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HomeMy WebLinkAbout14-6163 Supreme Court-Z'filPennsylvania 4�� Coui'I�C?f,CoTnlnon pleas For Prothonotaty Use Only: W Mif Cover Sheet Docket Na: .r County ...- v63 al !2- The information collected on this form is used solely for court administration pnrl)oses. This form does not supplement or replace the filing and service ofpleadingas or other papers as required by lazs,or rules of court. Commencement of Action: 'Complaint ❑ Writ of Summons ❑ Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E Lead Plai„nttiiff_sName: Lead Defendant's Name: LC o-y— C T HA I Are money damages requested? es El No Dollar Amount Requested ❑within arbitration limit (check one) O�Eroutside arbitration limits O N Is this a Class Action Suit? NFyes ❑.No Is this an MDJAppeal? ❑ Yes �&No A Name of Plaintiff/Appellant's Attorney: eJ6[�r� 1 I I�z L`-t 1 � U ii �s C—L) 21C Check stere if 3 o€a have no attorney f are a Self-Represented I 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 ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection:Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection:Other ❑ Board of Elections Nuisance ❑ Dept.of Transportation Premises Liability ' tatutory Appeal:Other S Product Liability(does not include E mass tort) El Employment Dispute: a OSlander/Libel/Defamation Discrimination C Other: ❑ Employment Dispute: Other ❑ Zoning Board ❑ Other: ❑ Other: o MASS TORT Asbestos N ❑ Tobacco ❑ Toxic Tort-DES ❑ Toxic Tort-Implant F1 Toxic Waste REAL PROPERTY MISCELLANEOUS ' r-1 Other: F-1Ejectmenton B El Eminent Domain/Condemnation E] Declaratory Judgment !) ❑ Ground Rent ❑ Mandamus andlord/Tenant Dispute ❑ Non-Domestic Relations Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure:Commercial Quo Warranto F1 Dental [] Partition ❑Replevin ❑ Legal ❑ Quiet Title ❑Other: ❑ Medical }Other: Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs , /M D�5 kt.o m �3-a�-3-°tel: r �� kp 14 DRLS q4_g, Defendant C N -1 -C ul NOTICE TO DEFEND YOU HAVE BEEN SUED IN'COURT. IF YOU WISH TO DEFEND AGAINSTTHE 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 AN 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 HIRING A LAWYER. I.F YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE,PA 17013 / I 1-800-990-9108f 717-249-3166 Cr '� In The Court of Common Pleas Cumberland County, Pennsylvania Civil Division Plaintiff Michael A. Konetsco l// 6 /o C� I Vs. Case No: . Civil Term Civil Action Defendant(s) Mag Dist No : MDJ-09-3-04 M.D.J. Kathryn H. Silcox Keener Properties Andrew Charles Sheely Esq. COMPLAINT JURISDICTIONAL ALLEGATIONS 1)This is an Action for Money in Excess of $3,000,000.00 . Plus Property 101 Texaco Road,Mechanicsburg,Pa. 17050. 2)At all Times Material to this Lawsuit, Michael A. Konetsco is a Resident of Cumberland County. 3)At all times of this Lawsuit the Defendants are the Residents of Cumberland County. 4)All Acts Necessary of Precedent to the Bringing of the Lawsuit Occurred or accrued in Cumberland County . 5)This Court Has Jurisdiction . General Factual Allegations 1) Plaintiff has been in Judge Silcox court twice in both cases, She has stepped all over the Plaintiffs Constitutional Rights. 2)Plaintiffs had a case when he Plaintiff couldn't see,between Plaintiffs Attorney (Dirk Berry). Under Plaintiffs Right of the Pa's Constitution, 204 Pa. Code 81.1 Preamble :A Lawyers Responsibilities (1),(2) Rule 8.4,8.5, 8.6,8.7, 8.8,8.9 Page 1 �'i riaintiff Claim's t in both cases that Judge Silcox had no concern as to the Plaintiffs Rights unaer the Pa"s Constitution. Let Alone Plaintiffs Rights under the United States Constitution 4)Plaintiff States that the State Police Didn't Have a Case to begin with,so between Ex-Parti Communication,With Plaintiffs Ex Court Appointed Attorney ,along with the State Police. Which had no Probable Cause. That POOR Investigation by using Plaintiffs 28 yr old case is ILEGAL. The D.J. Silcox should Have Dissed the case with Prejudice. 5) Even Judge Peck Doesn't follow the Law,or the D.A.'s office. They all Know that the State Police are Corrupt, and still don't hold them responsible for their THIEF and Corruption. But that's another up an coming Case. 6)The D.J. Silcox,Keener Properties ,Andrew C. Sheely ( Keeners Attorney) . Plaintiff Proved in Documents that Plaintiff owed His Land Lord As Much As $125. But no more $475.00 But is unable to find Aprils Receipt,all Receipts singed by His secretary. 7) EQUAL PROTECTION THE RIGHT GUARANTEED BY THE 14TH AMENDMENT a)LEGAL CAUSE-A CAUSE THAT PRODUCES A DIRECT EFFECT,AND WITHOUT WHICH THE EFFECT WOULD NOT HAVE OCCURRED. b)MORAL TURPITUDE - A DESCRIPTION OF CONDUCT THAT IS SHAMEFULLY WICKED ,EXTREME DEPARTURE FROM THE ORDINARY STANDARDS OF MORALITY, JUSTICE OR ETHICS. 8) MITIGATION OF DAMAGES—THE REQUIREMENT THAT SOMEONE INJURED BY ANOTHER'S NEGLIGENCE. 9) MUISFEASANCE—PREFORMING A LEGAL ACTION IN AN IMPROPER WAY, THIS TERM IS FREUENTLY USED WHEN A PROFESSIONAL OR PUBLIC OFFICER IS MISAKEN OR WRONG. 10) Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act,Also Discrimination -Apparently This Magisterial District Judge Silcox,Keener Properties , an Attorney Sheely ,An the Court of Common Pleas, from the State Police,to the D.A.'s office to all the Judges . SEEM TO THINK THAT PLAINTIFF IS AS MENTALLY HANDICAPPED AS He IS PHYSICALLY HANDICAPPED. 11) PLAINTIFF is also SUING for EMOTIONAL DISTRESS—PLAINTIFF has had to have his Depression Medication Increased , Plaintiff is not to be under such STRESS. It's VERY BAD FOR PLAINTIFFS HEALTH. Page 2 12)Duress in Judge Silcox court when Plaintiff was their with Attorney Berry, he keep Forcing a Pen in Plaintiffs hand when you were all Pressuring Plaintiff to Sign the Papers. Like the Plaintiffs Constitutional Rights were just something to Step on ,in Both Cases. Its like going in front of Corrupt Judge Susan Day.Which is also another Case. 13) Plaintiff Also Claims that besides Ex—Parti Communication without inviting Plaintiff, OH that's Right its Illegal ! And we can't forget about PERJURY that Land Lord And His Attorney behind closed doors with Judge Silcox. 14) (1) Plaintiff will now quote The Judicial Conduct Board -Failing to respect and comply with the Law in a manner that Promotes Public Confidence in the Integrity and Impartiality of the Judiciary, a Violation of Rule 2A. Of the Rules Governing Standards of Conduct of Magisterial District Judges 15) (2)Failing to Devote the time Necessary for the Prompt and Proper Disposition of the Business of Her office,which shall be given Priority over any other Occupation,Business,Profession,Pursuit or Activityviolation of Rule 3A of the Rules Standards of Conduct of Magisterial District Judges. 16)Failing to be Faithful to the Law and Failing to Maintain Competence in it, a Violation of Rule 4A of the Rules Governing Standards of Conduct of Magisterial District Judges. 17) Failing to be Patient,Dignified„ and Courteous to Litigants,Witnesses,Lawyers and Others with whom they deal in their Official Capacity, and shall Require Similar Conduct of Lawyers, of their Staff and Others Subject to their Direction and Control,A Violation of Rule 4C, of the Rules Governing Standards of Conduct of Magisterial District Judges.And (5)Violation of Rule 5A. 18) (6) Conduct which brings the Judicial Office into Disrepute, a Violation of Article V, s 18 (d) (1) of the Pennsylvania Constitution.Neglect to Perform the Duties of Office; a Violation of Article V, s 18 (d) (1) of the Pennsylvania Constitution . 19)Plaintiff is also Suing for LIBLE AGAINTS ,Judge Silcox for Putting on my Record as being a POT Dealer an That Don't Pay my Rent ,they are Both Slandering Remarks to My Credibility. Ex—Parti Communication .Judge Silcox never gave Plaintiff a copy why she Ruled the way she did . Page 3 20) Plaintiff is Suing Land Lord an his Attorney Andrew C. Sheely for Corruption for Ex-Parti Communication,LIBLE Because they will put on my Credit Report as being a Dead Beat for not paying my Rent,when Plaintiff Already Proved in Court.There are other Charges at the Top of Complaint and Below. 21) Plaintiff is now Realizing Why the Land Lords (Attorney Sheely) never said a word , an only hands the Judge 1 Piece of Paper. Plaintiff gave the Judge 4 Pages of Proof. So even the Plaintiff is Intelligent Enough to Know that It Was Already Decided Before Court.Because they didn't even put up a Defense. Or Say a Word. 22) Plaintiff is starting with the Pennsylvania Code of Regulations. 204 Pa. Code s 81.1 Preamble A Lawyer's Responsibilities (1),(2),(3) Rule 8.4 (4),(5),(6),(7),(8),(9)• 23) 204 Pa. Code s 99.3.The Lawyer's Duties to the Court And to Other Lawyers. ( 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,) 24) Canon 1. Judges Should Uphold the Integrity and Independence of the Judiciary. 25) Canon 2. Judges should avoid Impropriety and the Appearance of Impropriety in all their activities. (4),an Official Note. 26) Canon 3. Judges should preform the of their Office Impartially and Diligently. A:Adjudicative Responsibilities: (1),(2),(3),(4), Official Note, (6) ,Official Note B : Administrative Responsibilities (2),(3). C : Disqualification (1), (a), (3),(iii), 27) Canon 4. Judges may engage in Activities to Improve the law,the Legal System, and the Administration of Justice.(A),(B),(C),an Official Note. 28) 204 Pa. Code s 99.2 A Judge's Duties to Lawyers and Other Judges. (2),(3),(4),(6), (7), (9),(11),(15). 29) S 25.Reservation of Powers in Peoples. 30) Rule 1007.Testimony or Written Admission of Party. 31) Rule 3 Integrity and Independence of the Judiciary, Construction. Page 4 32)Judicial Discipline Rule 5 (A) Adjudicative Responsibilities (3),(4). b. (B)Administrative Responsibilities ©Disqualification (1),(2),(a),(b)(iii) 33) Rule 2. Scope of Rules. Plaintiff State of Pennsylvania County of Cumberland Before me personally appeared Michael A. Konetsco who being duly sworn and identified in accordance with law, did execute the forgoing in my Presence this day of 2014 Notary Public My Commission Expires Page 5 In The Court of Common Pleas Cumberland County, Pennsylvania Civil Division Plaintiff Michael A. Konetsco Vs. Case No: 3r Civil Term Civil Action Defendant(s) Mag Dist No : MDJ-09-3-04 M.D.J. Kathryn H. Silcox Keener Properties Andrew Charles Sheely Esq. Certificate of SERVICE I hereby certify that I am this day serving the following document, in the above captioned case, upon the person's and in the manner indicated below. Which service satisfies the requirements of Pa.R.A.P.121. October- 16th -2014 Under Penalty of Perjury, I Certify That a copy of the foregoing by Regular U.S. Mail to. P . tiff MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Edwin A.D. Schwartz, Esquire PA Attorney ID# 75902 Nicole M. Ehrhart, Esquire PA Attorney ID# 200538 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 717-651-3700 Email: easchwartz@mdwcg.com Attorney for Defendant Andrew C. Sheely, Esquire MICHAEL A. KONETSCO, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 26 • .1110` t 1 0 6 rjEf'R!-- '`:rjtj:'1 T Y Plaintiff : NO. 14-6163 CIVIL TERM V. : CIVIL ACTION Mag Dis No: MDJ-09-3-04, MDJ KATHRYN H. SILCOX, KENNER PROPERTIES and ANDREW C. SHEELY, ESQ., Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Andrew C. Sheely, Esq., in the above -captioned matter. Date: ///0 By: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN EDWIN A.D. SCHWART Q RE Attorney ID 75902 NICOLE M. EHRHART, ESQUIRE Attorney ID 200538 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717) 651-3700 easchwartz@mdwcg.com CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Michael A. Konetsco 101 Texaco Road Mechanicsburg, PA 17050 Date: ////, By: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN `f' EDWIN A.D. SCHWARTZ,Di 6, IRE Attorney ID 75902 NICOLE M. EHRHART, ESQUIRE Attorney ID 200538 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717) 651-3700 easchwartz@mdwcg. corn MARTHA GALE, ESQUIRE Attorney I.D. 22190 Supreme Court of Pennsylvania Administrative Office of Pa. Courts 1515 Market Street, Suite 1414 Philadelphia, PA 19102 Phone: (215) 560-6300 Fax: (215) 560-5486 Attorney for Defendant, Magisterial District Judge Kathryn H. Silcox IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL KONETSCO Plaintiff v. MDJ KATHRYN H. SILCOX et al. Defendants CIVIL ACTION NO. 14-6163 I •1 TO: Michael A. Konetsco 101 Texaco Road Mechanicsburg, PA 17050 NOTICE TO DEFEND r• -.J You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. MARTHA GALE, ESQUIRE Attorney I.D. 22190 Supreme Court of Pennsylvania Administrative Office of Pa. Courts 1515 Market Street, Suite 1414 Philadelphia, PA 19102 Phone: (215) 560-6300 Fax: (215) 560-5486 Attorney for Defendant, Magisterial District Judge Kathryn H. Silcox IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL KONETSCO Plaintiff v. MDJ KATHRYN H. SILCOX et al. Defendants CIVIL ACTION NO. 14-6163 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT FILED ON BEHALF OF MAGISTERIAL DISTRICT JUDGE KATHRYN H. SILCOX NOW COMES Defendant, Magisterial District Judge Kathryn H. Silcox, by and through undersigned counsel, who files Preliminary Objections to Plaintiffs Complaint and in support thereof avers as follows: 1. Plaintiff filed this Complaint seeking monetary damages against, inter alia, Magisterial District Judge Kathryn H. Silcox, a judicial officer of Magisterial District Court 09- 3-04, which is an entity of the Unified Judicial System of Pennsylvania pursuant to 42 Pa.C.S. 301(9). 2. Plaintiff avers that Judge Silcox presided over two cases to which he was a party in the Cumberland County Court of Common Pleas, but fails to provide any identifying information as to those cases. (Complaint ¶ 1) 1 3. Plaintiff alleges that that Judge Silcox violated his constitutional rights by having ex parte communications with individuals involved in his underlying cases, pressuring him into signing various documents, ignoring his opponent's perjury, and placing on the record conclusions that he did not pay his rent and that he was a "pot dealer." (Complaint im 4, 12, 19) 4. Plaintiffs Certificate of Service, attached hereto as Exhibit "A," evidences that he forwarded the Complaint to Judge Silcox via U.S. mail in violation of the Pennsylvania Rules of Civil Procedure, thereby depriving this Honorable Court of in personam jurisdiction. 5. Plaintiffs suit is barred because Judge Silcox, in her official capacity, is entitled to sovereign immunity. 6. This action is also barred because Judge Silcox, in her individual capacity, is protected by absolute judicial immunity. 7. If Plaintiff is dissatisfied with Judge Silcox' rulings in the underlying cases to which he was a party, his recourse was to avail himself of the appellate process. 8. Even if Plaintiff was permitted to amend his pleadings, he cannot state a cause of action against Judge Silcox under Pennsylvania law due to the immunity defenses set forth in the accompanying Memorandum of Law. 2 WHEREFORE, Defendant Magisterial District Judge Kathryn H. Silcox respectfully requests that this Honorable Court sustain her Preliminary Objections and dismiss Plaintiffs Complaint as to her, with prejudice. Respectfully submitted, MARTHA GALE, ESQUIRE Attorney I.D. 22190 Supreme Court of Pennsylvania Administrative Office of Pa. Courts 1515 Market Street, Suite 1414 Philadelphia, PA 19102 Phone: (215) 560-6300 Fax: (215) 560-5486 Attorney for Defendant, Magisterial District Judge Kathryn H. Silcox 3 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Edwin A.D. Schwartz, Esquire PA Attorney ID# 75902 Nicole M. Ehrhart, Esquire PA Attorney ID# 200538 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 717-651-3700 Email: easchwartz@mdwcg.com Attorney for Defendant Andrew C. Sheely, Esquire !UL f ONS R 17 j; 11:45 COUNTY i`:.NIA CtitvE,TRi t, Pc -NNS;' MICHAEL A. KONETSCO, Plaintiff v. Mag Dis No: MDJ-09-3-04, MDJ KATHRYN H. SILCOX, KENNER PROPERTIES and ANDREW C. SHEELY, ESQ., Defendants TO: Michael A. Konetsco 101 Texaco Road Mechanicsburg, PA 17050 Pro Se Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-6163 CIVIL TERM : CIVIL ACTION NOTICE TO PLEAD You are hereby notified to file a written response to the foregoing Preliminary Objections within twenty (20) days from service hereof or judgment may be entered against you. Date: By: 1 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN A°P EDWIN A.D. SCHWART ' UIRE Attorney ID 75902 NICOLE M. EHRHART, ESQUIRE Attorney ID 200538 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Edwin A.D. Schwartz, Esquire PA Attorney ID# 75902 Nicole M. Ehrhart, Esquire PA Attorney ID# 200538 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 717-651-3700 Email: easchwartz@mdwcg.com Attorney for Defendant Andrew C. Sheely, Esquire MICHAEL A. KONETSCO, Plaintiff v. Mag Dis No: MDJ-09-3-04, MDJ KATHRYN H. SILCOX, KENNER PROPERTIES and ANDREW C. SHEELY, ESQ., Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-6163 CIVIL TERM : CIVIL ACTION DEFENDANT ANDREW C. SHEELY, ESQ'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant Andrew C. Sheely, Esquire, by and through his undersigned counsel, Marshall Dennehey Warner Coleman & Goggin, who respectfully make these Preliminary Objections to Plaintiffs Complaint, and in support thereof avers as follows: 1. Plaintiff, proceeding pro se, commenced this litigation by filing a Complaint on October 20, 2014. 2. Mr. Sheely has never been properly served with Plaintiffs' Complaint. 3. These Preliminary Objections are timely and ripe for disposition. I. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO DISMISS FOR FAILURE TO PERFECT SERVICE PURSUANT TO PA. R. CIV. P. 1028(A)(1) 4. Paragraphs 1-3 are hereby incorporated by reference as though more fully set forth herein. 2 5. Pennsylvania R. Civ. P. 1028(a)(1) provides that a preliminary objection is appropriate for failure to perfect service of a complaint. 6. Pursuant to Pa. R. Civ. P. 400(a), "original process shall be served within the Commonwealth only by the sheriff'. 7. Plaintiffs Certificate of Service indicates that serves was accomplished via regular U.S. Mail. 8. Service by regular mail does not comport with the Pennsylvania Rules of Civil Procedure. 9. In Pennsylvania, it is black letter law that without valid service, the court lacks personal jurisdiction over the defendant and is powerless to enter judgment a named party. Lerner v. Lerner, 954 A.2d 1229 (Pa. Super. 2008); See also Sharp v. Valley Forge Medical Center & Heart Hospital, Inc., 221 A.2d 185 (Pa. 1966) ("jurisdiction of the court over the person of the defendant is dependent upon proper service having been made"). 10. To date, Plaintiff has not perfected service of the Complaint upon Mr. Sheely'. WHEREFORE, Defendant Andrew C. Sheely, Esquire respectfully requests that this Honorable Court enter an Order sustaining his Preliminary Objection and striking Plaintiffs claims against him with prejudice for lack of service. II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFFS' COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 11. Paragraphs 1 through 10 are hereby incorporated by reference as though more fully set forth herein. Entry of appearance by Counsel for Objecting Defendants does not bar Objecting Defendants from asserting preliminary objections to service. "The mere fact that counsel has entered appearances on behalf of parties does not mean that the parties waived the right to challenge the opposing party's failure to effect proper service." Scott v. Tucker, 2006 Phila. Ct. Com. Pl. LEXIS 88 (2006). 3 12. Plaintiffs' have amply demonstrated a disregard for the Pennsylvania Rules of Civil Procedure such that Plaintiffs Complaint is replete with procedural deficiencies. 13. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2), preliminary objections may be filed by any party to a pleading based upon a failure of a pleading to conform to law or rule of court. 14. Pennsylvania Rule of Civil Procedure 1020 requires that although a plaintiff may state more than one cause of action cognizable in a civil action against the same defendant, "[e]ach cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief. Pa. R. Civ. P. 1020. 15. Pennsylvania Rule of Civil 1022 further mandates that "every pleading shall be divided into paragraphs numbered consecutively" and that "[e]ach paragraph shall contain as far as practicable only one material allegation." Pa. R. Civ. P. 1022. 16. Plaintiffs Complaint is an incoherent rambling which contains very little factual background, failure to identify the relevant parties and vague incomplete legal conclusions. 17. Although Plaintiffs Complaint does contain numbered paragraphs, each paragraph either contains several confusing allegations or fails to delineate when one thought ends and another begins or is merely a vague incomplete legal conclusion. 18. It is virtually impossible to decipher what purported cause(s) of action Plaintiff may be attempting to set forth. 19. It appears as though Plaintiff may be unhappy with Judge Silcox's rulings in the underlying matter to which he was a party, but his recourse was to avail himself of the appellate process and no amount of repleading can amend that deficiency. 4 20. Plaintiffs Complaint does not comport with Pennsylvania Rules of Civil Procedure 1020 or 1022. 21. The Rules of Civil Procedure are not optional; they are mandatory and are necessary to provide a defendant with adequate notice of the claims set forth against him. 22. Plaintiff has chosen to disregard the mandates as set forth in the Rules and this Honorable Court must strike Plaintiffs Complaint in its entirety for failure to comply with the Rules of Civil Procedure. WHEREFORE, Defendant Andrew C. Sheely, Esquire respectfully requests that this Honorable Court enter an Order striking Plaintiffs Complaint in its entirety for failure to comply with the Pennsylvania Rules of Civil Procedure. III. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE FOR INSUFFICIENT SPECIFICITY OF A PLEADING 23. Paragraphs 1 through 22 are hereby incorporated by referenced as though more fully set forth herein. 24. The Complaint lacks any specificity and must be stricken. 25. Pa. R. Civ. P. 1028(3) provides that a preliminary objection is proper where a pleading contains insufficient specificity. 26. The Complaint fails to identify with any specificity the cause(s) of action against Mr. Sheely. 27. The Complaint is replete with broad legal conclusions which are factually unsupported and no cause of action is set forth with any specificity. 28. Under Pennsylvania pleading practice, "the material facts upon which a cause of action or defense is based shall be stated in a concise and summary form." Pa. R. Civ. P. 1019(a). 5 29. A complaint must not only give defendants notice of the nature of the plaintiffs claims and the grounds upon which they rest, but must identify the issues essential to his or her claims by stating those essential facts which support his or her allegations. See Pa.R.C.P. 1019(a). See also, Burnside vs. Abbott Laboratories, 505 A.2d 973 (Pa. Super. 1985); See also, Cardenas V. Schober, 783 A.2d 317 (Pa. Super. 2001). 30. The test for determining whether or not the allegations in a complaint comport with Pennsylvania law is whether the complaint adequately informs the adverse party of the issues which he or she must be prepared to meet so that he or she may properly prepare a defense for trial. Carvella v. HandyAndy Food Market, 44 D. & C.2d 133 (1968). See also, City of New Castle v. Uzamere, 829 A.2d 763 (Pa. Commw. Ct. 2003). 31. Plaintiff has grossly failed to identify with any specificity any allegations or cause(s) of action directed at Mr. Sheely. 32. Absent a clear and concise pleading of the cause(s) of action with specific relevant facts upon which Plaintiff asserts his claim(s) against Mr. Sheely, Mr. Sheely cannot provide a knowing and intelligent response to the Complaint and is prejudiced thereby. 33. Plaintiffs failure to specifically and concisely set forth all material facts and basis upon which it asserts its claim(s) substantially limits and precludes Mr. Sheely from preparing an effective and responsive defense thereto. 34. Therefore, based on Plaintiffs failure to plead with the requisite specificity as required by Pennsylvania law, this Honorable Court must strike Plaintiffs Complaint. WHEREFORE, Defendant Andrew C. Sheely, Esquire, respectfully requests that this Honorable Court enter an Order striking with prejudice Plaintiffs' Complaint in its entirety for insufficient specificity of pleading. 6 ADDITIONAL PRELIMINARY OBJECTIONS (IN THE ALTERNATIVE) Notwithstanding the absolute dispositive nature of the preliminary objection asserted hereinabove, Mr. Sheely respectfully asserts the following arguments in support of the preliminary objections (in the alternative) as further challenge to the legal, technical and factual deficiencies of Plaintiffs Complaint. Plaintiffs Complaint is deficient for a whole host of reasons and any subsequent re -pleading would be futile as it appears as though Plaintiffs generalized complaints were more appropriate for an appeal rather than an independent action which has no basis in the law. Although almost indecipherable given the vague and somewhat incoherent format of Plaintiffs ramblings, Mr. Sheely must broadly construe and speculate as to any cause of action Plaintiff may be attempting to set forth. IV. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO PLAINTIFFSCLAIM OF CONSPIRACY FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED 35. Paragraphs 1 through 34 are hereby incorporated by reference as though more fully set forth herein. 36. Assuming arguendo that Plaintiff can overcome the litany of procedural defects identified above, it appears as though Plaintiff may be attempting to state a claim conspiracy. 37. "In order to state a cause of action for civil conspiracy under Pennsylvania law 'it must be shown that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means." Rutherfoord v. Presbyterian -University Hosp., 612 A.2d 500 (Pa. Super. Ct. 1992) citing Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979). 38. "Proof of malice, i.e., an intent to injure, is an essential part of a conspiracy cause of action; this unlawful intent must also be without justification." Id. 7 39. Furthermore, a conspiracy is not actionable until "some overt act is done in pursuance of the common purpose or design ... and actual legal damage results[.]" Id. citing Baker v. Rangos, 324 A.2d 498 (Pa. Super. 1974). 40. Simply put, a plaintiff must plead: (1) a combination of two or more persons acting with common purpose to do an unlawful 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 damages. Strickland v. Univ. of Scranton, 700 A.2d 979, 987-988 (Pa. Super. 1997). 41. When stating a claim for conspiracy, a plaintiff may not merely make conclusory allegations of conspiracy. Grose v. Proctor & Gamble Paper Prods., 866 A.2d 437, 441 (Pa. Super. 2005); See also, Shaffer v. Procter & Gamble, 604 A.2d 289 (Pa. Super. Ct. 1992). 42. Rather, only allegations which are particularized, such as those alleging the period of the conspiracy, the object of the conspiracy, and actions taken in furtherance of the conspiracy will be deemed sufficient. Ibid; See also, Grigsby v. Kane, 250 F. Supp. 2d 453 (M.D. Pa. 2003). 43. Plaintiff simply alleges conclusory allegations of conspiracy i.e., Plaintiffs rambling, subjective, unsubstantiated beliefs which courts have specifically deemed inadequate to state a cognizable claim for civil conspiracy. 44. Furthermore, Plaintiff has not set forth facts in his Complaint which would support a finding of malice, which is essential to establish a cause of action for conspiracy 45. Plaintiffs claim for conspiracy is insufficient as a matter of law and must be dismissed as a consequence. 46. More importantly and unequivocally, to the extent that Mr. Sheely was representing his client, Keener Properties, the intracorporate conspiracy doctrine bars claims against attorneys based upon conspiracies formed in the attorney-client context. Heffernan v. 8 Hunter, 189 F.3d 405 (3d Cir. 1999)(The Third Circuit extended the intracorporate conspiracy doctrine to encompass the attorney-client relationship). 47. "[A] conspiracy does not exist if the attorney holds no stake in his client's activities greater than a professional interest, or where the attorney cannot personally profit from the alleged improper conduct of his client." Stout v. Selective Way Ins. Co., 2010 Phila. Ct. Com. Pl. LEXIS 95 (Pa. C.P. 2010) citing Aetna Electoplating Co., Inc. v. Jenkins, 484 A.2d 134 (Pa. Super. 1984). 48. Plaintiff fails to establish that Mr. Sheely was acting in any capacity other than in his capacity as Counsel for Keener Properties. 49. Thus, application of the intracorporate conspiracy doctrine as set forth in Heffernan mandates dismissal of Plaintiffs purported claim for conspiracy against Mr. Sheely. WHEREFORE, Defendant Andrew C. Sheely, Esquire respectfully requests that this Honorable Court enter an Order sustaining the Preliminary Objection and dismissing Plaintiffs Complaint with prejudice. V. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO PLAINTIFF'S CLAIM OF INFLICTION OF EMOTIONAL DISTRESS OF FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED 50. Paragraphs 1 through 49 are hereby incorporated by reference as though more fully set forth herein. 51. Plaintiff seems to allege emotional distress. 52. In order to plead a viable claim for intentional infliction of emotional distress, Plaintiff is required to plead: (a) the exercise of extreme and/or outrageous conduct; (b) that the conduct was intentional and/or reckless; (c) that the conduct caused emotional distress; and (d) 9 actual damages amounting to severe emotional distress. Hoy v. Angelone, 691 A.2d 476 (Pa. Super. 1997); Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988 (Pa. 1987). 53. A cause of action for intentional infliction of emotional distress requires conduct on the part of the tortfeasor which is extreme or outrageous. Kazatsky, 527 A.2d at 991. 54. To meet this threshold pleading requirement, Plaintiff must plead facts sufficient to demonstrate to the reader that Mr. Sheely's conduct was so extreme as to go beyond all possible bounds of decency and would be regarded as intolerable to the community. Field v. Philadelphia Electric Co., 565 A.2d 1170 (Pa. Super. 1987). 55. It is insufficient to simply label behavior as "extreme" or "outrageous"; rather, the facts must describe behavior amounting to such characterizations. 56. Furthermore, the Court in Kazatsky held that there could be no liability on such a claim without proof of actual emotional distress by competent medical evidence. 527 A.2d at 995. 57. Plaintiffs complaint is absolutely devoid of any factual allegations which are so extreme or outrageous to sustain a claim for intentional infliction of emotional distress. 58. As such, Plaintiff claim for intentional infliction of emotional distress must fail. WHEREFORE, Defendant Andrew C. Sheely, Esquire respectfully requests that this Honorable Court enter an Order sustaining the Preliminary Objection and dismissing Plaintiffs Complaint with prejudice. VI. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFF'S REFERENCES TO THE RULES OF PROFESSIONAL CONDUCT 59. Paragraphs 1 through 58 are hereby incorporated by reference as though more fully set forth herein. 10 60. Plaintiff makes reference to the Rules of Professional Conduct. 61. However, violations of the Rules of Professional Conduct cannot serve as the basis for any civil action or liability. In Re: Estate of Pedrick, 482 A.2d 215, 217 (Pa. 1984)(emphasis); See also Scope and Preamble to the Rules of Professional Conduct, ¶19 (Violations of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been beached). 62. Therefore, any reference to the Rules of Profession Conduct should be stricken. WHEREFORE, Defendant Andrew C. Sheely, Esquire respectfully requests that this Honorable Court enter an Order sustaining the Preliminary Objection and striking any reference to the Rules of Professional Conduct. Date: ///0.y/ By: 11 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Ap,mp,,..411P EDWIN A.D. SCHWA' IRE Attorney ID 75902 NICOLE M. EHRHART, ESQUIRE Attorney ID 200538 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717) 651-3700 easchwartz@mdwcg.cam CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Michael A. Konetsco 101 Texaco Road Mechanicsburg, PA 17050 Pro Se Plaintiff Martha Gale, Esquire Administrative Office of Pa. Courts 1515 Market Street, Suite 1414 Philadelphia, PA 19102 Counsel for Defendant Magisterial District Judge Kathryn H. Silcox Date: ////1/A V By: 12 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN EDWIN A.D. SCHWAR Attorney ID 75902 NICOLE M. EHRHART, ESQUIRE Attorney ID 200538 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717) 651-3700 easchwartz@mdwcg.com IRE C / PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the.,,nel. Argument Court.) r _r, CAPTION OF CASE (entire caption must be stated in full) Michael A. Konetsco VS. Mag Dis No: MDJ-09-3-04, MDJ KATHRYN ©No. 6163 cri 2014 . r ▪ - s LD Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANT ANDREW C. SHEELY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael A. Konetsco (pro se), 101 Texaco Road, Mechanicsburg, PA 17050 (Name and Address) (b) for defendants: Martha Gale, Esq., Supreme Court of PA, Admin Office of PA Court, 1515 Market St., Suite 1414, Philadelphia, PA 19102 (Name and Address) Nicole M. Ehrhart, Esq., Marshall Dennehey Warner Coleman & Goggin, 100 Corporate Center Dr., Suite 201, Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 6, 2015 Date: December 8, 2014 11 (� kQ( nature CC KGL / Print your name Andrew C. Sheely, Esquire Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted (),ask s1G.'1S'Pa6 n --)Et b.94(40 SH Bey MICHAEL KONETSCO, Plaintiff v. MDJ KATHRYN H. SILCOX, KENNER PROPERTIES, AND ANDREW C. SHEELY, ESQ. Defendants eouutp of eumberlanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2014-6163 CIVIL ACTION IN RE: ORAL ARGUMENT ON PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT FILED ON BEHALF OF DEFENDANTS SILCOX AND SHEELY. ORDER OF COURT AND NOW, this 12th day of January 2015, upon consideration of the Preliminary Objection to Plaintiff's Complaint filed by Defendants' Silcox and Sheely, oral argument is scheduled for 18 February 2015 at 11:00 a.m. in Courtroom No. 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Briefs must be timely and properly submitted in order for any party to argue their position before the Court. Djstribution List: chael Konetsco, pro se arta Gale, Esq. ✓' win A. D. Schwartz, Esq. vicichole M. Ehrhart, Esq. C'o ; € /1/2t� //3fis Thomas A. lacey C.P.J.