HomeMy WebLinkAbout13-5349 X
Supreme Courfo Pennsylvania
Court Off.Co irlm -on Pleas For Prothonotary Use Only.
CI<vll`COVer Slleet Docket No: qtr S
Curland" County
Gs ✓l,
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the filing and service of pleadings or other papers as required by low or rules of court.
Commencement of Action:
S Q Complaint El Writ of Summons 0 Petition
Transfer from Another Jurisdiction 0 Declaration of Taking
E
C Lead Plaintiff's Name: Lead Defendant's Name:
David J. Sonich North Middleton Township
T Dollar Amount Requested: []within arbitration limits
I Are money damages requested? El Yes 0 No
(check one) []outside arbitration limits
0
N Is this a Class Action Suit? 0 Yes El No Is this an MDJAppeal? 0 Yes 1] No
A Name of Plaintiff /Appellant's Attorney: Laurence C. Kress
0 Check here if you have no attorney (are a Self- Represented (Pro Sej Litigant)
Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your
PRIMARY CASE. If you are making more than one type of claim, check the one that
you consider most important.
TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS
0 Intentional Buyer Plaintiff Administrative Agencies
0 Malicious Prosecution 0 Debt Collection: Credit Card 0 Board of Assessment
Motor Vehicle El Debt Collection: Other E] Board of Elections
0 Nuisance 0 Dept. of Transportation
0 Premises Liability 1] Statutory Appeal: Other
S Product Liability (does not include r_, Employment Dispute:
E mass tort)
0 Slander/Libel/ Defamation Discrimination
C 1l Other: i Employment Dispute: Other [3 Zoning Board
0 Other:
T
I 0 Other:
O MASS TORT
0 Asbestos
N 0 Tobacco
1] Toxic Tort - DES
0 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS
f - i Toxic Waste 0 Ejectment 0 Common Law /Statutory Arbitration
B 0 Other: 0 Eminent Domain /Condemnation 0 Declaratory Judgment
0 Ground Rent Mandamus
0 Landlord/Tenant Dispute 0 Non - Domestic Relations
El Mortgage Foreclosure: Residential Restraining Order
PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial 0 Quo Warranto
Dental Partition 1] Replevin
0 Legal 0 Quiet Title 0 Other:
Medical 0 Other:
0 Other Professional:
Updated 1/1/2011
d �
r li -t D - 0:1 1± 10' E
LAW OFFICE OF LAURENCE C. KRESS ;1 =Hc i'i0 N, J i,
LAURENCE C. KRESS, ESQ.
PA Bar No. 93137 21 SEP 10 AM 8' 2 8
105 N. Front Street Suite 303 CUMBERLAND COUNTY
Harrisburg, PA 17101 PENNSYLVANIA
T (717) 972 -0889
F (717) 972 -0586
Email: lckress @yahoo.com
Attorney for Plaintiff David Sonich
IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DISTRICT
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID J. SONICH,
Plaintiff, No.
VS.
CIVIL ACTION - MANDAMUS
NORTH MIDDLETON TOWNSHIP, and
MATTHEW M. JOHNSTON, acting in his
official capacity as North Middleton
Township Police Officer,
Defendants.
NOTICE
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, 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
9(43, 75 I)d dl,
TO PROVIDE YOU WITH INFORMATION ABOUT WHERE YOU CAN OBTAIN
LEGAL HELP AT A REDUCED FEE OR NO FEE:
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249 -3166
AVISO
USTED HA SIDO DEMANDO /A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion
dentro de los proximo veinte (20) dias despues de la notificacion de esta Demanda y
Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y
radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas
presentadas aqui encontra suya. Se le advierte de ques si usted falla de tomar accion como
se describe anteriormente, el case puede proceder sin usted y un fallo pro cualquier suma
de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por
el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional.
Usted puede perder dinero o propiedad u otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO. SI USTED NO TIENE O
NO CONOCE UN ABOGADO, O SI USTED NO PUEDE PAGAR POR LOS
SERVICIOS DE UN ABOGADO, VAYA O LLAME A LA OFFICINA DIRECCION
ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL:
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249 -3166
t l
LAW OFFICE OF LAURENCE C. KRESS
LAURENCE C. KRESS, ESQ.
PA Bar No. 93137
105 N. Front Street Suite 303
Harrisburg, PA 17101
T (717) 972 -0889
F (717) 972 -0586
Email: lckress@yahoo.com
Attorney for Plaintiff David Sonich
IN THE COURT OF COMMON PLEAS FOR THE 9 1h JUDICIAL DISTRICT
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID J. SONICH,
Plaintiff, No.
VS.
CIVIL ACTION - MANDAMUS
NORTH MIDDLETON TOWNSHIP, and
MATTHEW M. JOHNSTON, acting in his
official capacity as North Middleton
Township Police Officer,
Defendants.
COMPLAINT
AND NOW comes the Plaintiff, David J. Sonich, by and through his undersigned
attorney, Laurence C. Kress, Esquire, and hereby files this complaint seeking a writ of
mandamus compelling the Defendants to perform a public duty as follows:
PARTIES
1. Plaintiff, David J. Sonich, is an adult individual residing at 12577 Aden
Road, Box 312, Nokesville, VA 20182.
2. Defendant, North Middleton Township ( "Township "), is a political
subdivision of the Commonwealth of Pennsylvania. Its offices are located at 2051 Spring
Road, Carlisle, PA 17013.
3. Defendant, Matthew M. Johnston ("Johnston"), is an adult individual
employed as a police officer by the North Middleton Township Police Department
("Department"), a sub -unit of Defendant Township. The Department's offices are located
at 2051 Spring Road, Carlisle, PA 17013.
4. At all times relevant to this Complaint, Defendant Johnston has acted, and
continues to act, in his official capacity as an officer of Defendant Township.
JURISDICTION AND VENUE
5. This Court has jurisdiction pursuant to 42 Pa.C.S.A. 5 931.
6. Venue is proper in Cumberland County pursuant to Pa.R.C.P. No.
1092(c)(1).
FACTUAL BASIS
7. Plaintiff is the lawful owner of a 1969 Dodge Charger, Vehicle
Identification No. XP29G9B286738, registered in the Commonwealth of Virginia.
Plaintiff acquired this vehicle in December of 2004. Certificate of Title and Transcript of
Official Certified Vehicle Record attached as Exhibit A.
8. In 2008 and 2009, Plaintiff allowed his son, Joseph Sonich, and a man
named Randy Thickey, to paint, store, and seek a buyer for the vehicle. Plaintiff was also
seeking buyers.
9. In September of 2009, Thickey falsely told Plaintiff that he had a buyer who
had wired $25,000 to purchase the vehicle. Thickey made arrangements with Plaintiff to
provide him with the money, but did not show up at the time they had planned to meet.
10. Unbeknownst to Plaintiff, and without his permission, Thickey sold the
2
vehicle to a man in Wyoming for $11,500, forging Plaintiff's name to the title transfer in
order to effectuate the fraudulent sale. He then deliberately failed to pay any of the
proceeds to Plaintiff.
11. Defendant Johnston investigated the matter, and as a result of his
investigation, filed a criminal complaint in Magisterial District Court No. 09 -2 -01 on
December 22, 2009 charging Thickey with, inter alia, Theft by Unlawful Taking or
Disposition under 18 Pa.C.S.A. 5 3921(a) in connection with Plaintiff's vehicle.
12. Despite charging Thickey with the theft of Plaintiff's vehicle, Defendant
Johnston never filed the stolen vehicle report required by 75 Pa.C.S.A. 5 7113(a). As a
result, the vehicle was never entered into the NCIC database of stolen vehicles, a national
registry used to aid in the recovery of stolen vehicles.
13. On June 25, 2010, Thickey entered a plea of no contest to the theft of
Plaintiff's vehicle. He was later sentenced to a term of imprisonment and ordered to pay
restitution to Plaintiff in the amount of $11,500, later amended to $25,000.
14. To date, Plaintiff has not received any restitution from Thickey, nor does he
expect to receive any restitution.
15. Since the time of the criminal proceedings, Plaintiff has known that due to
Mr. Thickey's financial situation, including the obligation to pay of thousands of dollars
to other victims of his criminal behavior, Plaintiff could not realistically expect to receive
any restitution for the vehicle.
16. Plaintiff expressed his preference for recovering the car in lieu of monetary
restitution at Thickey's sentencing hearing, and wishes to pursue civil remedies to recover
the vehicle from the person who purchased it from Thickey in Wyoming.
3
t �
17. Due to potential legal defenses available to the Wyoming purchaser,
Plaintiff has sought, and continues to seek, to have his vehicle placed in the national
registry of stolen vehicles, as would have occurred in 2009 had Defendant Johnston made
the statutorily- required report, in order to aid in his claims for recovery.
18. Since Thickey's sentencing in 2010, Plaintiff has repeatedly requested that
Defendant Johnston file the required stolen vehicle report. However, he has refused to do
so, stating that he could not and would not do so without the approval of the District
Attorney's Office.
19. Since that time, and continuing into this past year, Plaintiff has attempted to
get the Cumberland County District Attorney's Office to instruct Defendant Johnston to
make the required report. However, the District Attorney's Office has repeatedly refused
to do so. July 18, 2013 Letter from M. Siebert, Director of Victim Services attached as
Exhibit B.
THE ACT OR DUTY DEFENDANTS ARE REQUIRED TO PERFORM
AND THE REFUSAL TO PERFORM IT
20. 75 Pa.C.S.A. 5 7113(a) provides, in relevant part, that "[E]very police
department or police office, having knowledge of a stolen vehicle shall immediately
furnish the State Police with full information about the stolen vehicle. (Emphasis added).
21. Given Defendant Johnston's filing of a theft charge against Thickey on
December 22, 2009, Defendants' duty under 75 Pa.C.S.A. 5 7113(a) arose at the very
latest on that date.
22. Since that time, Defendant Johnston, despite his statutory duty, and
repeated requests by Plaintiff, has failed to report the vehicle as stolen. He continues to
refuse to do so.
4
t
PLAINTIFF'S INTEREST IN THE RESULT
23. Plaintiff is the lawful owner of the vehicle stolen by Thickey, and seeks to
recover possession. He would therefore benefit from Defendants' performance of their
duty set forth in 75 Pa.C.S.A. S 7113(a).
24. Since Plaintiff is the sole, lawful owner of the vehicle, his interest in the
performance of the specified public duty is distinct from that of the general public.
THE WANT OF ANY OTHER ADEQUATE REMEDY AT LAW
25. Plaintiff cannot himself report his vehicle as stolen so as to place in the
national database of stolen vehicles. The duty to place and remove vehicles from that
registry lies with police departments. See Salvatore v. State Farm Mut. Auto. Ins. Co., 869
A.2d 511, 513 -515 (Pa.Super. 2005).
26. No other legal proceeding or remedy exists to review and address
Defendants' decision not to exercise their public duty under 75 Pa.C.S.A. S 7113(a).
5
PRAYER FOR ENTRY OF JUDGMENT AND
ISSUANCE OF WRIT OF MANDAMUS
WHEREFORE, Plaintiff hereby demands judgment in his favor, and against
Defendants, and respectfully prays that this Honorable Court issue a Writ of Mandamus
to Defendants commanding them to perform their public duty under 75 Pa.C.S.A.
5 7113(a), and report his vehicle, a 1969 Dodge Charger, Vehicle Identification Number
XP29G9B286738, as stolen, so that it may be entered into the national registry of stolen
vehicles. Plaintiff also requests that the Court award costs and fees incurred in bringing
this action, and any other relief that the Court deems just and appropriate.
Dated: / .,. z -�p Respectfully submitted,
LAW OFFICE OF LAURENCE C. KRESS
C-
L56RENCE C. KRESS, ESQ.
PA Bar No. 93137
105 N. Front Street Suite 303
Harrisburg, PA 17101
T (717) 972 -0889
F (717) 972 -0586
Email: lckress @yahoo.com
Attorney for Plaintiff David Sonich
6
EXHIBIT A
- t.' w - �.r - •,� - Et Y =r:M :.o -:�:�:
a
Mw
a 33
? 1 6 I .w
ng# -
CERTIFICATE OF TITLE FOR A VEHICLE
KEEP IN SAFE PLACE -ANY ALTERATION OR ERASURE VOIDS THIS TITLE
THE DEPARTMENT OF MOTOR VEHICLES, COMMONWEALTH OF VIRGINIA,.HEREBY CERTIFIES THAT AN APPLICATION FOR A CERTIFICATE OF TITLE HAS BEEN MADE FOR THE VEHICLE DESCRIBED
HEREON PURSUANT TO THE PROVISIONS OF THE MOTOR VEHICLE LAWS OF THIS COMMONWEALTH, THAT THE APPLICANT NAMED ON THE FACE HEREON HAS BEEN DULY RECORDED AS =
THE LAWFUL OWNER OF SAID VEHICLE, AND THAT, FROM THE STATEMENTS OF THE OWNER AND THE RECORDS ON FILE WITH THIS DEPARTMENT, THE HEREON DESCRIBED VEHICLE IS:
SUBJECT TO THE SECURITY INTEREST RECORDS ON FILE WITH THIS DEPARTMENT, AND AS DESCRIBED HEREON, IF ANY. THE MOTOR VEHICLE LAWS OF THIS COMMONWEALTH ALSO PROVIDE
THAT ALL TITLE AND REGISTRATION INFORMATION IN THE OFFICE OF THE DEPARTMENT OF MOTOR VEHICLES IS PRIVILEGED AND ONLY SUBJECT TO DISSEMINATION TO AUTHORIZED :
AGENCIES, BUSINESS ORGANIZATIONS OR AGENTS, GOVERNMENTAL ENTITIES AND INDIVIDUALS UNDER THE CONDITIONS SPECIFIED BY MOTOR VEHICLE CODE SECTIONS 46.2 -208, 46.2 -209 =
AND 46.2-210. , p,f
RE�C$MENT
VEHfGLE IDENTIFICATION NO YEAR MAKE VEH1C}.E BODY Y1TLE' HO
P 29G9B2867.38 . 3 9.69: DODGE :';_ _2D °HT
;Y EMPTY WGT. GROSS WGT. GVWR GCWR AXLES FUEL SALES TAX PA} D;,,., ;;:,..OQOM.EYER;::,:;,('.;<;, DATE ISSUED
3 400
' OTHER PERTINENT DATA ODOMETER BRAND PRIOR TITLE NO.
IND ACTUAL 1
Is ress(es) of vehicle
Names} and add owners.
SONICH,DAVID'JEROME __ J
12577 ADEN ROAD P.O. BOX 31.2 w-
NOKESVILLE VA 20182 -0312
NO LIENS
•
r Y
.. • 2 1' S � L ��
S A Federal and Sate law requires that you state the r,,, eage in connection with the transfer of owncrsNp. Failure to complete or provicing a false statement may result In fines and/or irronsenrner.t.
The undersigned herecy certifies teat the vehicle des&.bed in this title has been teansferred to the following (printed name and address of Buyer(s)).
p Buyer(s) Name
z cnn Street City, State, Zip
Y y co
a ' O w _ DATE OF SAL SALE PRICE
m _� ODOMETER READING G I cer y to L e best of r--.y knowleco6 "hat the _do rrz;er ad',r is `he act:;el ;: ileage o` 'he varies unless ane a " ^e /oilo g s a rner.?s a __ ^ecred
0 Lr
i
i, Tne i� a e
.eaga s C . s a ;(cass C ,. ? _nira -> a e .. r tFe S. : actua` milea l:'.r•, :.;i5- OCC�.; .. - '+ ...
Jy y
> S'c^at..re cf Se!ar(s) Prin ame of, Seiler(s)
z�
LU >
g 2 Signature of Buyers) _ Printed Name of Buyers)
z I am aware of the above odometer certification made by the Seller(s)
>
!i s'
40 I am aware of the above odometer certification made by. the Seller(s) -
4 L DETACH HERE L Dealer's No. Licensing Jurisdiction
DATE PLATE NUMBER PLATE TYPE EXPIRATION DATE' I DATE PLATE NUMBER PLATE TYPE EXPIRATION DATE
T ra! MBFR 10 IF OAT ON NU 111. 00 OR MO I TITLE I VEIL I NTIFtCATION NUMBER fVI. cAl MODEL YR
�04 7109 $2`G�B Y 1�6 t 8047109 XP2JG9B286738: Y I, 1969 0
VEHICLE MAKE VEIHCLE ROOM VEHICLE USE VFIIICLE MAKE VEHICLE RODY VEHICLE USE
m, DODGE 2D HTCHBK DODGE 2D HTCHBK
7 EW GW GVWR GCWR FUEL AXLES' PURCN 0 TE Ew GW GVWR GOY/Il FUEL AXLES PURC DATE p
3400 GAS 2' 12/03/04 3400 GAS 2 12/03/04
po 3
12577 ROA BOX 312 12257'7 ROAD P.O. BOX.312
NOKESVILLE VA 20182 -0312 NOKESVILLE VA 20182 -0312
�'•o ; 638 -
PRINCE WILLIAM COUNTY 063808
�.. CIA
E� SI 0'� � I I 11111 FIRM I � ��� �� � I WIN If Ill __
VTRGIEI2A MOTOR VEHICLE: REGISTRATION A � (1� y .�- J i n- ld P.0T0.T ,r;w EE REGISTRATION u
,
TM• card I t'km ur"F0 Ll tM motor vehicle when In operation N t-• •./'C t'w. This grA,.maY oe eirrieE — in the motor vnhicle when in operation Out' (.� � •./� •`•"`
-
wt dens net Pt—A holder to q—te a tnejor.hMda Cemmitoianer, dob Mt Permit holder to eFer•w • rr.wr.vehlde USE THIS - Ddmm1••iorer.
Dva—v t of Motor Vehicln• PORTION FOR CHANCE OF ADDRESS NOTIFICATION OePartmant eI Metar Vehicles -
I- { a
ipl ia my Virginia P27412 epartment of Motor Vehicles
P.O Box Richmond, Va. 23269 -0001
TRANSCRIPT OF OFFICIAL CERTIFIED VEHICLE RECORD AS OF 05/22/2013
BY RICHARD D. HOLCOMB, COMMISSIONER PAGE: 1
REQUESTED FOR: RSN FOR REQ: PERSONAL USE
SONICH,DAVID JEROME
PO BOX 312 USER ID: INTNET
NOKESVILLE VA 20182 -0312 LOC: 133
REQUESTED BY:
SONICH,DAVID JEROME
PO BOX 312
NOKESVILLE VA 20182 -0312
INFORMATION PROVIDED BY REQUESTOR: 80417109
VEHICLE OWNER(S) - NAME/ADDRESS: CUSTOMER NUMBER:
SONICH,DAVID JEROME T62 -70 -7661
PO BOX 312
NOKESVILLE VA 201820312
VEHICLE TITLE INFORMATION:
TITLE NO: 80417109 VEHICLE MAKE: DODGE
TITLE EST DT: 12/06/2004 BODY TYPE: 2D HTCHBK
PURCHASE DT: 12/03/2004 MODEL:
VEHICLE YEAR: 1969 VIN: XP29G9B286738
EMPTY /GROSS WGT: 3,400 GVWR /GCWR:
ODOMETER: 127,556 ODOMETER TYPE: ACTUAL MILEAGE
SALES PRICE: 300.00 SALES TAX PD: 35.00
DLR PROC: PROC TAX:
DISPOSITION: DISPOSITION DT:
NCIC CHECKED: NO REPLICA ASSEMBLY YEAR:
OWNERSHIP DOC: TEXAS
DEALER: INDIVIDUAL
CURRENT VCO: YELLOW/
ORIGINAL VCO: YELLOW/
PPTR VEHICLE USE: PERSONAL
--■- NO REGISTRATION INFORMATION ON FILE
�--- NO LIEN ON THIS TITLE
OTHER VEHICLE INFORMATION: NONE ON FILE
ADDITIONAL OWNER ADDRESS INFORMATION:
CUSTOMER DWELLING:
�— 12577 ADEN RD
-- NOKESVILLE VA 20181 -2738
PAGE: 2
THIS IS TO CERTIFY, IN ACCORDANCE WITH SECTION 46.2 -215 OF
THE CODE OF VIRGINIA, THAT THIS MACHINE PRODUCED TRANSCRIPT,
TRANSMITTED BY ELECTRONIC MEANS TO SONICH,DAVID JEROME IS AN
ACCURATE DEPICTION OF THE VEHICLE RECORD FOR 'VIN XP29G9B286738 '
AS MAINTAINED BY THE VIRGINIA DEPARTMENT OF MOTOR VEHICLES AS OF
THE DATE PRINTED ABOVE.
RICHARD D. HOLCOMB,
COMMISSIONER
PLEASE NOTE: IT IS UNLAWFUL TO USE THE INFORMATION FURNISHED ON
THIS TRANSCRIPT FOR ANY PURPOSE OTHER THAN THAT STATED AS YOUR
REASON.
THIS ENDS TRANSMISSION.
EXHIBIT B
• CUMBERLAND COUNTY
• OFFICE OF THE DISTRICT ATTORNEY
VICTIM SERVICES DMSION
DAVID J. FREED MICHELLE H. SIBERT
DISTRICT ATfoRNEY Exricunvs DipxcToR
July 18, 2013
David Sonich
12577 Aden Road
Box 312
Nokesville, VA 20192
Re: Commonwealth v. Randi Thicket/
CP- 21 -CR- 0373 -2010
Dear Mr. Sonich:
am in possession of your July 8, 2013, letter and VA title. I'm not sure what it is
you want me to do. I cannot file a Mandamus Writ or anything on your behalf. Officer
Johnston is not going to put the car into NCIC as a stolen vehicle without the DA
instructing him to do so. The prosecutor assigned to this case will not instruct Officer
Johnston to put the car into NCIC.
don't know why you weren't provided those documents earlier. They were in
the possession of the Commonwealth, so any plea deal was made with all of the
available evidence. I'm not sure what else 1 can do to help.
Respectfully,
Mic elle Sibert
Director of Victim Services
CUMBERLAND COUNTY COURTHOUSE, ONE COURTHOUSE SQUARE, ROOM 201, CARLISLE, PA 17013
PHONE: (717) 240 -6220 1- 888 - 697 -0371 EXT. 6220 FAX: (717) 240 -7805
e -mail: victims @ccpa.net
VERIFICATION
I, David J. Sonich, hereby acknowledge that I have read the foregoing Complaint, and
that the facts stated therein are true and correct to the best of my knowledge, information
and belief.
I understand that any false statements herein are subject to the penalties of 18 Pa.C.S.
§ 4904 relating to unsworn falsification.
Dated:
David J. Sonich
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Nvo o�.i.Ftdti it f t�:
Jody S Smith f
Chief Deputy : a 1 t 3 OCT 1 AM IQ: 2:,)
4,1
Richard W Stewart
Solicitor r:e Y .E CUMBERLAND D C;UL .r,,
PENNSYLVANIA
David J Sonich
vs. Case Number
North Middleton Township (et al.) 2013-5349
SHERIFF'S RETURN OF SERVICE
09/18/2013 11:28 AM- Deputy Shawn Gutshall, being duly sworn according to law, served the requested Complaint&
Notice by handing a true copy to a person representing themselves to be Annette Mckillip-Secretary,
who accepted as"Adult Person in Charge"for North Middleton Township at 2051 Spring Road, North
Middleton Township, Carlisle, PA 17013.
Aor
A T TSHALL, D '. '
09/18/2013 11:28 AM - Deputy Shawn Gutshall, being duly sworn according to law, served the requested Complaint&
Notice by handing a true copy to a person representing themselves to be Debbie Stought-Admin
Assistant,who accepted as"Adult Person in Charge"for Matthew Johnston at 2051 Spring Road, North
Middleton Township, Carlisle, PA 17013. -
'iTSHALL,. -•
SHERIFF COST: $51.24 SO ANSWERS,
g.„ W1.1
September 20, 2013 RON R ANDERSON, SHERIFF
ci^,cu^tySu e Shanf'Teieosoft.
Mark W.Allshouse,Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale,PA 17090
(717)582-4006
Attorney for Defendants
DAVID J. SONICH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA '
v. •
•
NORTH MIDDLETON TOWNSHIP, and : NO. 13-5349 Civil
MATTHEW M. JOHNSTON, acting in his : c
Official capacity as North Middleton
Township Police Officer, : CIVIL ACTION - MANDAMUS r"n-71
Defendants : cA,r=-
NOTICE TO PLEAD <``' - a
TO: David J. Sonich, Plaintiff
--t -'a
c/o Laurence C. Kress, Esquire, Attorney for Plaintiff
105 North Front Street, Suite 303
Harrisburg, PA 17101
You are hereby notified to file a written response to the enclosed New Matter within
•
twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
r
Date: 7 306 j A /e/ /
.rk W. Allshouse,Es•, ire
torney I.D. # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Defendants
•
•
Mark W.Allshouse,Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale,PA 17090
(717)582-4006
Attorney for Defendants
DAVID J. SONICH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. •
NORTH MIDDLETON TOWNSHIP, and : NO. 13-5349 Civil
MATTHEW M. JOHNSTON, acting in his :
Official capacity as North Middleton
Township Police Officer, : CIVIL ACTION - MANDAMUS
Defendants
DEFENDANTS' ANSWER WITH NEW MATTER
AND NOW, come Defendants,North Middleton Township and Matthew M. Johnston,
North Middleton Township Police Officer, by and through their attorney, Mark W. Allshouse,
Esquire, who respectfully file this joint Answer with New Matter to Plaintiffs Complaint and
aver as follows:
1. Admitted upon information and belief.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted upon information and belief.
8. Admitted upon information and belief.
9. Denied. After reasonable investigation, Defendants are without knowledge or
belief as to the truth of the averments contained in paragraph 9 of Plaintiff's Complaint. Strict
proof thereof is demanded at the time of trial if deemed relevant.
10. Denied. After reasonable investigation, Defendants are without knowledge or
belief as to the truth of the averments contained in paragraph 10 of Plaintiff's Complaint. Strict
proof thereof is demanded at the time of trial if deemed relevant.
11. Admitted in part and denied in part. Paragraph 11 is admitted to the extent that
the charges filed by Officer Johnston are accurate. By way of further response, any inference
that the filing of the charges were charges resulting from a stolen vehicle is strictly denied.
12. Denied. By way of further response, Thickey was not charged with theft of a
vehicle; therefore, a stolen vehicle report was not made because the vehicle was not a stolen
vehicle.
13. Admitted.
14. Denied. After reasonable investigation, Defendants are without knowledge or
belief as to the truth of the averments contained in paragraph 14 of Plaintiff's Complaint. Strict
proof thereof is demanded at the time of trial if deemed relevant.
15. Denied. After reasonable investigation, Defendants are without knowledge or
belief as to the truth of the averments contained in paragraph 15 of Plaintiff's Complaint. Strict
proof thereof is demanded at the time of trial if deemed relevant.
16. Denied. After reasonable investigation, Defendants are without knowledge or
belief as to the truth of the averments contained in paragraph 16 of Plaintiff's Complaint. Strict
proof thereof is demanded at the time of trial if deemed relevant.
17. Denied. After reasonable investigation, Defendants are without knowledge or
belief as to the truth of the averments contained in paragraph 17 of Plaintiff's Complaint. Strict
proof thereof is demanded at the time of trial if deemed relevant.
18. Admitted.
19. Admitted upon information and belief.
20. Denied as stated. By way of further response, 75 Pa. C.S.A. § 7113(a) speaks for
itself.
21. Denied. Paragraph 21 is a conclusion of law to which no response is necessary.
22. Denied. Paragraph 22 is a conclusion of law to which no response is necessary.
By way further response, it is admitted that Defendant Johnston has refused to file the stolen
vehicle report.
23. Admitted in part and denied in part. It is admitted upon information and belief
that Plaintiff is the lawful owner of the vehicle in question. By way of further response, it is
denied that the vehicle is a stolen vehicle and any benefit to Plaintiff is unknown at the time of
filing of this response.
24. Denied. Paragraph 24 is a conclusion of law to which no response is necessary.
25. Admitted.
26. Denied. Paragraph 26 is a conclusion of law to which no response is necessary.
WHEREFORE, Defendants respectfully request this Honorable Court to dismiss
Plaintiff's Complaint.
NEW MATTER
27. Paragraphs 1 through 26 are hereby incorporated by reference as if set forth at
length.
28. Plaintiff, in paragraph 8 of his Complaint,, states that Plaintiff gave permission to
Thickey to paint, store and seek a buyer for the vehicle.
29. Thickey never obtained or took possession of the vehicle without Plaintiffs
•
permission.
30. Thickey never attempted to obtain a buyer without Plaintiffs permission.
31. The charges levied against Thickey were as a result of a fraudulent business
transaction involving a vehicle and not as a result of theft or stealing of a vehicle.
32. Plaintiff Sonich specifically requested stolen vehicle charges not be filed, as his
son may have been a co-conspirator and equally culpable for that crime.
33. Thickey plead guilty to a disposition based upon the fraudulent business
transaction occurring between the two gentlemen involving the vehicle which Thickey had
permission to possess and sell as acknowledged by Plaintiff in paragraph 8 of his Complaint.
34. Because the vehicle was not stolen, Defendants had no obligation to report the
vehicle as stolen under 75 Pa. C.S.A. § 7113(a).
35. Defendant Johnston was working under the direction of Assistant District
Attorney Sodus at the Cumberland County District Attorney's Office.
36. Defendants were specifically advised by Assistant D.A. Sodus not to enter the
vehicle into NCIC database because stolen vehicle charges were not filed and Thickey had
permission to possess and sell the vehicle.
37. It is believed and, therefore, averred that the purchaser of the vehicle had no
knowledge of any fraud and is a bona fide third-party purchaser for value.
38. It is believed and, therefore, averred that the purchaser of the vehicle has made
substantial repairs and improvements and increased the value of the vehicle since its purchase.
39. Plaintiff has been awarded restitution by the Court of Common Pleas of
Cumberland County and, therefore, has an adequate legal remedy.
40. Plaintiff Sonich is attempting to utilize North Middleton Township law
enforcement as a tool to recover a vehicle from a bona fide third-party purchaser, which vehicle
is believed to be more valuable than when it was actually sold, despite also having an order for
restitution.
41. Based upon the multiple witness interviews, together with the interviews of
parties involved, Defendant Johnston and the Cumberland County District Attorney's Office
used their prosecutorial discretion in determining what charges to file against Thickey.
42. Plaintiff herein is attempting to obtain a Court Order usurping the law
enforcement agencies' charging discretion thereby re-categorizing the charges filed for the
fraudulent business transaction as charges for a stolen vehicle.
43. Based upon the direction of the Cumberland County District Attorney's Office,
Defendants are unable to enter the car into the NCIC database without either the direction of the
Cumberland County District Attorney's Office or a direct Court Order.
44. It is believed that Plaintiff has continually requested the same remedy from the
Cumberland County District Attorney's Office and has been advised previously by them as to
why this was not a stolen vehicle.
45. It is believed and, therefore, averred that the Cumberland County District
Attorney's Office is an indispensable party of interest in this matter and that no ruling should be
made by this Court until such time as the District Attorney's Office has been joined as a party.
WHEREFORE, Defendants respectfully request this Honorable Court to dismiss
Plaintiff's Complaint and deny his prayer for mandamus relief.
Respectfully submitted,
Date: Epp& / Oil I �•
ark W. Allshous- Esquire
•ttorney I.D. # 78t 14
4833 Spring Road
Shermans Dale,PA 17090
(717) 582-4006
Attorney for Defendants
•
VERIFICATION
I, Douglas W. Reitz, Chief of Police of North Middleton Township, on behalf of
Defendant North Middleton Township, hereby verify that the statements in the foregoing
document are true and correct to the best of my knowledge, information and belief under
penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities.
Date:
Douglas 'Reitz, Chief o '•4'ce
VERIFICATION
I, Matthew M. Johnston,North Middleton Township Police Officer,hereby verify that
the statements in the foregoing document are true and correct to the best of my knowledge,
information and belief under penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn
falsification to authorities.
/0/5-//3
Date: 4 eke. A &13
Matthe M. Johnston
•
Mark W. Allshouse,Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale,PA I7090
(717)582-4006
Attorney for Defendants
DAVID J. SONICH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY,PENNSYLVANIA
•
v.
•
NORTH MIDDLETON TOWNSHIP, and : NO. 13-5349 Civil
MATTHEW M. JOHNSTON, acting in his :
Official capacity as North Middleton
Township Police Officer, : CIVIL ACTION - MANDAMUS
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Laurence C. Kress, Esquire
105 North Front Street, Suite 303
Harrisburg, PA 17101
Respectfully submitted,
Date: () 7 3 / • 1. f I
.rk . Allshouse,Esquire
orney I.D. # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Defendants
LAW OFFICE OF LAURENCE C. KRESS
t-;,a.; f Iifl;�
LAURENCE C. KRESS,ESQ. 22 I 3 CC 23 PM f: t.;7
PA Bar No. 93137 1�- ND COUNTY
Y
105 N. Front Street Suite 303 t LIMHRL
PENNSYLVANIA
Harrisburg, PA 17101
T (717) 972-0889
F (717) 972-0586
Email: Ickress@yahoo.com
Attorney for Plaintiff David Sonich
IN THE COURT OF COMMON PLEAS FOR THE 9`h JUDICIAL DISTRICT
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID J. SONICH,
Plaintiff, No. 13-5349
vs.
CIVIL ACTION - MANDAMUS
NORTH MIDDLETON TOWNSHIP, and
MATTHEW M.JOHNSTON, acting in his
official capacity as North Middleton
Township Police Officer,
Defendants
PLAINTIFF'S REPLY TO NEW MATTER
AND NOW comes the Plaintiff, David J. Sonich, by and through his undersigned
attorney, Laurence C. Kress, Esquire, and hereby files the following Reply to Defendants'
jointly-filed New Matter:
27. No response required.
28. Admitted as stated. By way of further answer, Thickey did not have
permission to sell the vehicle.
29. Denied. Thickey had temporary permission to store the vehicle only. His
subsequent actions exceeded the scope of his initial, permitted possession. By way of
further answer, Thickey's initial possession has no relevance to his subsequent theft of
Plaintiff's vehicle by unlawful disposition, and the Defendants' legal obligations resulting
therefrom under 75 Pa.C.S.A. 5 7113(a).
30. Admitted as stated. By way of further answer, Thickey's permission to seek
a buyer has no relevance to his subsequent theft of Plaintiff's vehicle by unlawful
disposition, and Defendants' legal obligations resulting therefrom under 75 Pa.C.S.A.
5 7113(a).
31. States a conclusion of law to which no response is necessary. By way of
further answer, said conclusion of law is incorrect. Thickey was charged, and pled guilty
to, theft of Mr. Sonich's vehicle by unlawful disposition under 18 Pa.C.S.A. 5 3921(a).
Pennsylvania law does not distinguish between unlawful taking and unlawful disposition
of property for purposes of liability under the applicable theft statute. See 18 Pa.C.S.A.
5 3921. Labeling Thickey's actions as "a fraudulent business transaction" does not
change the fact that he committed the theft of Plaintiff's vehicle under 18 Pa.C.S.A.
5 3921, thus rendering the vehicle stolen upon its unlawful disposition by Thickey.
32. Denied. Plaintiff never asked Defendant Johnston to refrain from filing
charges. By way of further answer, such a request, even had it been made, has no
relevance to Thickey's theft of Plaintiff's vehicle by unlawful disposition, and Defendants'
legal obligations resulting therefrom under 75 Pa.C.S.A. 5 7113(a).
33. Admitted in part and denied in part. It is admitted that Thickey pled guilty
to theft of Plaintiff's vehicle by unlawful disposition as a result of his fraudulent business
transaction. It is denied that Thickey had permission to sell the vehicle, and further, this
paragraph mis-states Paragraph 8 of the Plaintiff's Complaint, which does not aver or
2
acknowledge in any way that Thickey had permission to sell the vehicle. See Complaint
9[ 8.
34. States a conclusion of law to which no response is necessary. By way of
further answer, said conclusion of law is incorrect. As noted in 131, supra, when Thickey
unlawfully disposed of Plaintiff's vehicle, he committed theft under Pennsylvania law, and
the vehicle was rendered stolen upon its unlawful disposition.
35. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averment. By way of further answer, any
direction Defendant Johnston received from the Cumberland County District Attorney's
Office has no bearing on Defendants' obligations under 75 Pa.C.S.A. § 7113(a), as the
duty to report a vehicle stolen lies solely with police departments under Pennsylvania law.
See Salvatore v. State Farm Mut. Auto. Ins. Co., 869 A.2d 511, 513-515 (Pa.Super.
2005).
36. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averment. By way of further answer, any
such assessment from Assistant District Attorney Sodus would have been factually and
legally incorrect, and in any event, would have no effect on Defendants' obligations under
75 Pa.C.S.A. § 7113(a).
37. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averment, which includes a statement of
law as to which no response is required. By way of further answer, even if said averment
were true, it would have no effect on Defendants' obligations under 75 Pa.C.S.A.
§ 7113(a). A bona fide purchaser has title or possession superior to all but the true
3
owner, and the rightful owner has a right to replevin or otherwise repossess the vehicle.
See Shockley v. Harleysville Mut. Ins. Co., 553 A.2d 973, 977 (Pa.Super. 1989).
38. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averment. By way of further answer, the
averment, even if true, has no effect on Defendants' obligations under 75 Pa.C.S.A.
7113(a).
39. States a conclusion of law to which no response is necessary. By way of
further answer, Plaintiff has not received, nor does he expect to receive, any restitution.
Furthermore, he will waive any right to restitution should he recover possession of his
vehicle. Moreover, and most importantly, the legal remedy he seeks in this action is not
the actual recovery of his vehicle or the monetary value thereof, but the performance of a
statutory duty that may aid in the recovery of his vehicle.
40. Denied. Plaintiff seeks to have Defendants meet their statutory obligation.
Plaintiff is without knowledge or information sufficient to form a belief as to the current
value of the vehicle, and in any event, any change in its value has no bearing on
Defendants' obligations under 75 Pa.C.S.A. § 7113(a).
41. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averment. By way of further answer, since
Defendant Johnston filed a theft charge against Thickey under 18 Pa.C.S.A. § 3921 for
unlawfully disposing of Plaintiff's vehicle, whatever discussions he may have had with the
Cumberland County District Attorney's Office prior to filing the charge have no bearing
on Defendants' obligations under 75 Pa.C.S.A. § 7113(a).
42. Denied. Plaintiff seeks to have Defendants carry out the statutory duty which
4
arose when they exercised their charging discretion. As noted in ¶91 31 and 34, supra,
Pennsylvania law does not distinguish between unlawful taking and unlawful disposition
of movable property for purposes of liability under the applicable theft statute. See 18
Pa.C.S.A. 5 3921. Labeling Thickey's actions as "a fraudulent business transaction" does
not change the fact that he committed theft of Plaintiff's vehicle under 18 Pa.C.S.A.
5 3921.
43. States a conclusion of law to which no response is necessary. By way of
further answer, said conclusion is incorrect. See Salvatore v. State Farm Mut. Auto. Ins.
Co., 869 A.2d 511, 513-515 (Pa.Super. 2005).
44. Denied. The Cumberland County District Attorney's Office failed to respond
to numerous inquiries from Plaintiff, and did not inform him of Defendant Johnston's
refusal to report the vehicle on the basis that the prosecutor would not instruct him to do
so until it sent the letter contained in Exhibit B to Plaintiff's Complaint in July of 2013.
By way of further answer, the mistaken beliefs of the District Attorney's Office and
Defendant Johnston have no bearing on Defendants' obligations under 75 Pa.C.S.A.
7113(a).1
45. Denied. The District Attorney's Office should not be joined as a party
because it has no legal authority to direct or forbid the filing of stolen vehicle reports
under Pennsylvania law. Defendants' mistaken belief as to that authority has no bearing
on Defendants' obligations under 75 Pa.C.S.A. § 7113(a).
'The letter attached to the Complaint actually references a writ of mandamus as a
possible remedy, stating that the District Attorney's Office could not file one on Plaintiff's
behalf. Exhibit B to Complaint.
5
WHEREFORE, Plaintiff hereby demands judgment in his favor, and against
Defendants, and respectfully prays that this Honorable Court issue a Writ of Mandamus
to Defendants commanding them to perform their public duty under 75 Pa.C.S.A.
§ 7113(a), and report his vehicle, a 1969 Dodge Charger, Vehicle Identification Number
XP29G9B286738, as stolen, so that it may be entered into the national registry of stolen
vehicles. Plaintiff also requests that the Court award costs and fees incurred in bringing
this action, and any other relief that the Court deems just and appropriate.
Dated: /D/o?+1/3 Respectfully submitted,
LAW OFFICE OF LAURENCE C. KRESS
LA NCE C. KRESS, ESQ.
PA Bar No. 93137
105 N. Front Street Suite 303
Harrisburg, PA 17101
T (717) 972-0889
F (717) 972-0586
Email: lckress@yahoo.com
Attorney for Plaintiff David Sonich
6
VERIFICATION
I, David J. Sonich, hereby acknowledge that I have read the foregoing Reply to New
Matter, and that the facts stated therein are true and correct to the best of my knowledge,
information and belief.
I understand that any false statements herein are subject to the penalties of 18 Pa.C.S.
§ 4904 relating to unsworn falsification. jJ
Dated: /0 "t„` U/i Ir'"'. wh k
•avid J. Sonich
7
CERTIFICATE OF SERVICE
I hereby that certify that a copy of the foregoing Reply to New Matter has been served
on counsel for the Defendants by 1" class mail, postage pre-paid, as set forth below:
MARK W. ALSHOUSE,ESQ.
4833 Spring Road
Shermansdale, PA 17090
Attorney for Defendants
Dated: iD/.2403 "--"--
LAU ENCE C. KRESS,ESQ.
PA Bar No. 93137
105 N. Front Street Suite 303
Harrisburg, PA 17101
T (717) 972-0889
F (717) 972-0586
Email: lckress@yahoo.com
Attorney for Plaintiff David Sonich
8
LAW OFFICE OF LAURENCE C. KRESS
LAURENCE C. KRESS, ESQ. y
PA Bar No. 93137
105 N. Front Street Suite 303 ;:lltIBE C A D
Harrisburg, PA 17101 PENNS` Lv4 1 s
T (717) 972-0889
F (717) 972-0586
Email: Ickress @lckresslaw.com
Attorney for Plaintiff David Sonich
IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DISTRICT
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID J. SONICH,
Plaintiff, No. 13-5349
vs.
CIVIL ACTION - MANDAMUS
NORTH MIDDLETON TOWNSHIP, and
MATTHEW M. JOHNSTON, acting in his
official capacity as North Middleton
Township Police Officer,
Defendants
PLAINTIFF'S MOTION FOR PEREMPTORY JUDGMENT
AND NOW comes the Plaintiff, David J. Sonich, by and through his undersigned
attorney, Laurence C. Kress, Esquire, and hereby moves this Honorable Court for
peremptory judgement pursuant to Pa.R.C.P. No. 1098, and in support thereof avers as
follows:
PROCEDURAL HISTORY
1. On September 10, 2013, Plaintiff filed a Complaint with this Honorable
Court seeking the issuance of a writ of mandamus to Defendants commanding them to
perform their public duty under 75 Pa.C.S.A. % 7113(a), and report his vehicle, a 1969
Dodge Charger, Vehicle Identification Number XP29G9B286738, as stolen, so that it
may be entered into the national registry of stolen vehicles.
2. On October 7, 2013, Defendants filed an Answer with New Matter.
3. On October 28, 2013, Plaintiff filed a Reply to Defendant's New Matter.
LEGAL AUTHORITY FOR GRANTING RELIEF
4. At any time after the filing of the Complaint, the court may enter judgement
if the right of the plaintiff thereto is clear. Pa.R.C.P. No 1098. In granting a motion for
peremptory judgment, courts use the same standard which governs the disposition of a
motion for summary judgment under Rules 1035.1-1035.5. Thayer v. Lincoln Borough,
687 A.2d 1195, 1197 (Pa.Cmwlth. 1997). In so doing, courts must consider the record
actually presented and the potential record at the time of trial. Id. The burden of
demonstrating that no material issues of fact exist is on the moving party, and the court
must examine the record in the light most favorable most favorable to the non-moving
party. Id.
5. Mandamus is an extraordinary remedy that compels an official's
performance of a ministerial act or mandatory duty where there exists a clear right in the
plaintiff and a corresponding duty in the defendant, and where there is no adequate
remedy at law. WeCare Organics, LLC v. Zoning Hearing Bd. of Schuylkill County, 954
A.2d 684, 691 (Pa.Cmwlth 2008).
NO ISSUES OF MATERIAL FACT EXIST
6. At various points in their Answer and New Matter, Defendants claim that
Plaintiff's vehicle was not stolen, and that Defendant Johnston did not charge Randy
Thickey ("Thickey") with the theft of Plaintiff's vehicle. See Answer and New Matter at
2
VI 11, 12, 23, 31, and 34. However, Defendants' admissions, in fact, establish that
Defendant Johnston did charge Thickey with the theft of Plaintiff's vehicle, and that
Thickey plead no contest to said theft, thus eliminating any material issue of fact as to
whether the vehicle was stolen and Defendants had knowledge of the fact that the vehicle
was stolen.
7. Defendants admit that ". . .the charges filed by Defendant Johnston are
accurate." Answer and New Matter ¶ 11. Defendants then claim that "any inference that
the filing of these charges resulted from a stolen vehicle is strictly denied." Id. However,
the criminal complaint that Defendants admit Defendant Johnston filed, and contained
accurate charges, specifically charged Thickey with the theft of Mr. Sonich's vehicle.
8. Count Three of the criminal complaint filed by Defendant Johnston
specifically alleges that "the defendant, Randi B. Thickey did unlawfully take or exercise
unlawful control over moveable property of another, mainly a `69 Dodge CHARGER,
with the intent to deprive the titled owner, David SONICH, thereof. See Criminal
Complaint filed by Defendant Johnston attached hereto as Exhibit A.
9. Defendants also admit that Thickey entered a plea of no contest to the theft
of Plaintiff's vehicle. Answer and New Matter ¶ 13. Thickey entered this plea to the very
same charge contained in Count Three of the criminal complaint filed by Defendant
Johnston. See Criminal Information and Plea Colloquy attached hereto as Exhibit B.
10. Despite Defendants' averments that the vehicle was not stolen, their
admissions, and the corresponding court records, make clear that Thickey did, in fact,
commit the theft of Plaintiff's vehicle, and that Defendant Johnston had knowledge of
that fact as alleged in the Complaint. Therefore, no dispute exists as to these material
3
facts.
11. Defendants have admitted that "upon information and belief," Plaintiff
is the lawful owner of the vehicle in question. Answer and New Matter 91 7.
12. Defendants have admitted that Defendant Johnston has refused to file a
stolen vehicle report. Answer and New Matter ¶ 18.
PLAINTIFF'S RIGHT TO JUDGMENT IS CLEAR
13. As no material issues of fact exist as to whether Plaintiff's vehicle was
stolen, and that Defendant Johnston had knowledge of that fact, Defendants have a
mandatory duty to report the vehicle as stolen under 75 Pa.C.S.A. § 7113(a), a duty
which arose at the very latest on December 22, 2009, and which Defendants have refused
to perform.
14. As set forth in the pleadings, Plaintiff has a beneficial interest in the
performance of the specified mandatory duty distinct from that of the general public.
Complaint ¶9[ 14 through 17 and 23. Defendants admit that Plaintiff is the lawful owner
of the vehicle, and present no averments in their Answer and New Matter indicating that
Plaintiff would not benefit from Defendants' performance of their mandatory duty.
Plaintiff therefore has a clear right to the performance of the mandatory duty set forth in
75 Pa.C.S.A. § 7113(a).
15. Plaintiff has no other adequate remedy at law. Defendants deny the
averment that no other legal proceedings or remedy exists to review and address
Defendants' decision not to exercise their duty under 75 Pa.C.S.A. § 7113(a) as a
conclusion of law. Answer and New Matter 9126. However, they do not aver the
existence any other available legal proceedings in their Answer and New Matter that
4
could result in the granting of the requested relief.
16. Defendants aver that because Plaintiff was awarded restitution, he has an
adequate remedy at law. Answer and New Matter ¶ 39. However, as explained in
Plaintiff's Reply to New Matter, Plaintiff seeks an entirely distinct remedy in that he does
not request the recovery of the monetary value of the vehicle or the recovery of the
vehicle, but the performance of a statutory duty that may aid him in seeking recovery of
the vehicle in another jurisdiction.' Reply to New Matter ¶ 39.
17. No judge has ruled on any other issue in this case.
18. Counsel has sought the concurrence of Mark W. Allshouse, Equire,
attorney for the defendants, and Attorney Allshouse has stated that the Defendants do not
concur in this motion.
WHEREFORE, the Plaintiff, David Sonich respectfully moves this Honorable Court
for peremptory judgement pursuant to Pa.R.C.P. No. 1098.
Dated: /Z h d//3 Respectfully Submitted,
LAW OFFICE OF LAURENCE C. KRESS
LAURENCE C. KRESS, ESQ.
PA Bar No. 93137
105 N. Front Street Suite 303
Harrisburg, PA 17101
T (717) 972-0889
F (717) 972-0586
Email: lckress@lckresslaw.com
Attorney for Plaintiff David Sonich
'Additionally, as also noted by Plaintiff in his Complaint and New Matter, he has
received no restitution, does not expect to receive any, and would waive any right thereto
should he recover possession of the vehicle. Complaint II 14 to 16 and Reply to New
Matter ¶ 39
5
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion for Peremptory Judgment has
been served on counsel for the Defendants by 1' class mail, postage pre-paid, as set forth
below:
MARK W. ALSHOUSE, ESQ.
4833 Spring Road
Shermansdale, PA 17090
Attorney for Defendants
Dated: 41/$�i3 �e— c.
LAURENCE C. KRESS, ESQ.
PA Bar No. 93137
105 N. Front Street Suite 303
Harrisburg, PA 17101
T (717) 972-0889
F (717) 972-0586
Email: l.ckress @ickresslaw.com
Attorney for Plaintiff David Sonich
6
COMMONWEALTH OF PENNSYLVANIA POLICE CRIMINAL COMPLAINT
COUNTY OF:CUMBERLAND /7-s.t " COMMONWEALTH OF PENNSYLVANIA
Magisterial District Number:09-2-01 r!' `J!# VS.
MDJ:Hon.CORREAL DEFENDANT: (NAME and ADDRESS):
Address: 2260 SPRING RD. SUITE 3 RANDI BRUCE THICKEY
CARLISLE, PA 17013 First Name Middle Name Last Name Gen.
Telephone:(717)218-5250 5 CLEARVIEW AVE..
CARLISLE, PA 17013
NCIC Extradition Code Tip
❑1-Felony Full ❑4-Felony No Ext. ❑B-Misdemeanor Limited ❑E-Misdemeanor Pending
❑2-Felony Ltd. ❑5-Felony Pend. ❑C-Misdemeanor Surrounding States
®3-Felony Surrounding States ❑A-Misdemeanor Full ❑D-Misdemeanor No Extradition
❑Distance:
RACE ETHNICITY Docket Number p Date Filed p OTNILiveScan Number 'Complaint/Incident Number
El White ❑ Hispanic Gf-_ 2�t4.-U ! /A Mj' ° ) K »s63a- '{ 09-004293
0 Asian ® Non- DOB 05/31/1976 POB
Hispanic
❑Black ❑ Unknown Add'I DOB / / SS Add'!SSN - -
Q Native GENDER First Name Middle Name Last Name Gen.
American
Unknown 0 Male
D Female AKA
SID: 224-34-09-8 HAIR COLOR 0 GRY(Gray) ❑RED(Red/Aubn.) EYE COLOR
Request Lab Services? ❑BLK(Black) ❑ONG(Orange) ❑BIM t (Blonde/
) ❑GRN(Green) 0 PNK(Pink)
❑YES ❑ NO S
❑BLU(Blue) ❑PLE(Purple) ❑WHI(White) ❑BLK(Black) ❑GRY(Gray) ❑MUL
El BRO(Brown) ❑PNK(Pink) ❑)XX(Unk./Bald) ®BLU(Blue) ❑HAZ(Hazel) (Multicolored)
❑GRN(Green) 0 SDY(Sandy) ❑BRO(Brown) ❑MAR(Maroon) ❑XXX(Unknown)
State PA License Number 23904825 Expires: 06/01/20121.,.
DNA ' 0 YES ® NO DNA Location 180
FBI 241635WA3 I MNU Number I F .He tn.
iiiiitttfawiliceotx: 6 I 0
GEFEtMlA vrH LE O
Plate# State Hazmat Registration Comm Veh.
School Oth.NCIC
❑ Sticker(MM/YY) / Ind. ❑ Veh. ❑ Veh.Code
VIN Year Make Model Style Color
Office of the attorney for the Commonwealth ❑Approved ❑ Disapproved because:
(The attorney for the Commonwealth may require that the complaint,arrest warrant affidavit,or both be approved by the attorney for the Commonwealth prior
to filing. See Pa.R.Crim.P.507).
DJS09-340 @0926HRS 12/18/2009
(Name of the attorney for the Commonwealth) (Signature of the attorney for the Commonwealth) (Date)
I, PTL MATTHEW M. JOHNSTON 26-12
(Name of the Affiant) (PSP/MPOETC-Assigned Afflant ID Number&Badge#
of NORTH MIDDLETON TOWNSHIP POLICE DEPT. PA0211500
(Identify Department or Agency Represented and Political Subdivision) (Police Agency ORI Number)
do hereby state: (check appropriate box)
1. ® I accuse the above named defendant who lives at the address set forth above
❑ I accuse the defendant whose name is unknown to me but who is described as
❑ I accuse the defendant whose name and popular designation or nickname are unknown to me and whom I have
therefore designated as John Doe or Jane Doe
with violating the penal laws of the Commonwealth of Pennsylvania at[2081 HILLSIDE STORAGE CRANES
GAP RD. CARLISLE, PA 17013 u ivision Lose) (dace-ronncal Suoannsidn)
in CUMBERLAND Coun on or about FEBRUARY 24TH, 2009
Code)
1OPC 412A—Rev, 12/07 Page 1 of
tett POLICE CRIMINAL COMPLAINT
Docket Number: Date Filed: OTNILiveScan Number ComplalntAncidentNumber
C.2 -.37 1-1-0q /g/#11/0 ? K 77c 3a-4 09-004293
Defendant Name First: Middle: Last:
RANDI BRUCE THICKEY
The acts committed by the accused are described below with each Act of Assembly or statute violated, if appropriate:
(Set forth a brief summary of the facts sufficient to advise the defendant of the nature of the offense(s)charged.A citation to the statute(s)violated,without more,is not
sufficient.In a summary case,you must cite the specific sedion(s)and subsection(s)of the statute(s)or ordinance(s)allegedly violated.)
Inchoate ❑ Attempt ❑ Solicitation Conspiracy ❑Al ❑A2 ❑ B ❑ Permitting(Title 75 Only)
Offense 18 901 A 18 902 A 18 903 (Engaging) (Aiding) (Knowledge) 75 1575 A
1 5111 (A)(2) 18 1 F1
Lead? Offense# Section Subsection PA Statute(Title) Counts Grade NCIC Offense Code UCR/NIBRS Code
� bk [[[ Number
❑ Safety Zone ❑Work Zone
Statute Description/Acts of the accused associated with this Offense:
Title 18, 5111 (a) (2): Dealing in proceeds of unlawful activities: Fl
In that, on or about said date, the defendant, Randi B. THICKEY did conduct a financial transaction w/another
with knowledge that the property involved represents the proceeds of unlawful activity and that the transaction
was designed to conceal or disguise the nature, location, source ownership or control of the proceeds of unlawful
activity.
woke* ❑Attempt ❑ Solicitation Conspiracy ❑ Al ❑A2 ❑ B ❑ Permitting(Title 75 Only)
tir 18 901 A 18 902 A 18 903 (Engaging) (Aiding) (Knowledge) 75 1575 A
❑ 2 7611 (A) (1) 18 19 F3
Lead? Offense# Section Subsection PA Statute ale) Counts Grade NCIC Offense Code UCR/NIBRS Code
PerintiOT.146C
0, ❑ Safety Zone ❑Work Zone
Statute Description/Acts of the accused associated with this Offense:
Title 18, 7611 (a) (1): Unlawful use of computer and other computer crimes: F3
In that, on or about said date, the defendant, RANDI B. THICKEY devised and executed any scheme, mainly use
of his ATM card to withdraw money from his account, to defraud or deceive or control property or services by
means of fraudulent pretenses utilizing funds from unlawful activities.
❑Attempt ❑ Solicitation Conspiracy ❑ Al
18 901 A f8 902 A 18 903 ❑A2 ❑ B ❑ Permitting(Title 75 Only)
(Engaging) (Aiding) (Knowledge) 75 1575 A
❑ 3 3921 A � 18 1 F3
Lead? Offense# Section Subsection PA Statute itle) Counts Grade NCIC Offense Code UCR/NIBRS Code
P1000,101'NW, AfXidirnt
t ifs ",*WOO ❑ Safety Zone ❑Work Zone
Statute Description/Acts of the accused associated with this Offense:
Title 18, 3921 (a): Theft by unlawful taking or disposition: F3
In that, on or about said date, the defendant, Randi B. THICKEY did unlawfully take or exercise unlawful control
over movable property of another, mainly a 69' Dodge CHARGER, with intent to the deprive the titled owner,
David SONICH thereof.
IOPC 412A— Rev. 12/07 Paged_of
f
• 4' POLICE CRIMINAL COMPLAINT
ocket Number: Date Filed: OTN/LiveS n Complaint/incident Number
`f--U°I a 6W 0 9 S /13 d- ` 09-004293
Defendant lirfl First: Middle: Last:
RANDI BRUCE THICKEY
The acts committed by the accused are described below with each Act of Assembly or statute violated, if appropriate:
(Set forth a brief summary of the facts sufficient to advise the defendant of the nature of the offense(s)charged.A citation to the statute(s)violated,without more,is
not sufficient.In a summary case,you must cite the specific section(s)and subsection(s)of the statute(s)or ordinance(s)allegedly violated.)
lflChoa ❑ Attempt ❑ Solicitation Conspiracy ❑Al ❑A2 ❑ B ❑ Permitting(Title 75 Only)
Offenwe !„ 18 901 A 18 902 A 18 903 (Engaging) (Aiding) (Knowledge) 75 1575 A
❑ 4 3925 a 0, 18 1 F3
Lead? Offense/ Section Subsection PA Statute(Title) Counts Grade NCIC Offense Code UCR/NIBRS Code
Panntlaraids ACcidarit ❑ Safety one ❑Work Zone
(if f)
Statute Description/Acts of the accused associated with this Offense:
Title 18, 3925 (a): Receiving Stolen Property: F3
In that on or about said date, the defendant, Randi B. THICKEY intentionally received and disposed of movable
property, mainly by selling a 69' Dodge Charger, of which belonged to the titled owner, David SONICH, w/out
intent to restore it to the owner.
❑Attempt ❑Solicitation Conspiracy ❑Al ❑ A2 ❑ B ❑ Permitting(Tide 75 Only)
Oftenisip- 18 901 A 18 902 A 18 903 (Engaging) (Aiding) (Knowledge) 75 1575 A
❑ 5 3927 a s 18 1
Lead? Offense/ Section Subsection PA Statute die) Counts Grade NCIC Offense Code UCR/NIBRS Code
P $ a i
❑Safety Zone ❑Work Zone
Statute Description/Acts of the accused associated with this Offense:
Title 18, 3927 (a)Theft by failure to make required disposition of funds received: F3
In that, on or about said date, the defendant, Randi B. THICKEY, did obtain property upon agreement, or
subject to a known legal obligation to make specified payments, mainly to David SONICH, titled owner of a 69'
Dodge Charger. THICKLY intentionally dealt with the property (69' Dodge Charger) obtained as his own and
intentionally failed to make the required payment or disposition
tiiRllp't ❑Attempt ❑Solicitation Conspiracy ❑Al ❑A2 ❑ B ❑ Permitting(Title 76 Only)
Of "ieo 18 901 A 18 902 A 18 903 (Engaging) (Aiding) (Knowledge) 75 1575 A
❑ •
v' ^
Lead? Offense/ Section Subsection PA Statute(Title) Counts Grade NCIC Offense Code UCR/NIBRS Code
PeRROPappi Accident
❑ Safety Zone ❑Work Zone
Statute Description/Acts of the accused associated with this Offense:
kOPC 412A—Rev. 12/07 Page3oft
a
tett POLICE CRIMINAL COMPLAINT
o ket Number: Date Filed: OTN/LiveScan Number/ Complaint/Incident Number
`t-0`.1 /a ,(;j.1/ -75-1,362- 1- 09-004293
ant Name First: Middle: Last:
RANDI BRUCE THICKEY
2. I ask that a warrant of arrest or a summons be issued and that the defendant be required to answer the charges I have
made.
3. I verify that the facts set forth in this complaint are true and correct to the best of my knowledge or information and
belief. This verification is made subject to the penalties of Section 4904 of the Crimes Code(18 PA.C.S.§4904)
relating to unsworn falsification to authorities.
4. This complaint is comprised of the preceding Page, as well as the attached pages that follow, numbered 1 through
4, specifying offenses and Participants, if any.
The acts committed by the accused, as listed and hereafter,were against the peace and dignity of the Commonwealth
of Pennsylvania and were contrary to the Act(s)of the Assembly, or in violation of the statutes cited.
(Before a warrant of arrest can be issued,an affidavit of probable cause must be completed,sworn to before the
issuing authority,and attached.)
DECEMBER 18T1-I, 2009 - ,4,140.Pr
(Date) (Signature of A a
AND NOW,on this date /alo2 Pi /' I certify that the complaint has been properly completed and verified.
An affidavit of probable cause must be completed befor, - warrant -n be issued.
Bq / `d ■/
(Magisterial District Court Number) g Authority)
'OPC 412A—Rev. 12/07 Page of g-
•
INFORMATION
IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA
CUMBERLAND COUNTY
9TH JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA CRIMINAL ACTION NO.CP-21-CR-0000373-2010
VS. Pros: Ptl. Matthew Johnston
• North Middleton Township P.D.
•
RAND! BRUCE THICKEY
THE DISTRICT ATTORNEY OF CUMBERLAND COUNTY, by this Information charges that on or about
Tuesday,the 24th day of February,2009,in the said County of Cumberland, RANDI BRUCE THICKEY,did:
COUNT 1:
Dealing in Proceeds of Unlawful Activities
(F1 -- $25,000.00 -- 20 Years)
knowing that the property involved in a financial transaction represents the proceeds of unlawful activity, and that the
transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the
proceeds of unlawful activity.
COUNT 2:
Unlawful Use of Computer(19 Counts)
•
(F3 -- $15,000.00 -- 7 Years)(Each)
access or exceed authorization to access, alter, damage or destroy any computer, computer system, computer network,
computer software, computer program, computer database, World Wide Web site or telecommunication device or any part
thereof with the intent to interrupt the normal functioning of a person or to devise or execute any scheme or artifice to
defraud or deceive or control property or services by means of false or fraudulent pretenses,representations or promises.
COUNT 3:
Theft by Unlawful Taking or Disposition
(F3 — $15,000.00 -- 7 Years)
unlawfully take,or exercise unlawful control over,movable property of another with the intent to deprive another thereof.
COUNT 4:
Receiving Stolen Property
(F3 -- $15,000.00 -- 7 Years)
intentionally receive, retain or dispose of movable property of another knowing that it had been stolen, or believing that it
had probably been stolen.
COUNT 5:
Theft by Failure to Make Required Disposition of Funds Received
(F3 -- $15,000.00 -- 7 Years)
obtain properly upon agreement, or subject to a known legal obligation, to make specified payments or other disposition,
whether from such property or its proceeds or from his/her own property to be reserved in equivalent amount, and did
intentionally deal with the property obtained as his/her own and failed to make the required payment or disposition.
a
ti
Citation of Statute:
and Section: 18 Pa.C.S.A. Sec. 5111(a)(2)
18 Pa.C.S.A. Sec. 7611 (a)(1)
18 Pa.C.S.A. Sec. 3921(a)
18 Pa.C.S.A. Sec. 3925 (a)
18 Pa.C.S.A. Sec. 3927(a)
All of which is against the Act of Assembly and the pea a and dignity of the Co•-• onw th o • syly
Daniel J. Sodus
Attorney for the Commonwealth
Original
COMMONWEALTH OF PENNSYLVANIA •
V. • IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
RANDI BRUCE THICKEY CP-21-CR-0000373-2010 CRIMINAL
GUILTY PLEA COLLOQUY
MAXIMUM
COUNT CHARGE(S) GRADE PUNISHMENT
1 DEALING IN PROCEEDS OF UNLAWF. ACTIV. Fl 20 Years
UNLAWFUL USE OF COMPUTER F3 7 Years
THEFT BY UNLAWFUL TAKING F3 7 Years
4 RECEIVING STOLEN PROPERTY F3 7 Years
5 THEFT BY FAIL. TO MAKE REQ'D DISP. OF FU F3 7 Years
•
PLEA OF DEFENDANT
The Defendant, being advised of the offense(s) charged in the information(s) and of
Defendant's rights, hereby in open court enters a plea of VO C Nkzj - to
the charge(s) of: Section & Subsection
\kJ f C p m \NUN-A ' C4k-kk c\vvt A`11 UX, ` �f—:A-- 0
(A`-*-; *k.11/4 -
Defendant 4:rney for the Commonwealth
/14,44/
Attorney for the Defendant Date Re--.r
Restitution Amount $:
Restitution Paid to:
41
GUILTY PLEA COLLOQUY
If you are pleading guilty,complete each question on this form. None of the lines should be left
blank. If there is anything in this form you do not understand,discuss it with your attorney,and your
attorney or the judge will explain it to you completely,making sure you understand your rights. After you
have finished reading this form and completing all the questions,sign the form on the last page,on the line
indicating"Defendant." You should also initial each page at the bottom,indicating you read and
understand the page. (l -t-
1.Print your full name: `�(i■c\6
2.Age: j1 Date of Birth: S 11 `
3.How far did you go in school? G r'.1) \-\ , .
4.Can you read,write and understand the English Language? '(X.)
5.By pleading guilty you are giving up many important constitutional rights.
(a)You have a right to a trial by a jury of 12 people. This means you may participate in the
selection of a jury with your attorney. This involves exercising both peremptory and cause
challenges. The jury is randomly selected from a cross section of residents throughout
Cumberland County. You are presumed innocent until the Commonwealth proves every
element of each offense beyond a reasonable doubt,and you have a right to remain silent during
all proceedings. The jury will listen to the facts and based on the evidence all 12 jurors must
agree unanimously as to your guilt beyond a reasonable doubt of each and every element of the
crimes charged before they can convict.
(b)You have a right to a non-jury trial if the Commonwealth agrees. This means a judge listens
to the facts and must be convinced of your guilt beyond a reasonable doubt before you can be
found guilty.
Do you understand that by pleading guilty you are giving up your right to a trial(jury and non-
jury)and all the included rights described above? y2)
6.By pleading guilty you give up your right to litigate and appeal you pre-trial and trial rights:
(a)The right at trial to cross-examine all of the Commonwealth's witnesses.
(b)The right at trial to testify and present evidence on your behalf and your lawyer can require
witnesses to come to court to testify in your case. You cannot be forced to testify at trial.
By pleading guilty to this crime,you are admitting to the Court that you committed the crime.
That is why you do not have many rights after a guilty plea. Do you understand? yes
7.Do you realize that by pleading guilty,you are giving up any possible defense that may apply in
your case such as: self-defense,alibi,insanity?
8. There is very little that you can appeal after a guilty plea. You cannot appeal the fact that you
are guilty. You cannot appeal on the basis that your rights have been violated. You can only appeal the
following things:
(a)That you did not understand what you were doing when you pled guilty.
Defendant's Initials:
2 (!
a
(b) That the Cumberland County Court did not have jurisdiction over your case.
(c)Whether your lawyer was effective.
(d)Whether your sentence was lawful.
Do you understand? Yei
9.You have been charged with the crimes outlined on page one(1)of this colloquy.
(a)Do you understand the nature of the charges against you? it)
(b)Do you understand the possible maximum penalties?
10.You have the right to be represented at a trial,or at this guilty plea by a lawyer. If you cannot
afford a lawyer,one will be appointed for you free of charge.Do you understand? 7 k-.1
11.Are you currently on probation or parole? it)
12.Do you understand a guilty plea may mean a violation of the terms of your probation or parole
and you may be separately sentenced in a separate proceeding on that matter? \i-t)
13.Have any threats or promises been made to you to persuade you to enter a plea of guilty(other
than any plea agreement that has been negotiated for you by yourself or your lawyer)? 1V 0
14.The decision to plead guilty is your decision to make and not your lawyer's decision. It is your
lawyer's job to advise you and help you make this decision. Do you understand? YQ.1
15.Considering all the information on this form,do you want to plead guilty? Ye)
I affirm that I have read the above document in its entirety and I understand it. I wish to enter a
plea of guilty to the offense or offenses specified. I also firm that my answers are true and correct.
/1,
q
A►." -- VZ--TA. v
Def. dant'sr ignature / Date
I, M;( 1lk■ ts-.j ,Esquire,Attorney for
o\r\'3 . T\-2,t.,\-2i state that I have reviewed this document with my
client and I have advised my client of the contents and meaning of this document.
A Z1
Attorney for Defendant
Attorney Identification Number: 2001 let 1
Defendant's Initials:
� z ,
Mark W. Allshouse, Esquire
Attorney ID#78014
4833 Spring Road T 31 Fh 1
Shermans Dale,PA 17090
(717)582-4006
Attorney for Defendants i Ayy 'I'L4tl
DAVID J. SONICH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
•
v.
NORTH MIDDLETON TOWNSHIP, and : NO. 13-5349 Civil
MATTHEW M. JOHNSTON, acting in his :
Official capacity as North Middleton
Township Police Officer, : CIVIL ACTION - MANDAMUS
Defendants
DEFENDANTS' RESPONSE TO
PLAINTIFF'S MOTION FOR PEREMPTORY JUDGMENT
AND NOW, come Defendants, North Middleton Township and Matthew M. Johnston,
North Middleton Township Police Officer, by and through the Solicitor for North Middleton
Township, Mark W. Allshouse, Esquire, who respectfully file the following Response to
Plaintiff's Motion for Peremptory Judgment pursuant to PA R.C.P. 1098:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. Paragraph 6 is a conclusion of law to which no response is necessary.
By way of further response, Defendants have no knowledge as to the actual pleading of Randy
Thickey as they were not parties to the Court process for the guilty plea. That process is set forth
within the Court transcript of the guilty plea.
7. Denied.
8. Admitted.
9. Admitted.
10. Denied. Paragraph 10 is a conclusion of law to which no response is necessary.
11. Admitted.
12. Admitted.
13. Denied. Paragraph 13 is a conclusion of law to which no response is necessary.
14. Denied. Paragraph 14 is a conclusion of law to which no response is necessary.
15. Denied. Paragraph 15 is a conclusion of law to which no response is necessary.
By way of further response, Plaintiff received a remedy at law during sentencing, at which time
Plaintiff was awarded restitution by Court Order. Plaintiff is attempting through this mandamus
action to maintain the Court ordered restitution while also having the ability to pursue the vehicle
and reclaim the property. By way of further response, it is believed that should mandamus be
ordered and Plaintiff be granted the ability to pursue the property, the Court must thereby modify
the sentencing Order of Randy Thickey.
16. Admitted. By way of further response, Plaintiff is under the false impression that
he is allowed to direct the Court as to what his legal remedy for the crime committed by Randy
Thickey shall be. Plaintiff's attempt at mandamus action is an attempt to control the Court's
existing condition to an outcome as desired by Plaintiff which was not sought by Plaintiff at any
time during Thickey's guilty plea or sentencing.
17. Denied. The judge sentencing Randy Thickey has a direct interest in this matter
as Plaintiff is seeking to modify the Court ordered restitution so that Plaintiff may seek
additional remedies.
18. Denied.
WHEREFORE, Defendants respectfully request this Honorable Court to deny Plaintiff's
Motion for Peremptory Judgment.
FACTUAL ISSUES WHICH HAVE NOT BEEN DETERMINED
1. Randy Thickey's sentencing currently holds him responsible for restitution.
Plaintiffs are seeking to modify that Court Order through a mandamus action without
involvement of the sentencing judge or Randy Thickey. Plaintiff has been provided an adequate
remedy at law.
2. During the course of the investigation and Thickey's Guilty Plea Colloquy it is
clear that Thickey was being held responsible for failure to pay Plaintiff the sum of$25,000 as a
result of selling a vehicle which he believed to be owned by Plaintiff's son and later turned out to
be owned by Plaintiff.
3. Plaintiff did not appear during the sentencing of Randy Thickey despite being
contacted, nor did he ever request the ability to recapture the vehicle or the remedy sought in this
mandamus action.
4. Defendants were directed, based upon the information obtained during the
investigation, not to list the vehicle as stolen. Plaintiff had given Randy Thickey permission to
seek a buyer and upon the sale of the vehicle was acceptable to receiving $25,000 for the sale.
5. Plaintiff did not receive the $25,000 from Randy Thickey and then, and only then,
did Plaintiff pursue criminal charges against Thickey which resulted in the multiple charges filed
by Defendant Johnston.
6. Of those charges, the District Attorney's Office and defense counsel for Randy
Thickey determined which charges would be plead. However, the officer's investigation remains
consistent that Plaintiff was willing to accept the $25,000 for the sale of the vehicle and had it
been paid, the agreement between the parties would have been completed and no criminal action
filed.
7. Based upon this information, it is clearly an issue of material fact as to whether
the information ascertained by Officer Johnston resulted in a conclusion that the vehicle had
been stolen.
8. The filing of charges against an individual only requires probable cause by an
officer and, as a result of the ongoing investigation, it was possible that the car had been stolen at
the time of charging. However, that information was continually being investigated up to the
time of the guilty plea and it was determined that Plaintiff lost the value of the vehicle only.
9. It is believed that the car was transferred and is no longer located within the
United States, but is located in Italy.
WHEREFORE, Defendants respectfully request this Honorable Court to deny Plaintiffs
Motion for Peremptory Judgment.
Respectfully submitted,
Date: 12P(12613 ✓ la
.1 W. Allshouse, squire
ttorney I.D. # 780 '
833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Defendants
Mark W. Allshouse, Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale, PA 17090
(717)582-4006
Attorney for Defendants
DAVID J. SONICH, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v.
•
NORTH MIDDLETON TOWNSHIP, and : NO. 13-5349 Civil
MATTHEW M. JOHNSTON, acting in his :
Official capacity as North Middleton
Township Police Officer, : CIVIL ACTION - MANDAMUS
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following,by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Laurence C. Kress, Esquire
105 North Front Street, Suite 303
Harrisburg, PA 17101
Respectfully submitted,
Date:f23( I3 y11
ark W. Allshouse, squire
ttorney I.D. # 7801
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Defendants
DAVID J. SONICH, •▪ IN THE COURT OF COMMON PLEAS OF
Plaintiff •▪ CUMBERLAND COUNTY, PENNSYLVANIA
v. •• CIVIL ACTION—LAW
•
NORTH MIDDLETON
TOWNSHIP, and MATTHEW M.• r
JOHNSTON, acting in his
official capacity as North •
Middleton Township Police `�„„
Officer, •
Defendant : NO. 13-5349 CIVIL TERM
IN RE: PLAINTIFF'S MOTION FOR
PEREMPTORY JUDGMENT
ORDER OF COURT
AND NOW, this 2nd day of January, 2013, upon consideration of Plaintiff's
Motion for Peremptory Judgment, a Rule is hereby issued upon Defendants to show
cause why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
a!' Lit ti/Lf-e`
Christy, e L. Peck, J.
Laurence C. Kress, Esq.
105 N. Front Street
Suite 303
Harrisburg, PA 17101
Attorney for Plaintiff
ark W. Alshouse, Esq.
4833 Spring Road
Shermansdale, PA 17090
Attorney for Defendants
:rc
opl E,S
DAVID J. SONICH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : CIVIL ACTION — LAW
NORTH MIDDLETON
TOWNSHIP, and MATTHEW
M. JOHNSTON, acting in his
Official capacity as North
Middleton Township Police
Officer,
Defendants
: NO. 13-5349 CIVIL TERM
IN RE: COMPLAINT
ORDER OF COURT
AND NOW, this 4th day of August, 2014, upon consideration of Plaintiffs
Complaint, Defendants' Answer with New Matter, Plaintiff's Motion for Peremptory
Judgment, and Defendants' Response to Plaintiff's Motion for Peremptory Judgment,
Plaintiff's Motion for Peremptory Judgment is denied.
BY THE COURT,
✓ Laurence C. Kress, Esq.
105 North Front Street
Suite 303
Harrisburg, PA 17101
Attorney for Plaintiff
./ Mark W. Allshouse, Esq.
4833 Spring Road
Shermans Dale, PA 17090
Attorney for Defendants
Coo/ 1
1£;.L
-a