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HomeMy WebLinkAbout12-6051Wayne M. Pecht, Esquire ` Attorney I.D. No. 38904 Rob Bleecher, Esquire Attorney I.D. No. 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 ~~ E '~ lr ,. -5''aSFe27 qq~ c,. er, 4it~.~,::~ k r ~ ~¢~ ~ r ~ I .. iF JOHN DETRICK and . MOTORING USA, , Plaintiffs , v. , GRADY PFEIFFER . and DAVE PEREWITZ , and ED KERB and DONNIE SMITH, , Defendants . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. I~.~USI PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Please issue a Writ of Summons in the above-captioned action: Writ of Summons shall be issued and forwarded to (X) Attorney ( )Sheriff: Grady Pfeiffer 9795 Megan Terrace Escondido, CA 92026 Dave Perewitz 910 Plymouth Street Bridgewater, MA 02324 Ed Kerr 157 Glendale Street Carlisle, PA 17013 {~, ~t s103 . ?Spy a 1 r~k~ I~B Donnie Smith 10594 Radisson Road NE Minneapolis, MN 55449 Dated: September ~- ~ 2012 Respectfully submitted, PEC & S(~IATES, PC ~_ __~ ~ ~ ~~\, By: ~.-- V~ayne M. Pecht, Esquire Attorney I.D. No. 38904 Rob Bleecher, Esquire Attorney I.D. No. 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorneys for Plaintiffs JOHN DETRICK and ' MOTORING USA, Plaintiffs v. GRADY PFEIFFER and DAVE PEREWITZ and ED KERB and DONNIE SMITH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Grady Pfeiffer 9795 Megan Terrace Escondido, CA 92026 Dave Perewitz 910 Plymouth Street Bridgewater, MA 02324 Ed Kerr 157 Glendale Street Carlisle, PA 17013 Donnie Smith 10594 Radisson Road NE Minneapolis, MN 55449 Date: Sepiember o2~ 012 Pecht & Associates, PC By: Rob Bleecher, Esgaire Supreme Court ID No. 32594 Attorney for Plaintiff ~i ~//Lz ~ ~v~LL Da 'd D. Buell, Prothonotary By: Deputy Rob Bleecher, Esquire Attorney I.D. No. 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 F; i77? Mechanicsburg, PA 17055 j /4 C (717) 691-9809 'i' i ar>i#§i JOHN DtTRICK and IN THE COURT OF COMMON PLEAS MOTORING USA, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. GRADY PFEIFFER and DAVE PEREWITZ and ED KERR and DONNIE SMITH, Defendants CIVIL ACTION - LAW NO. 2012-6051 EMERGENCY MOTION TO STAY RULE TO FILE COMPLAINT Plaintiffs by and through their attorney, Rob Bleecher, Esquire, of Pecht & Associates, PC, pursuant to Local Rule 208.3(a), hereby file this Motion and assert and support thereof: 1. Movants John Detrick and Motoring USA are Plaintiffs in the above-captioned matter naming Grady Pfeiffer, Dave Perewitz, Ed Kerr and Donnie Smith as Defendants. 2. Counsel for Defendants is Adam M. Shienvold, Esquire, Eckert Seamans Cherin & Mellott, LLC, 213 Market Street, 8th Floor, Harrisburg, PA 17101. 3. Plaintiffs' counsel served Defendants on September 27, 2012 with a Writ of Summons for each Defendant and with a Notice of Deposition, attached hereto as Exhibit "A", as part of pre-complaint discovery. The causes of action based on certain alleged misconduct of the Defendants, are more fully stated, inter alia, in a Complaint filed at CV-2012-4468 and discontinued on September 27, 2012. 1 i 4. In response, counsel for Defendants filed a Praecipe for Rule to File Complaint on October 3, 2012 and the Court issued the Rule to File Complaint on October 3, 2012. 5. Pa.R.C.P. No. 4003.8(a) permits pre-complaint discovery where "the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party." Plaintiffs included in the aforesaid Notice of Taking of Oral Deposition a cover letter (attached hereto as Exhibit "B") transmitted along with the Writ to Defendants' counsel, which included a brief statement of the nature of the causes of action. 6. Plaintiffs' counsel avers that the information sought is material and necessary to the filing of a legally sufficient complaint and the discovery sought will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party. 7. Further, this pre-complaint discovery request is made in good faith; most of the documents requested are in the possession of Defendants, but not in the possession of Plaintiffs; the documents sought are necessary to establish the elements to the claims of Plaintiffs. Plaintiffs are faced with the dilemma of needing to show sufficient evidence to prove that the discovery requests are not a fishing exhibition, yet at the same time prove Plaintiffs do not have sufficient information to prepare a complaint with sufficient facts to avoid dismissal under Pa.R.C.P. 1028. 8. Counsel for Plaintiffs believes and avers that the information sought will materially advance Plaintiffs' pleading and that "but for" the discovery requested, counsel may be unable to formulate a legally sufficient pleading. Defendants' Preliminary Objections filed to Plaintiffs' Complaint (CV-2012-4468) seem to support this belief (a copy of Defendants' Preliminary Objections is attached as Exhibit "C"). 2 9. A hearing and/or argument are requested at the earliest possible opportunity consistent with the availability of this Court and the respective counsel's schedules. 10. The Rule to File Complaint filed by Defendants requires that a Complaint be filed on or before October 23, 2012. 11. Assuming a timely filing of a Rule 237.1 Notice, a Judgment of Non Pros may be requested and entered as early as November 2, 2012. 12. Pursuant to Local Rule 208.3(a)(9), Plaintiffs' counsel has sought the concurrence of opposing counsel and has disclosed a full text of this Motion and Proposed Order to counsel for Defendants by electronic communication; Defendants' counsel opposes this Motion. 13. No judge has ruled on this or other issues in this or a related matter. 14. Plaintiffs estimate the length of time needed for the hearing or argument is %2 hour. WHEREFORE, Plaintiffs respectively request this Honorable Court to Order a Stay of the Rule to File a Complaint pending completion of pre-complaint discovery. Respectfully submitted, .TES, PC Dated: October 12, 2012 By: b Bleecher, Esquire Atto ey I.D. No. 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorney for Plaintiffs 3 EXHIBIT "A" JOHN DETRICK and MOTORING USA, Plaintiffs V. GRADY PFEIFFER and DAVE PEREWITZ and ED KERR and DONNIE SMITH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. j0-L40S( ClV 6 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Grady Pfeiffer 9795 Megan Terrace Escondido, CA 92026 Dave Perewitz 910 Plymouth Street Bridgewater, MA 02324 Ed Kerr 157 Glendale Street Carlisle, PA 17013 Donnie Smith 10594 Radisson Road NE Minneapolis, MN 55449 Date: September A3 2012 Pecht & Associates, PC By: Rob Bleecher, Esquire Supreme Court ID No. 32594 Attorney for Plaintiff David D. Buell, Pr thonotary By: Deputy TRUE COPY FROM RECORD In Tes*nwY whereat, oft" Ctru" t tw re taido sad mmyyfw W and tl?sisal e?fasid This ;._._.'? l dW of Rob Bleecher, Esquire Attorney I.D. No. 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 JOHN DETRICK and IN THE COURT OF COMMON PLEAS MOTORING USA, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW NO. 12-6051 CIVIL GRADY PFEIFFER and DAVE PEREWITZ and ED KERR and DONNIE SMITH, Defendants NOTICE OF TAKING OF ORAL DEPOSITIONS TO: ED KERR 157 Glendale Street Carlisle, PA 17013 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure 4007. 1, and 4003.8, beginning at 10:00 A.M. on Monday November 5, 2012 or on such alternate date to be determined by the availability of the deponent and respective counsel, the PLAINTIFFS will take the deposition of Ed Kerr under oral examination for the purposes of Pre-Complaint Discovery or for use at trial, or for both purposes, before a person authorized to render an oath on all matters not privileged, which are relevant and material to the issues and subject matter involved in the above-captioned matter, and that the designated person is required to appear on the aforementioned date and time at the following address: Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 The purpose of the deposition (and matters to be inquired into) is to prepare a Complaint in this matter. The nature of the causes of action and the matters being inquired into are generally set forth at length in the Complaint of Plaintiffs filed at CV-2012-4468 and discontinued by Plaintiffs on September 27, 2012. The aforesaid Complaint is incorporated by reference and made a part of this Notice as if fully set forth herein. The reason for the deposition at this time is to obtain information and tangible things necessary to prepare a Complaint that will meet the pleading requirements set forth in Pa.R.C.P. No.1028. Plaintiffs will inquire into matters, inter alia, pertaining to the jurisdiction of this Court over the Defendants, details of the decision to terminate John Detrick's membership in the Hamsters, details concerning who participated in the decision to terminate John Detrick from membership in the Hamsters USA, who knew of the decision to terminate John Detrick from membership in the Hamsters, how and by whom that information was communicated to them, identify of any additional persons to whom that information was communicated, the reason or reasons for the actions taken by the Defendants to terminate the membership of Jahn Detrick, and the identity of the person or persons who allegedly complained about an action or actions of John Detrick and what the details of the alleged complaint was. TAKE FURTHER NOTICE, that pursuant to Pennsylvania Rules of Civil Procedure 4007.1(d)(1) and 4009.1 et seq., Ed Ken is hereby requested and required to produce and bring with him the following documents and tangible things: all documents identified on the attached Schedule of Documents. Respectfully submitted, PECH &-ASSOCIATES, PC Dated: September 27, 2012 By:= Ro, Bleecher, Esquire Att rney I.D. No. 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorneys for Plaintiffs SCHEDULE OF DOCUMENTS The documents to be produced at the deposition include the following documents and tangible things: 1. Any and all correspondence, documents and notes that pertain to the letter sent to John Detrick that purported to terminate his membership in Hamsters USA. 2. Any and all correspondence, documents and notes that pertain to the meeting or meetings held by and between one or more of the Defendants that pertain to the letter sent to John Detrick that purported to terminate his membership in Hamsters USA. 3. Any and all correspondence, documents and notes that pertain to the person or persons who received a copy of the letter sent to John Detrick that purported to terminate his membership in Hamsters USA. 4. Any and all correspondence, documents and notes that reflect any and all business and commerce conducted by and/or between Ed Kerr and one or more of the other Defendants wherein business and/or commerce (whether or not taxes were collected or paid to the Pennsylvania Department of Revenue) was conducted in Pennsylvania or between Pennsylvania and some other state. 5. Any and all correspondence, documents and notes that reflect any and all business and commerce conducted by and/or between one or more Pennsylvania residents (whether or not taxes were collected or paid to the Pennsylvania Department of Revenue) and one or more of the Defendants in this matter. 6. Any and all correspondence, documents, notes and filings that reflect the rules, regulations, procedures, bylaws, agreements, standards, requirements, and/or ethics of Hamsters USA. 7. Any and all correspondence, documents, notes and filings that describe or explain the actions alleged to have been taken by John Detrick that resulted in the letter of termination of his membership. 8. Any and all correspondence, documents and notes that reflect the official rules and regulations that define the policy, protocol, and practices in place for the termination of a membership in Hamsters USA. 9. Any and all correspondence, documents and notes that reflect the names of any and all of the parties that complained about John Detrick that resulted in the letter of termination of his membership. 10. A copy of the minutes of any meeting or the record of any conversation between one or more Hamster member between June 1, 2011 and September 1, 2012 where the termination of John Detrick or the letter of termination was discussed. 11. A copy of the meeting minutes and the voting record of the Hamsters USA "leadership" that pertains to the purported termination of John Detrick's membership. 12. A copy of any and all correspondence sent by any medium notifying members of Hamsters USA of a mandatory meeting during the month of July 2012 in Sturgis, South Dakota.. EXHIBIT `B" PECHT & ASSOCIATES, PC Suite 200 1205 Manor Drive Mechanicsburg, PA 17055.4894 Wayne M. Pecht Member of California Bar CPA/LLM in Taxation Bob Bleecher September 27, 2012 Via Email and First-Class Mail Adam M. Shienvold, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8 h Floor Harrisburg, PA 17101 Telephone: 717-691-9809 Fax: 717-691-2070 rbleecher@pechtl aw. com wrww.pechtlaw.com Re: John Detrick and Motoring LISA v. Hamsters LISA, and Grady Pfeffer, and Dave Perew&4 and Ed Kerr, and Donnie Smith No. 12-6051 Civil Dear Adam: By this letter I am requesting that you accept service of the enclosed Writ of Summons in lieu of Sheriff's service. If you agree to do so, please sign the enclosed Acceptance of Service and return to me in the enclosed self-addressed stamped envelope. I would appreciate a response one way or the other by close of business Monday. I have also enclosed a copy of Plaintiff's Praecipe to Discontinue the action at CV-2012-4468 and a Notice of Deposition in the new action at CV 2012-6051 Civil. Please let me know if you are willing and able to accept service of the Notice of Deposition for Mr. Kerr as well. Thank you. Regards, PECHT LUTES, PC B y: Rob Bleecher, Esquire RB/dlf Enclosures cc: Mr. John Detrick EXHIBIT "C" IN THE COURT OF COMMON PLEAS C1 C-) CUMBERLAND COUNTY, PENNSYLVANIA ^a =? rqW Xrn r1l ?? - =;z) (J? r- 0 } r CIVIL ACTION - LAW JOHN DETRICK and MOTORING USA J - , © s -. Plaintiffs, 2012-cv-4468 NO . V. -c GRADY PFEIFFER, DAVE PEREWITZ, ED KERR and DONNIE SMITH, Defendants. DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants, Grady Pfeiffer, Dave Perewitz, Ed Ken and Donnie Smith, by and through their counsel, Adam M. Shienvold, Esquire, Kyle J. Meyer, Esquire, and Eckert Seamans Cherin & Mellott, LLC, submit the following preliminary objections to the Plaintiffs' Complaint, pursuant to Pa. R.C.P. 1017(a) and 1028, and in support thereof, state: 1. INTRODUCTION. 1. Plaintiff John Detrick comes to this Court, complaining that he was expelled from Hamsters USA, an unincorporated social organization consisting of custom Harley-Davidson motorcycle enthusiasts, after a disagreement between Mr. Detrick and several other members of Hamsters USA. Stung by his expulsion, and aware that there is no legally cognizable redress for being expelled from a social club, see, e.g., Boy Scouts ofAm. v. Dale, 530 U.S. 640, 647 (2000) (citing Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) ("[f ]redom of association .. plainly presupposes a freedom not to associate.")), Detrick has asserted five counts of (L.0488703.1) unsupportable, retaliatory claims against four individual members of Hamsters USA that he refers to as the "leadership" of the club. Defendants now submit their preliminary objections to plaintiffs' complaint because none of the causes of action state a claim upon which relief can be granted, and because three of the four defendants are not Pennsylvania residents who are not subject to personal jurisdiction here. II. PRELIMINARY OBJECTION TO ALL COUNTS OF PLAINTIFFS' COMPLAINT FOR LACK OF PERSONAL JURISDICTION OVER DEFENDANTS GRADY PFEIFFER, DAVE PEREWITZ, AND DONNIE SMITH 2. Defendants incorporate the preceding paragraphs by reference as though more fully set forth herein. 3. Pa. R.C.P. 1028(a)(1) authorizes a preliminary objection for lack of personal jurisdiction over a defendant. 4. Plaintiffs cannot and do not allege facts sufficient to support this Court's exercise of personal jurisdiction over Defendants Grady Pfeiffer, Donnie Smith, and Dave Perewitz. 5. Mr. Pfeiffer is an adult individual presently residing at 9795 Megan Terrace, Escondido, California 92026. (Affidavit of Grady Pfeiffer, sworn to on August 20, 2012, a true and correct copy of which is attached hereto as Exhibit A.) Mr. Pfeiffer has worked and lived in California his entire life, is a registered voter in California, and has filed income tax returns in California for over 50 years. (Id.) 6. Mr. Pfeiffer is the owner of GH Marketing, which is located at 9795 Megan Terrace, Escondido, California 92026. (Id.) GH Marketing does not do business in Pennsylvania, does not represent any company located within Pennsylvania, does not have offices or employees in Pennsylvania, does not own property or real estate of any kind in 2 Pennsylvania, and has never paid Pennsylvania income taxes, or any local taxes in Pennsylvania. (Id.) 7. In the last 20 years, Mr. Pfeiffer has travelled to Pennsylvania on only one occasion. (Id.) Mr. Pfeiffer did not make any sales or otherwise engage in general business activities during his visit to Pennsylvania. (Id.) Mr. Pfeiffer and GH Marketing have no other connections with Pennsylvania. (Id.) 8. Mr. Pfeiffer has not established continuous and systematic contacts with Pennsylvania. Mr. Pfeiffer, therefore, is not subject to this Court's jurisdiction under a general jurisdiction theory. 9. Plaintiffs' alleged causes of actions do not arise out of or relate to any contacts Mr. Pfeiffer has with Pennsylvania. Mr. Pfeiffer, therefore, is not subject to this Court's jurisdiction under a specific jurisdiction theory. 10. Mr. Smith is an adult individual presently residing at 2117 97`h Avenue North, Brooklyn Park, Minnesota 55444. (Affidavit of Donnie Smith, sworn to on August 15, 2012, a true and correct copy of which is attached hereto as Exhibit B.) Mr. Smith has worked and lived in Minnesota his entire life, is a registered voter in Minnesota, and has filed income tax returns in Minnesota for more than 50 years. (Id.) 11. Mr. Smith is the owner of Donnie Smith Custom Cycle, Inc., which is located at 10594 Radisson Road North East, Blaine, Minnesota 55449. (Id.) Donnie Smith Custom Cycle, Inc. does not do business in Pennsylvania, does not represent any company located within Pennsylvania, does not have offices or employees in Pennsylvania, does not own property or real 3 estate of any kind in Pennsylvania, and has never paid Pennsylvania income taxes, or any local taxes in Pennsylvania. (Id.) 12. In the last 40 years, Mr. Smith has travelled to Pennsylvania on only three occasions. (Id.) Mr. Smith did not make any sales or otherwise engage in general business activities during his visits to Pennsylvania. (Id.) Mr. Smith and Donnie Smith Custom Cycle Inc. have no other connections with Pennsylvania. (Id.) 13. Mr. Smith has not established continuous and systematic contacts with Pennsylvania. Mr. Smith, therefore, is not subject to this Court's jurisdiction under a general jurisdiction theory. 14. Plaintiffs' alleged causes of actions do not arise out of or relate to any contacts Mr. Smith has with Pennsylvania. Mr. Smith, therefore, is not subject to this Court's jurisdiction under a specific jurisdiction theory. 15. Mr. Perewitz is an adult individual presently residing at 910 Plymouth Street, Bridgewater, Massachusetts 02324. (davit of Dave Perewitz, sworn to on September 7, 2012, a true and correct copy of which is attached hereto as Exhibit C.) Mr. Perewitz has worked and lived in Massachusetts his entire life, is a registered voter in Massachusetts, and has filed income tax returns in Massachusetts for more than 40 years. (Id.) 16. Mr. Perewitz is the owner of Perewitz Cycle Fab, which is located at 910 Plymouth Street, Bridgewater, Massachusetts 02324. (Id.) Perewitz Cycle Fab does not do business in Pennsylvania, does not represent any company located within Pennsylvania, does not have any offices or employees in Pennsylvania, and has never paid Pennsylvania income taxes, or any local taxes in Pennsylvania. (Id.) 4 17. In the last 20 years, Mr. Perewitz has traveled to Pennsylvania on approximately three occasions to attend motorcycle trade shows. (Id.) Mr. Perewitz did not make any sales or otherwise engage in general business activities during his visits to Pennsylvania. (Id.) Mr. Perewitz and Perewitz Cycle Fab have no other connections with Pennsylvania. (Id.) 18. W. Perewitz has never traveled to Pennsylvania in connection with Hamsters USA. (M) 19. Mr. Perewitz has not established continuous and systematic contacts with Pennsylvania. Mr. Perewitz, therefore, is not subject to this Court's jurisdiction under a general jurisdiction theory. 20. Plaintiffs' alleged causes of actions do not arise out of or relate to any contacts Mr. Perewitz has with Pennsylvania. Mr. Perewitz, therefore, is not subject to this Court's jurisdiction under a specific jurisdiction theory. 21. Accordingly, this Court should dismiss Plaintiffs' Complaint as to Defendants Grady Pfeiffer, Donnie Smith, and Dave Perewitz for lack of personal jurisdiction. III. PRELIMINARY OBJECTION TO COUNT I OF PLAINTIFFS' COMPLAINT ("INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS") FOR LEGAL INSUFFICIENCY (DEMURRER) 22. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 23. Pa. R.C.P. 1028(a)(4) authorizes a preliminary objection for legal insufficiency of a pleading (demurrer). A preliminary objection in the nature of a demurrer is "an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted." Soto v. Nabisco, Inc., 32 A.3d 787, 790 (Pa. Super. 2011). 5 24. To state a cause of action for intentional interference with contractual relations, whether existing or prospective, a plaintiff must allege: (1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as the result of the defendant's conduct. Blackwell v. Eskin, 916 A.2d 1123, 1127-28 (Pa. Super. 2007). 25. Plaintiffs have failed to identify any existing or prospective contractual relations with which Defendants allegedly interfered. 26. Plaintiffs have failed to plead any facts establishing that Defendants intentionally interfered with Plaintiffs' contractual relations. 27. Plaintiffs have failed to plead any facts establishing that Defendants' alleged interference was without privilege or justification. 28. Plaintiffs have failed to plead any facts establishing that Defendants' alleged conduct resulted in actual legal damage. 29. Accordingly, this Court should sustain Defendants' preliminary objection to Count 1 of Plaintiffs' Complaint because it fails to set forth a cause of action upon which relief can be granted. 6 IV. ALTERNATIVE PRELIMINARY OBJECTION TO COUNT I OF PLAINTIFFS' COMPLAINT ("INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS") FOR INSUFFICIENT SPECIFICITY 30. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 31. Pa. R.C.P. 1028(a)(3) authorizes a preliminary objection for insufficient specificity in pleading. 32. Pa. R.C.P. 1019(x) requires plaintiffs to plead the material facts that give rise to their claims. "This Rule is satisfied if the allegations in a pleading contain averments of all facts the plaintiff must eventually prove in order to recover, and the averments are sufficiently specific to enable the adverse party to prepare a defense." Unified Sportsmen of Pennsylvania v. Pennsylvania Game Comm'n (PGQ, 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008). 33. Plaintiffs have failed to plead any facts to support their claim that Defendants interfered with their contractual relations. Specifically, Plaintiffs have failed to identify any existing or prospective contractual relations with which Defendants allegedly interfered. 34. Plaintiffs have failed to plead any facts to support their claim that Defendants induced third-parties to discontinue existing contractual relations and to not enter into prospective contractual relations with Plaintiffs. Specifically, Plaintiffs have failed to identify any third-parties that Defendants allegedly induced, or any actions allegedly taken by Defendants to induce said third-parties. 35. Plaintiffs have failed to plead any facts to support their claim that Defendants alleged interference with their contractual relations was intentional. 7 I ? 36. Plaintiffs have failed to plead any facts to support their claim that Defendants alleged interference with their contractual relations was without privilege or justification. 37. Based on these vague allegations, Defendants are unable to ascertain the nature of the claims against them or prepare an adequate defense. 38. Accordingly, this Court should sustain Defendants' preliminary objection to Count I of Plaintiffs' Complaint for failure to plead with sufficient specificity. V. PRELIMINARY OBJECTION TO COUNT II OF PLAINTIFFS' COMPLAINT ("CIVIL CONSPIRACY") FOR LEGAL INSUFFICIENCY (DEMURRER) 39. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 40. To state a cause of action for civil conspiracy, a plaintiff must allege: "(1) a combination of two or more persons acting with a common purpose to do an illegal act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage." Estate of Werner ex. rel. Werner v. Werner, 781 A.2d 188,191 (Pa. Super. 2001). 41. In Pennsylvania, a cause of action for civil conspiracy is not independently actionable; it is dependent upon the performance of some underlying tort. GMH Assoc., Inc. v Prudential Realty Group, 752 A.2d 889 (Pa. Super. 2000). 42. The tort underlying Plaintiffs' cause of action for civil conspiracy is intentional interference with contractual relations. 43. Plaintiffs' civil conspiracy claim fails as a matter of law because Plaintiffs have failed to state a cause of action for intentional interference with contractual relations. 8 44. Furthermore, "a single entity cannot conspire with itself and, similarly, agents of a single entity cannot conspire among themselves." Lackner v. Glosser, 892 A.2d 21, 35 (Pa. Super. 2006). 45. Defendants compose the informal "leadership" of Hamsters USA, and acted in that capacity in terminating Plaintiff Detrick's membership. 46. Plaintiffs' civil conspiracy claim fails as a matter of law because there was not a combination of two or more persons acting for common purpose. 47. Accordingly, this Court should sustain Defendants' preliminary objection to Count H of Plaintiffs' Complaint because it fails to set forth a cause of action upon which relief can be granted. VI. ALTERNATIVE PRELIMINARY OBJECTION TO COUNT H OF PLAINTIFFS' COMPLAINT ("CIVIL CONSPIRACY") FOR INSUFFICIENT SPECIFICITY 48. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 49. Plaintiffs have failed to plead any facts to support their claim that "Defendants acted together to unlawfully interfere with Plaintiffs' business relationships." (Plaintiffs' Complaint at ¶ 96.) 50. Based on these vague allegations, Defendants are unable to ascertain the nature of the claims against them or prepare an adequate defense. 51. Accordingly, this Court should sustain Defendants' preliminary objection to Count 11 of Plaintiffs' Complaint for failure to plead with sufficient specificity. 9 VII. PRELIMINARY OBJECTION TO COUNT III OF PLAINTIFFS' COMPLAINT ("INJURIOUS FALSEHOOD: COMMERCIAL DISPARAGEMENT") FOR LEGAL INSUFFICIENCY (DEMURRER) 52. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 53. The basis for Plaintiffs' commercial disparagement claim is the following statement contained in the termination letter that Defendants sent to Plaintiff Detrick only: It has been brought to our attention that you have engaged in actions that have created conflicts with a number of your Hamster brothers, this is something that we cannot let go without consequences. Because of this we are terminating your membership in the Hamsters USA. (Plaintiffs' Complaint at 116.) 54. To state a cause of action for commercial disparagement, a plaintiff must allege: (1) the defendant published a disparaging statement concerning the business of the plaintiff, (2) the statement was false; (3) the defendant either intended the publication to cause pecuniary loss or reasonably should recognize that publication will result in pecuniary loss; (4) pecuniary loss actually resulted from the publication; and (5) the defendant either knew the statement was false or acted in reckless disregard of its truth or falsity. Pro Golf Mfg., Inc. v. Tribute Review Newspaper Co., 570 Pa. 242, 246, 809 A.2d 243, 246 (2002) ("Pro Golf IP') 55. Like defamation, publication or communication of the allegedly disparaging statement to a third party is a necessary element of commercial disparagement. See Suppan v. Kratzer, 660 A.2d 226, 229 (Pa. Cmwlth. 1995). 56. Defendants published the termination letter to Plaintiff Detrick only. 10 57. Plaintiffs' commercial disparagement claim fails as a matter of law because Defendants did not publish the termination letter to any third party. 58. Plaintiffs' vague and conclusory allegation that Defendants "communicated [the termination letter] to other Hamster [sic] USA members and to non-members of Hamsters USA," (Plaintiffs' Complaint at ¶ 106), is insufficient as a matter of law to establish publication because Plaintiffs are required to plead the circumstances of the alleged publication, such as time, date, place, manner, and recipients of the alleged publication. See Village 2 at New Hope, Inc. v. Hausman, 66 Pa. D & C.2d 207, 214-215 (C.P. Bucks Cnty. 1974). 59. Plaintiffs' vague reference to "other Hamster [sic] USA members and to non- members of Hamsters USA" is also insufficient as a matter of law to establish publication because Plaintiffs have failed to allege with sufficient particularity the identity of the third persons to whom Defendants allegedly published the termination letter. See Suppan, 660 A. 2d at 229; Raneri v. DePolo, 441 A.2d 1373, 1375 (Pa. Cmwlth. 1982); Itri v. Lewis, 422 A.2d 591, 592 (Pa. Super. 1980). 60. Furthermore, a showing of direct pecuniary loss against one's economic interests is an essential element in an action for commercial disparagement. Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 761 A.2d 553, 556 (Pa. Super. 2000) ("Pro Golf T'), rev'd on different grounds, 570 Pa. 242, 809 A.2d 243 (2002) ("Pro Golf IT') 61. Plaintiffs' commercial disparagement claim fails as a matter of law because Plaintiffs have not sustained any pecuniary loss as a direct result of Defendants' alleged publication of the termination letter. 11 62. Plaintiffs' general allegation of financial loss is insufficient as a matter of law to establish actual pecuniary loss. See Brunson Commc'ns, Inc. v. Arbitron, Inc., 266 F. Supp. 2d 377, 382-83 (E.D. Pa. 2003); Forum Publications, Inc. v. P. T. Publishers, Inc., 700 F. Supp. 236, 243 (E.D. Pa. 1988). 63. Next, Plaintiffs' commercial disparagement claim fails as a matter of law because the termination letter is not disparaging to Plaintiffs' business interests, and cannot reasonably be interpreted as concerning Plaintiffs' business interests. 64. Plaintiffs' commercial disparagement claim also fails as a matter of law because the termination letter is not false. Whether justified in Plaintiffs' minds or not, it is undisputed that Mr. Detrick's actions created conflicts with a number of Hamsters USA members. 65. Finally, Plaintiffs have failed to plead any facts establishing that Defendants intended the alleged publication of the termination letter to cause pecuniary loss, or that Defendants reasonably should have recognized that the alleged publication of the termination letter would result in pecuniary loss. 66. Accordingly, this Court should sustain Defendants' preliminary objection to Count III of Plaintiffs' Complaint because it fails to set forth a cause of action upon which relief can be granted. VIII. ALTERNATIVE PRELIMINARY OBJECTION TO COUNT III OF PLAINTIFFS' COMPLAINT ("INJURIOUS FALSEHOOD: COMMERCIAL DISPARAGEMENT") FOR INSUFFICIENT SPECIFICITY 67. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 12 68. Plaintiffs allege in a vague and conclusory fashion that they sustained "financial and physical injuries" as a direct result of Defendants' alleged conduct. (Plaintiffs' Complaint at ¶ 107.) 69. Pursuant to Pa. R.C.P. 1019(f), "[a]verments of... items of special damage must be specifically stated." 70. Pleading and proving special damages is an integral part of an action for commercial disparagement. Forum Publications, 700 F. Supp. At 243. A general allegation that the plaintiff has suffered financial loss as result of the defendant's disparaging remarks is not sufficiently specific. See Brunson Commc'ns, Inc. v. Arbitron, Inc., 266 F. Supp. 2d 377, 382-83 (E.D. Pa. 2003); Forum Publications, 700 F. Supp. at 243. The plaintiff must allege facts showing specific types and amounts of damages, "such as alleging the amount of sales for a substantial period preceding [the d]efendant's statements, and the amount of sales subsequent to [the d]efendant's statements, and also alleging specific facts showing that such losses in sales were the natural and probable result of [the d]efendant's statements." Brunson, 266 F. Supp. 2d at 383. 71. Plaintiffs' general claim for financial losses does not satisfy the requirement that special damages be pled with specificity in commercial disparagement actions. 72. Plaintiffs have failed to plead any facts to support their claim that they sustained physical injuries as a direct result of Defendants alleged publication of the termination letter. 73. Plaintiffs have failed to plead any facts to support their claim that Defendants "communicated [the termination letter] to other Hamster [sic] USA members and to non- members of Hamsters USA." 13 74. Based on these vague allegations, Defendants are unable to ascertain then nature of the claims against them or prepare an adequate defense. 75. Accordingly, this Court should sustain Defendants' preliminary objection to Count III of Plaintiffs' Complaint for failure to plead with sufficient specificity. IX. PRELIMINARY OBJECTION TO COUNT IV OF PLAINTIFFS' COMPLAINT ("BREACH OF CONTRACT") FOR LEGAL INSUFFICIENCY (DEMURRER) 76. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 77. Plaintiffs' Count IV is the crux of Plaintiffs' Complaint. Plaintiff wishes to litigate the termination of his membership in Hamsters USA, but is apparently unwilling to undertake the time, expense, or inconvenience of litigating against the organization itself, instead seeking unavailable redress from its key members by trumping up imaginary and baseless claims against them. 78. To state a cause of action for breach of contract, a plaintiff must allege: "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. 2002). 79. Plaintiffs allege in a vague and conclusory fashion that there is a membership agreement "between Hamsters USA and its members," (Plaintiffs' Complaint at ¶ 111 (emphasis added)), and that Defendants failed to perform under the terms of the alleged membership agreement. 80. Plaintiffs have failed to plead the existence of a contract, or its essential terms, between Plaintiffs and Defendants. 14 81. As pled by Plaintiffs, the alleged membership agreement serving as the basis for Plaintiffs' breach of contract claim against Defendants is between Hamsters USA and its members. Any breach of contract claim that Plaintiffs may have under the alleged membership agreement, therefore, necessarily concerns Hamsters USA, not the individual Defendants. Hamsters USA, however, is not a named as a party defendant. 82. Furthermore, Hamsters USA does not have a written membership agreement, and Plaintiffs have failed to identify any other writing constituting the alleged Hamsters USA membership agreement. 83. Plaintiffs have not attached to their Complaint any writing constituting the alleged Hamsters USA membership agreement, nor have Plaintiffs set forth the substance of such a writing, together with an explanation for their failure to attach it. 84. If asserting that the alleged membership agreement is oral, Plaintiffs have failed to state a cause of action for breach of contract because Plaintiffs have not set forth the essential terms and conditions of the alleged membership agreement, nor have Plaintiffs set forth the circumstances of its execution. 85. Finally, whether written or oral, Plaintiffs have failed to plead facts sufficient to establish that Defendants breached the alleged Hamsters USA membership agreement. Specifically, Plaintiffs have not identified any term(s) and/or condition(s) of the alleged Hamsters USA membership agreement that Defendants allegedly breached, nor have Plaintiffs alleged facts establishing how Defendants breached such term(s) and/or condition(s). 15 F 86. Accordingly, this Court should sustain Defendants' preliminary objection to Count IV of Plaintiffs' Complaint because it fails to set forth a cause of action upon which relief can be granted. X. ALTERNATIVE PRELIMINARY OBJECTION TO COUNT IV OF PLAINTIFFS' COMPLAINT ("BREACH OF CONTRACT") FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT. 87. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 88. Pa. R.C.P. 1028(a)(2) authorizes a preliminary objection for "failure of a pleading to conform to law or rule of court." 89. Pursuant to Pa. R.C.P. 1019(h), "[w]hen any claim ... is based upon an agreement, the pleading shall state specifically if the agreement if oral or written." 90. Pursuant to Pa. R.C.P. 1019(i), "[w]hen any claim ... is based upon a writing, the pleader shall attach a copy of the writing.... but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing." 91. Plaintiffs have failed to specify whether the alleged Hamsters USA membership agreement serving as the basis for their breach of contract claim is oral or written. 92. Plaintiffs have also not attached to their Complaint any writing constituting the alleged Hamsters USA membership agreement, nor have Plaintiffs set forth the substance of such a writing, together with an explanation for their failure to attach it. 93. Accordingly, this Court should sustain. Defendants' preliminary objection to Count IV of Plaintiffs' Complaint because it fails to conform to law or a rule of court. 16 XI. ALTERNATIVE PRELIMINARY OBJECTION TO COUNT IV OF PLAINTIFFS' COMPLAINT ("BREACH OF CONTRACT") FOR NONJOINDER OF A NECESSARY PARTY 94. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 95. Pa. R.C.P. 1028(a)(5) authorizes a preliminary objection for nonjoinder of a necessary party. 96. As pled by Plaintiffs, the alleged membership agreement serving as the basis for Plaintiffs' breach of contract claim against Defendants is between Hamsters USA and its members. 97. As such, any breach of contract claim that Plaintiffs may have under the alleged membership agreement necessarily implicates Hamsters USA. 98. Plaintiffs have failed to name Hamsters USA as a party defendant. 99. This Court should sustain Defendants' preliminary objection to Count IV of Plaintiffs' Complaint for failing to join a necessary party. XII. PRELIMINARY OBJECTION TO COUNT V OF PLAINTIFFS' COMPLAINT ("DEFAMATION") FOR LEGAL INSUFFICIENCY (DEMURRER) 100. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 101. Similar to Plaintiffs' commercial disparagement claim, the basis for Plaintiffs' defamation claim is the following statement contained in the termination letter that Defendants issued to Plaintiff Detrick: It has been brought to our attention that you have engaged in actions that have created conflicts with a number of your Hamster brothers, this is something that we cannot let go without 17 consequences. Because of this we are terminating your membership in the Hamsters USA. (Plaintiffs' Complaint at 116.) 102. To state a cause of action for defamation, a plaintiff must allege: (1) The defamatory nature of the communication. (2) Its publication by the defendant. (3) Its application to the plaintiff. (4) The understanding by the recipient of its defamatory meaning. (5) The understanding of the recipient of it as intended to be applied to the plaintiff. (6) Special harm resulting to the plaintiff from its publication. [And, if applicable,] (7) [a]buse of a conditionally privileged occasion. 42 Pa. C.S. § 8343. 103. A necessary element of defamation is publication or communication of the defamatory statement to a third party. Suppan, 660 A.2d at 229. 104. Defendants published the termination letter to Plaintiff Detrick only. 105. Plaintiffs' defamation claim fails as a matter of law because Defendants did not publish the termination letter to any third party. 106. Plaintiffs' vague and conclusory allegation that Defendants "communicated [the termination letter] to other Hamster [sic] USA members and to non-members of Hamsters USA," (Plaintiffs' Complaint at ¶ 106), is insufficient as a matter of law to establish publication because Plaintiffs are required to plead the circumstances of the alleged publication, such as time, date, place, manner, etc. See Village 2 at New Hope, 66 Pa. D & C.2d at 214-215. 107. Plaintiffs' vague reference to "other Hamster [sic] USA members and to non- members of Hamsters USA" is also insufficient as a matter of law to establish publication because Plaintiffs have failed to allege with sufficient particularity the identity of the third 18 persons to whom Defendants allegedly published the termination letter. See Suppan, 660 A. 2d at 229; Raneri, 441 A.2d at 1375; Itri, 422 A.2d at 592. 108. Furthermore, Plaintiffs' defamation claim fails as a matter of law because the termination letter is not defamatory. 109. A communication is defamatory if "it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him[, or] ... if it ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession." Maier v. Maretti, 671 A.2d 701, 704 (Pa. Super. 1996) (citation omitted). 110. The termination letter is not defamatory because it is not harmful to Plaintiff Detrick's trade or profession. Not only does the termination letter not cast aspersions about Mr. Detrick's fitness to properly conduct his business, the termination does not concern Mr. Detrick's trade or profession in any way. See Maier, 671 A.2d at 705-06. 111. Moreover, it cannot be fairly estimated whether the termination letter harmed Plaintiff Detrick's reputation in the community because Plaintiffs have failed to plead any facts establishing the circumstances surrounding Defendants' alleged publication of the termination letter to a third party. "The nature of the audience is a critical factor in determining whether the communication is defamatory." Maier, 671 A.2d at 705. 112. Accordingly, this Court should sustain Defendants' preliminary objection to Count V of Plaintiffs' Complaint because it fails to set forth a cause of action upon which relief can be granted. 19 XIII. ALTERNATIVE PRELIMINARY OBJECTION TO COUNT V OF PLAINTIFFS' COMPLAINT ("DEFAMATION") FOR INSUFFICIENT SPECIFICITY 113. Defendants incorporate by reference the foregoing paragraphs as though more fully set forth herein. 114. Plaintiffs have failed to plead any facts to support their claim that Defendants "communicated [the termination letter] to other Hamster [sic] USA members and to non- members of Hamsters USA." 115. Plaintiffs have failed to plead any facts to support their claim that the termination letter "harmed Plaintiff Detrick's reputation and standing in the community," (Plaintiffs' Complaint at ¶ 119), and "stated, and/or implie[d], that Plaintiff Detrick acted in a way that would be inconsistent with the proper, honest, and lawful performance his job" (Id. at ¶ 138). 116. Based on these vague allegations, Defendants are unable to ascertain the nature of the claims against them or prepare an adequate defense. 117. Accordingly, this Court should sustain Defendants' preliminary objection to Count V of Plaintiffs' Complaint for failure to plead with sufficient specificity. WHEREFORE, Defendants, Grady Pfeiffer, Dave Perewitz, Ed Kerr and Donnie Smith, respectfully request that the Court sustain their Preliminary Objections and dismiss Plaintiffs' Complaint, with prejudice. 20 Respectfully submitted, A FMS ienvo d, Esquire 81941) Kyle J. Meyer, Esquire (PA ID #307743) ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street, 8"' Floor P. O. Box 1248 Harrisburg, PA 17108-1248 Telephone: 717.237-6000 Facsimile: 717.237-6019 ashienvold@eckertseamans.com kmeyer@.eckertseamans.com Date: September 7, 2012 Counsel for Defendants, Grady Pfeiffer, Dave Perewitz, Ed Kerr and Donnie Smith 21 EXHIBIT "A" Affidavit of Donnie Smith I, Donnie Smith, hereby declare and swear under penalty of perjury: 1. 1 am a resident of the State of Minnesota. I have resided in Minnesota for 70 years. 2. 1 reside at 2117 97th Avenue North, Brooklyn Park, Minnesota, 55444 have lived at this address for 27 years. I am on record as the deed holder of this property. This is my permanent address and domicile. 3. 1 pay all utilities and expenses associated with this address. All my personal business dealings are located at this address. 4. 1 possess a Minnesota driver's license number Q747138638118, with the above listed address. 5. 1 have lived and worked my entire life in Minnesota. I have one adult child who lives in Minnesota. 6. 1 am a registered voter in Minnesota at the above listed address. 7. 1 have filed Minnesota income tax returns for more than 50 years. 8. 1 am owner of Donnie Smith Custom Cycle, Inc. located at 10594 Radisson Road North East, Blaine, Minnesota, 55449. This is my only business; I am engaged full time at Donnie Smith Custom Cycle, Inc. All statements below apply to Donnie Smith Custom Cycle, Inc. and me. 9. Donnie Smith Custom Cycle, Inc. is a motorcycle customization and service business. Donnie Smith Custom Cycle, Inc. does business only in Minnesota. 10. Donnie Smith Custom Cycle, Inc. has no offices and no employees outside of Minnesota. 11. Donnie Smith Custom Cycle, Inc. does not do business in the State of Pennsylvania. 12. Donnie Smith Custom Cycle, Inc. does not represent any company located within the State of Pennsylvania. 13. Donnie Smith Custom Cycle, Inc. does not have offices in the State of Pennsylvania. 14. Donnie Smith Custom Cycle, Inc. has no employees in the State of Pennsylvania. 15. Donnie Smith Custom Cycle, Inc. does not own property or real estate of any kind in the State of Pennsylvania. 16. Donnie Smith Custom Cycle, Inc. does not possess any Pennsylvania business license, or any privileged status or permits issued by the state of Pennsylvania. 17. Donnie Smith Custom Cycle, Inc. never has paid Pennsylvania income taxes, or any local taxes within Pennsylvania. 18. In the last 40 years I travelled three times to Pennsylvania to make personal appearances. I made no sales and did not engage in general business activities. 19. Donnie Smith Custom Cycle, Inc. and I 'have no other connection or activities within the State of Pennsylvania. I declare under penalty of perjury under the laws of Minnesota that the foregoing is true and correct and of my own personal knowledge, and that, if called upon to testify, I competent to testify thereto. f Name: Date: /? -"? EXHIBIT "B" Declaration of Grady Pfeiffer I, Grady Pfeiffer, hereby declare and swear under penalty of perjury: 1. I am a resident of the State of California. I have resided in California for 74 years. 2. 1 reside at 9795 Megan Terrace, Escondido, California 92026. 1 have lived at this address for 7 years. I am on record as the deed holder of this property. This is my permanent address and domicile. 3. 1 pay all utilities and expenses associated with this address. All my personal business dealings are located at this address. 4. 1 possess a California driver's license number F0306342 with the above listed address. 5. 1 have lived and worked my entire life in California. I am married to a California resident and have two adult children who live in California. 6. 1 am a registered voter in California at the above listed address. 7. 1 have filed California income tax returns for more than 50 years. 8. 1 have a vacation condominium in Spearfish, South Dakota. 9. 1 am owner of GH Marketing located at 9795 Megan Terrace, Escondido, California 92026. This is my only business, I am engaged full time at GH Marketing. All statements below apply to GH Marketing and me. 10. GH Marketing is a marketing representative for various after-market motorcycle parts manufacturers. GH Marketing does business in California and South Dakota. 11. GH Marketing has no offices and no employees outside of California. 12. GH Marketing does not do business in the State of Pennsylvania. 13. GH Marketing does not represent any company located within the State of Pennsylvania. 14. GH Marketing does not have offices in the State of Pennsylvania. 15. GH Marketing has no employees in the State of Pennsylvania. 16. GH Marketing does not own property or real estate of any kind in the State of Pennsylvania. 17. GH Marketing does not possess any Pennsylvania business license, or any privileged status or permits issued by the state of Pennsylvania. 18. GH Marketing never has paid Pennsylvania income taxes, or any local taxes within Pennsylvania. 19. In the last twenty years I travelled once with clients to Pennsylvania. I made no sales and did not engage in general business activities. 20. GH Marketing and I have no other connection or activities within the State of Pennsylvania. I declare under penalty of perjury under the laws of California that the foregoing is true and correct and of my own personal knowledge, and that, if called upon to testify, I would be competent to testify thereto. Name: /s/ Grady Pfeiffer Date: 8/20/12 EXHIBIT "C" Declaration of David Perewitz I, David Perewitz, hereby declare and swear under penalty of perjury: 1. I am a resident of the Commonwealth of Massachusetts. I have resided in Massachusetts for 61 years. 2. 1 reside at 910 Plymouth St, Bridgewater, MA 02324. 1 have lived at this address for 7 years. I am on record as the deed holder of this property. This is my permanent address and domicile. 3. 1 pay all utilities and expenses associated with this address. All my personal business dealings are located at this address. 4. 1 possess a Massachusetts driver's license number S50247244, with the above listed address. 5. 1 have lived and worked my entire life in Massachusetts. I am married to a Massachusetts resident and have three adult children who live in Massachusetts. 6. 1 am a registered voter in Massachusetts at the above listed address. 7. 1 have filed Massachusetts income tax returns for more than 43 years. 8. 1 am owner of Perewitz Cycle Fab, 910 Plymouth St Bridgewater, Massachusetts 02324. This is my only business, I am engaged full time at Perewitz Cycle Fab. All statements below apply to Perewitz Cycle Fab and me. 9. Perewitz Cycle Fab is a custom motorcycle shop. Perewitz Cycle Fab does business in Massachusetts. 10. Perewitz Cycle Fab has no offices and no employees outside of Massachusetts. 11. Perewitz Cycle Fab does not do business in the Commonwealth of Pennsylvania. 12. Perewitz Cycle Fab does not represent any company located within the Commonwealth of Pennsylvania. 13. Perewitz Cycle Fab does not have offices in the Commonwealth of Pennsylvania. 14. Perewitz Cycle Fab has no employees in the Commonwealth of Pennsylvania. 15. Perewitz Cycle Fab does not own property or real estate of any kind in the Commonwealth of Pennsylvania. 16. Perewitz Cycle Fab does not possess any Pennsylvania business license, or any privileged status or permits issued by the Commonwealth of Pennsylvania. 3 17. Perewitz Cycle Fab never has paid Pennsylvania income taxes, or any local taxes within Pennsylvania. 18.1 have never traveled to Pennsylvania in connection with Hamsters USA. 19. In the last twenty years, I have traveled to Pennsylvania approximately four to five times to attend trade shows. I made no sales and did not engage in general business activities. 20. Perewitz Cycle Fab and I have no other connection or activities within the Commonwealth of Pennsylvania. I declare under penalty of perjury under the laws of Massachusetts that the foregoing is true and correct and of my own personal knowledge, and that, if called upon to testify, I would be competent to testify thereto. Name: Dated: September 7, 2012 I , It 4 S CERTIFICATE OF SERVICE I certify that on this 7th day of September, 2012, I served a copy of the foregoing PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT via United States, First-Class mail, postage prepaid, addressed to: Wayne M. Pecht, Esquire Rob Bleecher, Esquire PECHT & ASSOCIATES, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 A M. hienvold, Esquire Counsel for Defendants 22 k , 1 • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN DETRICK and MOTORING USA, CIVIL ACTION - LAW Plaintiffs, NO.2012-cv-4468 V. GRADY PFEIFFER, DAVE PEREWITZ, ED KERB and DONNIE SMITH, Defendants. ORDER AND NOW this _ day of , 2012, upon consideration of the foregoing Preliminary Objections of Defendants to Plaintiffs' Complaint, and any response thereto, it is hereby ORDERED that the Preliminary Objections are SUSTAINED, and the Petition is GRANTED. Plaintiffs' Complaint is hereby DISMISSED WITH PREJUDICE. BY THE COURT: J. Distribution: Adam M. Shienvold, Esquire, Kyle J. Meyer, Esquire, Eckert Seamans Cherin & Mellott, LLC, 213 Market Street, 8 Floor, P. O. Box 1248, Harrisburg, PA 17108-1248 Wayne M. Pecht, Esquire, Rob Bleecher, Esquire, PECHT & ASSOCIATES, PC, 1205 Manor Drive, Suite 200, Mechanicsburg, PA 17055 . 1 CERTIFICATE OF SERVICE I, Rob Bleecher, Esquire, the attorney for Plaintiffs, hereby certify that I have served the foregoing document this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Adam M. Shienvold, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8 h Floor Harrisburg, PA 17101 Dated: October 12, 2012 By: JOHN DETRICK and IN THE COURT OF COMMON PLEAS OF MOTORING USA, CUMBERLAND COUNTY, PENNSYI_: VANIA Plaintiffs v CIVIL ACTION -LAW GRADY PFEIFFER and DAVE PEREWITZ and : ED KERB and DONNIE SMITH, ; Defendants NO. 12-6051 CIVIL TERM [N RE: PLAINTIFFS' EMERGENCY MOTION TO STAY RULE TO FILE COMPLAINT ORDER OF COURT AND NOW, this 18~' day of October, 2012, upon consideration of Plaintiffs' Emergency Motion To Stay Rule To File Complaint, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of ser,~ice. BY THE COURT., ,/ Rob Bleecher, Esq. Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 Attorney for Plaintiffs / Adam M. Shienvold, Esq. 213 Market Street, 8'h Floor Harrisburg, PA 17101 Attorney for Defendants :rc ~D~ ~ C'S ,~~'~~~ l0//9~/a l~~ ~- Christyle+eL. Peck, J. a.._!~.. ,. ,,, ,,;, _ _.._ .- ,~ ,n ~i~ rF, _, .It.~ IN THE COURT OF COMMON PLF,AS CUMBERLAND COUNTY, PENNSYLVANIA JOHN DETRICK and MOTORING USA. CIVIL ACTION -LAW Plaintiffs. NO. ~ 012-cv-6051 ~. GRADY PFI~;IFTER, DAVE PEREWITZ. ED KERR. and DONNIE SMITH. Defendants. DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' EMEKGENCY MOTION TO STAY RULE TO FILE COMPLAINT, AND CROSS-MOTION FOR PROTECTIVE ORDER Defendants. Grady Pfeiffer, Dave Perewitz. Ed Kerr, and Donnie Smith. through their counsel Eckert Seamans Cherin & Mellott, LLC. hereb}~ respond to Plaintiffs~~ Emergency Motion to Stav Rule to File Complaint, and further move this Court for a Protecti~,e Order from Plaintiffs' request for pre-complaint discovery pursuant to Pa. R.C.P. 400_>.~ arid -I0~12. In support. thereof, Defendants state as follows: 1. Admitted. ~. Admitted. 3. Admitted in part and- denied in part. It is admitted that Plaintiffs served Defendants with a Writ of Summons and a Notice of 'T'aking of Oral Depositions on September i_~~~a9~> f,K ~ ~?, ?OJ?, and that true copies are attached to plaintiffs' motion as F,xhibit A. The remaining averments of paragraph 3 are denied. Plaintiffs have not filed a complaint in this action and. according]}~, there are no causes of actions pleaded. To the extent that plairniffs seek to incorporate their Complaint, previously filed in this Court at Docket No. ?1)1?-~cy-4468 (the 'Original Complaint'). the averments of the Original Complaint are denied. By way of further answer_ plaintiffs voluntarily discontinued the action a.t 2012-cv-4468 on the same. date that they commenced this proceeding. By way of further answer. to the extent that plaintiff asserts that the causes of action asserted in this action are "more fully stated" in the Original Complaint, defendants assert that plaintiffs already have demonstrated their ability to plead a c,ompla~int. and should not he entitled to any pre-complaint discovery. 4. Admitted. ~. Admitted only that the quoted language appears in Pa. R.C.P. 400~.$~a1. and that plaintiffs delivered to defendants' counsel the cover letter submitted as Exhibit. 13. The remaining ayennents are denied, as both the Rules of Civil Procedure and the cover letter are writin<~s that speak for themselves. By way of further answer. the "brief statement" in the Notice of Taking of Oral Depositions incorporates by reference the now-withdrawn Original Complaint. which is a '?1-page. 145-paragraph. document setting forth five causes ol~ action against defendants. ~3ased upon the contents of the Original Complaint. plaintiffs cannot possibly need pre-complaint discovery. 6 The averments of paragraph 6 are conclusions of law to which no responsive pleading is required and are deemed denied. To the extent that the averments of paragraph 6 are deemed averments of fact, they are denied. By way of further answer. plaintiffs fail to identify how,/why the requested pre-complaint discovery is material and necessary to the filing of a 2 L0495~bfi I' complaint_ and how/why the requested pre-complaint discovery would not cause uru-easonable annoyance, embarrassment, oppression, burden or expense. It is insufficient for plaintiffs to merely parrot the standard for receiving pre-complaint discovery, especially in light of the detailed and comprehensive nature of now-withdrawn Original Complaint Contrary to plaintiffs' counsels averments, the mere fact that plaintiffs cannot. state causes of action that can survive preliminary objections is not a justification for pre-complaint fishing expeditions to find viable causes of action. 7. Denied. After reasonable investigation.. defendants are without sufficient knowledge ar~d information to form a belief as to the truth of plaintiffs' averment that "most of the documents requested are in the possession of Defendants, but not in t1~3e possession of Plaintiffs.` TI-~e remaining averments of paragraph 7 are conclusions of lam to which no responsive pleading is required and are deemed denied. To the extent that the averments of paragraph 7 are deemed averments of fact. they are denied. By way of further ansu%er. plaintiffs' request for pre-complaint discovery is nothing more than a fishing expedition. .-~~~, demonstrated by the Original Complaint, plaintiffs have all of the information concerning their alleged claims. Simpl.~ because plaintiffs' claims are insufficient as a matter of law does not mean. that plaintiffs get to go fishing. for new or better ones. 8 The averments of paragraph 8 are conclusions of law to which no responsive pleading is required. and are deemed denied. To the extent that the averments of paragraph 8 are deemed t.o be averments of fact. it is admitted only that a true copy of defendants~~ preliminary objections to the Original Complaint are attached to plaintiffs' motion as Exhibit C. The remaining averments of paragraph 8 are denied. By way of further answer, plaintiffs request for pre-complaint discovery is nothing morning than a fishing expedition. As demonstrated by the -, {LOay~~~s ~ Original Complaint. plaintiffs have all of the information concerning their alleged claims. Simple becaxise plaintiffs' claims are insufficient as a matter of law does not mean that plaintiffs get to go fishing for new or better ones. Defendants' Preliminary Objections to the Original Complaint do not establish the materiality and/or necessity of plaintiffs request for pre- complaint discovery: they establish only that, even accepting the facts pleaded in the Original Complaint as true. plaintiffs cannot recover on the claims asserted. Moreover plaintiffs fail to identifi~ how:/why the requested pre-complaint discovery "will materially ads-~ancc Plaintiffs' pleading.' 9. Defendants concur in plaintiffs' request for argument on this n~~otion and the defendants' cross-motion. 10. Admitted. By way of further answer. plaintiffs did not file a complaint on or before October 23. 2012. Defendants delivered a 10 Day Notice pursuant to Pa. R.~'.P. 237.1 on October 24. <-:012. l 1, Admitted in part and denied as stated. Defendants delivered a Nonce pursuant to Pa. R.C.P. ?37.1 on October 24, 2012. Accordingly. judgment of non-pros may rye entered on November ~. 2012. if plaintiffs fail to file a complaint. l ?. Admitted. I ~. .~~dmitted. 14. Defendants concur in plaintiffs' estimate of time required for hearing or argument. WHEREFORE. defendants respectfully request that plaintiffs' Emergency Motion to Stay Rule to I=ile Complaint be denied. 4 DEFENDANTS' CROSS-MOTION FOR PROTECTIVE ORDER Pursuant to Pa. R.C.P. 4003.8 and 40]2, Defendants, Grady Pfeiffer, Dave Perewitz. Ed Kerr, and Donnie Smith, move this Court for a Protective Order from Plaintiffs' request for pre- complaint discovery. and further from any discovery until defendants answer a proper)}~ pleaded complaint. and in support thereof, state as follows: 15. Defendants incorporate the preceding paragraphs by reference as though set forth more fully herein. l6. Plaintiffs, John Detrick and Motoring USA, commenced a prior action against defendants at Docket No. 201?-cv-4468 by filing the Original Complaint on Jule 18. ?(11 ~. 17. Plaintiffs' Original Complaint arose out of Plaintiff Detrick ~ s expulsion from Hamsters USA (an unincorporated social organization consisting of custom Harlev-Davidson motorcycle enthusiasts) after a disagreement between Plaintiff Detrick and several other Hamsters USA members. 18_ The 21-page, 145-paragraph Original Complaint asserted five causes of action against the same defendants as are named in this action for alleged intentional interference with contractual relations. civil conspiracy, injurious falsehood/commercial disparagement, breach of contract. and defamation. A true and correct copy of the Original Complaint is attached hereto as Exhibit A. 19. On September 7, 2012, defendants filed Preliminary Objections to plaintiffs' Original Complaint on the following grounds: • Lack of personal jurisdiction over defendants Grady Pfeiffer. Dave Perewitz, and Donnie Smith; Demurrer (All Counts); 5 C.oay,sf,k. ~ ; - • hlsufficient Specificity in Pleading (Intentional Interference with Contractual :Relations, Civil Conspiracy. Injurious Falsehood/Commercial Disparagement, Defamation); • Failure to Conform to Law or Rule of Court ('Breach of Contract): and • Nonjoinder of a Necessary Party (Breach of Contract). A true and correct copy of Defendants' Preliminary Objections is attached to plaintiffs" motion as Exhibit C. '?0. Ostensibly to avoid defendants' Preliminary Objections, plaintiff`s filed a Praecipe to Discontinue the Original Complaint on September 27. 2012. and the same da~~. c<~mmenced the above-captioned action by Writ of Summons. 1. That same date, plaintiffs also issued a Notice of Deposition. in ~~hich plaintiffs requested pre-complaint discovery from Defendant Kerr in the form of oral deposition and production of documents. A true and correct copy of the Notice of Taking of Ora] Depositions is attached to plaintiffs' motion as Exhibit A. ?2. The Notice of Taking of Oral Depositions contains an explanation of the purpose of the deposition and the matters to be inquired into, as required by Pa. R.C.P 40(17.](c), in which laintiffs incorporate by reference the Original Complaint. See NOt1C'e of Deposition, plaintiffs' F~hibit A. 23. In addition to incorporating by reference the Original Complaint. the explanation of the purpose of the deposition and the matters to be inquired into contained in the Notice of Takin« of Oral Depositions provide, in pertinent part: The reason for the deposition [of Ed Kerr] at this time is to obtain information and tangible things necessary to prepare a Complaint that will meet the pleading requirements set forth in Pa. R.C.P. No. 1028. Plaintiffs will inquire into matters, inter alia, pertaining to 6 ~_oa9~;~,` ~ the jurisdiction of this Court over the Defendants, details of the decision to terminate John Detrick's membership in the Hamsters. details concerning who participated in the decision to terminate _lohn Detrick from membership in the Hamsters USA, who knee of the decision to terminate .lohn Detrick from membership in the Hamsters, how and by whom that information was communicated to them. identify [sic] of the any additional persons to whom that information was communicated. the reason or reasons for the actions taken by the Defendants to terminate the membership of .John Detrick, and the identity of the person or persons who allegedly complained about an action or actions of John Detrick and what the details of the alleged complaint was. See Notice of Deposition, plaintiffs' :Exhibit A. 24. [n other words. plaintiffs seek. full-blown discovery as to all claims asserted in the Original Complaint (and any defenses available to those claims}. but under the guise of pre- complaint discos-ery that plaintiffs would seek to use to prepare a new complaint. ?5. Defendants filed a Praecipe for Rule to File Complaint on October ~ ?012_ and the Prothonatarv issued the Rule the same day. ?6. Plaintiffs responded by filing their Emergency Motion to Stay Rule to File Complaint on or about October 12, 2012, in which plaintiffs now seek stay of the Rule to File Complaint iri order to conduct the pre-complaint discovery requested in Plaintif~fs~ Notice of Taking Oral Depositions. 27. In support of their argument that the Rule to File Complaint should be stayed to allow the requested pre-complaint discovery, Plaintiffs aver, inter alia, that; [T]he information sought is material and necessary to the filing of a legally sufficient complaint and the discovery sought will not cause unreasonable annoyance. embarrassment, oppression, burden or expense to any pf:rson or party[;] ...and that "but for" the discovery requested, counsel may be unable to formulate a legally suff dent pleading. (Emergency Motion to Stay Rule to File Complaint at ¶¶ 6, 8.) ~'$. Pa. RC.P 4003.8. entitled "Pre-Complaint Discovery.' provides_ in pertinent part: 7 L049»t~3 I ; {a) A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to am person or party. b) Upon a motion for protective order or other objection to a :plaintiffs pre-complaint discovery, the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. 29. Pa. R.C.P. 4012, entitled `'Protective Orders,' provides, in pertinent part: .;a} Upon motion by a party or by the person from whom discover or deposition is sought, and for good cause shown, the court n~av make any order which justice requires to protect a party or person .From unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following: (1) that the discovery or deposition shall be prohibited; (2) that the discovery or deposition shall be only on specified terms and conditions_ including a designation of the time and place_ (4) that. certain matters shall not be inquired into; (5) that the scope of discovery or deposition shall be limited[.] ~0. Despite previously filing the 21-page, 145-paragraph Original Complaint, expounding five.. detailed causes of action against defendants. plaintiffs now seek pre-complaint disco~~ery to obtain information related to allegations already set forth in the Origin~il Crnnplaint. 1. As demonstrated by the Original Complaint, plaintiffs have suff cie~llt information concerning Plaintiff Detrick's expulsion from Hamsters USA to support their purported claims against defendants. `'. Plaintiffs' Notice of Taking of Oral Depositions is in the nature of a "fishing expedition's prohibited by McNeil v. Jordan, 894 A.2d 1260. 1278-79 (Pa. 2006.1 ("%1-~1cNeil I' j, and Pa. R.C.P. 4003.8. Plaintiffs do not identify how/why the requested information is material and necessary, to the filing of the Complaint. or set forth how/why the discovery requests would 8 iLii495;(~g_! `not cause unreasonable annoyance, embarrassment, oppression. burden or expense to any person or party."~ McNeil I, 894 A.2d at 1278-79; Pa. R.C.P. 4003.8. 3 ~. Like~-ise, plaintiffs' conclusory statements in their Emergency Motion to Stay Rule to File Complaint are insufficient to satisfy the standard for pre-complaint discovery enunciated in ,McNeil I and enumerated in Pa. R.C.P. 4003.8. As the Superior (`Dort held in Coopca~ r. Fr°ankford Health Care System, Inc.. 960 A2d 134. ] 42 (Pa. Super. 200K1 (quoting .A1c.Ncil v. Jardan_ 934 A2d 739 (Pa. Super. 2007) (`McNeil II")): [M]erely stating that the information sought in discovery i>> "material and necessary" to "draft a legally sufficient: Complaint[,]" and then simply listing the materials requested, does not satisfy the McNeil [I] probable cause standard of presentin~_7 "facts supporting a reasonable belief that the evidence sought wil9 support a cognizable cause of action.' (Second alteration in original.) >~. Furthermore, plaintiffs' pre-complaint discovery request is o~erl~~ broad to the extent that plaintiffs seek to depose Defendant Kerr concerning "the jurisdiction of this Court o~~er Defendants.'' This Court's jurisdiction over Ed Kerr is not in dispute. As to the remaining defendants. plaintiffs should first plead facts within their knowledge or belief that thev contend establish jurisdiction: if. after pleading such facts, there remains an unresolved disptate as to jurisdiction. then plaintiff may petition the Court for relief in the form of jurisdictional discovery. 3~. Finally.. defendants request this Court to stay all discovery until the pleadings are settled and it: is determined whether Defendants will remain parties to this action. and until there is a defined scope of discovery relative to the claims asserted against defendants. It is not until the claims and the essential facts supporting those claims have been pleaded., and the Court has ruled on the sufficiency of those claims, that the proper scope of discovery can be ascertained. 9 ).,049>bR_l , ~~. As plaintiffs have pleaded, the claims that will be asserted in this action will mirror the claims asserted in the Original Complaint. ~i. ®efendants filed preliminary objections to the Original Complaint. which defendants have tacitly admitted were proper and would have been sustained, which is the reason that plaintiffs withdrew the Original ~~.omplaint and now seek pre-complaint discovery to fish for sufficient causes of action. 38. Because the causes of action that plaintiffs seek to assert are not ~~iable, and because plaintiff cannot establish personal jurisdiction over three of the four defendants, any discovery before the Court resolves the preliminary objections to the causes of action will be harrassing and prejudicial, particularly to the extra jurisdictional defendants and to the Hamsters L;SA oraaniration. 39. Rule 4012(a)(2) perrr~its the Court to stay all discovery from plaintiffs until the pleadings involving defendants are settled, and it is determined whether defendants will remain parties, and if so, then at that time, :here is likely to be a defined scope of discovery relative to the claims that may be permitted against defendants. These terms are fair, reasonable and protect defendants from harassing and oppressive discovery and significant expenses therein unless and until it is demonstrated the claims against defendants can proceed. 40. The requested Order would protect defendants by ensuring that they do not needlessly engage in discovery on claims that cannot survive the preliminary objections, and would ensure that the discovery wou_Id not be a fishing expedition. but rather would be limited to the suryiying claims. if any. Justice requires that defendants be protected from the unreasonable annoy ance. embarrassment, oppression, burden or expense. of proceeding with fill discovery before the pleadings are settled. 10 L049~>~iR_I' 41. Plaintiffs will not be harmed by the requested Order. Plaintill~s' claims are personal in nature, and certainly plaintiffs know whether they have been harmed and how. If plaintiffs need discovery to find that information, that alone is proof that thev are fishing for claims. rather than having real, identifiable claims that could be pleaded but for the defendants obfuscation of the true facts. Certainly, if plaintiffs believe they have been defamed. they can identify the third party to whom an allegedly defamatory statement was published without pre- complaint discovery from the defendants who allegedly made the defamator}~ statement in the first instance. 42. Moreover. the unreasonable annoyance, embarrassment, oppressian, and significant expenses that would be incurred by defendants should discovery proceed far outweigh am assertions that plaintiffs may now make that they need to hurry this discove~r~. Indeed. plaintiffs have been threatening this lawsuit for months -since at least early June 212 when they first sent a draft complaint to defendants -and have had ample opportunity' to im~estigate their claims. Thev have no legitimate urgency now that requires early diseovery~ into all of the claims they intend to assert. 4 ~. A judge has not ruled upon any other issue in this matter or a related matter. 44. The full text of this motion for protective order has been presented to counsel for Plaintiffs. ~~ ho have indicated that they do not concur in the motion. 4_~. Defendants request an argument or hearing on their Motion for Protective Order.. concurrent with the argument or hearing requested on plaintiffs' Motion for Stab- of the Rule to File a Complaint L04y;;68.1; WHEREFORE. Defendants respectfully request that this Court enter a Protective Order. directing Plaintiffs to file a Complaint and staying all discovery by plaintiffs until ,0 days after defendants ans~~er a valid complaint. Respectfully submitted.. ~~ - - ~ Adam M. S envold, Esquire ( ID #8l 941) Kyle J. Meyer, Esquire (PA ID #30 i 743 ) ECKERT SEAMANS CHERIN & MF:I.LOTT, LLC 213 Market Street. 8t~ Floor P. O. Box 1248 Harrisburg, PA 17108-1248 1~elephone: 7 7 7.2 ~ 7.6000 Facsimile: 717.237.60] 9 ashienvold(a~eckertseamans.com kmeyer(a~eckertseamans. com Date: October 25.2012 l2 (1.049~ib8.] ; CERTIFICATE OF SERVICE I certify that on this 25th day of October, 201 ~, a copy of the foregoing DF;FI=;NGANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' EMERGENCY MOTIOIy 'TO STAY RULE TO FILE COMPLAINT. AND CROSS-MOTION FOR PROTECTIVE OIZI;-ER ~~as served via first-class. Postage prepaid, U.S. mail, which service: satisfied the Pennsylvania Rules of Civil Procedure. addressed to: ~~Vayne M. Pecht, Esquire Rob Bleecher, Esquire PEI~HT & ASSOCIATES, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 Ad m M. ienvold, Esquire Counsel for Defendants L049>~6R_1