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HomeMy WebLinkAbout04-3712 II Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2004- 311 ~ DAVID DEGROFF, v. NINA WEAVER, CIVIL ACTION - LAW 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER. THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 II II 'I Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2004 - DAVID DEGROFF, v. NINA WEAVER, CIVIL ACTION - LAW Defendant COMPLAINT AND NOW, comes the plaintiff, David DeGroff, by and through his attorneys, O'Brien, Baric & Scherer, and respectfully represents as follows: 1. The plaintiff is David DeGroff (hereinafter "plaintiff'), an adult individual who resides at 3201 Landover Street, #1418, Alexandria, Virginia 22305. 2. The defendant is Nina Weaver (hereinafter "defendant"), an adult individual who resides at 121 Hassinger Road, Newburg, Cumberland County, Pennsylvania. II I 3. Plaintiff is, and at all times relevant hereto, was the owner of a female African gray parrot named "Loulou." 4. On or about the evening of April 12, 2003, Loulou escaped from plaintiff's apartment in Alexandria, Virginia. 5. Immediately after Loulou's escape, plaintiff unsuccessfully undertook efforts to locate Loulou in the immediate vicinity of plaintiff's apartment and the following day plaintiff and others continued the search and posted signs indicating the loss of Loulou. -.1,___... .... II 6. On or about April 15, 2003, plaintiff telephoned various local, county and city animal shelters, including the District of Columbia Animal Shelter (hereinafter "D.C. Animal Shelter") reporting the escape, identifying the bird, and inquiring whether Loulou had been located and turned in; each shelter replied in the negative. 7. At the time of his search for Loulou, plaintiff left his name and telephone number with the D.C. Animal Shelter, and requested that the D.C. Animal Shelter contact him in the event a bird matching Loulou's description was found and turned in, which the representative of the D.C. Animal Shelter promised to do. 8. On at least two occasions after plaintiff called the D.C. Animal Shelter on April 15, 2003, plaintiff called the D.C, Animal Shelter and asked whether a bird matching Loulou's description had been turned in, and each time the D.C. Animal Shelter replied in the negative, but the representative of the D.C. Animal Shelter with whom plaintiff spoke stated that the shelter would contact plaintiff if a bird matching Loulou's description was found and turned in. 9. On or about May 7,2003, plaintiff again contacted the D.C. Animal Shelter to inquire about Loulou, and at that time the representative of the D.C. Animal Shelter with whom plaintiff spoke advised plaintiff that an African gray parrot had been turned in "last week", but had subsequently been adopted out by the shelter. 10. Plaintiff requested the identity and address of the person who had adopted the parrot, but the D.C. Animal Shelter declined to provide the information. 11. In or about late May 2003, plaintiff filed a Freedom of Information Act request with the District of Columbia fequesting production of any and all documents relating to the adoption of the African gray parrot from the D.C. Animal Shelter as set forth above. !I I 12. In or about June 2003, the D.C. Animal Shelter provided copies of the adoption papers relative to the African gray parrot, which adoption papers are attached hereto as "Exhibit A." 13. The adoption papers identified defendant as having taken custody of the African gray parrot on May 11, 2003. 14. Upon receipt of copies of the adoption papers, plaintiff immediately attempted to contact defendant by telephone several times, receiving no answer. 15. On or about June 3, 2003, plaintiff went to defendant's residence to ask for permission to examine the African gray parrot in her possession, however, defendant did not appear to be at home, and plaintiff left a flyer in her mailbox describing Loulou and the circumstances surrounding its escape with a request that she call him. 16. Before plaintiff's return, defendant called plaintiff's residence and spoke to a William Milan, who identified himself as Mr. DeGroff's roommate. 17. Defendant advised Mr. Milan that she had "legally" adopted the African gray parrot and that she was not going to return it and refused permission for plaintiff to see the parrot. 1 B. After some discussion regarding the identity and ownership of the parrot, defendant's counsel, by letter dated November 7, 2003, refused plaintiff's request to examine the parrot to determine if it was Lou/ou. COUNT I - REPLEVIN 19. Based upon the close proximity of the location of the escape of Lou/ou to the D.C. Animal Shelter, and the close proximity in time to the escape of Loulou and the adoption of an African gray parrot from the D.C. Anima/ shelter, and due the rarity of the African gray parrot species, plaintiff believes and therefore avers that the African gray parrot in defendant's possession is Loulou. II ., \ 20. Plaintiff has requested but has been denied permission to inspect the African gray parrot in defendant's possession. 21. Plaintiff is in possession of genetic material from Loulou which would enable him to positively identify Loulou as the African gray parrot in defendant's possession when genetic testing occurs through discovery. 22. Plaintiff believes Loulou to be worth approximately $4,000.00. WHEREFORE, plaintiff respectfully requests that this Honorable Court enter judgment in his favor and Order that the African gray parrot in defendant's possession be returned to plaintiff and for defendant to pay special damages. COUNT" - CONVERSION 23. Paragraphs one through twenty-two above are incorporated herein by reference. 24. Defendant has deprived plaintiff of plaintiff's right to possess Loulou without plaintiffs consent. WHEREFORE, plaintiff respectfully requests that this Honorable Court enter judgment in his favor and Order that the African gray parrot in defendant's possession be returned to plaintiff, or in the alternative Order the defendant to pay damages and costs to plaintiff for the conversion of Loulou. Respectfully submitted, O'BRIEN, BARIC & SCHERER ?$tl.~ Michael A. Scherer, Esquire 1.0. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 ., , <RI.~ Housccl1eclcer f'\, ,~_~ /\ 0,.. Dog: AIL # ~ Dog: AlL # Date Assigned ~\l\o:).5 Cat: hI choice '\ - Humane Hold ~o 't;~ <1 ~S- Tog # 'Jag # 2nd .,.B(Approved o Denied o Other ADOPTION APPLICATION The D.C. Animal Shel...r .1201 New Yerk Avcnlle. /'IE W..'hingul11. Dc.: 20002 (openled I>y Ihc W..binglon Hum... Sccietyl To ensure 1Mt this adoption L' in the best inrertm oj both YOll (JJJl/ the animal you se/8d. J we ask that you a",.wer tMfol/owing qlle.mOns c""'plerely: NAME: , I~t\ tVl!AllLV" ADDRESS; r l.. I ff Q,s-s ..'I n, , r ,(0(. Is thin: CITY: ,v1lWb>LL...~,ok Zip: 172. 40 HOMF. PHONE: (111 ) t/-:( -~ - I" Q4,l) WORKPHONB:(711 )L/-1'1 - /4#'( How long have you lived alibis address? Q L.J r s If y<>1I do nol own, please <pecify 'and.lonl or re.n~enc Name: Phone: I ) Do you plan on moving within the nexl six nKlIItIu? 0 Yes ~NO EASIEST APPLICANT TO CALL WEIlKJ)AYS; lJ,l1 ~ t....I.tAC-(.(" Pbotle: 1-' :1 - 4- '11::: Itf't g Check OIIC: 0 f10me "Q, Work Tho WoslUngteD Humane Society 7319 Georgia Avenlle, NW W..hinghlOn. DC 20012 'B.t!ousc7 o ApI? D CondolCo-op? Do you: ~n? o Renl? o Sublet? . DO YOU: "'Iq Work? 0 Attend ochoa!? )lyes. name of employer Or sch~l: :;;~;V\.\~t..'-';, b 1.0.,...\ LLl'Ill J. If 110. what? Number of people in household: Adullli:~_ Cbildnm: Ages of children: . Have)'Od applied 10 adopt an animal from thi, shelteT bdorc? IJ..D . If Ye'.'. when? Dog or cat? If you have previously adopted an anitruiI from us. do you SliU have the animal? Please list aU animals that currently reside wlth you: 'JYpe: clr-q CcJ-S Breed: Age: ::tQ~'1I\ VI.{ r #e..ll~ S1 . 10) 11 '3 Spayed/neutered? :;~ How long in your care? If cat, dealawed? Co lj ,- 1014-1:::1; Y)O Have you had an! comp.anion ~1~ ~he})a;:?-f.tarting with the most recent pets, plea.~e list all below: ~_~ 'Jypc: l>-J1"- -::, b \ :~: '""'" ~e.J how long? Spayedlne~tcred? What happened. O~ . ./ ~.' '0\ vA.. ~o....fcp S .1\ ("$ of. d J.--. .~ t~O'vY\() 4~Y'S. ~lld. -.--\,O,~. ~o Were any of your previous cats deerawed? 0 Yes OVER PLEASE EXHIBIT A *~ a"d SIS,," ses ZDa t.J,,"';) [eW''''l:I oa eSS'I[ eo SO ",nr .J Where will the animal be kept; Do you want Ihis animal to be: II ,', C\.C- o duriDg the day? \;..... {/ . h inside only? [J outside only? 0 at night? Q ltCf- I o mO$Uy inside? 0 mostly oul$ide? 0 wbile you're not-borm? ~,-,,-ttl v...~ o don'tknow. 0 when you're on vacation? L1.:!1 + ~ +'11 viI,1 (~ . How long willlhe animal be alone each day? _'i? lL r", Will you l\md the lIIli1na1? }Je;, How much do you Ihink it will C(ISt 10 feed. vaccinate. licellSe &. care for this animal each year? f SOO J.:l!tyou have a veterinarian? lJI.S If Yf'S, give hislhcr name, clinic name and date of lut visit: . J)r~. L-u-c:.US l)j\.)OlOl/ll/t.. Vu S Whal kind of animal behavior(s) do you fecI unDble 10 ncccpl; i.e.. whal behavior(s) would cause you 10 return the animaI to the shelter? ,r)" (Ill..- . Whal will happen 10 this animallf yon hl\Ve 10 move UDeltpectedlyl iu.lu... Very briefly, explain your rell50n foe W8Dting 10 adopt an animal: D';!. h I ~l:s ~ il'VU b c./ V of.. tl.~ Y ~ f.I- 1>\1>'>'loV.- I DOG: If you are applying for a dog, please allSwer these questions: Will you cbaln the dog? Will the dog be used for guard purposes? ElrpIain: Do you have a seeurely fenced yard? If not, how will you h..ndIe the dog's cxercise and housebrealdll8? co: 1! you are applying for a cat. please answer these quest!ollS: Will you declaw the cat? Why or why DOl? _ WID the cat be allowed outside? Ho.... did you hear IlborU 0'" IlIelter? CJ Hotline -E ~ewspaper . specify: c..t'riend o Internet CI Other. specify; UStlth.U bOJC for any eo_na or ~JJS YOII _lit to odd: PI.RASE TAKE A MOMENT TO REVIEW YOUR ANSWERS; MISSING OR UNCLEAR INFORMATION MAY DELAY OR PREVENT PLACEMENT. 1 cntib tlurt tit" j"Jn11ltfltion prolfilkd is fnle, D1UI ""dentand tAa/labe WDf7IIJJlWn -.l' resull in tuUJihi1ig tllis fItIopdon. Applicaot'ssignaturc '-"Yll"-~ LJ;lU.---fr- Dale: =>tll( 0""" Identification type and I1wnber: Stflff initials: Staff Comments: e:'''' SlSl. S&S 202 T "~U:l r ew Jl.ll:l ;:)0 lt6s:rr EO c;n un,. ... DISlRICf OF COLUMBIA ANIMAL SI:IELTER ADOPTION AGREEMENT I 0",", 5/6/03 A08S975 DOMESTIC BIRD / AFRlGAN GRA Y / AFR.lCAN GRAY GRAYIRED UN'KNOWN AGE Adoptiod Rules PI..... llive ......ful eonsldenllion to adopting a pet. Anim....re not toys I>r shl>r1 term commitments. Make .ure Yl>8r "'""tyle .1I0w, the time, patienee And .xpen.te tbis uimal will need over the next JO years or more. Animals for adDptfou are placed witb adopt." wllh full conaidcratlou ~en to Ih. specln. need. of ...ch animal, l. AnimaLt.... plscallo> II... ",Idud"""", in a pri""'" n:sidenal only. 2. No mrimal, dog or C8I, may be.. eomlnuo!ly in a yord, pDI..... on alelbzr, allowed to..... olf1he owners' properly. or loft outside willie no on. is III hl>mt:. Does and _ must be shelkred in the house and be aI!oll<d in rhc firnlJy &ving lIreAI once trained. em will be kept.. indoor peI3 and not allowed owille wilboUl "'" dira:t supcnisioa of III acluk. Nott' in sddition lo 1hen:quircm..... conlaincd in thi> .....,..... ....tmoIs O1l1crd>on dogs and aIlS must behoaled IOId ClrI!d fe>raccordirlglOthellll3d1edICOj"b~,"'lIli. 3, A securely feneedysrd must ba pIIlVided fe>rdogs unlo8$ walvedby tho DC AnimslShtlttr. 4. AU animals ov<< the oge of ei&ht """'" must be storiIizod (Jpoyed or ncu1Ircd) prior to lIdopdon. Animals """ ....not be steriJiZl!d prmlo odopdon must be spayed or IISlIllI1d by Ibe dare specified by \IleDC Animal Sholllr atlbe tilllC nf aloplion. A dcpositf/Jmrds neutcri1g musl be made at lhe lime of adoption iftbe lIlilllallw not aJroedy been nCUlCled. 5. p""""" Jiving in opor1menb muslhavcperllllgslonftom1helUllllljplllor 1he1""l'01Y_. 6. No IIIlopald animalllllll' undergo a SIIQIk:oI procedure dial """" his or her p/IyIic:sI "l>fk'"...ce, cxcqll for a bon8Iide medic:al11!lllOll. Cosmelic surgery ineludes, but is not fimitld 10, cledllma. tall docking, ond.... rtOJlPin8. 1. The edOpter must provide the animal wiIh JICCllSIlIr)' ~ care for slden...., disease or Injury. In addition, ...imeL. mUll be ..... 10 a veterinarian once a ycor filr routine vtCCinadons, de. &. The 8Ilimal must be IIlIinlaincd humm",ly and in IlCQ)rdance with all IlIWS and ordinllllClCS in force in 1hll jurisdi<&n in which the 0WIlll' Altlid.. The llllimal mlllt _ proper identlflClltJon tit all times, and if lost or stOlen mu..t be reponed 10 the DC Animal Shelter lmmedlalely, edvertlsed III lost in . major neMpapcr, and report<<IlD local animtI sltelters. 9. The ani""" must be kepi solely /lS a companion IlId mustnolbealtlldcedtraincd, used 19 aguaro or hunting dog, or as a barn C8lor moIlSa-, or for ~ivisec:lion or any other """",menial purpose whlllsoover. 10. Animals IlIlUInotbepv.n_, sold,or..chs1ged IOilIloutthe prior pormlulon ofMllhorizod IIlODl8 of1heDC Ani""" Sheller. If, lOr any telISOII. IItI adopted ...imaI_ be kapl by !he adopter. It mUll be ntamed 1(> 1be DC Anirn8l Sheltnr, II. The DC Animal Shc:ltcr (lS1n'I!I!he ri8ftt to investigate inID lhc Ilving lXlIIdltinns of any 8Ilimal odoJlIId fi'om it mul may n:cIaim my such ...imol beinS I:epl in violsd".. of1herulcs and ~ of1llis Adoption ~ 12. The 000pta' l:I$1lDlCS full fillll1cinJ raponsibllity for tho II!ilMIIIId will DOl expea reirnbnrs<mcnt for lID)' ""Jl'!IlIo!:S inearrcd including vetainaIy se:rvic:a. CONTRACT I, DIANE CLARK. the IIdoplet, hove read 1hetwelve(/2) Adoption RIlles see forth abovoond W1detsrand each oftbcrn and """,10 ablcIeby each oflhlllt. The adopter s:lcnowledges receiving1lJis day, llom 1he DC Animal Shol1a-, the IIImal des~vc. Tho DC%:' ocIa1owIcdges receipt fhis day, tom 1he IIIoptl'lnMlOd elxJvo, $ \ U II an edopciorl fer, and III additional S III aclopoolt IIldlor p~ ncutaing oftbe IIloped lI1lmaL Tbe edO 10 have !he 11IM ncull:red by V\.. \.. 0-. . The odopt<< eckne>wledges tho full underslalding of 1IIe ruI.. IIId eondilkms ofthi> CbnIrICl fuI1o.oiu8 disaJssion of lhcn with 1ilc un6crsigned lIlent of lhe DC Animal Shelter, and II/VCOS 10 """",,der 10 an IpIl afthe DC Animal ShcI1l:r any animal adopted liom tile same, should the II!iJnaI be moinllined in vkllalion ofrhe rol. ond condIdons set lbnh in this AdopIloo Agreeroem. The edopter undersrlltlds 1I1allhe DC Animal Shdtor cannot guanmroe the heaItJJ, bc:IlllYior, .. or lIlI1IpeI'lIllC of1he IIIima1, JIId , IICllllflIingly. agrees 1(> release ll1e DC i\.nimal Shcl....llom a111iobil'dy, claims, or dam&go.s .....lttng trom the adopdon "fthe 1Illirna!. ~ &/L-.J.1- Chu- t s.lp) 0 :3 ForlhcDC A..imoi Sheller Dtre ~. ~ (;.li~r 01 (', \J\A .>t!b7 ONST, f1YATTSVlU.E MD. 2Jl7BI (301) 779-7078 r.'\dwnclnlory...nl>CADCON.... to'''' SIGL. sea zoc r.J~U:J reW1ul:/ :;JCl @ss'rr ~n ~n unr II -j VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. Date: July 'di ,2004 /])~lfl-bro&6 David DeGroff JA:l ~ \) 0 ~ ~ D-~ . * *~~. - ff~C \..J\ fI. \;.J ~~ () -....J ~ o G i-' ~ r;> 70 (lI fJ ...., L.:~ ~ :-:;~ ._ 1;,:21 r'--- ~ ,j rn ~ I~J '-L- L. (..) (":) iil r"J d I DAVID DEGROFF, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2004-3712 CIVIL ACTION-LAW NINA WEAVER, Defendant PRAECIPE TO REINSTATE TO THE PROTHONOTARY: Please reinstate the Complaint filed in the above-captioned matter on July 29, 2004. Respectfully submitted, O'BRIEN, BARIC & SCHERER :;{rl-v~(/ 2.-1, Z-OO'1 ~ . Michael A. Scherer, Esquire J.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dlr/genlltlDegroff/relnstate.pra C) C. '0 (~ .' .::~ (,C.) c.n @ ", c::~;) c::;:, ..c.-- cr F:'~' ~''0 l'.' c; -1", :-::1 'Tl CASE NO: 2004-03712 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DEGROFF DAVID VS WEAVER NINA CPL. MICHAEL BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE WEAVER NINA was served upon the DEFENDANT , at 1737:00 HOURS, on the 1st day of October 2004 at 121 HASSINGER ROAD NEWBURG, PA 17240 NINA WEAVER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 29.60 .00 10.00 .00 57.60 So Answers: .~~~ R. Thomas Kline 10/04/2004 OBRIEN BARIC SCHERER By:~L Deputy Sworn and Subscribed to before 1:. e 'hie t -!{ d'yof l~.,~ . /1 {- A.D. ~,)..J, WI. - Anthony Stefanon, Esquire 1.0.# 25497 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108-2027 Attorney for Defendant David DeGroff, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs : No. 2004-3712 NINA WEAVER Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ANSWER 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 2. Admitted. 3. - 12. Denied. After reasonable investigation. Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 1 13, Admitted in part and Denied in part. It is admitted that Defendant did adopt an African Grey Parrot from the District of Columbia Animal Shelter, as reflected on the documents attached as Exhibit A to Plaintiff's complaint. It is denied that the parrot which Defendant adopted was the parrot which Plaintiff lost. 14. - 17. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 18, Denied. To the contrary, by letter dated November 7, 2003, Defendant's counsel advised Plaintiff's counsel ofthe extensive efforts which had been made to satisfy Mr. DeGroff's claims regarding the bird in question. A copy of that letter is attached hereto as Exhibit A. By way of further answer, in accordance with an additional request from Plaintiff's counsel, Defendant submitted a genetic sample drawn from her bird by a licensed veterinarian at the Shippensburg Animal Hospital. A copy of that letter and attachments are attached as Exhibit B. The sampling took place on March 17, 2004 as evidenced by the attached Exhibit C. Apparently, Plaintiff declined the opportunity to perform the genetic testing which he had previously requested, as evidence by the attached Exhibit D, 2 COUNT I - REPLEVIN 19. Denied, After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 20. Admitted. 21. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. By way of further answer, Defendant has already submitted a genetic sample to Plaintiffs selected laboratory for testing in accordance with agreements previously reached between Plaintiffs counsel and Defendant's counsel. 22. Denied, After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. WHEREFORE, Defendant requests that Plaintiffs Complaint be dismissed. COUNT II - CONVERSION 23, The averments of the foregoing paragraphs 1 through 22 are incorporated herein by reference. 3 24. Denied. To the contrary, Defendant is lawfully in possession of an African Grey Parrot which she adopted through the District of Columbia Animal Shelter, to which Plaintiff has no lawful claim. WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed. NEW MATTER 25, The African Grey Parrot possessed by Defendant was lawfully obtained by an adoption proceeding through the District of Columbia Animal Shelter. 26. Defendant is justified in possessing and retaining the possession of the African Grey Parrot which she adopted. 27, Defendant is a good faith purchaser for value with regard to the African Grey Parrot which she adopted. 28, No evidence exists to suggest that the African Grey Parrot in the possession of Defendant is the same bird which Plaintiff lost. WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed. COUNTERCLAIM INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 29. Counterclaim Plaintiff is Nina Weaver. 4 30. Counterclaim Defendant is David DeGroff (hereinafter "DeGroff".) 31. Beginning in early June 2003, DeGroff commenced a course of harassment against Weaver including repeated dunning and vituperative calls to her home; publication of false and defamatory representations in the national news; media; disparaging communications to Weaver's employer; and threatening and harassing visits to Weaver's home. 32. The harassing course of conduct by DeGroff has culminated in the filing of this unwarranted and unfounded law suit. 33. Over the past fourteen (14) months, Weaver has made every effort to attempt to mollify DeGroff and to establish that the animal in her possession is a different animal from the one lost by DeGroff. 34. Weaver incorporates herein by reference the foregoing averments of Paragraph 18 of her Answer and the exhibits thereto. 35. The aforesaid actions of DeGroff were taken by himself directly, and by his agent or emissary John David Taylor who acted for or on behalf of DeGroff. 36. The aforesaid actions of DeGroff constitute extreme and outrageous conduct which has intentionally caused severe emotional distress to Weaver. 37. The extreme and outrageous conduct of DeGroff has caused Weaver to suffer bodily harm as the result of the aforesaid emotional distress. 5 38. Weaver has undergone pain, suffering. aggravation, inconvenience, and emotional distress as the result of the outrageous acts of DeGroff. WHEREFORE, Weaver demands judgment against DeGroff for general damages and punitive damages, plus interest and cost of suit. By: DATE: (1- '-;/Y~' 6 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing ANSWER, NEW MATTER AND COUNTERCLAIM are true and correct to the best of her knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa, C.S,A, 94904 relating to unsworn falsification to authorities. 7L1 ~ ()J.efu)J A Nina Weaver " Date: 8 nov OLI ANTHONY STEFANON ATTORNEY AT LAW 407 NORTH FRONT STREET POST OFFICE BOX 12027 HARRISBURG, PENNSYLVANIA 17108-2027 PHONE 717-232-0511 TELEFAX 717-233-2657 November 7, 2003 Joseph K. Goldberg, Esquire 2080 Linglestown Road Suite 106 Harrisburg, P A 17110 RE: David DeGroff Dear Joe: Nina Weaver has authorized me to provide documentation to you regarding the history of this matter. Apparently, Mr. DeGroff enlisted the aid of one John D. Taylor to assist him with inquiries regarding his lost bird. Mr. Taylor sent to me a letter dated June 18,2003, including an Affidavit of Mr. DeGroff, regarding the matters relating to the case. I am enclosing a copy of that letter and a copy of that Affidavit. Unfortunately, nothing in the affidavit served to identify Mrs. Weaver's bird as the same animal lost by Mr. DeGroff. Accordingly, I wrote to Mr. Taylor on June 20, 2003, requesting additional information. A copy of that letter is enclosed. I then receiYv'ed correspondence dated June 18, 2003 directly from Mr. DeGroff, and replied to that by letter of June 23,2003, Copies of those letters are enclosed. . On or about July 1, I received another package of information from Mr. Taylor, which included a letter dated June 24, 2003 from Mr. DeGroff, identifying the birthmark on the bird, and providing photographs of the bird. Copies of that information are enclosed for your reference. The photographs and birthmark description were submitted to one Sue Morrow, proprietor of West Creek Aviary. Ms. Morrow examined the bird to determine ifthe birthmark existed, and it did not. I am enclosing a copy of Ms. Morrow's letter dated July 3, 2003. This information was presented to Mr. DeGroff under cover of my letter dated July 11,2003, a copy of which is enclosed. Joseph K. Goldberg, Esquire Page TWO November 7,2003 The bird which Mrs. Weaver purchased from the animal shelter displays the following traits: (1) It has a leg band with numbers which Mr. DeGroff is unable to identify; and (2) It lacks the birthmark which Mr. DeGroff alleges his bird had; and (3) It has clipped wings which Mr. DeGroffs bird did not; and (4) It refers to itseIfas "Toby," which Mr. DeGroffs bird does not. In short, there is simply no evidence to suggest that the bird in question is the same bird which escaped from Mr. DeGroff. All of the evidence suggests the contrary. Despite my client's efforts to accommodate Mr. DeGroff, he has pursued a course of harassment against my client. Mrs..W eaver was forced to have her home telephone number changed to an unlisted number to avoid repeated vituperative telephone calls from your client and his representative. The matter has been widely publicized in the national media, based on the false representations ofMr, DeGroff and his representative. Disparaging remarks have been addressed to my client's employer, Dr. Ceddia, President of Shipp ens burg University. My client's email address has also been posted on various lesbian websites, resulting in a daily barrage of prurient email. Given the total lack of any evidence to suggest that Mr. DeGroff has any legitimate claim to this bird, I would suggest that you remind him ofthe penalties existing under the Dragonetti Act (42 Pa CSA Section 8351) regarding the wrongful use of civil proceedings. Any action filed by your client will be met with a countersuit for harassment, intentional infliction of emotional distress, defamation, defiant trespass, along with any other causes of action that I discover. AS/kr pc: Nina Weaver .. The Law Office of JOSEPH K. GOLDBERG 2080 Linglestown Road Suite 106 Harrisburg, PA 17110 717 -703-3600 717 -635-2062 (fax) jgoldberg@ssbc-Iaw.com PA, DC, MD BARS March 1, 2004 Anthony Stefanon, Esquire 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108-2027 Re: David DeGroff - Nina Weaver Dear Mr. Stefanon: I have called and left a message to discuss the matters in this letter. I hope that by the time you are reading this that we have had the chance to talk. We propose that Mr. DeGroff be give a short opportunity to see the parrot. Mr. DeGroff is confident that he will immediately be certain whether the bird is the one he lost. If it is not, this matter will be ended. If Mr. DGroff believes the parrot is LouLou, we propose to use the identification technique described in the enclosed letters from Joy Halverson at QuestGen Forensics. As you can see, QuestGen already has a sufficient sample from Mr. DeGroff to conduct a comparison with a sample from Ms. Weaver's parrot. We propose to use the services of a licensed veterinarian to obtain the sample from Ms. Weaver's bird. That can be a doctor of Ms. Weaver's choosing, or, if she prefers, one selected by Mr. DeGroff. I suggest that the meeting between Mr. DeGroff and the parrot be at the veterinarian's office to minimize the inconvenience to all parties. Mr. DeGroff will bear the cost for the veterinarian's services and for the testing. I would appreciate your response to this proposal soon so that we can work toward a resolution of this matter. Thank you for your continued cooperation. Ene!. cc: David DeGroff 2-0b-:2~~4 4::2II-"M F~b O~' 04 01:53p t-kUfY1 530- ,0-5758 QuestGen FORENSICS r 9~2 E2S1: 3ih S~~~'2~.~~ lry;:;3~3:S, '':f~ S'3e, ~ G Q5i5lZ; ?5:'1,-~-25~ tfS!:'-j (::3~! 75rl'...:i?58 David DeGroff 3201landover Street #1418 Alexandria, VA 22305 February 2. 2004 Dear Mr. DeGroff, i ildVl.1 exarnined me reathers that you had coltected from your African Grey parrot Loufou and believe there is sufficient DNA present to perform mitochondrial haplotyping. Mitochondrial typing of pets to link a victim or suspect to a crime scene has been admitted in several criminal trials in various states in the U.S. and, in my opinion will be very useful in this case. It will be necessary to collect a sample from the bird y.ou believe to be Loulou for comparison. Please let me know when I can begin the laboratory procedures. Best R.R~p~! . 4~~~ (Joh-.al\ferson, DVM . . t D~~r, QuestGen Forensics ../\~ ...", I-'.L p.2 2-17-2004 1 ) : 09Ai'-1 FRO~1i F@b 13 04 04:17p 530-n..u-5758 QuestGen FORENSICS ~~82 [2s1~ 3Lb S~~;~3~:, ~1'2;:~,~~S~ C~R S5~~1; ~~53g] ?~8-~:~25.L::, F~:;~ C5~:J: 75:z'--;:~752 William Martin 409 A Street S.E. Washington. D.C. 20003 February 13, 2004 Dear Mr. Martin, Pursuant to your letter dated February 9, 2004, 1 am writing with instructions on sample collection from the bird in Ms. Weaver-s possession. f suggest that we use a sampling method developed by Zoogen. Inc. (an affiliate of QuestGen Forensics) and commonly used for gender identification in birds. For this method, Ms. Weaver's veterinarian would clip a toenail just short enough to draw about 1 drop of blood. The blood is collected in a small hematocrit tube and then placed in a tube with 70% ethanol for shipment to the laboratory. No refrigeration or overnight shipment is required; the sample is stable at room temperature for many days. If Ms. Weavers veterinarian is experienced in avian medicine, helshe may have a Zoogen sample collection kit of this type. If not. please caJl800-995-2473 and request one from customer service. Please let customer service know if you require special shipment , wm be out of the office at. a forensic meeting from February 16~20 and will also be gone for a trial appearance February 24-25. I wKI check my voicemaif and will return any calls. ~L P.2 10.2 lid: 40R~1 CTR FOR JUV JUSTICE "c. NO. 387 P.2 '. ) ,.;>hippensburg Animal Hospital . .. 33 Walnut Bottom Road 5hippensburg, PA 17257 Bill for Services rei: 717~532-5413 Miss Nina Weaver 121 Hassinger Road Newburg, PA 17240 717-477-1448 DATE 3/17/2004 INV. NUM 127548 Acet no.: 18370 Mike Nelson, DVM Qty I 1 I 1 Date Patient 3/17/200~l Toby 3!1 ~~20041 Toby Descriptio~ OFFICE CALL .. '1our receptionist was Angela. Price . t 24.00 I I I Ext be 24.00 I I 0.00 I I 24,00 subtotal Your confidence is greatly appreciated. tax bill total prev bal total due payment 0.00 24.00 0,00 24.00 (24.00) Pmnt 1: ck note: # 293 Pmnt 2: note: Amt: (24,00) Amt 0.00 .- .._~ "'-NEWB1tt. -. ..- ''''''. -0.00- '.' - . Thank you for chasing the Shippensburg Animal Hospital to serve your pet's health care needs! Spring weather is on its way. Be sure to pick-up flea and hearworm medication to protect your pets against these s'pring time problems, 124623 -- ~./~NOV. 9.2004 11:43AM u' 10', Nina Weaver 121 Hassinger Rd. Newburg, P A. 17240 CTR FOR JUV JUSTICE \ i~o' y NO.867 P.l To Whom It May Concern: On March 17th, 2004 Nina Weaver brought me a Congo African Grey parrot at the Shippensburg Animal Hospital for examination. The bird was brought to me for the purpose of obtaining a blood sample to be analyzed by QuestGen to determine the genetic identity of the bird, I had previously obtained a blood sample kit from QuestGen. Blood was obtained from the bird by clipping a nail until it bled. The blood was collected in a manner consistent with the directions in the sampling kit. The blood was mailed off to QuestGen' the next day. Approximately 1 week after the blood had been mailed to QuestGen, I was contacted by the gentleman who was disputing the identity of the bird with Nina Weaver. He inquired of me as to unique ways of identifying this bird (i.e. leg bands, or tattoos). I told him that I could definitely identify the bird as an adult Congo African Grey parrot but that there were no unique identifiers that I was aware of on this particular bird. Approximately 6 weeks after the blood had been mailed to QuestGen, I contacted the company to inquire about the status of the test. I was told by the company that the gentleman who had requested the test was no longer willing to pay for the test due to lack of an ability to verify that the bird I drew blood from was, in fact, the bird in question, If there should be any questions regarding this letter, please feel free to contact me. My contact information is listed below. ~~ Mike Nelso~ DVM . Elkhom Veterinary Clinic 25 East O'connor Dr. Elkhonl, WI. 53121 262~ 723-2644 Oct 07 04 10:05a 530-750-5758 p.2 ~ " _.....-~ ,- QuestGen FORENSICS ~ SZ2 ::2S.~ 8ti1 S.~tS2~~ J2E':~:;!) Cfl SS\& ~ 5 1~5j3] ?S8-/{25~:. F2l~"~ (522:\ 7:78-5:5~ To: Anthony Stepanon Law Offices 407 North Front Street PO Box 12027 Harrisburg, PA 17108-2027 October 7, 2004 Dear Mr. Stephanon r I received a sample from Shippensburg Animal Hospital but have not tested it. After conferring with my client, David DeGroff, I ascertained that he did not witness the sample collection and was not satisfied that the sample was collected from the bird under dispute. It is my understanding that he is undertaking to have a sample taken in which he may witness the collection. f cc. CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the date below he served a true copy of ANSWER, NEW MATTER AND COUNTERCLAIM, on the person listed below, at the addresses set forth, by First Class United States Mail: Michael A. Scherer, Esquire O'BRIEN, BARIC & SCHERER 17 West South Street Carlisle, PA 17013 By: H ST 1.0,#25497 407 Nort P,Q. Bo 027 Harrisburg, PA 17108-2027 (717) 232-0511 DATE: J/- '-UxH (') .......> ,..~~ (') S' ,A; <':'~'::) '1 .;:-- ::'': --I -,- C.) -~ ~ -Tl ,"",;: r ~ 1 i ;- -r--, r~-~ c,":) ~ I:'., ~ J ". j \ 1 f--} -. -n , I . -r ~ - () "': .~ I --"- -' ~) ,nl -" '~:l ~-:l i',) ?f~) -< <Jl -< ... - DONNELLY & ASSOCIATES, P.C. BY: JOHN J. DONNELLY, ESQUIRE ATTORNEY I.D. #53898 100 West Elm Street Suite 101 Conshohocken, P A 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT, Nina Weaver DAVID DeGROFF : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LAW NINA WEAVER : No.: 2004-3712 ENTRY OF APPEARANCE Kindly enter my appearance as attorney for the Defendant, NINA WEA VER, in the above-captioned Civil Action. DONNELLY & ASSOCIATES, P.C. -_/ 'II ... o c: ::;"'" -0 txi mtq. z..... ~~,: 2c) :..c. }.>. e, zc"': $) ~ =2 '~~,f t--'> c:::l = .r:- :z: o < N W ~ -l ffi::n ~~ b~ ~..,.; 0(') am --I 55 -< -0 ::It N .. <J1 o ____~__ _I Ii II If DAVID DEGROFF, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2004 - 3712 NINA WEAVER, CIVIL ACTION - LAW Defendant REPLY TO NEW MATTER 25. Denied. The averments in paragraph 25 are a legal conclusion to which no responsive pleading is necessary. 26. Denied. The African Gray Parrot in the poss,ession of the Defendant is the property the Plaintiff. 27. Denied. The averments in paragraph 25 are a legal conclusion to which no responsive pleading is necessary. 28. Denied. Plaintiff believes that he will be able to establish that the African Gray Parrot in the possession of the Defendant is the property of Plaintiff. WHEREFORE, Plaintiff demands judgment against the Defendant as set forth in the Complaint. COUNTERCLAIM INTENTIONAL AFFLICTION OF EMOTIONAL DISTRESS 29. Admitted. 30. Admitted. 31. Denied. Plaintiff has, throughout his course of dealing with Defendant, attempted to verify that the African Gray Parrot in the Defendant's possession is the property of Plaintiff. Plaintiff has not harassed, defamed, disparaged or threatened the Defendant. Ii 32. Denied. Plaintiff denies harassing Defendant and Plaintiff has brought this suit in good faith, 33. Denied. Defendant has evaded Plaintiff and refused to cooperate in allowing the Plaintiff to establish whether or not the African Gray Parrot in her possession is the property of the Plaintiff. 34. No responsive pleading is required. 35. Denied. Plaintiff is without sufficient information to reply to this averment. 36. Denied. Plaintiff has simply attempted to verify that the African Gray Parrot in the possession of the Defendant belongs to the Plaintiff. 37. Denied. Plaintiff is without information sufficient to form a belief as to the truth of this averment. 38. Denied. Plaintiff is without information sufficiEmt to form a belief as to the truth of this averment. Respectfully submitted, O'BR~J~HERER Michael A. Scherer, Esquire J.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dir/genlitldegroff/newmatter.rep il VERIFICATION I verify that the statements made in the foregoing Reply To New Matter are true and correct to the best of my knowledge, information and belief. This verification is signed by Michael A. Scherer, Esquire, Attorney for Plaintiff and is based upon the statements provided by Plaintiff, as well as documents reviewed by the undersigned as attorney for Plaintiff. This verification will be substituted and ratified by a verification signed by the Plaintiff who is presently unavailable to sign said verification. I undersigned that false statements herein are made subject to penalties of 18 Pa.C.S. 94904, relating to unsworn falsifications to authorities. ~~ I Michael A. Scherer Dated: J f' ~v' D'1 CERTIFICATE OF SERVICE I hereby certify that on November 00 ,2004, I, ,Jennifer S. Lindsay, secretary to Michael A, Scherer, Esquire, did serve a copy of the Reply To New Matter, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Laura E. Kerns, Esquire Donnelly & Associates, P.C. 100 West Elm Street Suite 101 Conshohocken, Pennsylvania 19428 (') r- "'...... :':~~ r~ L){ ;-: ?':l (./,) ;:;. -<,' r::: 1_, ~~;~ :C"1 -< ,..." c:::.1< CC") ..s;;- o ,'I -::1 :1." rnr::: ::-9, [lJ "'J'It 0.., :"i~f' ..f- -,..; ~~? ('~ ,'.., , .J l~"'-' i'1'l ,-) ~~"~ :~j -< :6:: C:J -<:: (..> o -0 =!i: w (...) . ... .' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID DEGROFF, Plaintiff v. No. 2004 - 3712 NINA WEAVER, CIVIL ACTION - LAW Defendant PRAECIPE FOR WITHDRAWAL OF COUNSEL AND APPEARANCE OF COUNSEL TO THE PROTHONOTARY: Please note my withdrawal as counsel for David DeGroff, Plaintiff in the above matter. Dated: Nov. ll, 'lJPJ" O'BRIEN, BARIC AND SCHERER BY: ~{;V Michael A. Scherer, Esquire Pa I.D,: 61974 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Plaintiff -,. , Kindly enter our appearance on behalf of David DeGroff, Plaintiff in the above matter. Dated: lt1 BY. 1'1 )0()5 BY: ~ )JjdJ>U-i(-j,/:)rtU<X17 !Z. Molly Maguire Gaussa, Esquire PA I.D.:92375 2603 Brownsville Road Pittsburgh, PA 15227 (412) 885-1905 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 2'2. ,2005, I, m'-t#Mt.1 J;4vv- , did serve a copy of the foregoing Praecipe, by first class U.S. mail, postage prepaid, to the party listed below, as for: Laura E. Kerns, Esquire Donnelly & Associates, P.C. 100 West Elm Street Suite 101 Conshohocken, Pennsylvania 19428 >-;\ .-' / -' , f"-;') \:p ~ - \ \'.? 'c-) .-" ---/------- DONNELLY & ASSOCIATES, P.c. BY: LAURA E. KERNS, ESQUIRE ATTORNEY I.D. #87021 100 West Elm Street Suite 101 Conshohocken, PA 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT Nina Weaver DA VID DeGROFF, Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs, : CIVIL ACTION - LAW NINA WEAVER, Defendant : No.: 2004-3712 DEFENDANT, NINA WEAVER'S MOTION FOR JUDGMENT ON THE PLEADINGS Defendant, Nina Weaver, by and through her counsel, Donnelly and Associates P.c., hereby files this Motion for Judgment on the Pleadings, and in support thereof avers as follows: I. On or about July 29, 2004, Plaintiff filed a Complaint alleging a claim of Replevin (Count I) and Conversion (Count II) against the above named Defendant. (Please see a true and correct copy ofPlaintitT's Complaint attached hereto as Exhibit "A.") 2. Thereafter, Defendant filed an Answer & New Matter to Plaintiffs Complaint, as well as a Counterclaim against Plaintiff for Intentional Infliction of Emotional Distress. (Please see a true and correct copy of Defendant's Answer, New Matter and Counterclaim attached hereto as Exhibit "8.") 3. Plaintiff filed his Reply to Defendant's New Matter and Counterclaim on or about November 30,2004. (Please see a true and correct copy of Plaintiffs Reply to Defendant's New Matter and Counterclaim attached hereto as Exhibit "C.") 4. The pleadings are now closed. 5. Plaintiff alleges in his Complaint that Defendant lost his African gray parrot in April of 2003, and Defendant adopted an African gray parrot from the District of Columbia Animal Shelter in May of2003. 6. Plaintiff did not allege in his Complaint that Defendant's African Gray Parrot is his African Gray Parrot and did not attach any proof to his Complaint that these birds are one in the same. 7. Plaintiff passed away on or about March 28, 2005. A. PLAINTIFF'S CASE MUST BE DISMISSED AS A MATTER OF LAW BECAUSE PLAINTIFF CAN NO LONGER BE A PARTY TO THE ACTION. 8. Defendant, Nina Weaver, incorporates all previous paragraphs as though fully set forth herein. 9. As stated above, Plaintiff passed away in March of2005. 10. Over eight months has lapsed since Plaintiffs death; yet, there has been no change in the caption of this lawsuit and no evidence to suggest that Plaintiff has an estate or a personal representative. 11. Under Pennsylvania law, a "dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect." Marzella v. King, 256 Pa.Super. 179,182,389 A.2d 659 (1978). See DeSimone v. Bandarskv Estate, 46 Pa, D.&C.3d 393, 395 (Pa.Com.PI. 1986). 12. Therefore, as a matter oflaw, Plaintiffs case must be dismissed. WHEREFORE, Defendant, Nina Weaver, respectfully requests that this Honorable Court grant her Motion for Judgment on the Pleadings, and enter an Order similar to the Order attached hereto. B. COUNT I - REPLEVIN 13. Defendant, Nina Weaver, incorporates all previous paragraphs as though fully set forth herein. 14. Plaintiffs claim of Replevin, Count I of Plaintiffs Complaint, must be dismissed in accordance with Pennsylvania law. ]5. According to Pennsylvania law, to establish a claim ofreplevin, a "party needs to show that (I) he has title to property and (2) another party has un]awful possession of that property." Pollack v. Skinsmart Dermatologv and Aesthetic Center. P.C., 2004 WL 242633] (Pa.Com.PI. 2004). 16. As stated above, Plaintiff has passed away and can no longer be a party to this action. 17. In any event, Plaintiff pleaded in his Complaint that he "was the owner of a female African gray parrot named 'Loulou,''' See Paragraph 3 ofPJaintiff's Complaint, Exhibit "A," 18. Plaintiff did not attach any exhibits to his Complaint that even suggest this alleged fact. 19. As such, Plaintiff has not met the first element of replevin. See id. 20. In addition, Plaintiff cannot meet the second element of replevin. See id. 21, Plaintiff avers, and admits in his Complaint, that Defendant adopted an African gray parrot from the District of Columbia Animal Shelter. See Exhibit "A" of Plaintiff's Complaint, Exhibit "A." 22. As such, Plaintiff admits that Defendant took lawful possession of the African gray parrot that she adopted. 23. In the averments in Plaintiffs Complaint, he defeats his own claim of Replevin against Defendant. 24. As Plaintiffs own Complaint defeats his claim of Replevin against Defendant, this count against Defendant should be dismissed in accordance with Pennsylvania law. WHEREFORE, Defendant, Nina Weaver, respectfully requests that this Honorable Court grant her Motion for Judgment on the Pleadings, and enter an Order similar to the Order attached hereto. C. COUNT II - CONVERSION 25. Defendant, Nina Weaver, incorporates all previous paragraphs as though fully set forth herein. 26. Plaintiffs claim of Conversion, Count 1J of Plaintiffs Complaint, must be dismissed in accordance with Pennsylvania law. 27. According to Pennsylvania law, the "classic definition of conversion under Pennsylvania law is 'the deprivation of another's right of property in, or use or possession of, a chattel, or other interference therewith, without the owner's consent and without lawful justification.... L.B. FosterComDanv v. Charles Caracciolo Steel & Metal Yard. Inc., 777 A,2d 1090, 1095 (Pa.Super. 2001) (emphasis added) quoting McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 659 n. 3 (Pa.8uper. 2000). 28. As stated above, Plaintiff avers in his Complaint that Defendant "adopted" an African gray parrot. See Plaintiffs Complaint, Exhibit "A." 29. Plaintiff even attaches Defendant's "Adoption Application" to his Complaint proving that Defendant took lawful possession of her African gray parrot. See Exhibit "A" of Plaintiffs Complaint, Exhibit "A." 30. Again, there are no exhibits attached to Plaintiff's Complaint, or even allegations, that suggest that the African gray parrot Defendant adopted is Plaintiffs African gray parrot. 31. Plaintiff has no evidence, and did not even aver in his Complaint, that Defendant took possession of her African gray parrot unlawfully; in fact, Plaintiff admits that Defendant adopted her African gray parrot and offers proof of same as an exhibit to his Complaint. 32. In any event, Plaintiff has passed away and can no longer be a party to this action. WHEREFORE, Defendant, Nina Weaver, respectfully requests that this Honorable Court grant her Motion for Judgment on the Pleadings, and enter an Order similar to the Order attached hereto. DATE:~ DONNELLY & ASSOCIA TES, P.c. By:4t!wM. 2-~ L~URA E. KERNS Attorney J.D. #87021 Donnelly & Associates, P.C. 100 West Elm Street, Suite 101 Conshohocken, P A 19428 (610) 828-2300 Attorney for Defendant, Nina Weaver ,i .'\i I G:,;. n....... \...'V ., DONNELLY & ASSOCIATES, P.c. BY: LAURA E. KERNS, ESQUIRE ATTORNEY I.D. #87021 100 West Elm Street Suite 101 Conshohocken, P A 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT Nina Weaver DA VID DeGROFF, Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LAW NINA WEAVER, Defendant : No.: 2004-3712 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS Defendant, Nina Weaver, by and through her attorneys, Donnelly & Associates, P.c., hereby submits this Memorandum of Law in Support of its Motion for Judgment on the Pleadings. I. STATEMENT OF FACTS On or about July 29, 2004, Plaintiff filed a Complaint alleging a claim of Replevin (Count I) and Conversion (Count II) against the above named Defendant. See Plaintiff's Complaint, Exhibit "A," Thereafter, Defendant filed an Answer & New Matter to Plaintiffs Complaint, as well as a Counterclaim against Plaintiff for Intentional Infliction of Emotional Distress. See Defendant's Answer, New Matter and Counterclaim, Exhibit "8," Plaintiff filed his Reply to Defendant's New Matter and Counterclaim on or about November 30, 2004. See Plaintiffs Reply to Defendant's New Matter and Counterclaim, Exhibit "C." The pleadings are now closed. Plaintiff alleges in his Complaint that Defendant lost his African gray parrot in April of2003, and Defendant adopted an African gray parrot from the District of Columbia Animal Shelter in May of2003. See Plaintiffs Complaint, Exhibit "A." Plaintiff did not allege in his Complaint that Defendant's African Gray Parrot is his African Gray Parrot and did not attach any proof to his Complaint that these birds are one in the same. Plaintiff passed away on or about March 28, 2005. II. LEGAL STANDARD A Judgment on the Pleadings may be granted when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. See Pa.R.C,P. 1034; Kellv v. Nationwide Insurance Companv, 606 A.2d 470 (Pa.Super. 1992). Moreover, where the moving party's case is clear and free from doubt such that a trial would prove fruitless, an appellate court "wilL ..affirm a motion for judgment on the pleadings." Kellv. 606 A.2d at 472. Simply, a Motion for Judgment on the Pleadings "is one of several practical mechanisms to save the parties the expense of having to go to trial on the merits before examining the legal sufficiency of the case." DiAndrea v. Reliance Savings and Loan Association, 456 A.2d 1066, 1069 (Pa.Super 1983). The granting ofa Motion for Judgment on the Pleadings "(is) appropriate in cases that turn on the construction ofa written agreement." [d. at 1070. See also Kellv v. Nationwide, 606 A.2d at 473; Vogel v. Berklev, 511 A.2d 878 (Pa.Super. 1986). III. ARGUMENT Plaintiffs lawsuit and his individual counts against Plaintiff should be dismissed in accordance with Pennsylvania law. A. PLAINTIFF'S CASE MUST BE DISMISSED AS A MATTER OF LAW BECAUSE PLAINTIFF CAN NO LONGER BE A PARTY TO THE ACTION. As stated above, Plaintiff passed away in March of2005. Over eight months has lapsed since Plaintiff s death; yet, there has been no change in the caption of this lawsuit and no evidence to suggest that Plaintiff has an estate or a personal representative, Under Pennsylvania law, a "dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect." Marzella v. King, 256 Pa.Super. 179, 182,389 A.2d 659 (1978). See DeSimone v. Bandarskv Estate, 46 Pa. D.&C.3d 393, 395 (Pa.Com.PI. 1986). Therefore, as a matter oflaw, Plaintiffs case must be dismissed. B. COUNT I - REPLEVIN Plaintiffs claim of Replevin, Count I of Plaintiffs Complaint, must be dismissed in accordance with Pennsylvania law. According to Pennsylvania law, to establish a claim of replevin, a "party needs to show that (I) he has title to property and (2) another party has unlawful possession ofthat property." Pollack v. Skinsmart Dermatologv and Aesthetic Center, P.C., 2004 WL 2426331 (Pa.Com.PL 2004). As stated above, Plaintiff has passed away and can no longer be a party to this action. In any event, Plaintiff pleaded in his Complaint that he "was the owner of a female African gray parrot named 'Loulou.... See Paragraph 3 of Plaintiffs Complaint, Exhibit "A." Plaintiff did not attach any exhibits to his Complaint that even suggest this alleged fact. As such, Plaintiff has not met the first element of replevin. See id. In addition, Plaintiff cannot meet the second element of replevin. See id. Plaintiff avers, and admits in his Complaint, that Defendant adopted an African gray parrot from the District of Columbia Animal Shelter. See Exhibit "A" of Plaintiffs Complaint, Exhibit "k" As such, Plaintiff admits that Defendant took lawful possession of the African gray parrot that she adopted. In the averments in Plaintiffs Complaint, he defeats his own claim of Replevin against Defendant. As Plaintiffs own Complaint defeats his claim of Replevin against Defendant, this count against Defendant should be dismissed in accordance with Pennsylvania law. C. COUNT II - CONVERSION Plaintiffs claim of Conversion, Count II ofPlaintitT's Complaint, must be dismissed in accordance with Pennsylvania law. According to Pennsylvania law, the "classic definition of conversion under Pennsylvania law is 'the deprivation of another's right of property in, or use or possession of, a chattel, or other interference therewith, without the owner's consent and without lawful justification...' L.B. Foster Companv v. Charles Caracciolo Steel & Metal Yard. Inc., 777 A.2d 1090, 1095 (Pa.Super. 2001) (emphasis added) quoting McKeeman v. Corestates Bank. N.A., 751 A.2d 655, 659 n. 3 (Pa.Super. 2000). As stated above, Plaintiff avers in his Complaint that Defendant "adopted" an African gray parrot. See Plaintiffs Complaint, Exhibit "A." Plaintiff even attaches Defendant's "Adoption Application" to his Complaint proving that Defendant took lawful possession of her African gray parrot. See Exhibit "A" of Plaintiffs Complaint, Exhibit "A." Again, there are no exhibits attached to Plaintiff s Complaint, or even allegations, that suggest that the African gray parrot Defendant adopted is Plaintiffs African gray parrot. Plaintiff has no evidence, and did not even aver in his Complaint, that Defendant took possession of her African gray parrot unlawfully; in fact, Plaintiff admits that Defendant adopted her African gray parrot and offers proof of same as an exhibit to his Complaint. In any event, Plaintiff has passed away and can no longer be a party to this action. WHEREFORE, Defendant, Nina Weaver, respectfully requests that this Honorable Court grant her Motion for Judgment on the Pleadings, and enter an Order similar to the Order attached hereto. DATE: U Iz.q( 06 DONNELLY & ASSOCIATES, P.c. By ~[kw4 I URA E. KERNS Attorney J.D. #87021 Donnelly & Associates, P.C. 100 West Elm Street, Suite 101 Conshohocken, P A 19428 (610) 828-2300 Attorney for Defendant, Nina Weaver VERIFICATION I, LAURA E. KERNS, ESQUIRE, attorney for Defendant, Nina Weaver, in the within action, hereby state that the facts set forth in the foregoing Defendant's Motion for Judgment on the Pleadings are true and correct to the best of my knowledge, information and belief This Verification is made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsification to authorities. ~Mf~ RA E. KERNS EXHIBIT" A" Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2004 - 3 71 :'J-.. DAVID DEGROFF, v. 1"",,:) () ~:2 ~~~ -1'"/ ':.[;.r: .J:;'A .--t ',':: ?;:: ffi -,~JJ ('--. .C'I'n 1" f',) .'~', (J \.I,,) ;-") \ NOTICE TO DEFEND AND CLAIM RIGHTS/?,:: .ov c.,':. ~;~:'~ :::: \-2 ~~~ You have been sued in court. If you wish to defend against the claims' !;~t forth i~the following pages, you must take action within twenty (20) days after this compl~t a~ noffr;e 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. NINA WEAVER, CIVIL ACTION - LAW Defendant 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE, Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 ij " I' ,I " , , DAVID DEGROFF, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2004 - NINA WEAVER, CIVIL ACTION - LAW Defendant COMPLAINT AND NOW, comes the plaintiff, David DeGroff, by and through his attorneys, O'Brien, Baric & Scherer, and respectfully represents as follows: 1. The plaintiff is David DeGroff (hereinafter "plaintiff'), an adult individual who resides at 3201 Landover Street, #1418, Alexandria, Virginia 22305. 2. The defendant is Nina Weaver (hereinafter "defendant"), an adult individual who resides at 121 Hassinger Road, Newburg, Cumberland County, Pennsylvania. 3. Plaintiff is, and at all times relevant hereto, was the owner of a female African gray parrot named "Loulou." 4. On or about the evening of April 12, 2003, Loulou escaped from plaintiff's apartment in Alexandria, Virginia. 5. Immediately after Loulou's escape, plaintiff unsuccessfully undertook efforts to locate Loulou in the immediate vicinity of plaintiffs apartment and the following day plaintiff and others continued the search and posted signs indicating the loss of Loulou. II 11 II '1 Ii 'I II \i \ 6. On or about April 15, 2003, plaintiff telephoned various local, county and city animal shelters, including the District of Columbia Animal Shelter (hereinafter "D.C. Animal Shelter") reporting the escape, identifying the bird, and inquiring whether Loulou had been located and turned in; each shelter replied in the negative. 7. At the time of his search for Loulou, plaintiff left his name and telephone number with the D.C. Animal Shelter, and requested that the D.C. Animal Shelter contact him in the event a bird matching Loulou's description was found and turned in, which the representative of the D.C. Animal Shelter promised to do. 8. On at least two occasions after plaintiff called the D.C. Animal Shelter on April 15, 2003, plaintiff called the D.C. Animal Shelter and asked whether a bird matching Loulou's description had been turned in, and each time the D.C. Animal Shelter replied in the negative, but the representative of the D.C. Animal Shelter with whom plaintiff spoke stated that the shelter would contact plaintiff if a bird matching Loulou's description was found and turned in. 9. On or about May 7, 2003, plaintiff again contacted the D.C. Animal Shelter to inquire about Loulou, and at that time the representative of the D.C. Animal Shelter with whom .. plaintiff spoke advisetl plaintiff that an African gray parrot had been turned in "last week", but had subsequently been adopted out by the shelter. 1 O. Plaintiff requested the identity and address of the person who had adopted the parrot, but the D.C. Animal Shelter declined to provide the information. 11. In or about late May 2003, plaintiff filed a Freedom of Information Act request with the District of Columbia requesting production of any and all documents relating to the adoption of the African gray parrot from the D.C. Animal Shelter as set forth above. 12. In or about June 2003, the D.C. Animal Shelter provided copies of the adoption papers relative to the African gray parrot, which adoption papers are attached hereto as "Exhibit A." 13. The adoption papers identified defendant as having taken custody of the African gray parrot on May 11, 2003. 14. Upon receipt of copies of the adoption papers, plaintiff immediately attempted to contact defendant by telephone several times, receiving no answer. 15. On or about June 3, 2003, plaintiff went to defendant's residence to ask for permission to examine the African gray parrot in her possession, however, defendant did not appear to be at home, and plaintiff left a flyer in her mailbox describing Loulou and the circumstances surrounding its escape with a request that she call him. 16. Before plaintiffs return, defendant called plaintiffs residence and spoke to a William Milan, who identified himself as Mr. DeGroffs roommate. 17. Defendant advised Mr. Milan that she had "legally" adopted the African gray parrot and that she was not going to return it and refused permission for plaintiff to see the parrot. 18. After some discussion regarding the identity and ownership of the parrot, defendant's counsel, by letter dated November 7, 2003, refused plaintiffs request to examine the parrot to determine if it was Loulou. COUNT I - REPLEVIN 19. Based upon the close proximity of the location of the escape of Loulou to the D.C. Animal Shelter, and the close proximity in time to the escape of Loulou and the adoption of an African gray parrot from the D.C. Animal shelter, and due the rarity of the African gray parrot species, plaintiff believes and therefore avers that the African gray parrot in defendant's possession is Loulou. 20. Plaintiff has requested but has been denied permission to inspect the African gray parrot in defendant's possession. 21. Plaintiff is in possession of genetic material from Loulou which would enable him to positively identify Loulou as the African gray parrot in defendant's possession when genetic testing occurs through discovery. 22. Plaintiff believes Loulou to be worth approximately $4,000.00. WHEREFORE, plaintiff respectfully requests that this Honorable Court enter judgment in his favor and Order that the African gray parrot in defendant's possession be returned to plaintiff and for defendant to pay special damages. COUNT II - CONVERSION 23. Paragraphs one through twenty-two above are incorporated herein by reference. 24. Defendant has deprived plaintiff of plaintiff's right to possess Loulou without plaintiffs consent. WHEREFORE, plaintiff respectfully requests that this Honorable Court enter judgment in his favor and Order that the African gray parrot in defendant's possession be returned to plaintiff, or in the alternative Order the defendant to pay damages and costs to plaintiff for the conversion of Loulou. Respectfully submitted, O'BRIEN, BARIC & SCHERER ?1Ah~ " i! Michael A Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Ii " , I' Ii 1\ \1 II .., .)!:(Approved o Denied o Other Houscchecker f\, ,~ _~ /\ (),- Dog: Au' # ~ Oog:AIL# Date Assigned ~\j\c:J5 Cat: lot ehoice Humane Hold ADOPTION APPLICATION The D.C. Animal Shelter 1201 New Ycrk Avonu.. NE W..,hingt<ln, DC 20002 (operated by the WIShin8100 Humane Soci<,y) To ensunlhat this adoplion Lr in the best imenst of boTh you and the animal you select, / we ask IIra1 you on.';wer lhe/ollowing que.rHo"" complerely; NA...\1E: ! ~.va U.)~t.tl\~ ADDRESS: l- I H ~s , r Kc<.. Is this a: CITY: IJo ..) k> LL""~ ,o.&: . Zip:-L'lZ. 4-0 HOMF. PHOI'I';: (1/1 ) 4-:; "> - ( "Q4:(> WORK PHONE: (11, ) Y:2'7 - !J::k!ij How long h.ve you lived althis address? .;, LX r .s If you do not own, please specify 1.nd1onl or renratl.gonc Name: Phone: ( ) Do you pl.n o. moving within the nexl sU month.? 0 Yes ~No EASIEST APPLICANT TO CAll. WEEKDAYS: Al,,, a bJeLU '-I r Phone: 1.1 :1 - 4l1. -= J 4-'+ g ChecIc ODe: 0 Home 'Q, Work The WllShington Humane Society 7319 Georgia Avenue. NW W..,hinglllon. DC 20012 "a..f!ousc? o Api? o CondolCo-op? Do you: t3{>wn? o Renl? o Sublet? . DO YOU: '1q Work? CJ Attend !;C/lool? )iyes, name of employ"" Or seh?,,]: ~Y\..\f>Pl.-'-"> b ",y'o Ll.....", \ If no. what? Number of people in household: Adullll:---.t.._ Cbildren: Ages of children: Have }'Ou applied 10 adopt an animal from thL, shelter before? IJD . If ye... when? Dog or cat? If you have previously adopted an animnl from us. do you stiU have the animal? Please list aU nnimaJ, that currently reside with you: Breed: Age: 0> e... 0.'3- 57 I () Spayed/neutered? How long in your carc7 If cat. declawed7 &; to Y)o Hnve you had an! ~omp.anion ~~15 in the past? ~[artin8 with the most recent pel$. please list all below: ~.~ Type: lJJ1:>- <;, D \ ~: wned how Jong? SpayedJn<utcred'? What happened. ~ . ..,- bU/"cl '5 r . tL. 4 ~ Were any of your previous cats declawed? 0 Yes ~o OVER PLEASE EXHIBIT A ~Recyclp..d '(tI PQPtlr G'd StB.!. S€:9 202 r-'''U:J r"w~u~ ::10 "S!;: It ED SO unr Where will the animal [-., kept; Do you wont this animal to be: ^ 0,. o du~g the day? ,l;. Cl " <... hinsidc only? 0 outside only? 0 at nIght? c.a.~Y- o mostly inside? 0 mostly outside? 0 while you're no~me? ~L'.-t ~ \ l.;S o oon"t know. 0 when you're on vacation? (I'" l +'h ';"'~6 How long willlhe animal be alone each day? _'is lL ~~ Will you \\feed the oninu>l? Nu How much do you think it will cost to feed. vaccinate, license &. care fur tbis animal each year? f SOC> ldJuou have a veterinarian? ~ If Yf" gi:ve hislhcr name, clinic name and dare OflUl visit: .l2!~. f~u-c:.{..s ---1.~Oll),J tl[L \Jtt S Whlll kind of animal behaviot(s) do you feel unable to accept; i.e., what behavior(s) would cause yOIl to return the animaJ to the shelter? ,')0 (\ Il.-- What will happen to this animal if you hllve to move une:<pcctedlYl -taK)- Very briefly, explain your reason for Wllllting to adopt an nnimal: Dv L y;>p.tl.s - 1-1'''\.1 in C" LU. tl..~r. O"'\A. tL !-i.l>'/lIv..- I DOG: If you are applying for a dog, please answer these questions: Will you chain the dog? Will the dog be used for guard purposes? Explam: Do you have a securely fenced yard? If not, hoW will you handle the dog's exercise and housebreaking? CAI: If you are applytng for a eat, please answer these questioos; Will you declaw the cat? Why OT why not? Willlhe cal be allowed outside? How did ;you hear al>oat 011' shelter? Use tb.is box for a.ny commenbl or expla1Ul1io11l you want to I1Illk I o Hotline I {i;~wspaper . specify; I need [J Inlernet ! o Other. specify: , , : ! PLEASE TAKE A MOMENT TO REVIEW YOUR ANSWERS; MISSING OR UNCLEAR INFORMATION MAY DELAY OR PREVENT PLACEMENT. , Applicant's signature Identification type and number: Staff Comments: I certify that tlae iRf(JnttI1tWn provided is true, and understand that false information may result in nullifying this adoprion. '-"YlJI\.~ LJ;cu...<-er- Date: Staff initials; 5{U(o?" 1>"<1 SI61. SI>9 aoz r"'~U:l IeW!ul:I :la eSS:tl EO en unr .. DISTRICf OF COLUMBIA Ai"iIMAL SHELTER ADOPTION AGREEMENT D= 5/6103 A085975 DOMESTIC BIRD I AFRlGAN GRAY I AFRICAN GRAY GRA YIRED UNKNOWN AGE Adoption Rules Pi...... lliv. ClIrefnl considernrion to adoptiDg a pet. Anima" arc not tOl" or short term commltm.nts, Make lUre YOUT lIf<style allows tbe time, pati.noe Rnd expo..... this RDimal will need over the next ]0 years or more. Animal! for adoption arc placed with adopt.,," with full consideration Riven to Iho specific need. of Moh .nimol. I. Anil11ll1> "'" placallO )i.ewith .Jo!,,= in apriVOll: I<$;cIMcconly. 2. No lUlimal, dog or <a(, may be kept continuolly in a y"d, 1'<". garoge, on ol!th<r, allowed In room off the OWllCr.l' property, or loft outsida while no Olle is Qt home. Dogs IlIld cllIS must be .heltaal in the house and be aIIo-.cd in !he family Hving ....... onee trained. Cob will be kepi... indoor pet> and 1\Otallowed """,;.Ie wilhout1Mdv..U~ of,", adult. Note: in sddilion 10 Ihcrequircmonts <Ontainaf in thi> "8''''''''''11, 8I\imalJ other tlllm dogs and ems must be housed IIKI cartd for IltCOnfmg 10 the lItla::hed requircrnCl1lS. 3, A securely fer.etd ynnl must be provided for dogs unless waived by !he DC Animal Shelter. 4. All sninuls overtha ageofeIshr"""*,, must be stcnli#x1 (spayed Dr -cd) prior 10 a:Ioprion. An..... who calnot besterili2ed prior to sdoption musr be .payed or _ed bj the dsrupedfied by d1e DC Animal Shelllnt tho time of adoption. A dcposh".,llld. neutering must be roade at the timoofadoption if the ,",imal has 001 aJrezr:Iy been neutered 5. 1'Ol>01lS nving in apal1menrs must have permission iiom the rtlIlaI agent or the propc:rty owner, 6. No AdoptEd animal may undergo 0 sUlJli<:ul procedure that ahm his ex hct physic:al1lppelllHl1C!, excqx tbr . lxlrld.'<le medical"""", Coomelic surg!!l)' includes, but is IlO{ Hmifed 10, declalling, tall doclting, BIIlI.... cropping. 7. The adopter must provide the animal WiIh """"snry yecerloaIy care tbrslclcn..., disease or Injury. In Illldltion. ",imoIs lTIust be!llk", 10. vet:erinMian once a yctr for routino veecinmions. de. 8. Tho anlmsl must be maintained hum8l1ely and in Bcamlance with 0111_ and ordinonccs in for<t. in Iho juriSlliclion in which the owner ....ideo. The animal muse w.... proper identiflClllion at all times, nnd jf lost or SIolen mlL't be repOrted to the DC Animal SheIttr Immediately, advertised lIS lost in a major ne\V!lptpa', nod "'I'Orted In local animal shelters. 9. Tho ""imol must be kept solely ... aoompsnion IIld must not bellttllckedtraincd, used as agu.rd or hunting dog, or lIS a born c8l or mouscr, or for vivisection or any oth<< ""p<Sll1ltl\lal purpose whlllsoev"'. 10. Animal. must nor be given 1WlI)I, sold. or ..changed llIithoutthe prior pennL'lS1oo of...lborized Bg\!llt$ oflhcDC Aniroal Sheller. If, ror any r=on, an edopted ",imalClllnOl be kopt by 1he odopter. a must be Rlumed to 1he DC Animal $heltor. I I. The DC Animal Shdtl:r lllSetVCS Ille right 10 investiglllC inlD the llving oonditi01l' of any snlmal adopl!d !tom it and msy reclaim any such Illllm>! bc;nS kept in viol3lion oflho rnl.. and requiremmts oflb;., Adoprion Agreeroenl 12, The lldoprer llS$Urnes full fi",",cinI responsibility for lhe lI1imal aod will nol expect reimbomdncnt for sny expenses inOlllcd incl\>:ling veterinary services. " CONTRACT I, DIANE CLARK,lhe !\dopier, haverOld !hetwelve(12) Adoption Rules.et forth lIbovcond ""dorslBnd ""'" oftban sndagr=lO IIbldeby ""'" oflhOllL The adop1l:r acknowledges receiving this day, from the DC Animal Sheila, thellltlllll des~vc. TM OC~' eller acI:no\I1cd~ re<eiptthls day, from theadoptcr IlN1lCd above, S \ U .. an adoprion fee, and ,",eddirionaI S as a deposit and/or fA. -. neutering of1be o<Ioptod lIlm. The odop 10 have the lI1imal noafl:red by \ 0-- . The adopttr acknowledges the full understanding of the roles aDd oonditions ofthi. CoriIt1ld following discussion of lhem with the undersigned 'll"ll oflhe OC Animal Shelter, lIlI(\ pgree.l1D surrend<< ID., agent <7flheDC Aoimal Shel1crany 8I1imaIlldopled u"m the.ame, should the animsl belllllinlllino:d in violation of the rul", and oondllio.. setftmh in this Adoplioo AgJtt11lel\l The adopter undmtBnds !hat tI,e DC AnimoI Shelter Cllllnot guaramee the h..llh, behavior, oge or tempeNllllCnt of the 8I1imal,lIKI, aa:ord'mgly, agrees to release the DC AoimRl Shol,er from all 1...llIIY, claims, or damoge.> resulting from the adop1lon of the llOimal. ~ &/L.V- Chw-- t sip) 0 '3 20781 Fm the PC Animol Shelttr DlIle (301) 779-7078 j::\cllnmcln\cry.sU1I\DCI\DCON.rpt 'r'd S~6L SES GOG I..l'lU:J T",";UI:l :JU ass;lt ~n ~n unr VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities. Date: July 'd-( . 2004 -LD ~~U~J:Jrot{j David DeGroff Ii EXHIBIT "B" Anthony Stefanon, Esquire 1.0.# 25497 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108.2027 Attorney for Defendant David DeGroff, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs : No. 2004-3712 NINA WEAVER Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ANSWER 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 2. Admitted. 3. - 12. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 1 13. Admitted in part and Denied in part. It is admitted that Defendant did adopt an African Grey Parrot from the District of Columbia Animal Shelter, as reflected on the documents attached as Exhibit A to Plaintiffs complaint. It is denied that the parrot which Defendant adopted was the parrot which Plaintiff lost. 14. - 17. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 18. Denied. To the contrary, by letter dated November 7, 2003, Defendant's counsel advised Plaintiffs counsel of the extensive efforts which had been made to satisfy Mr. DeGroffs claims regarding the bird in question. A copy of that letter is attached hereto as Exhibit A By way of further answer, in accordance with an additional request from Plaintiffs counsel, Defendant submitted a genetic sample drawn from her bird by a licensed veterinarian at the Shippensburg Animal Hospita1. A copy of that letter and attachments are attached as Exhibit B. The sampling took place on March 17,2004 as evidenced by the attached Exhibit C. Apparently, Plaintiff declined the opportunity to perform the genetic testing which he had previously requested, as evidence by the attached Exhibit D. 2 COUNT I - REPLEVIN 19. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. 20. Admitted. 21. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. By way of further answer, Defendant has already submitted a genetic sample to Plaintiffs selected laboratory for testing in accordance with agreements previously reached between Plaintiffs counsel and Defendant's counsel. 22. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded if relevant. WHEREFORE, Defendant requests that Plaintiffs Complaint be dismissed. COUNT II - CONVERSION 23. The averments of the foregoing paragraphs 1 through 22 are incorporated herein by reference. 3 24. Denied. To the contrary, Defendant is lawfully in possession of an African Grey Parrot which she adopted through the District of Columbia Animal Shelter, to which Plaintiff has no lawful claim. WHEREFORE, Defendant demands that Plaintiffs Complaint be dismissed. NEW MATTER 25. The African Grey Parrot possessed by Defendant was lawfully obtained by an adoption proceeding through the District of Columbia Animal Shelter. 26, Defendant is justified in possessing and retaining the possession ofthe African Grey Parrot which she adopted. 27, Defendant is a good faith purchaser for value with regard to the African Grey Parrot which she adopted. 28. No evidence exists to suggest that the African Grey Parrot in the possession of Defendant is the same bird which Plaintiff lost. WHEREFORE, Defendant demands that Plaintiffs Complaint be dismissed. COUNTERCLAIM INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 29. Counterclaim Plaintiff is Nina Weaver. 4 30. Counterclaim Defendant is David DeGroff (hereinafter "DeGroff".) 31. Beginning in early June 2003, DeGroff commenced a course of harassment against Weaver including repeated dunning and vituperative calls to her home; publication of false and defamatory representations in the national news; media; disparaging communications to Weaver's employer; and threatening and harassing visits to Weaver's home. 32. The harassing course of conduct by DeGroff has culminated in the filing of this unwarranted and unfounded law suit. 33. Over the past fourteen (14) months, Weaver has made every effort to attempt to mollify DeGroff and to establish that the animal in her possession is a different animal from the one lost by DeGroff. 34. Weaver incorporates herein by reference the foregoing averments of Paragraph 18 of her Answer and the exhibits thereto. 35. The aforesaid actions of DeGroff were taken by himself directly, and by his agent or emissary John David Taylor who acted for or on behalf of DeGroff. 36. The aforesaid actions of DeGroff constitute extreme and outrageous conduct which has intentionally caused severe emotional distress to Weaver. 37. The extreme and outrageous conduct of DeGroff has caused Weaver to suffer bodily harm as the result of the aforesaid emotional distress. 5 38. Weaver has undergone pain, suffering, aggravation, inconvenience, and emotional distress as the result of the outrageous acts of DeGroff. WHEREFORE, Weaver demands judgment against DeGroff for general damages and punitive damages, plus interest and cost of suit. By: DATE:-1l- '-..2m1 6 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing ANSWER, NEW MATTER AND COUNTERCLAIM are true and correct to the best of her knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.SA 94904 relating to unsworn falsification to authorities. 7u ~ {).J,(,fu up Nina Weaver " Date: 8 'n OD 0 '-./ ANTHONY STEFANON ATTORNEY AT LAW 407 NORTH FRONT STREET POST OFFICE BOX 12027 HARRISBURG. PENNSYLVANIA ]7108-2027 PHONE 7]7-232-05]1 TELEFAX 717-233-2657 November 7, 2003 Joseph K. Goldberg, Esquire 2080 Linglestown Road Suite 106 Harrisburg, P A 17110 RE: David DeGroff Dear Joe: Nina Weaver has authorized me to provide documentation to you regarding the history of this matter. Apparently, Mr. DeGroff enlisted the aid of one Jolm D. Taylor to assist him with inquiries regarding his lost bird. Mr. Taylor sent to me a letter dated June 18,2003, including an Affidavit of Mr. DeGroff, regarding ilie matters relating to ilie case. I am enclosing a copy of that letter and a copy of that Affidavit. Unfortunately, nothing in ilie affidavit served to identify Mrs. Weaver's bird as the same animal lost by Mr. DeGroff. Accordingly, I wrote to Mr. Taylor on June 20, 2003, requesting additional information. A copy of that letter is enclosed. I ilien recei-,..ed correspondence dated June 18,2003 directly from Mr. DeGroff, and replied to that by letter of June 23, 2003. Copies of those letters are enclosed. On or about July I, [ received another package of information from Mr. Taylor, which included a letter dated June 24,2003 from Mr. DeGroff, identifying the birthmark on the bird, and providing photographs ofthe bird. Copies of iliat information are enclosed for your reference. The photographs and birthmark description were submitted to one Sue Morrow, proprietor of West Creek Aviary. Ms. Morrow examined the bird to determine ifthe birthmark existed, and it did not. I am enclosing a copy of Ms. Morrow's letter dated July 3, 2003. This information was presented to Mr. DeGroff under cover of my letter dated July 1],2003, a copy of which is enclosed. EXH BIT ~ :;; " 3 Joseph K. Goldberg, Esquire Page TWO November 7,2003 The bird which Mrs. Weaver purchased from the animal shelter displays the following traits: (l) It has a leg band witiJ numbers which Mr. DeGroff is unable to identify; and (2) It lacks the birthmark which Mr. DeGroff alleges his bird had; and (3) It has clipped wings which Mr. DeGroffs bird did not; and (4) It refers to itself as "Toby," which Mr. DeGroffs bird does not. In short, there is simply no evidence to suggest that the bird in question is the same bird which escaped from Mr. DeGroff. All ofthe evidence suggests tiJe contrary. Despite my client's efforts to accommodate Mr. DeGroff, he has pursued a course of harassment against my client. Mrs..W eaver was forced to have her home telephone number changed to an unlisted number to avoid repeated vituperative telephone calls from your client and his representative. The matter has been widely publicized in tiJe national media, based on the false representations of Mr. DeGroff and his representative. Disparaging remarks have been addressed to my client's employer, Dr. Ceddia, President of Shipp ens burg University. My client's email address has also been posted on various lesbian websites, resulting in a daily barrage of prurient email. Given the total lack of any evidence to suggest that Mr. DeGroff has any legitimate claim to this bird, I would suggest tiJat you remind him of the penalties existing under the Dragonettj Act (42 Pa CSA Section 8351) regarding the wrongful use of civil proceedings. Any action filed by your client will be met with a countersuit for harassment, intentional infliction of emotional distress , defamation, defiant trespass, along with any oilier causes of action tiJat I discover. Very truly yo pc: Nina Weaver AS/kr The Law Office of JOSEPH K. GOLDBERG 2080 Linglestown Road Suite 106 Harrisburg, PA 17110 717-703-3600 717-635-2062 (fax) jgoldberg@ssbc-Iawcom PA, DC. MD BARS March 1, 2004 Anthony Stefanon, Esquire 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108-2027 Re: David DeGroff - Nina Weaver Dear Mr. Stefanon: I have called and left a message to discuss the matters in this letter. I hope that by the time you are reading this that we have had the chance to talk. We propose that Mr. DeGroff be give a short opportunity to see the parrot. Mr. DeGroff is confident that he will immediately be certain whether the bird is the one he lost. if it is not, this matter will be ended. If Mr. DGroff believes the parrot is LouLou, we propose to use the identification technique described in the enclosed letters from Joy Halverson at QuestGen Forensics. As you can see, QuestGen already has a sufficient sample from Mr. DeGroff to conduct a comparison with a sample from Ms. Weaver's parrot. We propose to use the services of a licensed veterinarian to obtain the sample from Ms. Weaver's bird. That can be a doctor of Ms. Weaver's choosing, or, if she prefers, one selected by Mr. DeGroff. I suggest that the meeting between Mr. DeGroff <:nd the parrot be at the veterinarian's office to minimize the inconvenience to all parties. Mr. DeGroff will bear the cost for the veterinarian's services and for the testing. I would appreciate your response to this proposal soon so that we can work toward a resolution of this matter. Thank you for your continued cooperation. Enci. cc David DeGroff ().f~Yours.'. / ); / /1 I 71Jr K. GOldb~~/ / r EXHIBIT 6 F"b !J2 [)'l 01:S3p 530- .0-5758 QuestGen FORENSICS t 9~2 E~si;: EH' S'~~(;2~'~j !.j)~;..:~s~ :;:r;; ~3E, ~ 6 {5i5:'2~ :5~]~[2~4 trS!';';i ['":.:3'S] ?5fZ>5:7SB David DeGroff 3201 Landover Street #1418 Alexandria. VA 22305 February 2. 2004 Dear Mr. DeGroff, i ilav", I:lxarnined ihe rearners tnat you had collected from your African Grey parrot Loulou and believe there is sufficient DNA present to perform mitochondrial haplotyping. Mitochondrial typing of pets to link a victim or suspect to a crime scene has been admitted in several criminal trials in various states in the U.S. and, in my opinion will be very useful in this case. It will be necessary to collect a sample from the bird you believe to be Loulou for comparison. Please let me know when I can begin the laboratory procedures. ~ Iverson, DVM r, QuestGen Forensics , '" p?2 Feb 13 04 04: 17p 530 -7Sc. -5758 QuestGen fORENSICS 1302 [28~~ J<l: 5ft-~S'~, ~J~!:.J5S, i::::ip~ SS~ ~~ ,'5! :.::.3i2} 758-i~Z5~i. F~;,..~ C:-:;!.?~ 75~Z.-:S'?58 INilliam Martin 409 A Street S.E. Washington, D.C. 20003 February 13. 2004 Dear Mr. Martin, Pursuant to your letter dated February 9, 2004, I am writing with instructions on sample collection from the bird in Ms. Weaver's possession. I suggest that we use a sampling method developed by 200gen, Inc. (an affiliate of Que$tGen Forensics) and commonly used for gender identification in birds. For this method, Ms. Weaver's veterinarian would clip a toenail just short enough to draw about 1 drop of blOod. The blood is collected in a small hematocrit lube and then placed in a llIbe with 70% ethanol for shipment to the laboratory. No refrigeration or overnight shipment is required; the sample is stable at room temperature for many days. If Ms. Weavers veterinarian is experienced in avian medicine, hefshe may have a loogen sample collection kit of this type. If not, please call 800-995-2473 and request one from Ctistomer service. Please let customer service know if you reqUire special shipment. I wilt be out of the office ata forensic meeting from February 16-20 and will also be gone for a trial appearance February 24-25. J will check my voicemail and will return any calls. '. p.2 lU:40RM CTR FOR JIJV J IJc, Iil.t. L. l'lU..jd( C'.c: ppensburg Animal Hospital -~ .- Bill for Services DATE JNV NUM 3/17/2004 127548 i1nut Bottom Road ,nsburg, PA 17257 '17-532-5413 ss Nina Weaver 1 Hassinger Road lwburg, PA 17240 7-477-1448 Acct no.: 18370 Mike Nelson, DVM Date Patient Description Price l 24.00 I LI Ext Ix 2400 [] 0.00 I I 24.00 1 3/17/2004 Toby OFFICE CAlL 1 3/17/2004 Toby Your receptionist was Angela. subtotal Your confidence is greatly appreciated. tax bill total prev bel total due payment '--NEWB;'>;l-- 0.00 24_00 0.00 24.00 (24_00) - ~. .-0.00- - mnt1: cl< note: # 293 mnt2: note: Amt: (24.00) Am! 000 ...~=-- : you for chasing the Shippensburg Animal Hospital to serve your pet's health care needsl 1 weather is on its way. Be sure to pick-up ftea and heEl/worm medication to protect your pets against these I time problems. EXHIBIT Ie 124623 '10', \ 1t1~ / Nina Weaver 121 Hassinger Rd. Newburg, P A. 17240 To Whom It May Concern: On March I ih, 2004 Nina Weaver brought me a Congo African Grey parrot at tiJe Shippensburg Animal Hospital for examination. The bird was brought to me for the pUlpose of obtaining a blood sample to be analyzed by QuestGen to detennine tiJe genetic identity oftiJe bird. 1 had previously obtained a blood sample kit irom QuestGen. Blood was obtained from the bird by clipping a nail until it bled. The blood was coUected in a manner consistent with the directions in the sampling kit. The blood was mailed off to QUe"StGeltthe next day. Approximately 1 week after the blood had been mailed to QuestGen, I Was contacted by the gentlenlllll who was disputing tiJe identity of the bird with Nina Weaver. He inquired of nte as to unique ways of identifying this bird (i.e. leg bands, or tattoos). I told him that 1 could definitely identify tiJe bird as an. adult Congo African Grey parrot but that tiJere were no unique identifiers that I was aware of on this particular bird. Approximately 6 weeks after the blood bad been mailed to QuestGen, I contacted tiJe company to inquire about the status of the test. I Was told by the company that tiJe gentleman who had requested the test was no longer willing to pay for tiJe test due to lack of an ability to verify that the bird r drew blood from was, in fact, tiJe bird in question. rf tiJere should be any questions regarding this letter, please feel free to contact me. My contact information is listed below. Sincerely, ~ Mike Nelson, DVM . Elkhom Veterinary Clinic 25 East 0' connor Dr. Elkhol1l, WI. 53121 262-723-2644 Oct 07 04 10:05a . 530-750-5758 p.2 /'" .-r" QuestGen FORENSICS T 932 ;:c:~-~ gtil S-2t33~~ =:2t:;S~ [T; 95& 15 i~5jD) 7Ji8~l+:,2S<. F21~"J (S3::J~i 7:::t3-S?S8 To: Anthony Stepanon Law Offices 407 North Front Street PO Box 12027 Harrisburg. PA 17108-2027 October 7, 2004 Dear Mr. Stephanon, I received a sample from Shippensburg Animal Hospital but have not tested it. After conferring with my client, David DeGroff, I ascertained that he did not witness the sample collection and was not satisfied that the sample was collected from the bird under dispute. It is my understanding that he is undertaking to have a sample taken in which he may witness the collection. en Forensics EXHIBIT Ij) CERTIFICATE OF SERVICE Th~ undersigned hereby certifies that, on the date below he served a true copy of ANSWER, NEW MATTER AND COUNTERCLAIM, on the person listed below, at the addresses set forth, by First Class United States Mail: Michael A Scherer, Esquire O'BRIEN, BARIC & SCHERER 17 West South Street Carlisle, PA 17013 By: H 1.0.#25497 407 Nort P.O. Bo 027 Harrisburg, PA 17108-2027 (717) 232-0511 DATE: If - ? - 2oot;( EXHIBIT "C" , DAVID DEGROFF, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , Ii :: ii I: Ii I; NINA WEAVER, ,I ;/ Ii II Ii ii Ii II I! Ii 'i Ii I ,/ I' Ii Ii ,I 'I II I II Ii Ii il ;i II il Ii 'I 'I I: Ii Ii II Ii II II Ii Ii Ii !I II 25. v. No. 2004 - 3712 (') C ;:J' CIVIL ACTION - LAW Defendant REPLY TO NEW MATTER =2 Denied. The averments in paragraph 25 are a legal conclusion to which no responsive pleading is necessary. 26. Denied. The African Gray Parrot in the possession of the Defendant is the property the Plaintiff. 27. Denied. The averments in paragraph 25 are a legal conclusion to which no responsive pleading is necessary. 28. ...., c;:::. c..:;> """ (') .1 --, ;fi~, -01<1 ~~1~~; ~~~TJ ~r'?1 ~::z. -;1.... c:::'" -.:::: C.; o "'D :..; Co,) ,~, Denied. Plaintiff believes that he will be able to establish that the African Gray Parrot in the possession of the Defendant is the property of Plaintiff. WHEREFORE, Plaintiff demands judgment against the Defendant as set forth in the Complaint. 29. 30. COUNTERCLAIM INTENTIONAL AFFLICTION OF EMOTIONAL DISTRESS Admitted. Admitted. 31. Denied. Plaintiff has, throughout his course of dealing with Defendant, attempted to verify that the African Gray Parrot in the Defendant's possession is the property of Plaintiff. Plaintiff has not harassed, defamed, disparaged or threatened the Defendant. II .1 !: 32. Denied. Plaintiff denies harassing Defendant and Plaintiff has brought this suit in Ii ! good faith. ii 33. Denied. Defendant has evaded Plaintiff and refused to cooperate in allowing the Ii " \: I i: Plaintiff to establish whether or not the African Gray Parrot in her possession is the property of " ", I: n " I, 1\ Ii i! il ii II " " I' Ii the Plaintiff. 34. No responsive pleading is required. 35. Denied, Plaintiff is without sufficient information to reply to this averment. 36. Denied. Plaintiff has simply attempted to verify that the African Gray Parrot in p Ii the possession of the Defendant belongs to the Plaintiff. II I' ,I il I' II 37. Denied. Plaintiff is without information sufficient to form a belief as to the truth of this averment. 38. Denied. Plaintiff is without information sufficient to form a belief as to the truth of ~ : ii Ii 'I I', this averment. il 1\ Ii i: II I, \i, " II II Ii 1i ii I[ II q It II ii II II Respectfully submitted, O'BR~J,JY{HERER Michael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dir/genlitldegroff/newmatter .rep VERIFICATION I verify that the statements made in the foregoing Reply To New Matter are true and " i; correct to the best of my knowledge, information and belief. This verification is signed by I I, I: " i ~ I' Michael A. Scherer, Esquire, Attorney for Plaintiff and is based upon the statements provided by Plaintiff, as well as documents reviewed by the undersigned as attorney for Plaintiff. This i I 'i :i " :, Ii 'I 11 I, H il II, I: I 1\ I Ii Ii I I I , I I i I ,i I il Ii verification will be substituted and ratified by a verification signed by the Plaintiff who is presently unavailable to sign said verification. I undersigned that false statements herein are made subject to penalties of 18 Pa.C.S. 94904, relating to unsworn falsifications to authorities. 1/Pt1h , Michael A Scherer If' ~v' "'1 Dated: ii II II " 'I I I I \ ii Ii II 'I I I II , . , CERTIFICATE OF SERVICE I: II ! II Michael A. Scherer, Esquire, did serve a copy of the Reply To New Matter, by first class u.s. 11 i\ ,I 'I II I' II II d , r! I hereby certify that on November 00 ,2004, I, Jennifer S. Lindsay, secretary to mail, postage prepaid, to the party listed below, as follows: Laura E. Kerns, Esquire Donnelly & Associates, P.C. 100 West Elm Street Suite 101 Conshohocken, Pennsylvania 19428 I' II Ii I I \ ! \ I Ii 1\ il II II II Ii ,\ 'I II I " I'! I, , I DONNELLY & ASSOCIATES, P.c. BY: LAURA E. KERNS, ESQUIRE ATTORNEY I.D. #87021 1 00 West Elm Street Suite 101 Conshohocken, P A 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT Nina Weaver DAVID DeGROFF, Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LAW NINA WEAVER, Defendant : No.: 2004-3712 CERTIFICATE OF SERVICE LAURA E. KERNS, ESQUIRE, attorney for Defendant, Nina Weaver, hereby certifies that a true and correct copy of the Defendant's Motion for Judgment on the Pleadings was served upon all counsel of record by United States first class mail. DONNELLY & ASSOCIATES, P.c. By: c&E~~ Attorney LD. #87021 Donnelly & Associates, P.c. 100 West Elm Street, Suite 10 1 Conshohocken, P A 19428 (610) 828-2300 Attorney for Defendant, Nina Weaver DATE:~ ~ ~ ~~ '~ ' "- " ''J\:-, -"" " -::L, \.".:) "" '-" -, <l..) ~ ~ '-''\ ~ ....:' '::'c-' ~. .~ :0 ;2.;- .., "" ,. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next Argunent Court. -----------------------------------------~--------------.------------------------------- CAPTION OF CASE (entire caption must be stated in full) DAVID DeGROFF (Plaintiff) vs. NINA WEI'.VER ( Defendant) No.2004-3712 Civil 1. State matter to be argued (Le., plaintiff's rrotion for new trial. defendant's denurrer to ccmplaint, etc.): MOTION FOR JUDGMENT O~ THE PLEI'.DINGS 2. Identify =unsel who will argue case: (a) far plaintiff: MOLLY MAGUIRE GAUSSA. ESQUIRE ~s: 2603 BRWWNSVILLE ROAD PITTSBURGH. PA 15227 (b) for defendant: LAURA E. KERNS, ESQUIRE ~s: 100 W. ELM STREET, STE 101 CONSHOHOCKEN, PA 19428 3. I will notify all parties in writing within tw:J days that this case has been listed for argunent. 4. Argunent Court Date: JANUARY 11, 2006 !l3ted: 11/29/05 _ JJ..~[.~ ~for DEFENDANT ("') c: -;:1 (,,) (~"'i c:) - DA VID DEGROFF, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COlINTY, PENNSYLVANIA vs. CIVIL ACTION ~ LA W NO. 04-37]2 CIVIL NINA WEAVER, Defendant IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE I-lESS AND OLER. J..! ORDER AND NOW, this '1'" day of March, 2006, the defendant having filed a motion for judgment on the pleadings and her contentions with regard to counts of replevin and conversion being more appropriately raised in a motion for summary judgment, her motion for judgment on the pleadings is DENIED. However, the defendant having contended in her motion that the plaintiff is now deceased and no suggestion of death having been filed, a rule is issued on the plaintiff to file a notice of death in accordance with Pa.R.C.P. 2355 or, in the alternative, an indication that death has not OCCUlTed, within twenty (20) days of service of this order and, in default thereof, to suffer non pros on further motion of the defendant. Service hereof shall be made by counsel for the defendant upon counsel for the plaintiff. BY THE COURT, Michael A. Scherer, Esquire For the Plaintiff John.! Donnelly, Esquire For the Defendant DA VlD DEGROFF, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-3712 CIVIL NINA WEAVER, Defendant IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS AND OLER. J.J. ORDER AND NOW, this q'" day of March, 2006, the defendant having filed a motion for judgment on the pleadings and her contentions with regard to counts of replevin and conversion being more appropriately raised in a motion for summary judgment, her motion for judgment on the pleadings is DENIED. However, the defendant having contended in her motion that the plaintiff is now deceased and no suggestion of death having been filed, a rule is issued on the plaintiff to file a notice of death in accordance with Pa.R.C.P. 2355 or, in the alternative, an indication that death has not occurred, within twenty (20) days of service of this order and, in default thereof, to suffer non pros on further motion of the defendant. Service hereof shall be made by counsel for the defendant upon counsel for the plaintiff BY THE COURT, ~chael A. Scherer, Esquire ~-' For the Plaintiff \' '-I. . (/) v-folm J. Donnelly, Esquire ~\). ~ ~.~~\ . For the Defendant \)\' '( _, 't('uIJ ') () ^/Pi -.------- ',1 ---------- /------ , ~ DONNELLY & ASSOCIATES, P.C. BY: LAURA E. KERNS, ESQUIRE ATTORNEY J.D. #87021 100 West Elm Street Suite 101 Conshohocken, P A 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT, Nina Weaver DA VID DeGROFF : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LAW NINA WEAVER : No.: 2004-3712 CERTIFICATE OF SERVICE LAURA E. KERNS, ESQUIRE, attorney for Defendant, hereby certifies that a true and correct copy of the Cumberland County Judges' Order Denying Defendant's Motion for Judgment on the Pleadings and directing Plaintiff to file a Suggestion of Death in this matter was served upon Plaintiffs attorney via facsimile (see confirmation sheet) as well as by first class mail to the following addresses: Molly Maguire Gaussa, Esq. P.O. Box 12662 Pittsburgh, P A 15241-0662 Molly Maguire Gaussa, Esquire 2603 Brownsville Road Pittsburgh, P A 15227 DATE: r,,1arch 15.2006 DV. u. . ~4.{~ AURA E. KERNS, ESQUIRE Attorney for Defendant . ~ DA VlD DEGROFF, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-3712 CIVIL NINA WEAVER, Defendant IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS AND OLER, 1..J. ORDER AND NOW, this 17-- 7 day of March, 2006, the defendant having filed a motion for judgment on the pleadings and her contentions with regard to counts of replevin and conversion being more appropriately raised in a motion for summary judgment, her motion for judgment on the pleadings is DENIED. However, the defendant having contended in her motion that the plaintiff is now deceased and no suggestion of death having been filed, a rule is issued on the plaintiff to file a notice of death in accordance with Pa.R.C.P. 2355 or, in the alternative, an indication that death has not occurred, within twenty (20) days of service of this order and, in default thereof, to suffer non pros on further motion of the defendant. Service hereof shall be made by counsel for the defendant upon counsel for the plaintiff. BY THE COURT, '/Ii Michael A Scherer, Esquire For tile Plaintiff John J. DOlmelly, Esquire For the Defendant P. . -. . . . COMMUNICATION RESULT REPORT ( MAR. 15.2006 10:34AM ) . . . FAX HEADER I: DONNELLY & ASSOC. PC. FAX HEADER 2: TRANSMITTED/STORED: MAR. 15.2006 10:34AM FILE MODE OPTION ADDRESS RESULT PAGE 4718 MEMORY TX 914128851908 OK 3/3 REASON FOR FRROR L 1) HANG UP OR LINE ,AIL [-"'3) NO ANSWER E 2) GUSY C-4J NO rACSIMILC CONNECTION DONNELLY 8< ASSOCIATES, l'.C. 100 West Elm Street Suite 101 Conshohocken, l'A 19428 610-828-2300 Fax No. 610-828-8340 FAX COVER SHEET VOCUMENT TO: Molly Maguire Gaussa, Esq. (412) 885-1908 RE: DeGroffv. Weaver Cumberland Co. CCl', No.: 2004-37t2 FROM: Laura E. Kerns, Esquire VATE: March 15,2006 We are sending 3 page(s) inclUding this COVer sbeet. If you do not receive all pages, please call (610) 828-2300. -(,(, I:~) \' ~ n ~:;-~ ,-, (;.~ if.. - -~.,. -" :;tJ - ....j q, :1.-n '('\'1-- -oS 0'-( .:_~~(i (~~~;)\ -:;7 t....) -.::.::. -'0 .-.1'" -..- r:-? <.J'I u> DONNELLY & ASSOCIATES, P.C. BY: LAURA E. KERNS, ESQUIRE ATTORNEY I.D. #87021 tOO West Elm Street Suite 101 Conshohocken, P A 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT Nina Weaver DA VID DeGROFF, Plainti ff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LA W NINA WEAVER, Defendant : No.: 2004-37]2 DEFENDANT, NINA WEAVER'S MOTION FOR JUDGMENT OF NON PROS IN ACCORDANCE WITH THIS COURT'S ORDER DATED MARCH 9. 2006 Defendant, Nina Weaver, by and through her counsel, Donnel1y and Associates P.c., hereby files this Motion for Judgment of Non Pros, and in support thereof avers as fol1ows: I. On or about July 29, 2004, Plaintiff filed a Complaint al1eging a claim of Replevin (Count I) and Conversion (Count II) against the above named Defendant. 2. This Court issued an Order, dated March 9, 2006, directing Plaintiff to file a Suggestion of Death, in accordance with Pa.R.C.P. 2355, within twenty (20) days or suffer non pros on further motion of the defendant. (Please see a copy of this Court's Order, attached hereto as Exhibit "A.") 3. Defendant served this Court's Order on Plaintiff, via facsimile and first class mail, on March 15,2006. (Please see a copy of Defendant's Certificate of Service, attached hereto as Exhibit "B.") 4. Plaintiff failed to file a Suggestion of Death, or in the alternative, an indication that death has not occurred, within twenty (20) days of the Order from this Court. 5. As such, Plaintiff's case must be dismissed. 6. Defendant is requesting this Honorable Court, in accordance with its March 9, 2006 Order, non pros this matter and dismiss the action. WHEREFORE, Defendant, Nina Weaver, respectfully requests that this Honorable Court grant her Motion for Judgment of Non Pros, and enter an Order similar to the Order attached hereto. DATE: 4, 2- -:t .11b DONNELLY & ASSOCIATES, P.c. By: ~.~E~~ Attorney 1.0. #87021 Donnelly & Associates, P.C. 100 West Elm Street, Suite 101 Conshohocken, P A 19428 (610) 828-2300 Attorney for Def(:ndant, Nina Weaver DONNELL Y & ASSOCIATES, P.C. BY: LAURA E. KERNS, ESQUIRE ATTORNEY l.D. #87021 100 West Elm Street Suite 101 Conshohocken, P A 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT Nina Weaver DA VID DeGROFF, Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LA W NINA WEAVER, Defendant : No.: 2004-3712 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT OF NON PROS IN ACCORDANCE WITH THIS COURT'S ORDER DA TED MARCH 9. 2006 Defendant, Nina Weaver, by and through her attorneys, Donnelly & Associates, P.c., hereby submits this Memorandum of Law in Support of her Motion for Judgment of Non Pros. On or about July 29, 2004, Plaintiff filed a Complaint alleging a claim of Replevin (Count I) and Conversion (Count II) against the above named Defendant. This Court issued an Order, dated March 9, 2006, directing Plaintiff to file a Suggestion of Death, in accordance with Pa.R.C.P. 2355, within twenty (20) days or suffer non pros on further motion of the defendant. See Court Order, Exhibit "A." Defendant served this Court's Order on Plaintiff, via facsimile and first class mail, on March 15,2006. See Defendant's Certificate of Service, Exhibit "B." Plaintiff failed to file a Suggestion of Death, or in the alternative, an indication that death has not occurred, within twenty (20) days of the Order from this Court. As such, Plaintiffs case must be dismissed. Defendant is requesting this Honorable Court, in accordance with its March 9, 2006 Order, non pros this matter and dismiss the action. WHEREFORE, Defendant, Nina Weaver, respectfully requests that this Honorable Court grant her Motion for Judgment of Non Pros, and enter an Order similar to the Order attached hereto. DONNELL Y & ASSOCIATES, P.C. [. UYVLb AURA E. KERNS Attorney J.D. #87021 Donnelly & Associates, P.c. 100 West Elm Street, Suite 101 Conshohocken, P A 19428 (610) 828-2300 Attorney for Defendant, Nina Weaver By: DATE: ~. 2"1-.61> VERIFICATION I, LAURA E. KERNS, ESQUIRE, attorney for Defendant, Nina Weaver, in the within action, hereby state that the facts set forth in the foregoing Defendant's Motion for Judgment of Non Pros are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. 94904 relating to unsworn falsification to authorities. ~~{.~ L A E. KERNS EXHIBIT" A" DAVID DEGROFF, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-3712 CIVIL NINA WEAVER, Defendant IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS AND OLER, 1..J. ORDER AND NOW, this "'... 7 day of March, 2006, the defendant having filed a motion for judgment on tile pleadings and her contentions witiJ regard to counts of replevin and conversion being more appropriately raised in a motion for summary judgment, her motion for judgment on the pleadings is DENIED. However, the defendant having contended in her motion that the plaintiff is now deceased and no suggestion of deatll having been filed, a mle is issued on the plaintiff to file a notice of deatiJ in accordance witll Pa.R.c.P. 2355 or, in the alternative, an indication tiJat deatiJ has not occurred, within twenty (20) days of service of tllis order and, in default tiJereof, to suffer non pros on nuiher motion of the defendant Service hereof shall be made by counsel for tile defendant upon counsel for the plaintiff. BY THE COURT, ^/ld Michael A. Scherer, Esquire For tile Plaintiff Jolm J. DOlmelly, Esquire For the Defendant EXHIBIT "B" DONNELLY & ASSOCIATES, P.c. BY: LAURA E. KERNS, ESQUIRE ATTORNEY I.D. #87021 100 West Elm Street Suite 101 Consbobocken, PA 19428 (610) 828-2300 (') C -7 ATTORNEY FOR DEFENDANT,--oi:;, me, Nina Weaver ~':' ~~F- '~, (~~ --,- : COURT OF COMMON PLEAS 2 : CUMBERLAND COUNTY, PA DAVID DeGROFF vs. : CIVIL ACTION - LAW NINA WEAVER : No.: 2004-3712 CERTIFICATE OF SERVICE LAURA E. KERNS, ESQUIRE, attorney for Defendant, hereby certifies that a true and correct copy of the Cumberland County Judges' Order Denying Defendant's Motion for Judgment on the Pleadings and directing Plaintiff to file a Suggestion of Death in this matter was served upon Plaintiffs attorney via facsimile (see confirmation sheet) as well as by first class mail to the following addresses: Molly Maguire Gaussa, Esq. P.O. Box 12662 Pittsburgh, PA 15241-0662 Molly Maguire Gaussa, Esquire 2603 Brownsville Road Pittsburgh, P A 15227 DATE: March 15.2006 BY: ~l(.kuu A RA E. KERNS, ESQUIRE Attorney for Defendant <--> <? = -=" :Jl' :;>- :;0 -' o -f1 ...-\ ::r:-n tT'p -nrTI :.p9 t--,)() '~;:D __,,.0 0\11 .-...{ ;>> E. -0 ...,..~ - ~ <J1 \.0 DAVID DEGROFF, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-3712 CIVIL NINA WEAVER, Defendant IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS AND OLEK J..T. ORDER AND NOW, this q-- day of March, 2006, the defendant having filed a motion for judgment on tiJe pleadings and her contentions witiJ regard to counts of replevin and conversion being more appropriately raised in a motion for summary judgment, her motion for judgment on tiJe pleadings is DENIED. However, the defendant having contended in her motion that tiJe plaintiff is now deceased and no suggestion of death having been filed, a mle is issued on tiJe plaintiff to file a notice of death in accordance witiJ Pa.K C.P. 2355 or, in the alternative, an indication tiJat deatiJ has not occurred, witiJin twenty (20) days of service of tlJis order and, in default tiJereof, to suffer non pros on further motion of tiJe defendant. Service hereof shall be made by counsel for tiJe defendant upon counsel for the plaintiff. BY THE COURT, Michael A. Scherer, Esquire For the Plaintiff -/1J Jolm J. Donnelly, Esquire For tiJe Defendant p, · · . COMMUNICATION RESULT REPORT ( MAR. 15.2006 10:34AM ) . . . FAX HEADER 1: DONNELLY & ASSOC, PC, FAX HEADER 2: TRANSMITTED/STORED: MAR, 15,2006 10:34AM FILE MODE OPTION ADDRESS RESULT PAG E ---------------------------------------------------------------------.------------------------------- 4718 MEMORY TX 914128851908 OK 3/3 ---------------------------------------------------------------------.------------------------------- REASON FOR ERROR E~1) HANG UP OR LINE FAIL E-3) NO ANSWE R E-2) BUSY E-4) NO FACSIMILE CONNECTION DONNELLY & ASSOCIATES, P.C. 100 West Elm Street Suite 101 Conshohocken, PA 19428 610-828-2300 Fax No. 610-828-8340 FAX COVER SHEET DOCUMENT TO: Molly Maguire Gaussa, Esq. (412) 885-1908 RE: DeGroffv. Weaver Cumberland Co. CCP, No.: 2004-37t2 FROM: Laura E. Kerns, Esquire DATE: March 15, 2006 We are sending 3 page(.) includillg this cover sheet. please call (610) 828-2300, If you do not receive all pages, DONNELLY & ASSOCIATES, Poc. BY: LAURA Eo KERNS, ESQUIRE ATTORNEY I.Do #87021 100 West Elm Street Suite 101 Conshohocken, P A 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT Nina Weaver DA VID DeGROFF, Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LAW NINA WEAVER, Defendant : No.: 2004-3712 CERTIFICATE OF SERVICE LAURA E. KERNS, ESQUIRE, attorney for Defendant, Nina Weaver, hereby certifies that a true and correct copy of the Defendant's Motion for Judgment of Non Pros was served upon all counsel of record by United States first class mail. DONNELL Y & ASSOCIATES, P.c. DATE: ~ '21- . to BY:-rfFu 7,~ URA E. KERNS Attorney J.D. #8702 I Donnelly & Associates, P.c. 100 West Elm Street, Suite 101 Conshohocken, PAl 9428 (610) 828-2300 Attorney for Defendant, Nina Weaver DONNELLY & ASSOCIATES, P.e. BY: LAURA E. KERNS, ESQUIRE ATTORNEY I.D. #87021 100 West Elm Street Suite 101 Conshohocken, PA 19428 (610) 828-2300 ATTORNEY FOR DEFENDANT Nina Weaver DAVID DeGROFF, Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA vs. : CIVIL ACTION - LAW NINA WEAVER, Defendant : No.: 2004-3712 ORDER AND NOW, this 'Jot! day of ma; , 2006, upon consideration of this Motion for Judgment of Non Pros filed by Defendant, Nina Weaver, and any response thereto, said motion is hereby GRANTED. Plaintiffs Complaint is DISMISSED WITH PREJUDICE. The Prothonotary is directed to enter final judgment in favor of Defendant, Nina Weaver. BY THE COURT: J J. ,,\ MAY 0 3 2006 ~ t\?" :9 \',11 \1- },:,j\\ cj~,\\l _ ::;\i.,:,0 \=1\\:" ,,''.,. -.,'.":-.,,,1" !\t)(~.\\I:''''';\ -',r,'.," ',:'-\. ";.;...,',,-1' ., '\ .... -, DONNELLY & ASSOCIATES, P.c. BY: LAURA E. KERNS, ESQUIRE ATTORNEY lD. #87021 1 00 West Elm Street Suite 101 Conshohocken, PA 19428 (610) 828-2300 A TTORNEY FOR DEFENDANT, Nina Weaver DAVID DeGROFF : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, P A vs. : CIVIL ACTION - LAW NINA WEAVER : No.: 2004-3712 CERTIFICATE OF SERVICE LAURA E. KERNS, ESQUIRE, attorney for Defendant, hereby certifies that a true and correct copy of the Cumberland County Judges' Order Dismissing Plaintiffs Complaint and Granting Defendant's Motion for Judgment of Non Pros against Plaintiff was served upon all counsel of record via facsimile (see confirmation sheet) as well as by first class mail to the following addresses: Molly Maguire Gaussa, Esq. P.O. Box 12662 Pittsburgh, PA 15241-0662 Molly Maguire Gaussa, Esquire 2603 Brownsville Road Pittsburgh, PA 15227 Anthony Stefanon, Esquire 407 North Front Street P.O. Box 12027 Harrisburg, PAl 71 08 DATE: Mav 10. 2006 BY: RA E. KERNS, ESQUIRE Attorney for Defendant . DONNELLY & ASSOCIATES, P.C. BY: LAURA E. KERNS, ESQUIRE ATTORNEY I.D. #87021 100 West Elm Street Suite 101 Conshohocken, PA 19428 (610) 828-2300 MAY 0 3 2006 , ATTORNEY FOR DEFENDANT Nina Weaver DAVID DeGROFF, Plaintiff : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, P A vs. : CIVIL ACTION - LAW NINA WEAVER, Defendant : No.: 2004-3712 AND NOW, this ~ day of , 2006, upon consideration ofthis Motion for Judgment of Non Pros filed by Defe nt, Nina Weaver, and any response thereto, said motion is hereby GRANTED. Plaintiffs Complaint is DISMISSED WITH PREJUDICE. The Prothonotary is directed to enter final judgment in favor of Defendant, Nina Weaver. . '. ~ P. 1 JI( JI( JI( COMMUNICATION RESULT REPORT ( MAY. 10.2006 4: 17PM ) JI( JI( JI( FAX HEADER 1: DONNELLY & ASSOC, PC. FAX HEADER 2: TRANSMITTED/STORED: MAY. 10.2006 4: 14PM FILE MODE OPTION ADDRESS RESULT PAGE 5625 MEMORY TX 914128851908 7172332657 OK OK 4/4 4/4 REASON FOR ERROR E-1) HANG UP OR LINE FAIL E-3) NO ANSWER E-2) BUSY E-4) NO FACSIMILE CONNECTION DONNELLY & ASSOCIATES, P.C. 1 00 West Elm Street Suite 101 Conshohocken, PA 19428 610-828-2300 Fax No. 610-828-8340 FAX COVER SHEET DOCUMENT TO: Molly Maguire Gaussa, Esq. (412) 885-1908 Anthony Stefanon, Esquire (717)233-2657 RE; DeGroffv. Weaver Cumberland Co. CCP, No.: 2004-3712 FROM; Laura E. Kerns, Esquire DATE; May 10, 2006 We are sending page(s) including this cover sheet. If you do not receive all pages, please call (610) 828-2300. D ~ if' ~;:~ ....-~. C...; );~ c:: z :;f .... I'-,;) = = C"' :z ::::.- -< ~ ~fY -om :rJO 0.1 ---Ie) :=:H ~o om ~ -< en ;J:IIo ::r 0) w en