic Title: Owner Dated: Barbara Christensen Kimberly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 FILED-OFFICE !'.'F THE PROTHONOTAR"I' 2011 DEC 29 PSI 1= OC CUMBERLAND COUNT' PENNSYLVANIA JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN, NO. 10-6282 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY Defendants Christensen Chiropractic and Barbara Christensen, by and through their attorneys, McNees Wallace & Nurick LLC, file the following response to Plaintiffs Motion to Compel Discovery. On December 15, 2011, counsel for Defendants sought the consent of Defendants to withdraw as their counsel in this action. Counsel for Defendants did not receive the consent of Defendants. On or about December 20, 2011, Plaintiff filed a Motion to Compel Discovery. On December 28, 2011, counsel for Defendants filed a Petition to Withdraw as Counsel for Defendants in this action. That Petition is currently pending before this Court. Defendants respectfully request that proceedings on Plaintiffs Motion to Compel be stayed until the Court rules on Petitioner's Petition to Withdraw. Should the Petition to Withdraw be granted, Defendants respectfully request that the Court allow Defendants a reasonable time to find substitute representation and to respond to the Motion to Compel. WHEREFORE, Defendants Christensen Chiropractic and Barbara Christensen request that the Court stay Plaintiffs Motion to Compel Discovery until the Court has ruled upon Petitioner's Petition to Withdraw as Counsel. McNEES WALLACE & NURICK LLC By 9V?z lug 14 Kim rly A. Selemba I.D. No. 93535 James J. Franklin I.D. No. 306458 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5359 (717) 260-1740 (fax) Attomeys for Defendants Dated: December 28, 2011 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Debra R. Mehaffie, Esquire Hynum Law 2608 North Third Street Harrisburg, PA 17110 ?j a ?L Kimberl A. Selemba Dated: December 28, 2011 5 r JOYCE SHELLENBERGE_R, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA -v- n rj C , CHRISTENSEN CHIROPRACTIC : NO. 10-3662 (Civil Term) z= mar= and BARBARA CHRISTENSEN, ' na ;Urn Defendants : JURY TRIAL DEMANDED -? - -, 0 ORDER -- -.c ca AND NOW, this day of 201 / upon consideration of Plaintiff's Motion to Compel Discovery, it is hereby ORDERED that a hearing is scheduled for the l,Q day of "A4 , 2012 at 3, Ob A*fl PM in Courtroom No. at the Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17103. BY THE COURT: Distribution: / Debra R. Mehaffie, Esquire 2608 N. 3rd Street, Harrisburg, PA 17110 ? Kimberly A. Selemba, Esquire, 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166 ,/ Joyce Shellenberger, 51 Fairway Drive, Camp Hill, Pa 17011 ,/Barbara Christensen, 73 Sharon Road, Enola, Pa. 17025 &pie,; Maa led a P 9??K8 5 JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-6282 Civil CHRISTENSEN CHIROPRACTIC and CIVIL ACTION - LAW BARBARA CHRISTENSEN, JURY TRIAL DEMANDED Defendants RULE TO SHOW CAUSE AND NOW, this _ day of Gam , 2012-, upon consideration of the attached Petition to Withdraw as Counsel, a Rule is issued and served upon Plaintiff and Defendants to show cause, if any, as to why Petitioners should not be granted leave to withdraw as counsel for Defendants in the above-captioned matter. This Rule is returnable within days from the date of service. BY THE COURT: J. 0 6r?j )C ?D,;C hart. I-e? f Sfi.z r; c -o C7.1 ii? a s _r7 v (Z ZZ rn cC &I JOYCE SHELLENBERGER, Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA f? i NO. 10-6282 Civil rn CO =M c- =30 r -' r_ z::o 2= err; CIVIL ACTION - LAW d ? C:) JURY TRIAL DEMANDED SHOWING CAUSE AND NOW, this 20Th day of January, 2012, in response to Petition to Withdraw as Counsel: based on the limited time between now and the hearing on notice to compel discovery scheduled for the 6th day of February, 2012, Attorney Selemba should not be granted leave to withdraw as counsel for Defendants in the above-captioned matter at this time. Dr. Christensen is very concerned about the financial obligation she has now incurred as a result of this case, yet has been advised, by alternative counsel, to file this response. The hearing is eminent, and it would be beyond Dr. Christensen's capabilities to handle this hearing on her own. . BY THE COURT: JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CHRISTENSEN CHIROPRACTIC AND BARBARA CHRISTENSEN, DEFENDANT 10-6282 CIVIL TERM ORDER OF COURT AND NOW, this ;-2, K / day of February, 2012, upon consideration of the petition to withdraw as counsel, and Defendant's response thereto, title "SHOWING CAUSE," and with the concurrence of counsel for Plaintiff, IT IS ORDERED AND DECREED that Petitioners, Kimberly A. Selemba, Esquire, James J. Franklin, Esquire, and the law firm of McNees, Wallace & Nurick, LLC, are hereby granted leave to withdraw as counsel of record for Defendants Christensen Chiropractic and Barbara Christensen. It is further ORDERED that the hearing scheduled on Plaintiffs motion to compel discovery is continued until Thursday, March 22, 2012, at 1:30 p.m., in Courtroom Number 1. By the Court, ? Debra R. Mehaffie, Esquire For Plaintiff ? Kimberly A. Selemba, Esquire James J. Franklin, Esquire Barbara Christensen Christensen Chiropractic 73 Sharon Road Enola, PA 17025 Loll h.] Maslan A ert H J. v ' . , T N :? } ?7 saa k'y-t JOYCE SHELLENBERGER, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA -v- C= Io- (018a 'z CHRISTENSEN CHIROPRACTIC , : NO. ' ^- -3-5,0?(Civil Term) z and BARBARA CHRISTENSEN, Defendants : JURY TRIAL DEMANDED ORDER -, d AND NOW, this day of March, 2012, following a hearing on Plaintiff's Motion to Compel Discovery held on March 22, 2012, it is hereby ORDERED that the Motion is GRANTED. Defendant Barbara Christensen shall produce full and complete responses to Plaintiff's First Set of Interrogatories and First Request for Production of Documents to Plaintiff's counsel within ten (10) days of the date of this Order. Should the Defendant fail to produce full and complete discovery responses, further sanctions may be imposed, including contempt and an order compelling Defendant to pay the Plaintiff's reasonable attorney fees and costs incurred. BY THE COURT: 6i Albert asland, Judge Distribution: / Debra R. Mehaffie, Esquire 2608 N. 3rd Street, Harrisburg, PA 1711 derres A461 vP?Pv In ce Shellenberger 51 Fairway Drive Camp Hill Pa 17011 Barbara Christensen, 73 Sharon Road, Enola, Pa. 17025 - dors /OCV/ L&/ JOYCE SHELLENBERGER, Plaintiff V. CHRISTENSEN CHIROPRACTIC and BARBARA CHRISTENSEN Defendants i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA rJ NO. 10-6282 Civil CIVIL ACTION - LAW=' -? JURY TRIAL DEMANDED MOTION TO DISMISS AND NOW, this 4th Day of April 2012, Defendants Petitions the Court to Dismiss this Cause of Action due to applicable Statute of Limitations based on- 1) It has been alleged that the plaintiff has committed multiple criminal offenses while in the employ of the Defendants. The Defendants are in possession of an admission of guilt and extensive evidence which substantiates these claims which has been provided to the East Pennsboro Police Department. 2) The Statute of Limitations for these alleged felony offenses is five years. This is an open ongoing criminal investigation. The dates of last contact with the East Pennsboro Police Department are 4-2-2012 and 4-3-2012. Charges are currently pending for Theft by Deception. 3) The Defendants have been repeatedly informed by the District Attorney's Office that the services of a forensic accountant are required to prove the other allegations. The Defendants have yet to be able to afford such an accountant, but has five years to do so. If and when the Defendants have the funds available to hire the accountant it is her intent to hire this professional. An affidavit which testifies to ADA Daley's advice on this matter can be provided to support this motion if necessary. 4) This Cause of Action was filed in the Plaintiff s knowledge of the length of the Statute. This is a statement of fact and not assumed knowledge, as the Defendants have communicated to the Plaintiff the nature of the charges and the applicable Statute. Plaintiff is also aware of Defendants' requirement for professional services to prove the allegations. This case represents a means to circumvent the Defendant's legal right to the Statute of Limitations. 5) Since criminal charges for Theft by Deception are to be brought forthwith and the Statute has yet to run out on the other offenses, it would be impossible to expect any jury to determine the veracity of any statement made by the Defendants. That determination could only be made after all legal options available to the Defendants have been exhausted and the time allowed to pursue these options has expired. 6) Clearly, the outcome of the imminent criminal charges would stand as crucial evidence in this case. Any efforts to pursue this case while criminal proceedings are still ongoing would be premature and burdensome on the Defendants. The resolution of the criminal charges must occur before the Defendants could be expected to participate in this case in any manner. Obviously, the time required by the criminal courts to resolve the current pending charges must be allowed. 7) The Defendants are personally responsible for five determinations of Unemployment Fraud pursuant to willful and deceptive underreporting of Plaintiff s income in order to receive benefits to which the Plaintiff was not in any way entitled to. This Cause of Action likely represents retribution for the Defendants' moral responsibility to report this fraud. Exhibit #1 is one of the five determinations of fraudulent underreporting of the Plaintiffs income which took place at Christensen Chiropractic. 8) The Plaintiff is aware of her actions at Christensen Chiropractic and the evidence thereof. The Plaintiff s attorney accepted this case in possession of many compelling pieces of evidence and a statement by the Plaintiff "I will pay you back little by little" and other offers to repay Defendants for monies she allegedly fraudulently attained from the Defendants. 9) The Plaintiff left a check for $264 at Christensen Chiropractic as an attempt to repay funds which the Plaintiff acknowledged she was not entitled to. Clearly, the Plaintiff is cognizant of her actions at Christensen Chiropractic. Exhibit #2 contains the text message in which these statements were made. 10) While the Defendant has repeatedly petitioned ADA Daley to bring charges for Payroll Fraud, Mr. Daley has remained adamant that a jury would never understand that no one could work 38 - 40 hours a week at an office which takes a one hour lunch, opens at 8:30 and has never remained open later than 7:30. The Plaintiff worked Mondays, Tuesdays and Thursdays in accordance with these hours. This represents a maximum potential hours employed at 30 hours. The Defendant was seriously injured at the time of the allegations, and trusted the Plaintiff to calculate payroll. Even when presented the payroll information for nearly two years for the Plaintiffs replacement, which indicate an average of approximately 61 hours per two week period, the ADA has refused to bring these charges. The Plaintiff was employed on Fridays at another location and Christensen Chiropractic is closed on Wednesdays. The Defendant has made repeated attempts to convince ADA Daley that charges could be brought for Payroll Fraud. The Defendant reserves her right to the full Statute of Limitations in order to convince ADA Daley that such charges could be brought. See Exhibit 3. 11) The Plaintiffs attorney is aware of the Defendants' financial hardships and has repeatedly threatened the Defendants with the fines and fees which would result from the Defendants' inability to complete the necessary paperwork. It appears it is the hope of the Plaintiff s attorney, since the Defendants have no means to retain an attorney on this matter, a technicality would result in damages to the Plaintiff. 12) The implications of this case are clear. If and when the Defendants are able to prove the allegations, there would exist no remedy for the repayment of any damages the Plaintiff would have theoretically received. It is not at all foreseeable that the Plaintiff would win this case, and the Defendants are suffering additional financial losses as a result of this filing. In the unlikely event that damages were awarded, they would directly result from the Defendants' inability to afford the professional services required to prove these charges, the inability to convince ADA Daley to bring charges, and would not result from any actual Defamation of Plaintiff s character. The Defendants allege that Payroll Fraud could be conclusively proven at any trial, and certainly would be proven if this Cause of Action were put before a jury. 13) While a counter suit would represent a means to rectify this situation, the Defendants should not be compelled into civil proceedings. The most prudent resolution for alleged crimes exists in the criminal courts. It would be necessary for the Defendants to invest resources in any civil proceeding, and are currently incapable of doing so. 14) Therefore, the only reasonable remedy for this Cause of Action, which exploits the Defendants' state of insolvency and decisions pertaining to criminal charges which remain out of the hands of the Defendants, is to dismiss this case pursuant to the Defendants' legal rights regarding the Statute of Limitations for the alleged offenses. There exist current active pending criminal charges. This case could only be tried after the Statute of Limitations has expired; allowing the Defendants the period of time outlined by the law to in order prove the allegations which are substantiated by the evidence. Respectfully submitted: Date: #_ 4- fc) Barbara Christensen, pro se By Barb ensen, D.C. Chr' sen Chiropractic 3 54 East Penn Drive Enola, PA 17025 Tele: (717) 728-1990 Fax: (717) 728-9930 drbarbc@comcast.net CERTIFICATE OF SERVICE hereby certify that on this ' day of April, 2012 I served the foregoing Motion to Dismiss, by first class mail, postage prepaid upon the individual(s) indicated below, addressed as follows: Debra R. Mehaffie Hynum Law 2608 North 3`a Street Harrisburg, PA 17110 tele: (717) 774-1357 fax: (717) 774-0788 Barbara Christensen, pro se Date: BWaris Bsen, D.C. Chiropractic 354 East Penn Drive Enola, PA 17025 Tele: (717) 728-1990 Fax: (717) 728-9930 drbarbc@comcast.net 164116ilL1311 Vj7:74 00 The final day to appeal this deMrmination is April 14, 2012. comoNMALTH OF P11104 .VANIA DEPARTMENT OF LABOR AND INDUSTRY OFFICE OF UC BE.NM NOTICE OF DETERMINATION 88N: 167-40-0637 Type Claim: UC AB Dish: SaplNnber 16, 2007 iAaaed On: March 30, x011 Page: 1 of 3 EMPLOYER: CLAIMANT: CHRISTENSEN CHIROPRACTIC JOYCE A. SHELLENSERGER 354 EAST PENN DRIVE 51 FAIRWAY DRIVE ENOLA PA 17025- CAMP HILL PA 17011- FINDOW OF FACT 1. The Claiment''s weekly benefit amount Is $520 and her partial benefit Cradit is $208. 2. The Claimant reported earnings of $0.00 for weeks ending 912212007,1027107 through 03122/08 from Chrialenevll Chtroprs* and ano0w Employer. 3. The correct awnings for weeks ending 912212007,10/27/07 through 03/22/06 ftm Chrislonsen Chiropratic and another Employer were $490.00 through $902.50 per week. 4. The Claimant worked during weeks wv ft 9122!2007, 10127/07 through 03122!08, but knowin* failed to report all earnings. 5. The Claimant's earnings for the affected weeks were greater than the combination of her weeldy banaf8 amount and parbsl benefit OUR DISCUSSION Section 401(c) of the Penn"nia UC Law provides, in part, that compensation shall be payable to any employe who is or become$ WWwnplayed and who has made a CWM for o0mpentatlon in the proper manner. In lisle case, the CiNrnant worked, but knoaWnay failed to report IN ean*V for the weeks listed above. As such, the Claimant hat not merle claims for oompansation In the proper manner and beneflb must be denied under SecW 401(0). In situations where the Claimant is partially employed, the Claimant can eam an amount equal to the combinadw of her, weekly bereft raft and partial beneAt credit If the Claimant Berns in excess on this em=r 4, she is not considered wwrnployed. M this case, the Claimant's eamings for the weeks listed above exceeded the combl, wft of her weekly benefit rate and her paveI benefit credit. As such, the Claimant is not considered unemployed for these weeks and benefits must also be denied under Sections 401, 4(u) and 404(4) of the Pennsylvania UC Low. DETERMMATION The Claimant Is inetipible for benefits under Sections 401(c), 401, 4(u) and 404(d) of the Pennsyl"nis Unemployment Compennalfon Law for waitlrtQ week en*V 9WA007. The Claimant IS 8180 !Mgglb* under Sac,ttors 401(c), 401, 4(u) and 404(4) for the following weeks: 10127/07 through 03/22106. UC Representative: W. Highiland APPEAL INSTRUCTIONS The last day to appeal this determination Is: April 14, 2011. Under Section 501(a) of the Pennsylvania Unemployment Compensation Law, this 01610 urination becomes &W unless an appeal Is limey fled. If you disagree with Oft detem+hmftn and wish to kite On appear, your appeal must be tiled on or bebre the Iaet !fay lo appeN shown on this dgigrm1wicn. The IM day b appeal thls de6enni Wit is. April 14, 2011 If you dionree wih this detenaanation, you nay appeal. if you want to flle en appeal, you must do ao on or bets the data ahown above. Inform w for fling an appeni is included in this dew, ;,,k ft . 46 N6i? iss, 2009 9:00 AM 9: 6- 4-_dw 1 ?, 2.009 8:51 PM Gov. 490 M?O ft " NJ An. r :,''vim ? ? • i - , yr;_ ... rt • ', T?? Nl? Uh. 00r, A, r ,.. ' i EMU ?- r:+s n y_ . r c•,`:. . ...ter, x .'"I ;"i Aiq&g t?4- C k,, , Christensen Chiropractic Payroll Summary 2009 Pay-Date Hours Rate 1/11/2009 1/26/2009 2/9/2009 2123/2009 312009 3/23/2009 4/612009 4/20/2009 5/4/2009 5/18/2009 611/2009 6/15/2009 6129/2009 7/13/2000 7/27/2009 8/6/2009 a rr`-e 8/2412009 vV 1'D 9/3/2009 D s 9/17/2009 10/5/2009 10/19/2009 11/2/2009 11/16/2009 11/30/2009 12114/2009 12/28/2009 Amount ,a3 Bonus 1 ?0 ? Daily (3 davaw ok) Hours Wages 78.00 $ 15.00 $ 1,170.00 - 13.00 $ 195.00 $0.00 15.00 1,200.00 - 13.33 $ 200.00 76.00 15.00 1,140.00 - 12.67 $ 190.00 76.00 15.00 1,140.00 - 12.67 $ 190.00 78.00 15.00 1,170.00 - 13.00 $ 195.00 78.00 15.00 1,170.00 - 13.00 $ 195.00 72.00 15.00 1,080.00 - 12.00 $ 180.00 75.00 15.00 1,125.00 - 12.50 $ 187.50 79.00 15.00 1,185.00 - 13.17 $ 197.50 79.00 15.00 1,185.00 - 13.17 $ 197.50 79.00 15.00 1,185.00 - 13.17 $ 197.50 79.00 15.00 1,185.00 - 13.17 $ 197.50 79.00 15.50 1,224.50 - 13.17 $ 204.08 79.00 15.50 1,224.50 - 13.17 $ 204.08 79.00 15.50 1,224.50 100.00 13.17 $ 204.08 80.00 16.00 1,280.00 - 13.33 $ 213.33 40.00 17.00 680.00 - 6.67 $ 113.33 60.00 16.00 960.00 - 10.00 $ 160.00 78.00 16.00 1,248.00 100.00 13.00 $ 208.00 78.00 16.00 1,248.00 - 13.00 $ 208.00 78.00 16.00 1,248.00 100.00 13.00 $ 208.00 78.00 16.00 1,248.00 - 13.00 $ 208.00 76.00 16.00 1,216.00 100.00 12.67 $ 202.67 $ 26,736.50 $ 400.00 t1,7 $ 27,136.50 ?j, > JOYCE SHELLENBERGER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CHRISTENSEN CHIROPRACTIC AND BARBARA CHRISTENSEN, DEFENDANTS 10-6282 CIVIL TERM ORDER OF COURT _4??-day of April, 2012, upon review of Defendants' AND NOW, this motion to dismiss "due to applicable Statute of Limitations" for criminal offenses that the Defendants allege Plaintiff committed, and there being no relevant civil statute of Y limitations raised by the Defendants, the motion to dismiss is DENIED. By the Court, Albert H. Maslan , J. e?? ? Debra R. Mehaffie, Esquire 2608 North 3d Street Harrisburg, PA 17110 For Plaintiff ? Barbara Christensen, Pro se Christensen Chiropractic 354 East Penn Drive Enola, PA 17025 saa ec)f,;es pa.-fed '411oI)a ovt �D..D�n� ,,, Debra R. Mehaffie, Esquire �D HOtift T�rti f Hynum Law, P.C. 30 ppi : I.D.No. 90951 2608 N. 3`d Street C"SERLAND CGUNTY Harrisburg, Pa 17110 PENIVSYLVANlq (717) 774-1357 (717) 775-0788-fax debm @hynumpc.com Attorney for Plaintiff JOYCE SHELLENBERGER, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA -v- : CHRISTENSEN CHIROPRACTIC : NO. 10-6282 (Civil Term) and BARBARA CHRISTENSEN, Defendants : JURY TRIAL DEMANDED PRAECIPE TO DISMISS AND DISCONTINUE TO THE PROTHONOTARY: Kindly dismiss and discontinue the above-captioned matter with prejudice. Respectfully submitted: num Law, P.C. Date: �) h,du_� e ra R. ehaffie, Esquir No. 90951 26 8 N. 3`d Street H isburg, Pa 17110 (7 ) 774-1357 7) 775-0788-fax debm @%hynumpc.com Attorney for Plaintiff