Loading...
HomeMy WebLinkAbout06-2411Diane S. Baker, Esquire I.E. No. 53200 27 South Arlene Street P.O. Box 6443 1-larrisburg, PA 17112-0443 (717) 671-9600 ELIZABETH L. SMITH, Plaintiff V3. DANIEL J. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. oc? - xL/ C?1U'l CIVIL ACTION - LAW IN CUSTODY COMPLAINT FOR CUSTODY AND NOW, comes Plaintiff, Elizabeth L. Smith, by and through her attorney, Diane S. Baker, Esquire, and files this Complaint, based upon the following: Plaintiff, Elizabeth L. Smith, is an adult individual residing at 1660 E. Caracas Avenue, Hershey, Dauphin County, Pennsylvania, 17033. 2. Defendant, Daniel J. Smith is an adult individual residing at 307 E. Main Street, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 3. Plaintiff seeks primary custody of Asher Kylor Smith, born December 24, 1998, and Lydia Kieran Lally Smith, born April 1, 2003. Plaintiff is the natural mother of the 2 children and Defendant is the natural father of the children. The children were born in wedlock. The children are currently in the custody of Defendant. 4. Since birth, the children have resided with the following persons and at the following addresses: Plaintiff and Defendant 28 S. Market Street Mechanicsburg, PA 8/18/2000 to 8/31/2002 Plaintiff and Defendant Plaintiff, Dennis and Leona Englin Defendant Defendant Plaintiff 307 E. Main Street Mechanicsburg, PA 309 E. Main Street Mechanicsburg, PA 307 E. Main Street Mechanicsburg, PA 307 E. Main Street Mechanicsburg, PA 1660 E. Caracas Avenue Hershey, PA 9/1/2002 to 10/15/2005 10/16/2005 to 11/26/2005 (shared physical custody) 10/16/2005 to 11/26/2005 (shared physical custody) 11/27/2005 to 4/20/06 4/21/06 to present 5. Plaintiff has not participated as a party or a witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. Plaintiff has no information of a custody proceeding concerning the children pending in a court of this Commonwealth. Plaintiff does not know of a person not party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 3 6. Each parent whose parental rights to the children that have not been terminated and the person who has physical custody of the children have been named as parties to this action. 7. The best interest and permanent welfare of the children will be served by granting the relief because Plaintiff can provide a safe home and a stable and loving environment for the children. WHEREFORE, Plaintiff requests Your Honorable Court to grant her shared legal and primary physical custody of the minor children, Asher Kylor Smith and Lydia Kieran Lally Smith with Defendant having periods of partial physical custody as agreed upon by the parties. DATE: q J2' c (, Supreme Court ID #53200 27 South Arlene Street Post Office Box 6443 Harrisburg, PA 17112-0443 (717) 671-9600 4 VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unworn falsification to authorities. ELIZARh TH L. SMITH 5 4 01 ELIZABETH L. SMITH IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH DEFENDANT 06-2411 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Monday, May 08, 2006 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. , the conciliator, at MDJ Manlove, 1901 State St., Camp Hill, PA 17011 on Thursday, June 08, 2006 at 2:30 PM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Melissa P. Gree Es q. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 V?NVAlAl),NN31! 6S -Z Wd 8- AN 90OZ %o'18- s 47"f- ,7o.?a-,q MViO 0TiiOUd rill 30 ELIZABETH SMITH, Plaintiff V. DANIEL SMITH, Defendant IN THE COURT OF COMMON PLEAS COUNTY, PENNSYLVANIA Cv,Hber(a.?( :NO: 2006-2411 CIVIL ACTION - LAW IN CUSTODY ACCEPTANCE OF SERVICE I, Kara W. Haggerty, Esquire, counsel for the Defendant in the above-captioned matter, upon authorization of the Defendant, accept service of the Custody Complaint. D 51 I'D 1,01P Date vkalz)J Kara W. Haggerty, E t?4wt Abom & Kutulakis, 36 South Hanover Street Carlisle, PA 17013 C7 ? cv rn r cv rjC .1 F=i r CA) C:) ??Y w r ' JUN " 71il'h ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-2411 CIVIL TERM V. DANIEL J. SMITH, Defendant CIVIL ACTION - LAW IN CUSTODY INTERIM ORDER OF COURT AND NOW, this ? ? day of June, 2006, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. The parties, Elizabeth L. Smith and Daniel J. Smith shall have shared legal custody of the minor children, Asher Kylor Smith, born December 24, 1998, and Lydia Keran Lally Smith, born April 1, 2003. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of 23 Pa. C. S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to, medical, dental, religious or school records, the residence address of the children and of the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 2. Mother shall have temporary primary physical custody subject to Father's rights of partial custody which shall be arranged as follows: A. Each week from Wednesday at 7:00 a.m. until Friday at 1:30 p.m. This portion of the schedule is premised on the notion that Father will be able to obtain a consistent schedule with his employer that permits him to be off work on Wednesdays and Thursdays each week. However, in the event that Father cannot have Thursdays off each week but could have Tuesdays off in addition to his standard Wednesday as a day off, this portion of Father's custodial schedule would commence Tuesday at 7:00 a.m. and continue until Thursday at 1:30 p.m. B. Each Sunday from 8:00 a.m. until 1:30 p.m. C. In the event that Father would like to exercise partial custody during Mother's work hours on Mondays or Tuesdays, Father may pick up the I NO. 06-2411 CIVIL TERM children at the babysitter's in Hershey and return them to the sifter and/or daycare before he goes to work. D. And at such other times as the parties agree. 3. Father shall provide transportation at the beginning of the custodial exchanges by picking up the children as follows: On Sundays at Mother's residence, and on weekdays by meeting Mother at work. Mother will participate in transportation incident to custodial exchanges by picking up the children on Friday afternoons and Sunday afternoons. 4. Vacation 2006. Upon two (2) weeks notice to Mother, Father may have one (1) custodial block of up to seven (7) consecutive days. Upon two (2) weeks notice to Father, Mother may have up to three (3) weekends which would require that Father relinquish his Sunday custodial time to Mother. These weekends shall be used by Labor Day, 2006. 5. The parties shall participate in a mini-custody evaluation with Deb Salem of Interworks. The costs of the evaluations shall be shared equally by the parties. Each party retains the right to petition the Court for a reallocation of the costs of the evaluation. It is contemplated that the evaluation will involve chemical dependency evaluation as well. 6. If counsel for either party makes a fax request to the Custody Conciliator within ten (10) days of the receipt of the report from Ms. Salem's office, a Conciliation Conference will be rescheduled without the necessity of an additional pleading or filing fee. 7. This Order is entered as an Interim Order without prejudice to either party to argue their positions on the status quo custodial arrangement or who had been the primary caregiver to the children, at the time of trial. BY THE COURT: J. Dist: W/6iane S. Baker, Esquire, 27 S. Arlene Street, Harrisburg, PA 17112 ,,Kara W. Haggerty, Esquire, Abom & Kutulakis LLP, 36 S. Hanover Street, Carlisle, PA 17013 yCeb Salem, Interworks, 4335 N. Front 6t., Harrisburg, PA 17110 y 0V ;•L , no .-tt pr•^l d L f;?j L .y ,, i w ELIZABETH L. SMITH, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2411 CIVIL TERM CIVIL ACTION - LAW DANIEL J. SMITH, Defendant IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN THE CUSTODY OF Asher Kylor Smith December 24, 1998 Mother Lydia Keran Lally Smith April 1, 2003 Mother 2. A Custody Conciliation Conference was held on Friday, June 7, 2006 in response to Mother's April 28, 2006 filing of a Complaint for Custody. Father also filed a Complaint for Custody docketed to 06-2422. The matters will be consolidated under Docket No. 06-2411. However, Father's Pleading will be treated as a counter-claim in Mother's original Complaint. Present for the conference were: the Father, Daniel J. Smith, and his counsel, Kara Haggerty, Esquire; the Mother, Elizabeth L. Smith, and her counsel, Diane S. Baker, Esquire. 3. The parties were not able to reach an agreement for an interim or temporary order. The Conciliator provides the attached recommended Order as an Interim Order. 4. Mother's position on custody is as follows: The parties separated on or about November 26, 2005. At that time, the children apparently remained with Father. However, in late April, 2006, Mother reports that she found drugs in Father's residence during a time that she was visiting the children while he worked. During this time, the parties had an unwritten, informal custody arrangement. However, after Mother allegedly found the drugs, she refused to return the children to Father. Mother acknowledges that they both used drugs in the past but claims that she quit "a long time ago." Mother also reports that the oldest child, who is seven years old, had told her that there were times when he could not wake Father up in the morning. Mother interpreted this information to mean that Father was abusing drugs. Mother now resides in her Mother's home in Hershey, Pennsylvania. She works 7:00 a.m. until 3:30 p.m. as a medical claims biller at ASI off of Progress Avenue, in NO. 06-2411 CIVIL TERM Harrisburg. Mother reports that she has some flexibility in her work schedule as to arrival time or the ability to work through her lunch hours to shorten her work day. Mother believes the children should be in her primary custody. She has arranged for the younger child to attend Magic Years and has a baby sifting plan for the older child to be cared for by either her aunt or uncle this summer. Mother believes that, for purpose of socialization and social skills, it is important for Lydia to participate in some type of organized day care program. 5. Father's Position on custody is as follows: Father wants primary custody of the children. He reports that he has been the children's primary care giver throughout their lives by virtue of his having worked the second shift. He is employed as the head cook at Outback Steak House. When Father had the children in his custody, his mother babysat the children during his work hours, which are approximately 2:00 p.m. until 10:00 p.m. Father expressed concern that the maternal grandmother is abusive to the children. Specifically, he alleges that on one occasion she hit Asher on the head with a book. Father is also concerned because Mother withdrew the oldest child from school without his consent and without making previous arrangements with the school district. He expressed concern that there is inadequate sleep space at Mother's home, that it is overcrowded, and that some of the adults that live there smoke. Father also complained because Mother had not designated him as the emergency contact at the school or day care center for the children. However, this has apparently now been resolved. While Father acknowledges that they have each used drugs in the past, together, he denies that he is currently using drugs. He claims that he has been more involved with the care of the children than has Mother and that after she moved to Hershey, she was not very involved with the children at all. Father suggests that he have primary custody of the children and allow Mother to have custody of the children every weekend. Were that the arrangement, he proposes that during his work hours his mother would continue to be the children's babysitter. While at times Father has agreed that it is important for Lydia to participate in a day care program, he prefers that plan be arranged in the community in which he resides. He believes the children should be with him during Mother's work hours and until such time as he goes to work. Father resides in Mechanicsburg, and leaves for work around 1:30 p.m. each day. 6. In addition to the parties' dispute regarding which of them should be primary caregiver, the parties did not agree on the interim summer schedule. Father wants Mother to bring the children to meet him at her office on Mondays and Tuesdays when he does not work, and to have the children stay with him, or his mother when he leaves for work, until Mother could pick them up after work. Mother objects to Father's proposal because of the amount of time the children would spend in the car riding between the parties' homes. She also wants the younger child to have some social interaction with age group peers in a daycare setting. NO. 06-2411 CIVIL TERM 7. Through counsel, the parties agree to participate in a mini-evaluation with Deb Salem of Interworks. The cost of this evaluation would be shared equally by the parties. Each party would have the right to petition for reallocation of the costs of custody evaluation at the time of trial. When Ms. Salem's report is available, a facsimile from counsel received within ten days of the receipt of the report will be adequate to reschedule this matter for custody conciliation prior to send the parties to trial. The recommended order provided as an attachment hereto is without prejudice to either p t argue their positions with regard to the stat s quo or who has historically been the chi ren's nmary c regiver. / M6 Melissa Peel Greevy, E quire Custody Conciliator :277090 Elizabeth L. Smith, IN THE COURT OF COMMON PLEAS (n.k.a. Elizabeth L. Shunk) Plaintiff OF CUMBERLAND vs. OF PENNSYLVANIA CIVIL ACTION - CUSTODY Daniel J. Smith, Defendant NO. 06-2411 PETITION TO MODIFY CUSTODY And now comes Elizabeth L. Shunk, formerly known as Elizabeth L. Smith, and petitions the Court to modify custody and in support of this petition avers as follows: 1. Plaintiff is Elizabeth L. Shunk, formerly known as Elizabeth L. Smith. 2. Defendant is Daniel J. Smith. 3. Plaintiff herein filed a custody complaint to the above docket number. 4. Subsequently Defendant filed his own custody action to docket number 06-2422. 5. A custody conference was held June 8, 2006 and a summary report was dated June 14, 2006. (See Exhibit "A" attached). 6. In accordance with the Agreement of the parties reached at the custody conference, a "mini evaluation" with Deb Salem of InterWorks was performed. 7. The parties attempted to negotiate a resolution of custody after receiving the report. 8. The custody conciliator directed that within 10 days of receipt of the report, the parties could reschedule this matter at conciliation prior to sending this matter trial. 9. Neither party contacted the conciliator, and continued to negotiate this matter beyond the 10 day period referenced in the custody conciliation summary report. 10. Defendant's counsel prepared a custody agreement which Defendant signed, but which Plaintiff refused to agree to because it was not in the children's best interest. 11. The parties did not reach an agreement in regard to the resolution of the custody matter for which they were in front of the conciliator. 12. On April 20, 2007, at the custody exchange, Plaintiff notified Defendant that she was to be married to her then fiancee, now husband, Gary Shunk, on July 7, 2007. 13. On April 20, 2007, at the custody exchange, Defendant picked up the children from Plaintiff's residence. 14. Several hours after the children were in Defendant's custody, and several hours after they had been at the playground with Defendant, and after they had returned to Defendant's home, he and his then girlfriend, now wife, took Lydia, one of the minor children of the parties, to the emergency room alleging that there was abuse of the child while in Plaintiff's care. 115. Defendant never notified Plaintiff of the visit to the emergency room. 16. Plaintiff was not informed of Lydia's trip to the emergency room until April 25, 2007, five (5) days later, by Virginia Koser, the caseworker at Cumberland County Children & Youth Services, who was notifying Plaintiff of their involvement in an investigation for abuse. 17. Children & Youth, the police and Rape Crisis were all contacted while Lydia was in the emergency room on April 20, 2007. 18. Plaintiff herein met with Children and Youth, and agreed to Children & Youth's suggestion that while the investigation was ongoing she should have no contact with the minor children. 19. Plaintiff was assured a swift return of the children by the on-call Children & Youth case worker at the conclusion of the investigation if no evidence was found. 20. Plaintiff, without the advice of counsel and assuming an investigation would be just a day or two, agreed to the no contact provision. 21. 22. 'i Plaintiff was, however, permitted to write to the children. Since then, Children and Youth has only permitted Plaintiff herein supervised contact on a very limited basis and subsequently filed a petition to determine the dependency of both minor children. 23. Plaintiff has not seen the children since Thursday, September 27, 2007 due to Defendant refusing to allow them even supervised visits with Plaintiff. 24. On October 10, 2007, Defendant renewed allegations of child abuse against Plaintiff. 25. The hearing on dependency was never held until February 21, 2008, at which hearing Defendant made an oral motion to dismiss the case. 26. At some point since April 20, 2007, Jacqueline Verney, Esquire, has been appointed Guardian Ad Litem for the children. 27. A special Master appointed to hear the dependency petition granted the Motion, pending criminal investigation. 28. The police have been "investigating" for eleven (11) months. 29. Plaintiff herein believes there is no medical evidence to substantiate allegations of abuse. 30. Plaintiff herein believes that Defendant has utilized the system to his advantage to do an end run around a custody conciliation conference to obtain primary physical custody of the parties' children. 31. Since Children & Youth's intervention with the parties, Defendant and his wife have gone out of their way to completely alienate Plaintiff and her entire family from the lives of the parties' children. 32. Defendant and his wife have attempted to alienate Plaintiff and her family, the maternal grandparents to the extent that Defendant has threatened harassment charges for sending birthday/holiday cards to the children at Defendant's home. 33. Defendant stated under oath at the February 21, 2008 hearing with Children & Youth, that he, his wife and the children have since moved from the residence at which they lived at the onset of Children and Youth's investigation, however, Plaintiff has not been notified of her children's whereabouts. 34. Defendant has a history of drug abuse and has been known to sell drugs and Plaintiff believes Defendant continues to use illegal drugs. 35. Plaintiff herein believes that maternal grandmother and grandfather will be filing for custodial rights or custody if they have not already done so. 36. Plaintiff believes that it is not in the best interest of the children to be in the custody of Defendant because of his false, unfounded accusations against Plaintiff and her new husband, his refusal to allow even supervised visitations through Children & Youth, and his efforts to conceal his and the parties' children's residence. 37. Plaintiff has carried the primary health insurance on the children since 1999, and because Defendant refuses to provide address information, Plaintiff is unable to forward vital medical insurance information for the children to Defendant. 38. Defendant also has changed all of the children's medical and psychological health care providers and refuses to disclose that information to Plaintiff as well, which is in direct violation of the existing Order of June 27, 2006 granting shared legal custody to both parties. (See Exhibit "B" attached.) 39. Plaintiff believes that Defendant has begun carrying his own health insurance on the children with the sole intent of discontinuing use of Plaintiff's insurance coverage, thereby eliminating any chances that Plaintiff may learn of the children's medical and psychological health providers through her insurance company's Explanation of Benefits statements. 40. Plaintiff has received no Explanation of Benefits statements from her health insurance provider since November 2007, although Defendant testified on February 21, 2008, that the children have been to various new doctors, specialists, and i mental health providers recently. 41. Plaintiff herein requests that a custody conference be expedited so that she may assert her physical and legal custodial rights promptly in an effort to renew a normal relationship with the children. Wherefore, Plaintiff respectfully requested Plaintiff be awarded primary physical custody and Defendant be awarded supervised custodial periods. Respectfully Submitted: DISSINGER AND DISSINGER BY : Mary A.' Etter Dissinger/` Attorney for Plaintiff Supreme Court I.D. #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840 (717) 975-3924 - fax VERIFICATION I, Elizabeth L. Shunk, verify that the statements made in the Petition to Modify Custody are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. P24 Eliz Beth L. S?iun'-I? ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-2411 CIVIL TERM V. CIVIL ACTION - LAW DANIEL J. SMITH, IN CUSTODY Defendant CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN THE CUSTODY OF Asher Kylor Smith December 24, 1998 Mother Lydia Keran Lally Smith April 1, 2003 Mother 2. A Custody Conciliation Conference was held on Friday, June 7, 2006 in response to Mother's April 28, 2006 filing of a Complaint for Custody. Father also filed a Complaint for Custody docketed to 06-2422. The matters will be consolidated under Docket No. 06-2411. However, Father's Pleading will be treated as a counter-claim in Mother's original Complaint. Present for the conference were: the Father, Daniel J. Smith, and his counsel, Kara Haggerty, Esquire; the Mother, Elizabeth L. Smith, and her counsel, Diane S. Baker, Esquire. 3. The parties were not able to reach an agreement for an interim or temporary order. The Conciliator provides the attached recommended Order as an Interim Order. 4. Mother's position on custody is as follows: The parties separated on or about November 26, 2005. At that time, the children apparently ,re r. However, in late-April, 2006, Mother reports that ` - during a time ttrat-she wasvisfting-theM-children,while h& worke' -During this time, the parties had an unwritten, informal custody arrangement. However, after Mother allegedly found the drugs, she refused to return- the children to Father. Mother acknowledges that they both used drugs in the past but claims that she quit "a long time ago." Mother also reports that the oldest child, who is seven years old, had told her that there were times when he could not wake Father up in the morning. Mother interpreted this information to mean that Father was abusing drugs. Mother now resides in her Mother's home in Hershey, Pennsylvania. She works 7:00 a.m. until 3:30 p.m. as a medical claims biller at ASI off of Progress Avenue, in EXHIBIT "A?? NO. 06-2411 CIVIL TERM Harrisburg. Mother reports that she has some flexibility in her work schedule as to arrival time or the ability to work through her lunch hours to shorten her work day. Mother believes the children should be in her primary custody. She has arranged for the younger child to attend Magic Years and has a baby sitting plan for the older child to be cared for by either her aunt or uncle this summer. Mother believes that, for purpose of socialization and social skills, it is important for Lydia to participate in some type of organized day care program. 5. Father's yosition on custody is as follows: Father wants primary custody of the children. He reports that he has been the children's primary care giver throughout their litres by virtue of his having worked the second shift! He is employed as the head cook at Outback Steak Houle. When Father had the children in his custody, his mother babysat the children during his work hours, which are approximately 2:00 p.m. until 10:00 p.m. Father expressed concern that the maternal grandmother is abusive to the children. Specifically, he alleges that on one occasion she hit Asher on the head with a book. Father is also concerned because Mother withdrew tbe-aldest.child from school without his consent and without making previous arrangements with the school district. He expressed concern that there is inadequate sleep space at Mother's home, that it is overcrowded, and that some of the adults that live there smoke. Father also complained because Mother had not designated him as the emergency contact at the school or day care center for the children. However, this has apparently now been resolved. While Father acknowledges that they have each used drugs in the past, together, he denies that he is currently using drugs. He claims that he has been more involved with the care of the children than has Mother and that after she moved to Hershey, she was not very involved with the children at all. Father suggests that he have primary custody of the children and allow Mother to have custody of the children every weekend. Were that the arrangement, he proposes that during his work hours his mother would continue to be the children's babysitter. While at times Father has agreed that it is important for Lydia to participate in a day care program, he prefers that plan be arranged in the community in which he resides. He believes the children should be with him during Mother's work hours and until such time as he goes to work. Fafhdr resides in Mechanicsburg, and leaves for work around 1:30 p.m. each day. 6. In addition to the parties' dispute regarding which of them should be primary caregiver, the parties did not agree on the interim summer schedule. Father wants Mather to bring the children to meet him at her office on Mondays and Tuesdays when he does not work, and to have the children stay with him, or his mother when he leaves for work, until Mother could pick them up after work. Mother objects to Father's proposal because of the amount of time the children would spend in the car riding between the parties' homes. She also wants the younger child to have some social interaction with age group peers in a daycare setting. -' L w NO. 06-2411 CIVIL TERM 7. Through counsel, the parties agree to participate in a mini-evaluation with Deb Salem of Interworks. The cost of this evaluation would be shared equally by the parties. Each party would have the right to petition for reallocation of the costs of custody evaluation at the time of trial. When Ms. Salem's report is available, a facsimile from counsel received within ten days of the receipt of the report will be adequate to reschedule this matter for custody concililation priorto send the parties to trial. The recommended order provided as an attachment hereto is without prejudice to either pa to argue their positions with regard to the stat s quo or who has historically been the chi ren'7Za nW)Lf 10 ? ? Al to Melissa Peel Greevy, 7quire Custody Conciliator :277090 i ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT Y, PENNSYLVANIA Plaintiff NO. 06-2411 CIVIL TERM V. DANIEL J. SMITH, Defendant CIVIL ACTION - LAIN IN CUSTODY INTERIM ORDER OF COURT AND NOW, this M-1h day of June, 2006, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. The parties, Elizabeth L. Smith and Daniel J. Smith shall have shared legal custody of the minor children, Asher Kylor Smith, born December 24. 1998, and Lydia Keran Lally Smith, born April 1, 2003. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of 23 Pa. C. S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to, medical, dental, religious or school records, the residence address of the children and of the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 2. Mother shall have temporary primary physical custody subject to Father's rights of partial custody which shall be arranged as follows: A. Each week from Wednesday at 7:00 a.m. until Friday at 1:30 p.m. This portion of the schedule is premised on the notion that Father will be able to obtain a consistent schedule with his employer that permits him to be off work on Wednesdays and Thursdays each week. However, in the event that Father cannot have Thursdays off each week but could have Tuesdays off in addition to his standard Wednesday as a day off, this portion of Father's custodial schedule would commence Tuesday at 7:00 a.m. and continue until Thursday at 1:30 p.m. B. Each Sunday from 8:00 a.m. until 1:30 p.m. C. In the event that Father would like to exercise partial custody during Mother's work hours on Mondays or Tuesdays, Father may pick up the E E XHIBIT y NO. 06-2411 CIVIL TERM children at the babysitter's in Hershey and return them to the sitter and/or daycare before he goes to work. D. And at such other times as the parties agree. 3. Father shall provide transportation at the beginning of the custodial exchanges by picking up the children as follows: On Sundays at Mother's residence, and on weekdays by meeting Mother at work. Mother will participate in transportation incident to custodial exchanges by picking up the children on Friday afternoons and Sunday afternoons. 4. Vacation 2006. Upon two (2) weeks notice to Mother, Father may have one (1) custodial block of up to seven (7) consecutive days. Upon two (2) weeks notice to Father, Mother may have up to three (3) weekends which would require that Father relinquish his Sunday custodial time to Mother. These weekends shall be used by Labor Day, 2006. 5. The parties shall participate in a mini-custody evaluation with Deb Salem of Interworks. The costs of the evaluations shall be shared equally by the parties. Each party retains the right to petition the Court for a reallocation of the costs of the evaluation. It is contemplated that the evaluation will involve chemical dependency evaluation as well. 6. If counsel for either party makes a fax request to the Custody Conciliator within ten (10) days of the receipt of the report from Ms. Salem's office, a Conciliation Conference will be rescheduled without the necessity of an additional pleading or filing fee. 7. This Order is entered as an Interim Order without prejudice to either party to argue their positions on the status quo custodial arrangement or who had been the primary caregiver to the children, at the time of trial. BY THE COURT: OV A f ?1 - J. Dist: Diane S. Baker, Esquire, 27 S. Arlene Street, Harrisburg, PA 17112 Kara W. Haggerty, Esquire, Abom & Kutulakis LLP, 36 S. Hanover Street. Carlisle. PA 17013 Deb Salem, Interworks, 4335 N. Front St., Harrisburg, PA 17110 TRUE COPT FROM RECORD In - •:t:mony whereof, I! here unto set my hand an a seal of sal Counrt aCarlisle, Pa. T ....., da o, O rothonota?y Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff VS. Daniel J. Smith, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below I served a true and correct copy of the Petition to Modify Custody upon the attorney for Defendant, by First Class United States mail addressed as follows: Kara Haggerty, Esq. 8 S. Hanover Street Suite 204 Carlisle, PA 17013 Date: ?,OC?w, 'Mary A. , Etter Dissinger 111 ? f" ?? ? ` cta r- N o m _? 110 ELIZABETH L. SMITH IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH DEFENDANT 06-2411 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Friday, March 07, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. , the conciliator, at_- 39 West Main Street, Mechanicsburg, PA 17055 on Tuesday, March 25, 2008 at 9:00 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Dawn S. Sunda Es q. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Q4 ?N, "I 1-1,f,4110 ? C . I I WV 01 LVW OCR 3U JO 4( MAR 8 B 2008 ELIZABETH L. SMITH IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. DANIEL J. SMITH Defendant 06-2411 CIVIL ACTION LAW MARGO E. LALLY Plaintiff VS. ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants IN CUSTODY ORDER OF COURT AND NOW, this day of 2008, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A hearing on the Mother's Petition for Modification shall be scheduled at the request of the Mother and her counsel after discovery has been completed. For purposes of the hearing, the Mother shall be deemed to be the moving party and shall proceed initially with the testimony. Counsel for the parties shall file with the Court and opposing counsel a memorandum setting forth each party's position on custody, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These memoranda shall be filed at least 10 days prior to the hearing date. 2. Pending the hearing and further Order of Court or agreement of the parties, the prior Order of this Court dated February 26, 2008 adopting the Master's recommendations shall continue in effect. 3. If necessary to obtain information/documentation from Children and Youth Services regarding the investigation and findings in this matter, the parties shall cooperate in providing any requested authorizations to obtain lawful discovery. 4. The parties shall make arrangements for the Children to participate in counseling with Bonnie Howard or Melinda Eash for the purpose of assessing the Children's readiness and well-being in reestablishing contact between the Children and the maternal Grandmother. In the event the counselor determines that the Children are ready, the reunification process shall take place initially within the counseling process or as otherwise recommended by the counselor. The parties shall follow the recommendations of the counselor with regard to participation in counseling, either individually or with the Children by the maternal Grandmother or the Father. The parties shall follow the recommendations of the counselor with regard to the timing of reunification and shall sign any authorizations deemed necessary by the counselor in order to obtain additional information pertaining to the parties or the Children. The maternal Grandmother and the Father shall cooperate in selecting the counselor and in contacting the counselor's office within ten (10) days of the date of the custody conciliation conference to schedule the initial appointment. The parties shall cooperate in coordinating insurance coverage for the costs of the reunification counseling. BY THE COURT, 1?\k A, ?AA M. L. Ebert, Jr. ki. cc: Mary A. Etter Dissinger, Esquire - Counsel for Mother Mark F. Bayley, Esquire - Counsel for Father ?Lindsay Gingrich Maclay, Esquire - Counsel for Maternal Grandmother l..OpiFS I ,?: ,':J ?.?'"` - u "? ? >., .?' ??, ?? 44 .. r? ??`< , ELIZABETH L. SMITH Plaintiff VS. DANIEL J. SMITH MARGO E. LALLY vs. ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW Defendant Plaintiff 06-2411 CUSTODY CONCILIATION SUMMARY REPORT IN CUSTODY 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Asher Kylor Smith December 24, 1998 Father Lydia Keran Lally Smith April 1, 2003 Father 2. A custody conciliation conference was held on March 25, 2008, with the following individuals in attendance: the Mother, Elizabeth Shunk, formerly Smith, with her counsel, Mary A. Etter Dissinger, Esquire, the Father, Daniel J. Smith, with his counsel, Mark F. Bayley, Esquire, and the maternal Grandmother, Margo Lally, with her counsel, Lindsay Gingrich Maclay, Esquire. 3. This Court previously entered an Order in this matter on June 27, 2006 under which the Mother had temporary primary custody and the Father had substantial temporary partial custody pending a custody evaluation to be performed by Deborah Salem. Both parties sought primary physical custody of the Children at that time. In April 2007, the Father reported suspected sexual abuse of the parties' daughter, Lydia. Following an investigation by Children and Youth Services on February 26, 2008, this Court entered an Order adopting the recommendations of the Master following a Dependency proceeding in which the Master recommended that the Children remain in the care and custody of the Father with no visitation to the Mother. The Master noted that there was a pending criminal investigation on alleged sexual abuse of the parties' daughter and further recommended that visitation only be granted pursuant to the guidance of the investigating police officer and counselor for the Children. 4. The Mother filed this Petition for Modification seeking contact with the Children. The maternal Grandmother filed a Complaint for Custody seeking partial physical custody of the Children, which was addressed in the same custody conciliation conference. 5. The procedural history of this matter is complicated. Essentially, however, in April 2007, the Father had the parties' daughter examined by a physician during one of the Father's periods of custody. Allegations of sexual abuse of the Child by the Mother's husband, the Mother or both were investigated by Children and Youth Services, culminating in a dependency hearing on February 21, 2008 and the recommendations of the Master. A criminal investigation was also initiated and the status of that matter is uncertain. To date, it appears that no charges have been filed. The Mother has pending appeals to the indicated findings of sexual abuse by Children and Youth Services. 6. As to the Mother's Petition for Modification and the custody matters between the parents, it will be necessary to schedule a hearing. However, the Mother's counsel requested an opportunity to obtain discovery from the prior investigations before obtaining a hearing date to ensure that all the information is available for that proceeding. A. The Mother's position on custody is as follows: the Mother denies all allegations of sexual abuse against her or her husband. The Mother indicated that she has not been permitted to have any contact with the Children since September 2007 despite the recommendation of Children and Youth Services permitting supervised visitation. The Mother expressed concern that the allegations and the subsequent handling of this matter by the Father have been designed to alienate the Children from the Mother and her family. B. The Father's position on custody is as follows: the Father believes that the allegations of sexual abuse of the parties' Daughter by the Mother's husband or the Mother have been supported by the evidence and consequently the Father believes it is in the Children's best interests to remain in his sole care and custody. 7. The parties were able to reach an agreement to address the maternal Grandmother's Complaint for Partial Custody through involvement of a counselor as reflected in the attached proposed Order. 8. To serve the purpose of judicial economy, it was requested that both custody matters be consolidated under the original custody proceedings docketed at No. 2006-2411. 9. The conciliator recommends an Order in the form as attached providing for the eventual scheduling of a hearing in the custody matter between the parents and providing for the initiation of counseling on the maternal Grandmother's Petition for Custody. It is anticipated that the hearing on the Mother's Petition for Modification will require up to a full day in light of the complex issues and the anticipated number of witnesses. Date Dawn S. Sunday, Esquire Custody Conciliator Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner VS. Daniel J. Smith, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 MOTION FOR RULE TO COMPEL DISCOVERY And now comes Elizabeth Shunk by and through her attorney Dissinger & Dissinger and requests the Court to direct the Cumberland County District Attorney's office to turn over to her copies of all video tapes and copies of all reports regarding thej i minor child, Lydia Smith, and in support of this Motion avers as follows: 1. Petitioner is Elizabeth L. Shunk, natural mother, who resides at 19 Dartmouth Court, Mechanicsburg, Cumberland County, Pennsylvania. 2. Respondents are Daniel Smith, natural father who is believed to reside at 1513 Market Street, Camp Hill, Cumberland County, Pennsylvania. 3. Other respondent is the Cumberland County District Attorney's office who is possession of various video tapes and reports. 4. Parties in this action are the parents of two (2) minor children, Asher Kylor Smith (DOB 12/24/98) and Lydia Kieran Lally Smith (DOB 4/01/03). 5. In April 2007, Daniel Smith alleged that Petitioner's then fiance', now husband, Gary Shunk, perpetrated sexual abuse upon the minor child, Lydia. 6. That allegation be made within hours of Petitioner herein notifying Respondent, Daniel Smith, that she and Mr. Shunk were to be married in the near future. 7. Petitioner herein agreed to have no contact with the children pending an investigation by Children and Youth. 8. In late October 2007, six (6) full months later, a separate complaint of abuse was alleged against Petitioner herein, after supposed "disclosures" from the minor child, Lydia, regarding the April 2007 incident. 9. The allegations resulted in an investigation by Cumberland County Children & Youth and an investigation by the Upper Allen Township Police Department as well as the District Attorney's office. 10. A finding of "Indicated" has been lodged against Petitioner herein and her case, and her husband, Mr. Shunk, are currently before the Bureau of Hearings and Appeals at the Department of Public Welfare. 11. A hearing date before the Department of Public Welfare has not yet been set for Petitioner, but Petitioner herein expects that it will be set in the near future. 12. A hearing date has been set for Petitioner's husband, Mr. Shunk, before the Department of Public Welfare. 13. Petitioner herein requires the video taped interviews and other reports from the District Attorney's office to assist her in defending her case before the Commonwealth. 14. Petitioner herein is also the movant in the custody matter captioned above seeking to obtain primary physical custody of the minor children of the parties, and before this matter can proceed to hearing, Petitioner herein requires sufficient evidence to establish that the allegations of child abuse made against her and against Mr. Shunk are baseless, and she believes that the video tape interviews and the reports in the possession of the District Attorney's office will exonerate both her and Mr. Shunk. 15. Petitioner is in need of the video taped interviews and examinations that occurred at the Children's resource center which were turned over to the District Attorney's office to examine it herself before the Department of Public Welfare and to assist her in her custody case. 16. A prior Motion to obtain Discovery and require the District Attorney's office to provide the video tapes was filed by Cindy L. Hribal, counsel for Mother in the Children & Youth case, and after initial entry of an Order directing the District Attorney to turn over the tapes, the Court upon reconsideration directed that for so long as the investigation was ongoing, Petitioner herein was not entitled to have the tapes. 17. On December 19, 2007, the Court entered its Order directing that discovery should not be provided pending the conclusion of the District Attorney's criminal investigation. 18. It was Petitioner's impression that the Court did not wish to see this case again in the spring of 2008 on the issue of discovery. 19. The allegations of abuse arose in April 2007. 20. A search warrant was issued on June 27, 2007, and executed on the same date authorizing a search of the property rented by Petitioner herein and the motor vehicles owned by Petitioner and her now husband. 21. Since the execution of the search warrant, Petitioner herein believes nothing has become of the investigation. 22. Petitioner believes there is no on going investigation although her counsel was informed on April 30, 2008, by the District Attorney's office that there is still an active investigation into the allegation of child abuse and no information could be turned over. 23. As long as the District Attorney's office continues to allege there is an ongoing investigation, Petitioner herein is not able to establish her innocence before the Department of Public Welfare and her custody case is stymied. 24. It is unfair for the District Attorney's office to hold the relationship of the Petitioner herein with her children hostage by the mere allegation that an investigation is ongoing. 25. Petitioner believes that one year is more than sufficient time for the District Attorney to conduct an investigation into the allegations of child abuse, especially since she and her husband both submitted to a polygraph test, and no charges have been filed to date, and no active investigations are apparent to Petitioner herein nor to anyone else with whom she is familiar. Wherefore it is respectfully requested that a Rule be issued upon the District Attorney's office to show cause why the investigation should not be deemed concluded and the video tapes provided to the District Attorney's office regarding Lydia Smith and all other reports in their possession pertaining to Lydia Smith, whether generated in house by the District Attorney's office or provide to them from another source be provided to Petitioner herein. Respectfully Submitted, Mary A.-Etter Dissinger Attorney for Petitioner Supreme Court ID #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840 (717) 975-3924- fax VERIFICATION I, Elizabeth L. Shunk, verify that the statements made in ;he foregoing document are true and correct. I understand that =alse statements herein are made subject to the penalties of 18 ?a.C.S. §4904 relating to unsworn falsification to authorities. Eliz eth L. S unk Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff VS. Daniel J. Smith, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 CERTIFICATE OF SERVICE I, Danielle R. Van Horn, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the attorney for Defendant, and David J. Freed, Cumberland County District Attorney, by First Class United States mail addressed as follows: Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 David J. Freed, Esq. 1 Courthouse Square Suite 202 Carlisle, PA 17013 Date ?J '- ., ?_ ._, - ; ;, ?. -` ?. ?. _ ?.r ?::.. _-- ? ?_> ,..4, _a t f ELIZABETH L. SMITH, (n.k.a. Elizabeth L. Shunk) y PLAINTIFF V. DANIEL J. SMITH, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2411 CIVIL ORDER OF COURT AND NOW, this 28th day of May, 2008, upon consideration of the Motion to Compel Discovery filed by the Plaintiff, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Cumberland County District Attorney to show cause why the relief requested should not be granted; 2. The Cumberland County District Attorney will file an answer on or before June 17, 2008; 3. The Prothonotary is directed to forward said Answer to this Court. 4. If the Commonwealth denies access to the requested materials, Elizabeth Shunk, as the moving party, shall file a brief with the Court specifically outlining what legal authority she has to compel the District Attorney to turn over evidence obtained in a criminal investigation for her use in a civil matter. This brief shall be filed on or before June 27, 2008. 5. The Commonwealth shall file a response brief on or before July 21, 2008. 6. Argument on this matter shall be held on Thursday, July 31, 2008, at 3:30 p.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, N\? M. L. Ebert, Jr., J. k ZMary A. Etter Dissin9er, Esquire Attorney for Plaintiff ? Mark F. Bayley, Esquire Attorney for Defendant David J. Freed, District Attorney - bAS 5? q yr bas s/a41o9 ?r? ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF (n.k.a. Elizabeth L. Shunk) CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. DANIEL J. SMITH, DEFENDANT NO. 06-2411 CIVIL COMMONWEALTH'S ANSWER TO PETITIONER'S RULE TO COMPEL DISCOVERY AND NOW, comes the Commonwealth of Pennsylvania, by and through its attorney Christin J. Mehrtens-Carlin, Senior Assistant District Attorney of Cumberland County, who respectfully opposes petitioner's request for discovery based on the following: 1. Admitted in part. It is admitted that the petitioner is Elizabeth L. Shunk, the natural mother of two (2) minor children, Asher Kylor Smith and Lydia Kieran Lally Smith. The Commonwealth is without sufficient knowledge or information to determine the petitioner's address. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. It is denied that in April 2007, Daniel Smith alleged that Gary Shunk perpetrated sexual abuse upon the minor child, Lydia Smith. (See Commonwealth's "New Matter" for further explanation.) 2 6. The Commonwealth is without sufficient information or knowledge to form a belief as to the truth of this averment. Strict proof is demanded. By way of further answer, it is denied that Daniel Smith made any such allegations. 7. The Commonwealth is without sufficient information or knowledge to form a belief as to the truth of this averment. Strict proof is demanded. 8. Denied. By way of further answer, the allegations were made prior to October 2007. 9. Admitted in part and denied in part. It is admitted that as a result of the allegations made in this case, both Cumberland County Children and Youth and the Upper Allen Township Police Department began an investigation. It is denied that the District Attorney's Office implemented a separate investigation as that is not the function of the office. 10. The Commonwealth is without sufficient information or knowledge to form a belief as to the truth of this averment. Strict proof is demanded. 11. The Commonwealth is without sufficient information or knowledge to form a belief as to the truth of this averment. Strict proof is demanded. 3 12. The Commonwealth is without sufficient information or knowledge to form a belief as to the truth of this averment. Strict proof is demanded. 13. Denied. It is denied that petitioner requires taped interviews and reports from the Commonwealth to assist in her appeal. 14. Insufficient evidence to admit or deny in part and denied in part. The Commonwealth is without sufficient evidence or knowledge to either admit or deny that the petitioner is the moving party in a custody matter to obtain primary physical custody of the minor children. It is denied that the petitioner requires videotaped interviews and reports, in the possession of the Commonwealth, to provide sufficient evidence that the allegations are baseless. 15. Denied. It is denied that the petitioner needs the above mentioned tapes and reports, to view, before her appeal to the Department of Public Welfare and to assist her in her custody case. 16. Admitted. It is admitted that petitioner made a prior motion to obtain the above mentioned tapes and reports. It is further admitted that this Honorable Court ruled that "pending the conclusion of the District Attorney's criminal investigation, the request for the video tapes of the Children's Resource Center's interviews with the child 4 currently in the possession of the District Attorney's Office is DENIED." (See Commonwealth's "New Matter.") 17. Admitted in part and denied in part. It is admitted that this Honorable Court denied the petitioner's request for discovery. It is denied that the Order implied discovery must be immediately forthcoming upon completion of the criminal investigation. 18. The Commonwealth is without sufficient information or knowledge to form a belief as to the truth of this averment. Strict proof is demanded. 19. Admitted. It is admitted that the abuse alleged occurred in April 2007. 20. Admitted. 21. Denied. It is denied that since the execution of the search warrant "nothing has become of [this] investigation." 22. Denied in part and admitted in part. It is denied that there is no longer an ongoing investigation. It is admitted that the District Attorney's Office represented in April 2008, that the investigation is ongoing and no discovery would be disclosed. 23. Denied. 24. Denied. It is denied that the District Attorney's Office is holding the petitioner's relationship with her children 5 "hostage." It is further denied that the District Attorney's Office is merely alleging that an investigation is ongoing. 25. Denied. It is denied that there is a sufficient period of time for the Commonwealth to bring charges. It is further denied that both the petitioner and her husband submitted to a polygraph examinations. It is further denied that petitioner is in a position to determine if there is an active investigation in this case. COMMONWEALTH'S NEW MATTER 26. The minor child, Lydia Smith, has made allegations of sexual abuse against both the petitioner and Gary Shank. 27. Daniel Smith, the father of the minor victim, has not made any allegations with regards to this case. 28. As of the filing of this motion, charges have not been filed against the petitioner or Gary Shank. 29. The Commonwealth will not make a determination of whether charges are appropriate until the victim, a five-year old child, becomes a little older. 30. Given the severity of the allegations in this case and the age of the minor victim, it is unrealistic to demand that the Commonwealth take action within a specified time period, as expected by the petitioner. 6 31. This Honorable Court's Order.of December 19, 2007, does not indicate that discovery would be automatic once the Commonwealth's investigation is complete, but rather, that the discovery request was denied at least until that point. 32. Pursuant to the "Right-to-Know" Law, "[a] record of an agency relating to or resulting in a criminal investigation..." is exempt from public record; including videos and reports. 65 P.S. §67.101 & §67.708(b)(16). 33. The "Right-to-Know" Law further clarifies that records are not public records if disclosure would "[h]inder an agency's ability to secure an arrest, prosecution or conviction." 65 P.S. §67.708(b)(16)(vi)(D). 34. The "Right-to-Know" Law's exclusion for information relating to police investigations applies not only to active investigations, but also to records relating to completed investigations. Commonwealth v. Mines, 680 A.2d 1227 (Pa. Commw. Ct, 1996); Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Commw. Ct, 2001). 35. Regardless of whether the Commonwealth's investigation is active or completed, the petitioner is not entitled to the requested tapes or reports. 7 36. The "Right-to-Know" Law focuses on the documents being requested and not the petitioner's purpose for the request. 65 P.S. §67.101 et. seq. 37. Regardless of this petitioner's purpose for the request, the videotapes and reports requested are not a public record and should not be disclosed pursuant to the above referenced law. 38. The petitioner has cited to no cases that would compel this Court to grant her the relief requested. WHEREFORE it is respectfully requested that the petitioner's "Rule to Compel Discovery" be DENIED. Respectfully Submitted, Christin J. Me Prtens-Carlin Senior Assistant District Attorney 8 ? r,? ca ° ; ; _},-r, ?' t =? ;? !:' . ? ? '' +; .i- `?' "' w ELIZABETH L. SMITH, Plaintiff V. DANIEL J. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-2411 C I V I L Tt-P- M CIVIL ACTION - LAW IN RE: MOTION TO COMPEL DISCOVERY ORDER OF COURT AND NOW, this 31st day of July, 2008, upon consideration of the Plaintiff's Motion to Compel Discovery, the Commonwealth's answer thereto, consideration of the briefs filed by the parties, and after argument, IT IS HEREBY ORDERED AND DIRECTED that the Motion to Compel Discovery is Denied. By the Court, V*\ -t UA M. L. Ebert, Jr., J ./Eristin Mehrtens-Carlin, Esquire Senior Assistant District Attorney Wary Dissinger, Esquire For the Plaintiff mtf 0? c `?V ? `?±? t ?? ???? I, IN ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. 06-2411 CIVIC.. TEL M DANIEL J. SMITH, CIVIL ACTION - LAW Defendant IN RE: MOTION TO COMPEL DISCOVERY ORDER OF COURT AND NOW, this 31st day of July, 2008, upon consideration of the Plaintiff's Motion to Compel Discovery, the Commonwealth's answer thereto, consideration of the briefs filed by the parties, and after argument, IT IS HEREBY ORDERED AND DIRECTED that the Motion to Compel Discovery is Denied. By the Court, ?*\ -? UA M. L. Ebert, Jr., J /5ristin Mehrtens-Carlin, Esquire Senior Assistant District Attorney ,"a.ry Dissinger, Esquire For the Plaintiff mtf r\ V Ri Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner VS. Daniel J. Smith, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 MOTION FOR EXPEDITED CUSTODY HEARING And now comes Elizabeth Shunk by and through her attorney Dissinger & Dissinger and requests the Court schedule a custody hearing in the above matter and in support of this Motion avers as follows: Petitioner is Elizabeth L. Shunk, natural mother, who resides at a location she wishes to not disclose. '.. Respondents are Daniel Smith, natural father who resides at 1513 Market Street, Camp Hill, Cumberland County, Pennsylvania. 3. Other parties who have been joined in this suit are Margo E. Lally, maternal grandmother, who has filed a Complaint in custody to Cumberland County Docket # 08-1718 asserting certain rights in regard to the minor children of the parties. !. Docket #08-1718 has since been consolidated with the above captioned matter between Elizabeth Shunk and Daniel Smith. ?. Dr. Richard E. Lally, maternal grandfather has filed a Complaint in custody to Cumberland County Docket # 08-3092 asserting certain rights in regard to the minor children of the parties. 6. The Honorable Judge M. L. Ebert has been assigned to these matters. 7. Elizabeth L. Shunk and Daniel Smith are the parents of two (2) minor children, Asher Kylor Smith (DOB 12/24/98) and Lydia Kieran Lally Smith (DOB 4/01/03). 8. In April 2007, Daniel Smith alleged that Petitioner's then fianc6, now husband, Gary Shunk, perpetrated sexual abuse upon the minor child, Lydia. 9. That allegation was made within hours of Petitioner herein notifying Respondent, Daniel Smith, that she and Mr. Shunk were to be married in the near future. 10. Petitioner herein agreed to have no contact with the children pending an investigation by Children and Youth. L1. In late October 2007, six (6) full months later, a separate complaint of abuse was alleged against Petitioner herein, after supposed "disclosures" from the minor child, Lydia, regarding the April 2007 incident. 12. The allegations resulted in an investigation by Cumberland County Children & Youth and an investigation by the Upper Allen Township Police Department as well as the District Attorney's office. _3. A finding of "Indicated" has been lodged against Petitioner herein and her case, and her husband's, Mr. Shunk, are currently before the Bureau of Hearings and Appeals at the Department of Public Welfare. 14. Petitioner herein is the movant in the custody matter captioned above seeking to obtain primary physical custody of the minor children of the parties. 15. Children & Youth recommended supervised visitation occur between Petitioner herein and the minor children of the parties. 16. For a brief period of time, Daniel Smith cooperated with Children & Youth, but then terminated all supervised visits and all contact with Petitioner herein. 17. Petitioner herein filed a Petition to Modify Custody on March 7, 2008. 18. A custody conference was held on March 25, 2008. 19. An Order was entered April 1, 2008. (See copy attached as Exhibit A.) 20. Respondent herein has refused to cooperate and comply with the Order of Court. 21. Respondent on March 25, 2008 agreed at conciliation to provide authorizations so Petitioner herein could obtain medical and other information regarding the children. 22. Respondent herein then refused to provide the authorizations, and as recently as Auqust 4, 2008 said he would "consider it," but he has refused since March 25, 2008 to cooperate. 23. Counseling directed under the Order of April 1, 2008 has been ineffective due to Respondent's lack of cooperation. (See copies of 2 correspondences from counselor to counsel for the parties attached as Exhibit B.) 24. Respondent herein refused to pay for counseling initially, and only as a result of Petitioner's assistance in paying for the appointment for Mr. Smith did counseling commence. (See copies of 2 correspondences from Attorney Maclay evidencing such, attached as Exhibit C.) 25. Petitioner believes Respondent has engaged in a course of conduct designed to alienate her from the children. 26. Dr. Lally filed a Complaint for Custody on May 15, 2008. 27. A custody conference was scheduled on that matter for June 26, 2008 and then on June 20, 2008 was rescheduled to July 16, 2008, as indicated by a letter dated June 23, 2008 and copy of the Order from Attorney Sumple-Sullivan to all counsel. (See Exhibit D attached.) ?8. At the verbal request of Respondent's counsel that custody conference was rescheduled to August 1, 2008, at 10:30am. ?9. On the morning of August 1, 2008, Petitioner herein received a letter, via fax, from Respondent's counsel indicating they would not be appearing at the custody conference and instead where going to file objections to standing of Dr. Lally. (See Exhibit E attached.) ;0. Petitioner herein intended to utilize the custody conference to advance her case for custodial time with the children, but was unable to do so as a result of Respondent's last minute conduct. 31. Petitioner believes that to schedule another custody conference would be futile and that this matter should be scheduled for hearing in the best interest of the children. 32. Respondent's counsel acknowledges that "...chances of progress being made at the scheduled conciliation this morning are zero...". (See Exhibit E attached.) 33. Petitioner requests that an expedited hearing be scheduled. 34. Counsel for all parties were notified of Petitioner's intentions to file this Motion for Expedited Custody Hearing, via fax on Friday, August 8, 2008. WHEREFORE Petitioner requests that an expedited hearing be schedule for all parties in both cases. Respectfully Submitted, Mary A. Etter Dissing Attorney for Petitioner Supreme Court ID #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840 (717) 975-3924- fax VERIFICATION I, Elizabeth L. Shunk, verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Eliz th L. Sh nk ELIZABETH L. SMITH Plaintiff vs. DANIEL J. SMITH Defendant MARGO E. LALLY Plaintiff vs. ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants MAR 2 8 2008 .?-? T14E COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-2411 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, this ?s°+. day of fij),, * ? , , 2008, upon consideration of the attached Custody Conciliation Rep , it is ordered and directed as follows: 1. A hearing on the Mother's Petition for Modification shall be scheduled at the request of the Mother and her counsel after discovery has been completed. For purposes of the hearing, the Mother shall be deemed to be the moving party and shall proceed initially with the testimony. Counsel for the parties shall file with the Court and opposing counsel a memorandum setting forth each party's position on custody, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These memoranda shall be filed at least 10 days prior to the hearing date. 2. Pending the hearing and further Order of Court or agreement of the parties, the prior Order of this Court dated February 26, 2008 adopting the Master's recommendations shall continue in effect. 3. If necessary to obtain information/documentation from Children and Youth Services regarding the investigation and findings in this matter, the parties shall cooperate in providing any requested authorizations to obtain lawful discovery. 4. The parties shall make arrangements for the Children to participate in counseling with Bonnie Howard or Melinda Eash for the purpose of assessing the Children's readiness and well-being in reestablishing contact between the Children and the maternal Grandmother. In the event the counselor determines that the Children are ready, the reunification process shall take place initially within the counseling process or as otherwise recommended by the counselor. The parties shall follow the recommendations of the counselor with regard to participation in counseling, either individually or ,,vith the Children by the maternal Grandmother or the Father. The parties shall follow the recommendations of the counselor with regard to the timing of reunification and shall sign any- EXHIBIT A authorizations deemed necessary by the counselor in order to obtain additional information pertaining to the parties or the Children. The maternal Grandmother and the Father shall cooperate in selecting the counselor and in contacting the counselor's office within ten (10) days of the date of the custody conciliation conference to schedule the initial appointment. The parties shall cooperate in coordinating insurance coverage for the costs of the reunification counseling. BY THE COURT, M. L. E ert, Jr. J. cc: Mary A. Etter Dissinger, Esquire - Counsel for Mother Mark F. Bayley, Esquire - Counsel for Father Lindsay Gingrich Maclay, Esquire - Counsel for Maternal Grandmother a . ' 3Y'3 ELIZABETH L. SMITH Plaintiff VS. DANIEL J. SMITH Defendant MARGO E. LALLY Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW IN CUSTODY VS. ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants 06-2411 CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Asher Kylor Smith December 24, 1998 Father Lydia Keran Lally Smith April 1, 2003 Father 2. A custody conciliation conference was held on March 25, 2008, with the following individuals in attendance: the Mother, Elizabeth Shunk, formerly Smith, with her counsel, Mary A. Etter Dissinger, Esquire, the Father, Daniel J. Smith, with his counsel, Mark F. Bayley, Esquire, and the maternal Grandmother, Margo Lally, with her counsel, Lindsay Gingrich Maclay, Esquire. 3. This Court previously entered an Order in this matter on June 27, 2006 under which the Mother had temporary primary custody and the Father had substantial temporary partial custody pending a custody evaluation to be performed by Deborah Salem. Both parties sought primary physical custody of the Children at that time. In April 2007, the Father reported suspected sexual abuse of the parties' daughter, Lydia. Following an investigation by Children and Youth Services on February 26, 2008, this Court entered an Order adopting the recommendations of the Master following a Dependency proceeding in which the Master recommended that the Children remain in the care and custody of the Father with no visitation to the Mother. The Master noted that there was a pending criminal investigation on alleged sexual abuse of the parties' daughter and further recommended that visitation only be granted pursuant to the guidance of the investigating police officer and counselor for the Children. 4. The Mother filed this Petition for Modification seeking contact with the Children. The maternal Grandmother filed a Complaint for Custody seeking partial physical custody of the Children, which was addressed in the same custody conciliation conference. 5. The procedural history of this matter is complicated. Essentially, however, in April 2007, the Father had the parties' daughter examined by a physician during one of the Father's periods of custody. Allegations of sexual abuse of the Child by the Mother's husband, the Mother or both were investigated by Children and Youth Services, culminating in a dependency hearing on February 21, 2008 and the recommendations of the Master. A criminal investigation was also initiated and the status of that matter is uncertain. To date, it appears that no charges have been filed. The Mother has pending appeals to the indicated findings of sexual abuse by Children and Youth Services. 6. As to the Mother's Petition for Modification and the custody matters between the parents, it will be necessary to schedule a hearing. However, the Mother's counsel requested an opportunity to obtain discovery from the prior investigations before obtaining a hearing date to ensure that all the information is available for that proceeding. A. The Mother's position on custody is as follows: the Mother denies all allegations of sexual abuse against her or her husband. The Mother indicated that she has not been permitted to have any contact with the Children since September 2007 despite the recommendation of Children and Youth Services permitting supervised visitation. The Mother expressed concern that the allegations and the subsequent handling of this matter by the Father have been designed to alienate the Children from the Mother and her family. B. The Father's position on custody is as follows: the Father believes that the allegations of sexual abuse of the parties' Daughter by the Motther's husband or the Mother have been supported by the evidence and consequently the Father believes it is in the Children's best interests to remain in his sole care and custody. 7. The parties were able to reach an agreement to address the maternal Grandmother's Complaint for Partial Custody through involvement of a counselor as reflected in the attached proposed Order. 8. To serve the purpose of judicial economy, it was requested that both custody matters be consolidated under the original custody proceedings docketed at No. 2006-2411. 9. The conciliator recommends an Order in the form as attached providing for the eventual scheduling of a hearing in the custody matter between the parents and providing for the initiation of counseling on the maternal Grandmother's Petition for Custody. It is anticipated that the hearing on the Mother's Petition for Modification will require up to a full day in light of the complex issues and the anticipated number of witnesses. L r'ylc?t o? 7,«c? Date Dawn S. Sunday, Esquire Custody Conciliator May 12 08 11:19a Riegler Shienvold & Assoc Riegler • Shienvold & Associates May 12, 2008 Attorney Lindsay Gingrich MaClay Fax: 657-4996 Attorney Mary Dissinger Fax: 975-3924 Attorney Mark Bailey Fax: 241-2456 Re: Lally v. Shunk v. Smith Reunification Case Dear Attorneys, 7175401416 p.2 Elliot Riegler, Ph.D. (1948-1999) Arnold T. Shienvuld, Ph.D. Melinda Eash, MS James Eash. LSW Bonnie Howard, Ph.D. Amy K. Keisling, ACSIV. LCSW Tracy Richards, QCSW, LCSW Dyanne Sage, QCSbV, LCSW Jeffrey Pincus, Ph.D. Ann Verguales, ACSW, LCS\V Kasey Shienvold, Psy.D. Shaner, Turk-Geller. LCSW John Sivley, LCSW, CAC .13-net Frankel Staub, LCS1k', QCSW This letter is written to update you on the status of the above-mentioned case. On April 23, 2008 Dr. Shienvold met individually with Margo Lally and Elizabeth Shunk. Daniel Smith was scheduled to be seen today, May 12, 2008. However, on May 9, 2008 Daniel phoned our office and left a voice mail message for me stating that he did not have the money for the visits at our office and was not going to reschedule his appointment. If you have any questions or if we can be of any further assistance, please feel free to contact me. Sincerely, C 4-4-tlo-t? Susan Smith c? Riegler, Shienvold & Associates 2151 Linglestown Road, Suite 200 Harrisburg, Pe EXHIBIT ) 540-1313 Fax: (717) 540-1416 ww%v.rie `:., ?• Uiol Rieder, Ph.D. (1948-1991)) Arnold T. Shienvold, Ph.D. iehler •Shienvold X•lclinda Eash, NIS & AS-50dates .lame: Eash. LSW Bonnie Howard. Ph.D. Arz?y K. Keisling, ACStiV, LCSW July 31, 2008 Y ? Tracy Rich Ards. QCSW, LCSW Dyanne Sagc, QCSkb'. LCSW Jeffrey Pincus, Ph.D. Attorney Lindsay Gingrich Maclay Ann Veruales. ACSW, LC'SW Fax: 657-4996 Kawy Shienvold, Psy.D. Shanen Turk-Geller. LCSW John Sivlcv, LC'SW, CAC Attorney Mary Dissinger Janct Frankel Stinib, LC'SW, QCSW Fax: 975-3924 Attorney Mark Bailey Fax: 241-2456 Re: Lally v. Shunk v. Smith Reunification Case Dear Attorneys, The purpose of this letter is to update you on the status of this case. As of this date, each party has only met one time with Dr. Kasey Shienvold. Margo Lally and Elizabeth Shunk had their initial appointment with Dr. Shienvold on April 23, 2008. Daniel Smith's first visit with Dr. Shienvold was scheduled on May 12, 2008, however, Daniel cancelled this appointment and did not wish to reschedule. Eventually, Daniel Smith did reschedule his initial appointment and was seen on June 9, 2008. At this appointment, Dr. Shienvold asked Daniel to phone the office and schedule a time for him to bring the children to the office. My records indicate that Daniel phoned the office on June 25, 2008 and was offered three appointment dates (July 7, 2008 at 5:30 pm, July 16, 2008 at 5 :00 pm and July 17, 2008 at 5:00 or 6:00 pm.) Daniel was unable to schedule on any of these dates, but did schedule an appointment on July 22, 2008. Unfortunately, our office had to cancel this appointment and the appointment was rescheduled for July 29, 2008. Dr. Shienvold did meet with the children on July 29, 2008. I will follow-up with Dr. Shienvold upon his return to the office on August 6, 2008 regarding the next step in this case. If you have any questions, please feel free to contact me. Sincerely, Susan Smith Administrative Assistant Dr. Kasey Shienvold 2151 Linulestown Road, Suite 200 - Harrisburg, Pennsylvania 17110 - (717) 540-13 13 - Fax: (7 17) 540-1416 www.ricglcrshicnvold.com PATRICIA CAREY ZUCKER SANDRA L. MEILTON STEVEN P. MINER KATHLEEN MISTURAK-GINGRICH LINDSAY GINGRICH MACLAY QUINTINA M. LAUDERMILCH PATRICIA A. PATTON OFFICE ADMINISTRATOR May 28, 2008 VIA FACSIMILE (717) 241-2456 & United States First Class Mail Mark F. Bayley, Esquire BAYLEY & MANGAN 17 West South Street Carlisle, Pennsylvania 17013 Re: Lally v. Shunk & Smith (In Custody) Docket No. 2008-1718 (Cumberland County) Dear Mark: This letter will serve as a confirmation of our telephone conversation yesterday regarding the above-referenced matter. As we agreed during that call, Ms. Shunk will receive credit for One Hundred Twenty Five Dollars ($125.00) towards her child support obligation to Dan Smith at PACSES case number 323109832. One Hundred Twenty Five Dollars ($125.00) is the cost of Mr. Smith's initial appointment with Dr. Kasey Shienvold for purposes of the reunification therapy. The payment will be made directly to Dr. Shienvold's office and you will contact Conference Officer Amy Ickes to determine how Ms. Shunk can receive credit for the One Hundred Twenty Five Dollars ($125.00) that will be paid on Mr. Smith's behalf. Upon receipt of that information, you will provide me with same and we will take whatever steps are necessary to ensure that Ms. Shunk gets credit for the One Hundred Twenty Five Dollar ($125.00) payment. Any and all documentation in this regard must be forwarded to conference officer Amy Ickes on or before Friday, May 30, 2008. REPLY TO: In the interim, you will prepare and file a Petition with Cumberland County to EAST SHORE OFFICE: request money from the slush fund to enable Mr. Smith to continue with any 1029 SCENERY DRIVE HARRISBURG, PA 17109 additional appointments necessary, or to cover any portion of his and/or Ms. 717-657-4795 Shunk's and/or Ms. Lally's portions of the reunification therapy. 717-657-4996 FAx Finally, I have been in contact with your secretary, Julie, who advised that Mr. WEST SHORE OFFICE: Smith would not be available on the following dates: June 11'', June 30'' and July 1035 MUMMA ROAD 130'-17t , 2008 to attend the appointment with Dr. Kasey Shienvold. I have also SUITE 101 WORMLEYSBURG, PA 17043 been in touch with Susan at Dr. Kasey Shienvold's office who had indicated that 717-724-8821 his next available appointment that fits within Mr. Smith's provided dates is 717-724-9826 FAx Monday, June 9, 2008 at 5:30. I have made that appointment and have assured Susan that the money will be there for that appointment prior to the appointment. EXHIC7GRICH, DALEY ZUCKER MEIL LLC A Pennsylvanut Ce rise Mark F. Bayley May 28, 2008 Page 2 To that end, I expect Mr. Smith to arrive promptly for the appointment and stay for the duration, which I have been told is one (1) hour. I trust that he will refrain from attempting to drag this reunification therapy out any longer. Thank you in advance for your attention to these matters. I look forward to hearing from you with regard to your conversation with Ms. Ickes. As always, should you have any questions or should you wish to discuss this matter further, please do not hesitate to contact me. Very truly yours, DALEY ZUCKER MEILTON MINER & GINGRICH, LLC i dsay Gi rich clay LGM/dsf cc: Mary Etter Dissinger, Esquire Ms. Margo Lally ,j n. PATRICIA CAREY ZUCKEH SANDRA L. MEILTON STEVEN P. MINER KATHLEEN MISTURAK-GINGRIGH LINDSAY GINGRICH MACLAY QUINTINA M. LAUDERMILCM PATRICIA A. PATTON OFFICE ADMINISTRATOR June 3, 2008 VIA FACSIMILE (717) 241-2456 & U.S. MAIL Mark F. Bayley, Esquire BAYLEY & MANGAN 17 West South Street Carlisle, Pennsylvania 17013 Re: Lally v. Shunk & Smith (In Custody) Docket No. 2008-1718 (Cumberland County) Dear Mark: This letter will serve as a confirmation of our telephone conversation earlier today regarding the above-referenced matter. As we discussed during that call, you have been in contact with Conference Officer Amy Ickes who has advised that Ms. Shunk currently has a support arrearage of $477.57, which stems from the retroactivity of the support Order against her. As I advised, the cost (5125.00) of Mr. Smith's Monday, June 9, 2008 appointment with Dr. Kasey Shienvold has already been paid directly to Riegler Shinevold & Associates. Pursuant to our agreement, Ms. Shunk will receive credit for One Hundred Twenty Five Dollars ($125.00) towards her child support obligation to Dan Smith at PACSES case number 323109832. You have agreed to write and advise Conference Officer Amy Ickes that Ms. Shunk should receive a 5125.00 credit on her arrearage. Kindly provide me with a courtesy copy of that letter to Amy Ickes no later than Friday, June 6, 2008. REPLY TO: Currently, it is my understanding that you are in the process of preparing a Petition with Cumberland County to request money from the slush fiord to enable Mr. EAST SWORE OFFICE: Smith to continue with any additional appointments necessary, or to cover any 1029 SCENERY DRIVE HARRISBURG, PA 17109 portion of his and/or Ms. Shunk's and/or Ms. Lally's portions of the reunification 717.657.4795 therapy. Kindly provide both Attorney Dissinger and me with a copy of the 717.557.4996 FAX petition prior to filing same. WesT SHORE OFFICE: Finally, I have confirmed with Susan at Dr. Shienvold's office Mr. Smith's 1035 MOMMA ROAD SUITE 101 appointment with Dr. KaseY Shienvold is scheduled for Monday, June 9, 2008 at WORMLEYSBURG, PA 17043 5:30. Again, I expect Mr. Smith to arrive promptly for the appointment and stay 717.724-9821 for the duration, which I have been told is ono (1) hour. I trust that he will refrain 717-724-9826 FAX from attempting to drag this reunification therapy out any longer. DALEY ZUCKER MEILTON MINER & GINGRICH, LLC A Pennsylvania Casrjud Woman Buriness E'»terprire un. . Mark F. Bayley, Esquire June 3, 2008 Page Two Thank you in advance for your cooperation in thcsc matters. I look forward to receipt of a copy of the letter to Ms. Ickes, as well as to the draft Petition. As always, should you have any questions or should you wish to discuss this matter further, please do not hesitate to contact me. Very truly yours, DALEY ZUCKER MEILTON MINER & GINGRICH, LLC 1 in say Gi inch Maclay LGM/ cc: Mary Etter Dissinger, Esquire (via facsimile (717) 975-3929 & US Mail) Ms. Margo Lally (via US Mail only) LAW OFFICES BARBARA SUMPLE-SULLIVAN 549 BRIDGE STREET NEW CUMBERLAND, PENNSYLVANIA 17070-1931 PHONE (717) 774-1445 FAX (717) 774-7059 June 23, 2008 Mary A. Dissinger, Esquire Lindsay Gingrich Maclay, Esquire Dissinger and Dissinger Daley Zucker Meilton Miner & Gingrich, LLC 400 South State Road 1029 Scenery Drive Marysville, PA 17053 Harrisburg, PA 17109 Mark-F. Bayley, Esquire Bayley & Mangan Law Office 57 W. Pomfret Street Carlisle, PA 17013 Re: Richard E. Lally v. Daniel J. Smith and Elizabeth L. Smith Docket No 2008-3092 / Cumberland County Dear Counsel: Enclosed constituting service on you is the Order of Court rescheduling the Custody Conciliation for Wednesday, July 16, 2008 at 11:30 a.m. Thank you for your assistance in this matter. If you should have any questions, please do not hesitate to contact my office. Barbara Sumple-Sullivan BSS/as Enclosure cc: Dr. Richard E. Lally EXHIBIT j '*' jr- RICHARD E. LALLY IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2008-3092 CIVIL ACTION LAW DANIEL J. SMITH AND ELIZABETH L. IN CUSTODY SMITH DEFENDANT ORDER OF COURT AND NOW, Friday, June 20, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. , the conciliator, at 39 West Main Street, Mechanicsburg, PA 17055 on Wednesday, July 16, 2008 at 11:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT. By: /s/ Dawn S. Sunda Es q. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford StrIRUE Cn''PY NRC- N RECORD Carlisle, Pennsylvanian 1fA4nony v,he.reof, 1 here unto set my hand Telephone (717) 24"}fi6 seal of said Court at Carlisle, Pa. This .... s;?? .. day of,4; rk " . ...............11 .....f=:.,. ?... Prothonotary Bayley & Mangan ATTORNEYS AT LAW 17 West South Street Curlislc, Pa 17013 Mark F. Baylcy, Lquim Ahn L Manran, ill, &gvire JAC M. V V W. t'arole .a[ Tclcpboov (717)241.2446 FAA: (717) 241-2456 August 1, 2008 Dawn S. Sunday, Esquire Via Fax Only: 795-7280 Barbara Sumple-Sullivan, Esquire Via Fax Only: 774-1.445 Mary.A. Dissinger, Esquire Via Fax Only: 975-3924 RE: Lally v. Smith & Smith 2008-3092 Dear Dawn. Barbara and Mary: Mr. Smith has decided to contest Mr. Lally 's standing with regard to the above matter. His motion is being filed this mornuig. Based upon this fact, the chances of progress being made at the scheduled conciliation this morning are zero and Y do not plan to be present with Mr. Smith. Sincerely, Mark F. Bayley, Esq re MR/jmg/ EXHIBIT Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff VS. (Daniel J. Smith, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the Mark Bayley, Esq., Barbara Sumple-Sullivan, Esq., and Lindsay Maclay, Esq., by First Class United States mail addressed as follows: Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 te: Lg l' Mary Etter issin r C7 "s 1 y'w _ w Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner VS. Daniel J. Smith, Defendant/Respondent :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND :OF PENNSYLVANIA :CIVIL ACTION - CUSTODY :NO. 06-2411 NO ORDER FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, and there having been no hearing but only briefs and argument regarding a Motion to Compel Discovery, no transcript is being requested. Respectfully submitted, Mary A. Etter Dissinger Attorney at Petitioner Supreme Court ID # 27736 28 N. 32nd Street Camp Hill, PA 17011 (717)975-2840 %"W . Elizabeth L. Smith, :IN THE COURT OF COMMON PLEAS (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner :OF CUMBERLAND VS. :OF PENNSYLVANIA :CIVIL ACTION - CUSTODY Daniel J. Smith, Defendant/Respondent :NO. 06-2411 CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document, by First Class United States mail addressed as follows: Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 AND Cumberland County District Attorney 1 Courthouse Square Suite 202 Carlisle, PA 17013 Date: .2 Mary Etter Dissinger :? r? '?' ?3 - ? rr? ?? ? ... .F (?i . y`? ... ..; .?.r t? +....., M Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner VS. Daniel J. Smith, Defendant/Respondent :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND :OF PENNSYLVANIA :CIVIL ACTION - CUSTODY :NO. 06-2411 NOTICE OF APPEAL Respectfully submitted, Mary A. Ett r Dissinger Attorney at Law Supreme Court ID # 27736 Attorney for Elizabeth Shunk 28 North 32"d St. Camp Hill, PA 17011 717-975-2840 Notice is hereby given that Plaintiff, Elizabeth Shunk, hereby appeals to the Superior Court of Pennsylvania from the Order of Court entered in this matter dated July 31, 2008, denying discovery, which order Plaintiff believes is a collateral order under Pa. R.A.P. 313 and Ben v. Schwartz, 556 Pa.475, 729 A.2d 547 (1999) and Berkyheiser v. A-Plus Investigations, Inc. 936 A.2d 1117, 2007 PA Super 336 (2007). The Order has been entered in the docket as evidenced by the attached copy of the docket entry. Elizabeth L.,Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner VS. (Daniel J. Smith, Defendant/Respondent :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND :OF PENNSYLVANIA :CIVIL ACTION - CUSTODY :NO. 06-2411 CERTIFICATE of SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document, by First Class United States mail addressed as follows: Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 AND Cumberland County District Attorney 1 Courthouse Square Suite 202 Carlisle, PA 17013 te:_ IL'a,'Zo? Mary A. Etter Dissinger Y PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2006-02411 SMITH ELIZABETH L (vs) SMITH DANIEL J Reference No. Filed......... 4/28/2006 Case Type.....: COMPLAINT - CUSTODY Time........ 2:16 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info SMITH ELIZABETH L PLAINTIFF BAKER DIANE S 1660 E CARACAS AVENUE HERSHEY (DAUPHIN CO) PA 17033 -44 COPY FROM RECORD SMITH DANIEL J DEFENDANT in TOSO iY C+ hero , I here tintO so my hand 307 E MAIN STREET and Vw n10 Said ODU t At Cffk*, ft. MECHANICSBURG PA 17055 ************************************************* *** * Date Entries - --- FIRST ENTRY - - - - - - - - - - - - - - 4/28/2006 COMPLAINT - CUSTODY ------------------------------------------------------------------- 5/08/2006 ORDER OF COURT - DATED 05-08-06 - IN RE: PRE-HEARING CUSTODY CONFERENCE ON 06-08-06 AT 2:30 PM AT MDJ MANLOVE 1901 STATE ST CAMP HILL - FOR THE COURT BY MELISSA P GREEVY ATTY CUSTODY CONCILIATOR - COPIED AND MAILED 05-08-06 ------------------------------------------------------------------- 5/12/2006 ACCEPTANCE OF SERVICE - CUSTODY COMPLAINT - BY KARA W HAGGERTY ATTY ------------------------------------------------------------------- 6/28/2006 INTERIM ORDER OF COURT - 06-27-06 - IN RE: CUSTODY - M L EBERT JR J - COPIES MAILED 06-28-062422 ------------------------------------------------------------------- 3/10/2008 ORDER OF COURT - 3/7/08 IN RE: CUSTODY - PREHEARING CUSTODY CONFERENCE SCHEDULED FOR 3/25/08 AT 9:00 AM 39 WEST MAIN STREET MECHANICSBURG - BY DAWN S SUNDAY ESQ CUSTODY CONCILIATOR - COPIES MAILED 3/10/08 ------------------------------------------------------------------- 4/02/2008 ORDER OF COURT - 4/1/08 IN RE: CUSTODY CONCILIATION REPORT - A HEARING ON THE MOTHER'S PETITION FOR MODIFICATION SHALL BE SCHEDULED AT THE REQUEST OF THE MOTHER AND HER COUNSEL AFTER DISCOVERY HAS BEEN COMPLETED - ORDER OF THIS COURT DATED 2/26/08 ADOPTING THE MASTER'S RECOMMENDATIONS SHALL CONTINUE IN EFFECT- BY M L EBERT JR J - COPIES MAILED 4/2/08 ------------------------------------------------------------------- 5/19/2008 MOTION FOR RULE TO COMPEL DISCOVERY - BY MARY A ETTER DISSINGER ATTY FOR PETITIONER ------------------------------------------------------------------- 5/28/2008 ORDER OF COURT - 5 28 08 IN RE: MOTION FOR RULE TO COMPEL DISCOVERY - IT IS HEREBY ORDERED AND DIRECTED THAT 1- A RULE IS ISSUED UPON THE CUMBERLAND COUNTY DISTRICT ATTY TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED 2- THE CUMBERLAND COUNTY DISTIRICT ATTY WILL FILE AND ANSWER ON OR BEFORE 6/17/08 3- THE PROTHONOTARY IS DIRECTED TO FORWARD SAID ANSWER TO THIS COURT 4- IF THE COMMONWEALTH DENIES ACCESS TO THE REQUESTED MATERIALS ELIZABETH SHUNK AS THE MOVING PARTY SHALL FILE A BRIEF WITH THE COURT SPECIFICALLY OUTLINING WHAT LEGAL AUTHORITY SHE HAS TO COMPEL THE DISTRICT ATTY TO TURN OVER EVIDENCE OBTAINED IN A CRIMINAL INVESTIGATION FOR HER USE IN A CIVIL MAT'T'ER THIS BRIEF SHALL BE FILED OF OR BEFORE 6/27/08 5- THE COMMONWEALTH SHALL FILE A RESPONSE BRIEF ON OR B/FORE 7/21/08 6- ARGUMENT ON THIS MATTER SHALL BE 3108 AT 3: PM IN CR 5 COUNTY COURTHOUSEH- BYOM L/EBERT JR J 30COPIES MAILEDU5/29/08 D ------------------------------------------------------------------- 6/17/2008 COMMONWEALTH'S ANSWER TO PETITIONER'S RULE TO COMPEL DISCOVERY ------------------------------------------------------------------- 8/04/2008 ORDER OF COURT - IN RE: MOTION TO COMPEL DISCOVERY - DATED JULY 31, 2008 - UPON CONSIDERATION OF THE PLAINTIFF'S MOTION TO COMPEL DISCOVERY THE COMMONWEALTH'S ANSWER THERETO CONSIDERATION OF THE BRIEFS FILED BY THE PARTIES AND AFTER ARGUMENT IT IS HEREBY - P„YS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2006-02411 SMITH ELIZABETH L (vs) SMITH DANIEL J Reference No... Filed......... 4/28/2006 Case Tyyppe .. COMPLAINT - CUSTODY ... Time.........: 2:16 Judgment. .. - .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 --------- --- Case Comments ------------- Higher Crt 1.: Hiqher Crt 2.: ORDERED AND DIRECTED THAT THE MOTION TO COMPEL DISCOVERY IS DENIED BY THE OURT M L EBERT JR J M COPIES MAILED 8/4 8/13/2008 --------------------------------------- MOTION FOR EXPEDITED CUSTODY HEARING - ---------------------------- BY MARY A ETTER DISSINGER ATTY FOR PETITIONER - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq? Bal Pymts/Ad? End Bal ******************************** ******** ****** ******************************* CUSTODY AGMT 85.00 85.00 .00 TAX ON AGMT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 CUSTODY FEE 5.20 5.20 .00 CUSTODY FEE-CO 1.30 1.30 .00 MODIFICATION CU 70.00 70.00 .00 -------------- 182.00 ---------- --- 182.00 --------- .00 *************************************** ************** *************************** * End of Case Information *************************************** ************** *************************** to* CA-0P'y FROM RECORD in T eo y WtWed, 9 hier my hand Qlad N NW of said Court At WPAN, Pa. `S As 1 0 V Y q ~. t:.J "r ELIZABETH L. SMITH IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2006-2411 CIVIL ACTION LAW DANIEL J. SMITH IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Tuesday, August 19, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. , the conciliator, at 39 West Main Street, Mechanicsburg, PA 17055 on Thursday, September 18, 2008 at 12:00 PM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or pennanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Dawn S. Sunday, Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 6S :C kd 6z ony ow 31-ii K, Karen Reid BrambleM Esq. Protbonotary James D. McCullough, Esq. Deputy Pwbonotary Re: 1573 MDA 2008 E.L.S(n/k/a E. L. S) V. D.J.S Dear : COMMONWEALTH OF PENNSYLVANIA e Superior Court of Pennsylvania Middle District September 4, 2008 100 Pine Street. Suite 400 Harrisbmm PA 17101 717-772-1294 -w superior. court. state pa us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary ALV cc: Mark F. Bayley, Esq. Court Reporter Court Reporter The Honorable Merle L. Ebert, Jr. Judge Mr. Curtis R. Long Prothonotary Carbon Copy Recipient List Addressed To: Mary A. Etter Dissinger, Esq. Dissinger and Dissinger 28 North Thirty-Second Street Camp Hill, PA 17011 Carbon Copied: Mark F. Bayley, Esq. Bayley & Mangan 17 W South St Carlisle, PA 17013 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter Court Reporter Court of Common Pleas of Cumberland County Courthouse, One Courthouse Square Carlisle, PA 17013 The Honorable Merle L. Ebert, Jr. Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 3014 - 10/99 10/1/99 9:40 AA Appeal Docket Sheet Docket Number: 1573 MDA 2008 Superior Court of Pennsylvania Page 1 of 2 September 4, 2008 Ash E.L.S(n/k/a E. L. S) v. D.J.S Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: September 3, 2008 Journal Number: Case Category: Domestic Relations Awaiting Original Record CaseType: CustodyNisitation Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: September 18, 2008 Next Event Type: Original Record Received Next Event Due Date: October 28, 2008 COUNSEL INFORMATION Appellant Pro Se: IFP Status: S., E. Appoint Counsel Status: No Appellant Attorney Information: Attorney: Dissinger, Mary A. Etter Bar No.: 27736 Law Firm: Dissinger and Dissinger Address: 28 North Thirty-Second Street Camp Hill, PA 17011 Phone No.: (717)975-2840 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Pro Se: IFP Status S., D. J. Appoint Counsel Status: Appellee Attorney Information: Attorney: Bayley, Mark F. Bar No.: 87663 Address: 17 W South St Carlisle, PA 17013 Phone No.: (717)241-2446 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Law Firm: Bayley & Mangan Fax No.: (717)241-2456 9/4/2008 3023 9:40 AA Appeal Docket Sheet Docket Number: 1573 MDA 2008 Superior Court of Pennsylvania -SAIL Page 2 of 2 September 4, 2008 FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 8/29108 Notice of Appeal 60.00 60.00 2008SPRMD000768 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: July 31, 2008 Judicial District: 9 Date Documents Received: September 3, 2008 Date Notice of Appeal Filed: August 29, 2008 Order Type: Order Entered OTN: Judge: Ebert, Jr., Merle L. Judge Lower Court Docket No.: 06-2411 ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By September 3, 2008 Notice of Appeal Filed Appellant S., E. September 4, 2008 Docketing Statement Exited (Domestic Relations) Middle District Filing Office 914/2008 3023 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 -------------------------------------------- 3014-10/99 10/1/99 na ?' .Z ' c=am rt ,..{ j ?. .,-y, 1 E.-f. . ? ?, ?...w ?... „? f ?... _ ,r.r 7 ?? F y°.,.,4'.? ?'°+. ELIZABETH L. SMITH, (N.K.A. Elizabeth L. Shunk) PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH DEFENDANT : NO. 06-2411 CIVIL IN RE: APPEAL TO SUPERIOR COURT ORDER OF COURT AND NOW, this 8t' day of September, 2008, upon consideration of receipt of the Notice from the Superior Court that an appeal has been taken in this case, IT IS HEREBY ORDERED AND DIRECTED that the Appellant is ordered to file with this Court a concise statement of matters complained of on appeal no later than September 29, 2008. By the Court, /Mary A. Etter Dissin9er, Esquire Attorney for Plaintiff /Mark F. Bayley, Esquire ? Barbara Sumple-Sullivan, Esquire Z Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas •es m"a I LCL 9lelag dim ?1 ? \ M. L. Ebert, Jr., J. -B-AS lglgog ,r ? -"!S gooz Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner VS. Daniel J. Smith, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 STATEMENT OF MATTERS COMPLAINED OF IN RE: APPEAL TO SUPERIOR COURT Pursuant to the Order of Court dated September 8, 2008, The following is a concise statement of matters complained of on appeal: 1. Plaintiff/Appellant filed a Motion for a Rule to Compel Discovery to assist her in two matters: one being the custody case at hand; the other to assist her in defending herself against a finding of child sexual abuse scheduled for hearing before the Commonwealth of Pennsylvania, Department of Public Welfare, Bureau of Hearings and Appeals, which at the time of filing the Motion no hearing had been scheduled on either matter. 2. At argument it was explained that since then the hearing before the Bureau of Hearings and Appeals has been scheduled on October 15, 2008. 3. Plaintiff/Appellant sought from the Cumberland County District Attorney videotapes and reports in their possession that were delivered by the Children's Resource Center and others who had seen the child and made reports regarding the alleged sexual abuse by Plaintiff/Appellant and her now husband. 4. The Cumberland County District Attorney's office is believed to be in possession of polygraph tests and results as well as physical evidence and results of tests conducted on the physical evidence that may assist Plaintiff/Appellant in clearing her name and that of her husband before the Bureau of Hearings and Appeals and assist her in her quest for custody of her children in this custody case. 5. In response to a Rule issued by this Court, the District Attorney's office claimed that the information cannot be divulged under the "Right to Know Law" at 65 P.S. § 67.101 and 67.708, and it would compromise an ongoing investigation and even if the investigation were complete, Plaintiff/Appellant was not entitled to any information requested. 6. Briefs were submitted and argument conducted. 7. Plaintiff/Appellant's brief argues for discovery under Pa.R.C.P. 1915.5 seeking an Order of Court to allow discovery to proceed based upon the explanatory notes following the statute that discovery "should be freely given where it is essential to a just disposition of the matter." 8. Plaintiff/Appellant's brief argues for discovery in that it will allow the Court to decide inevitable issues of credibility, claiming recorded data is more reliable than the interpretation or the memory of an examiner - the Court is the finder of facts, not the reporter. 9. Plaintiff/Appellant hired an expert to review the video tapes and assist her in preparing her custody case and defending against the allegations of sexual abuse, but without the tapes, the expert cannot assist her. 10. Plaintiff/Appellant questions in her brief the neutrality and trustworthiness of the interviews conducted of the child. 11. The District Attorney's office asserts the "Right to Know Act" prevents Plaintiff/Appellant from obtaining the information sought. 12. Plaintiff/Appellant did not seek the information under the "Right to Know Act." 13. The District Attorney's office has presented no case to substantiate their position that Petitioner herein is not entitled to the information under Pa. Rule 1915.5(c). 14. At argument, Plaintiff's counsel pointed out that under the District Attorney's theory, any document provided to the District Attorney under any theory would bar a party for disclosing it in discovery and would result in abuse of the intention of the Act. 15. The "Right to Know" is not applicable to discovery under Ben v. Schwartz, 556 Pa.475, 729 A.2d 547 (1999) and Berkvheiser v. A-Plus Investigations Inc. 936 A.2d 1117, 2007 PA Super 336 (2007). 16. The District Attorney should have been required to turn ove all information requested by Plaintiff/Appellant. Respectfully Submitted: DISSINGER & DISSINGER Mary A. E ter Dissinger Attorney for Petitioner Supreme Court ID 27736 28 N. 32" Street Camp Hill, PA 17011 (717)975-2840 (717) 975-3924 - fax Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff VS. Daniel J. Smith, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the attorney for Defendant, and the Cumberland County District Attorney's Office, by First Class United States mail addressed as follows: The Honorable Merle L. Ebert, Jr. 1 Courthouse Square Carlisle, PA 17013 AND Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 AND Cumberland County District Attorney 1 Courthouse Square Suite 202 Carlisle, PA 17013 ate : Mary A. Etter Dissinger w r ? ?-= :? } ?? c?:f ?' ? f'5 ' c?` w ?, s n a t ELIZABETH L. SMITH, Plaintiff VS. DANIEL J. SMITH, Defendant MARGO E. LALLY, Plaintiff vs. ELIZABETH L. SHUNK, and DANIEL J. SMITH Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :2006-2411 CIVIL ACTION LAW IN CUSTODY RICHARD E. LALLY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. :2008-3092 CIVIL ACTION LAW DANIEL J. SMITH, and : IN CUSTODY ELIZABETH L. SMITH Defendants MOTION BY DANIEL SMITH TO ALTER RECOMMENDED ORDER PENDING A HEARING AND NOW, comes Daniel Smith (hereafter "Father"), by and through his attorney, Mark F. Bayley, and in support of the within motion avers as follows: 1. The Honorable M. L. Ebert, Jr. is assigned to the above dockets. 2. Elizabeth Smith (n.k.a. Elizabeth Shunk) (hereafter "Mother") and her husband, Gary Shunk, are currently indicated by Cumberland County Children and Youth Services for sexual abuse relating to one of the children involved, Lydia Smith (D.O.B. April 1, 2003); the other child involved is Asher Smith (D.O.B. December 24, 1998). 3. By Order dated February 26, 2008 under juvenile docket 128-2007, the Honorable M. L. Ebert, Jr., adopted a recommendation stating that, with regard to Mother, "there not be visitation at this time. Before visitation would be granted either in this juvenile case or in a custody case, it would appear appropriate to receive guidance from the investigating police officer and counselor for the children." 4. Mother and Margo Lally (hereafter "Maternal Grandmother") subsequently filed custody complaints. 5. A conciliation was held on March 25, 2008 which resulted in a stipulated Order; with regard to Mother, said Order ratified the February 26, 2008 Juvenile Order; regarding Maternal Grandmother, paragraph 4 states: The parties shall make arrangements for the Children to participate in counseling ... for the purpose of assessing the Children's readiness and well-being in reestablishing contact between the Children and the maternal Grandmother. In the event the counselor determines that the Children are ready, the reunification process shall take place initially within the counseling process or as otherwise recommended by the counselor. The parties shall follow the recommendations of the counselor with regard to participation in counseling, either individually or with the Children by the maternal Grandmother or the Father. The parties shall follow the recommendations of the counselor with regard to the timing of reunification .... 6. Dr. Kasey Shienvold has since been involved with counseling the children for the above purposes (previous to Dr. Shienvold's involvement and up and through the present the children have been seeing another therapist, Michael Zug). 7. Richard Lally (hereafter "Maternal Grandfather"), who resides in Idaho, filed a custody complaint on May 15, 2008 and, to undersigned counsel's knowledge, has not been involved in relation to Dr. Shienvold's counseling sessions. 8. Dr. Shienvold provided a letter dated September 17, 2008 to counsel which summarized his reunification efforts to date. (Attached as "Exhibit A"). 9. Said letter states the current position of the children, i.e., "Asher and Lydia continue to express an unwillingness to see [Maternal Grandmother]. They both independently have described incidences of inappropriate behavior and discipline by [Maternal Grandmother].... As a result, they each stated that they are afraid of their ... [Maternal Grandmother]." 10. To date, no qualified professional has recommended the children, at least one being a victim of sexual abuse, to be forced to have contact with Maternal Grandmother against their will. 11. A conciliation took place on September 18, 2008, wherein agreement could not be reached and a hearing was requested. 12. The conciliator indicated that her recommendation would include accelerating Dr. Shienvold's counseling by forcing the children to have contact with Maternal Grandmother in following counseling sessions regardless of their readiness to do so. 13. The conciliator indicated that her recommendation would include allowing Maternal Grandfather to have immediate telephone and other miscellaneous contact even though Maternal Grandfather has not participated or been addressed in the reunification counseling. 14. Both grandparents rely on 23 Pa.C.S. 5312 which allows grandparents partial custody and/or visitation rights where "[the Court] finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship." 15. The Court will not have an opportunity to make the above inquiry until after a hearing is held. 16. Based upon the history of this matter, the abuse the children have suffered, and the unwillingness of both children to have contact with Mother and her family at this time, contact between grandparents and the children should not occur until grandparents have met their burden pursuant to Section 5312. 17. Mother and Maternal Grandparents are presumably opposed to the within motion. WHEREFORE, Father respectfully requests the Court to amend the recommended Order to prevent any forced contact with grandparents until further Order of Court. 9 - t ?-c? Respectfully submitted, BA Y& GAN Mark F. Bayley, Es ire 17 West South Str t Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D.#87663 VERIFICATION Mark F. Bayley, Esquire, states that he is the attorney for Daniel J. Smith in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: U\11- Mark F. Bayle , Esquire Attorney for Daniel J. Smith Sep 11 Ud U4:35p Riegler - Shienvold s Associates September 17, 2008 Attorney Lindsay Gingrich Maclay Fax: 6574996 Attorney Mary Dissinger Fax: 975-3924 Attorney Mark Bailey Fax: 241-2456 Attorney Barbara Sample-Sullivan Fax: 774-7059 Re: Lally v. Shunk v. Smith v. Lally Dear Attorneys, 717-540-1416 p.2 Eltiot Riegler, Ph.D. (1948-1999) Arnold 1. Shicnvold, Ph.D. Melinda F.ash, MS James Eash, LSW Bonnic Howard, Ph.D. Amy K. Keisling. ACSW. LCSW Tracy Richards, QCSW. LCSW Dyanne Sage, QCSW, LCSW Jeffrey Pincus, Ph.D. Ann 'ergales. ACSW, LCSW Kasey Shienvold, Psy.D. Shanen Turk-Geller, LCSW John Sivley, LCSW, CAC JanCL Frankel Staub, LCSW, QCSW I am writing this letter in reference to my reunification work with these parties. I have on one occasion met with Ms. Lally, Ms. Shunk and Mr. Smith. I have met on two separate occasions with Asher and Lydia. At the current time, Asher and Lydia continue to express an unwillingness to see Ms. Lally. They both independently have described incidences of inappropriate behavior and discipline by Ms. Lally and their mother, Ms. Shunk. As a result, they each stated that they are afraid of their mother and maternal grandmother, However, there is some evidence which indicates that these children may be hearing disparaging remarks about their mother and grandmother from Mr_ Smith and his wife. As such, it is unclear the validity and credibility of the children's recollections. It is my belief that if reunification is to occur, we can no longer wait for the children to express a readiness to begin the process. In order for this process to be effective Mr. Smith and his wife have to play a key role in encouraging the children's relationships with Ms. Lally. If this does not occur, I fear that any attempts to reunify are $rtile. If any questions, please feel free to contact me. Sincerely, Kasey Shiemrold, Psy. D. 2151 Linglestown Road, Suite 200 - Harrisburg, Pennsylvania 17110 - (717) 540-1313 - Fax: (717) 540-1416 www.riegiersiiienvold.com ??? ?1.0; A CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for Daniel J. Smith, do hereby certify that I served a copy of the foregoing document upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Mary A. Dissinger 28 North Thirty-Second Street Camp Hill, PA 17011 Lindsay Gingrich Maclay f? 1029 Scenery Drive Harrisburg, PA 17109 Dated: 1? 191 -0 ?? V?_ Mark F. Bayley, Es e Attorney for Daniel J. Smith C7 c t.a r Pr .7 lr? ti ELIZABETH L. SMITH, PLAINTIFF V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS RICHARD E. LALLY, PLAINTIFF V. DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2411 CIVIL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) : NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 1St day of October, 2008, upon consideration of the Motion by Father to Alter Recommended Order pending a Hearing, IT IS HEREBY ORDERED AND DIRECTED that the Motion is DENIED. By the Court, M. L. Ebert, Jr., J. Mark F. Bayley, Esquire Attorney for Father Mary A. Dissinger, Esquire ,e aka ,? /6-0/-0? Attorney for Mother Q V I I I WV I -100 BDBZ i Barbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother bas SEp 2 5 2000 ELIZABETH L. SMITH IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION LAW DANIEL J. SMITH Defendant : IN CUSTODY MARGO E. LALLY Plaintiff vs. 06-2411 ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants RICHARD LALLY Plaintiff VS. DANIEL J. SMITH and ELIZABETH L. SMITH Defendants ORDER OF COURT ?o`C? AND NOW, this I S{ day of 0 ? 1D 2008, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 4ZW- 9.'oa A A,\ 1. A hearing is scheduled in Court Room No. -5 of the Cumberland County Court House on the 4-day of -n 0VAdA,r , 2008, at which time testimony will be taken. For purposes of the hearing, the Plaintiff/Petitioner on the Mother's Petition for Modification, the maternal Grandmother's Complaint for Custody and the maternal Grandfather's Complaint for Custody, shall be deemed to be the moving party on her or his respective Complaints/Petitions and shall proceed initially with testimony. Counsel for the parties shall file with the Court and counsel for all other parties a Memorandum setting forth each party's position on custody, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least seven (7) days prior to the hearing date. 2. The Father shall provide Answers to the Mother's Interrogatories, which were initially submitted to the Father in March 2008, within two (2) weeks of the date of this Order and shall provide the authorizations to obtain medical information submitted by the Mother's counsel in March 2008 within ten (10) days of the date of this Order. 3. Pending the hearing and further Order of Court or agreement of the parties, within two (2) weeks of the date of this Order, the maternal Grandmother and the Father, through counsel if necessary, shall contact Kasey Shienvold to schedule a counseling session for the maternal Grandmother and the Children during which, as recommended by the counselor, the maternal Grandmother and the Children would be present at the beginning of the session and the Children would continue separately for the remainder of the session with the counselor. At the initial session, the maternal Grandmother and the Father shall schedule ongoing appointments for the Children to have counseling with the maternal Grandmother present for at least a portion of the session on an ongoing bi-weekly basis, unless recommended otherwise by the counselor. The maternal Grandmother and the Father shall follow the recommendations of the counselor with respect to the ongoing reunification counseling sessions to promote the needs and interests of the Children. As recommended by the counselor, the initial session shall be scheduled for one and one-half hours. The maternal Grandmother and the Father shall equally share all costs of counseling for the sessions scheduled under this provision which are not covered by insurance. Both parties shall schedule all sessions in good faith, shall proceed expeditiously to initiate and maintain the counseling process and shall support and encourage the Children in achieving the goals of the counseling as recommended by the counselor. 4. Pending the hearing and further Order of Court or agreement of the parties, the maternal Grandfather shall be entitled to contact the Children by mail and by telephone one (1) time per week. At the maternal Grandfather's option, the mail and telephone contact may occur through counseling sessions if approved and recommended by the counselor in advance. The maternal Grandfather may also have a period of contact with the Children over the Christmas holiday within the counseling setting if approved and recommended by the counselor. 5. The communications between the maternal Grandmother and the Children and the maternal Grandfather and the Children shall be limited to innocuous topics concerning the Children's interests, activities and school, for example, and shall not include references to the custodial conflicts or any part of the custodial situation, including the Mother's involvement. 6. No party to this proceeding shall do or say anything which may estrange the Children from any other party, injure the opinion of the Children as to the other parties, or hamper the free and natural development of the Children's love and respect for the other parties. All parties shall ensure that any parties having contact with the Children comply with this provision. The purpose of this provision is to protect the Children from the adult conflicts involved in this matter and to promote their emotional well-being without placing them in this middle of the custodial disputes. 7. The maternal Grandfather's Complaint initially filed to Docket No. 2008-3092 shall be consolidated with the previously filed claims in these custody proceedings docketed at No. 2006-2411. BY THE COURT, lv? I ?a cc: Mary A. Etter Dissinger, Esquire - Counsel for Mother Mark F. Bayley, Esquire - Counsel for Fathers ?o- Oh a? Lindsay Gingrich Maclay, Esquire - Counsel for Maternal Grandmother Barbara Sumple-Sullivan, Esquire - Counsel for Maternal Grandfather b3;c i??w ELIZABETH L. SMITH Plaintiff vs. DANIEL J. SMITH Defendant MARGO E. LALLY Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW IN CUSTODY 06-2411 vs. ELIZABETH L. SHUNK and DANIEL J. SMITH RICHARD LALLY Defendants Plaintiff VS. DANIEL J. SMITH and ELIZABETH L. SMITH Defendants Prior Judge: M.L. Ebert, Jr. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Asher Kylor Smith December 24, 1998 Father Lydia Keran Lally Smith April 1, 2003 Father 2. A custody conciliation conference was held on September 18, 2008, with the following individuals in attendance: the Mother, Elizabeth L. Shunk, formerly Smith, with her counsel, Mary A. Etter Dissinger, Esquire, the Father, Daniel J. Smith, with his counsel, Mark F. Bayley, Esquire, the maternal Grandmother, Margo Lally, with her counsel, Lindsay Gingrich Maclay, Esquire., and the maternal Grandfather's counsel, Barbara Sumple-Sullivan, Esquire. The maternal Grandfather, Richard Lally, resides in Idaho and participated in a portion of the conference by telephone. 3. There are currently three (3) outstanding Complaints/Petitions requiring resolution by the Court. 4. Mother's Petition for Modification: Under this Court's Order dated June 27, 2006, the Mother had temporary primary custody and the Father had substantial temporary partial custody pending a custody evaluation. At that time, both parties sought primary physical custody of the Children. In April, 2007, the Father reported suspected sexual abuse of the parties' daughter. Following an investigation by Children and Youth Services on February 26, 2008, this Court entered an Order adopting the recommendations of the Master following a Dependency proceeding in which the Master recommended that the Children remain in the care and custody of the Father with no visitation to the Mother. The proceedings on the alleged abuse have not progressed to a determination or resolution. The Mother filed this Petition for Modification seeking contact with the Children. It was clear that a hearing would be required following the conciliation conference on March 25, 2008. However, the Mother's counsel requested the opportunity to complete discovery prior to the scheduling of that hearing. The Mother has now filed this Motion for Expedited Hearing as no response has been forthcoming from the Father on the Mother's Interrogatories and Request for Medical Authorizations to enable the Mother to obtain information from the Child's medical providers. The Mother seeks an expedited hearing, as her supervised visits with the Children initially recommended by Children and Youth Services have been terminated by the Father. Therefore, the Mother has had no contact with the Children for a substantial time and there is no prospect of a resolution of the proceedings on the abuse issues within the near future. The Mother seeks primary physical custody of the Children at this time based upon her belief that the Father is intentionally alienating the Children from her and her family through the abuse allegations. 5. Maternal Grandmother's Complaint for Custody: The maternal Grandmother previously filed a Complaint for Custody seeking partial physical custody of the Children as her contact with the Children was effectively terminated when the Mother was no longer permitted to see the Children. There have been no allegations of abuse by the maternal Grandmother. At the time of the March 25, 2008 hearing conference, the parties reached an agreement to address the Grandmother's request through counseling to determine the Children's readiness. Through contact with the counselor, Kasey Shienvold, by a prior letter and by telephone at the time of the conciliation conference, it was recommended that the reunification between the Grandmother and the Children occur in the counseling sessions, with the counselor further working with the Children immediately following the joint session. The counselor raised a concern regarding the Father's influence on the Children with regard to the success or failure of the reunification. The Grandmother expressed frustration that the Father has not permitted her any contact with the Children for such a long period of time that it will get progressively more difficult to reestablish the bond she had with the Children prior to the abuse allegations concerning the Mother or the Mother's husband. There were never any allegations of inappropriate behavior by the Grandmother in connection with the abuse investigation/proceedings. The maternal Grandmother seeks to reestablish ongoing contact with the Children only as facilitated through and recommended by Kasey Shienvold. 6. Maternal Grandfather's Complaint for Custody: The maternal Grandfather, who is no longer married to the maternal Grandmother and resides in Idaho, seeks visitation with the Children when he is in Pennsylvania and regular mail and telephone contact. The conference on the Grandfather's Complaint was initially scheduled for July 16. However, the conference was rescheduled to August 1 at the request of the Father's counsel due to a scheduling conflict. Just prior to the conference on August 1, the Father's counsel advised that he was filing a challenge to the Grandfather's standing and would not be appearing for the conference. Subsequently, the conciliator was advised by the Grandfather's counsel that the challenge was later withdrawn and accordingly, the Grandfather's Complaint for Custody was scheduled for conciliation at the same time as the previously scheduled conference on the Mother's Petition for an Expedited Hearing. The Grandfather also expressed serious concern about the length of time in which all contact with the Children has been prevented and the effect that could have on the relationship between him and the Children if there is no intervention. The maternal Grandfather would like to resume the contact that he had always had with the Children prior to the abuse proceedings regarding the Mother and/or her husband. The Father sent a letter to the Grandfather terminating all contact with the Children including communication by mail and telephone, with which the Grandfather complied during the initial stages of the abuse investigation to be cooperative. However, according to the Grandfather, when he attempted to restart his communications with the Children after so much time had passed, the Father denied all contact. The Grandfather indicated his agreement to initiating mail and telephone contact with the Children through the counselor's office if deemed necessary or advisable. 7. The conciliator has contacted the Court to request the scheduling of the earliest available hearing in this matter. Although it is anticipated that a hearing to address all of the outstanding issues between all of the parties would require at least two (2) days, in an effort to move this matter forward, it may be possible to schedule the separate Complaints of different parties within shorter periods of the Court's available time. Given the extended delays that have occurred thus far and the fairly transparent efforts by the Father to thwart an expeditious resolution of the outstanding Complaints/Petitions, and the effect those factors necessarily have had and will continue to have on the Children's family relationships and attachments, the conciliator recommends an Order in the form as attached based upon telephone contact with the Children's counselor, Kasey Shienvold, during the conference. It is expected that the Father may object to the recommendations, although not expressly stated at the time of the conference. The maternal Grandfather's counsel requested that this most recently filed related claim in these custody proceedings be consolidated into the existing Docket Number at 2006-2411. The Mother, maternal Grandmother and maternal Grandfather concur with the recommendations although it should be noted that the Mother had requested interim supervised contact with the Children pending the hearing, which is not included in the attached recommended Order. 8. Information pertaining to the Court Room number and the presiding Judge are not included in the attached Order for flexibility in the event Judge Ebert deems it advisable and appropriate to have this case reassigned if scheduling requires. Date Dawn S. Sunday, Esquire Custody Conciliator Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff/Petitioner VS. Daniel J. Smith, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 MOTION FOR CONTEMPT AND AN AWARD OF COUNSEL FEES FOR DEFENDANT'S FAILURE TO COMPLY WITH THE COURT ORDER DATED OCTOBER 1, 2008 And now comes Elizabeth Shunk by and through her attorney, Mary A. Etter Dissinger, Esq., of Dissinger & Dissinger, and requests the Court to find Defendant, Daniel J. Smith, in Contempt of Court and to award Plaintiff counsel fees, and by way of further answer avers as follows: 1. Plaintiff is Elizabeth L. Shunk, natural mother of the two (2) minor children of the parties. 2. Defendant is Daniel Smith, natural father of the two (2) minor children of the parties. 3. The Honorable Judge Merle L. Ebert has ruled previously in this matter, most recently by Order dated October 1, 2008. 4. Cumberland County Dockets #08-1718 and #08-3092, with regard to the Maternal Grandmother and the Maternal Grandfather, respectively, have been consolidated with the above captioned matter between Elizabeth Shunk and Daniel Smith. 5. By way of Order of Court dated October 1, 2008, paragraph 2, Defendant was directed to "provide Answers to Mother's Interrogatories,...withing two (2) weeks of the date of this Order and shall provide the authorizations to obtain medical information... within ten (10) days of the date of this Order." (See attached Exhibit "A") 6. As of the date of October 17, 2008, Defendant has not provided the Answers to Plaintiff's Interrogatories, as he was directed by Court Order to do. 7. As of the date of October 17, 2008, Defendant has not provided the authorizations to obtain medical information to Plaintiff's counsel, as he was directed by Court Order to do. 8. Counsel for all parties, Mark Bayley, Esq., Barbara Sumple- Sullivan, Esq., and Lindsay Maclay, Esq., have been notified of Petitioner's intentions to file a Motion for Contempt against Defendant, Daniel J. Smith, via fax transmission on October 17, 2008. 9. Plaintiff has incurred attorneys fees in this case in an amount exceeding $10,000.00 and incurred fees preparing Interrogatories and a Request for Production of Documents to which Defendant agreed to respond before they were prepared, and Plaintiff has incurred all fees in preparing this Motion. 10. Plaintiff requests counsel fees be awarded on her behalf in the amount of $1,000.00, as a result of Defendant's refusal to cooperate with a Court Order which has thus precipitated the necessity of filing this Motion to gain Defendant's compliance in providing information to which Plaintiff has a right, and which Defendant agreed to provide. WHEREFORE Plaintiff requests that Defendant, Daniel J. Smith be found in Contempt of Court and an award of counsel fees be granted to Plaintiff. Respectfully Submitted, Mary A.'Etter Dissin Attorney for Petitioner Supreme Court ID #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840 (717) 975-3924- fax ?Fn 2 5 2008 ELIZABETH L. SMITH Plaintiff vs. DANIEL J. SMITH MARGO E. LALLY Defendant Plaintiff vs. ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants RICHARD LALLY Plaintiff vs. DANIEL J. SMITH and ELIZABETH L. SMITH Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW IN CUSTODY 06-2411 ORDER OF COURT AND NOW, this l,opt- day of (?e 2008, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A hearing is scheduled in Court Room No. ! of the Cumberland County Court House on the -1y Lt, day of 2008. at which time testimony will be taken. For purposes of the hearing, the Plaint iff"Petitioner on the Mother's Petition for :Modification. the maternal Grandmother's Complaint for Custody and the maternal Grandfather's Complaint for Custody, shall be deemed to be the moving party on her or his respective Complaints/Petitions and shall proceed initially with testimony. Counsel for the parties shall file Nyith the Court and counsel for all other parties a Memorandum setting forth each party's position on custody, a list of witnesses who are expected to testify at the hearing. and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least seven (7) days prior to the hearing date. 2. The Father shall provide Answers to the Mother's Interrogatories, which were initially submitted to the Father in March 2008, within two (2) weeks of the date of this Order and shall provide the authorizations to obtain medical information submitted by the Mother's counsel in March 2008 within ten (10) days of the date of this Order. EXHIBIT 9 A 3. Pending the hearing and further Order of Court or agreement of the parties, within two (2) weeks of the date of this Order, the maternal Grandmother and the Father, through counsel if necessary, shall _ contact Kasey Shienvold to schedule a counseling session for the maternal Grandmother and the Children during which, as recommended by the counselor, the maternal Grandmother and the Children would be present at the beginning of the session and the Children would continue separately for the remainder of the session with the counselor. At the initial session, the maternal Grandmother and the Father shall schedule ongoing appointments for the Children to have counseling with the maternal Grandmother present for at least a portion of the session on an ongoing bi-weekly basis, unless recommended otherwise by the counselor. The maternal Grandmother and the Father shall follow the recommendations of the counselor with respect to the ongoing reunification counseling sessions to promote the needs and interests of the Children. As recommended by the counselor, the initial session shall be scheduled for one and one-half hours. The maternal Grandmother and the Father shall equally share all costs of counseling for the sessions scheduled under this provision which are not covered by insurance. Both parties shall schedule all sessions in good faith, shall proceed expeditiously to initiate and maintain the counseling process and shall support and encourage the Children in achieving the goals of the counseling as recommended by the counselor. 4. Pending the hearing and further Order of Court or agreement of the parties, the maternal Grandfather shall be entitled to contact the Children by mail and by telephone one (1) time per week. At the maternal Grandfather's option, the mail and telephone contact may occur through counseling sessions if approved and recommended by the counselor in advance. The maternal Grandfather may also have a period of contact with the Children over the Christmas holiday within the counseling setting if approved and recommended by the counselor. 5. The communications between the maternal Grandmother and the Children and the maternal Gtandfather and the Children shall be limited to innocuous topics concerning the Children's interests. activities and school, for example, and shall not include references to the custodial conflicts or any part of the custodial situation, including the Mother's involvement. " 6. No party to this proceeding shall do or say anything which may estrange the Children from any other party, injure the opinion of the Children as to the other parties. or hamper the free and natural development of the Children's love and respect for the other parties. All parties shall ensure that any parties having contact with the Children comply with this provision. The purpose of this provision is to protect the Children from the adult conflicts involved in this matter and to promote their emotional well-being without placing them in this middle of the custodial disputes. 7. The maternal Grandfather's Complaint initially filed to Docket No. 2008-3092 shall be consolidated with the previously filed claims in these custody proceedings docketed at No. 2006-2411. BY THE COURT, J. cc: Mary A. Etter Dissinger. Esquire - Counsel for Mother Mark F. Bayley, Esquire - Counsel for Father Lindsay Gingrich Maclay, Esquire - Counsel for Maternal Grandmother Barbara Sumple-Sullivan. Esquire - Counsel for Maternal Grandfather TmE COPY FROM RECORL TOSU ny wheraat, !bare unto set ON fw"' ,d the seat of said Court z . ft Elizabeth L. Smith, (n.k.a. Elizabeth L. Shunk) Plaintiff VS. Daniel J. Smith, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 CERTIFICATE OF SERVICE I, Annette M. Walmer, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the Mark Bayley, Esq., Barbara Sumple-Sullivan, Esq., and Lindsay Maclay, Esq., by First Class United States mail addressed as follows: Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 Date: October 22, 2008 Annette M. Walm er Legal Secretary %? ?? h-J r ?"'? ? o•, -? , ?., ? ?? == r ?,,? t , C`? ? -f «. ? ? ; r_ ?? ? ' ?` ? _ ? . ? ?,,,, ,. - . ?. :,J ?:; ?? t,-. ;?j F ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS NO. 06-2411 CIVIL RICHARD E. LALLY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK NO. 08-3092 CIVIL IN RE: PLAINTIFF'S MOTION FOR CONTEMPT ORDER OF COURT AND NOW, this 24th day of October, 2008, upon consideration of the Motion for Contempt filed by the Plaintiff, Elizabeth L. Smith, n/k/a Elizabeth L. Shunk, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendant, Daniel J. Smith, to show cause why the relief requested should not be granted; 2. Defendant Daniel Smith will file an answer on or before November 7, 2008; 3. The Prothonotary is directed to forward said Answer to this Court 4. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting C C ^ i / WV Iis o oool Rule be made Absolute. If Daniel J. Smith files an answer to this Rule to Show Cause, the Court will determine if a hearing, status conference or further Order of Court is required. By the Court, M. L. Ebert, Jr., J. ? Mark F. Bayley, Esquire Attorney for Father ? Mary A. Dissinger, Esquire Attorney for Mother ? Barbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother Sean Shultz, Esquire, GAL bas Co ? is Mn lCCL ELIZABETH L. SMITH, PLAINTIFF V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS RICHARD E. LALLY, PLAINTIFF V. DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2411 CIVIL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 23d day of October, 2008, IT IS HEREBY ORDERED AND DIRECTED a status conference shall be held on Monday, November 10, 2008, at 9:30 a.m. in Chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania By the Court, M. L. Ebert, Jr., J. VINNAIASNINII 19 '6 WV ?Z 100 BDOZ alll JO ,/ark F. Bayley, Esquire Attorney for Father /Mary A. Dissinger, Esquire Attorney for Mother /Barbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather /Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother 'Sean Shultz, Esquire, GAL bas CIP'pliES m.12cLL I ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. :2006-2411 CIVIL ACTION LAW DANIEL J. SMITH, : IN CUSTODY Defendant MARGO E. LALLY, Plaintiff VS. ELIZABETH L. SHUNK, and DANIEL J. SMITH Defendants RICHARD E. LALLY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. :2008-3092 CIVIL ACTION LAW DANIEL J. SMITH, and : IN CUSTODY ELIZABETH L. SMITH Defendants DANIEL SMITH'S ANSWER TO ELIZABETH SMITH'S MOTION FOR CONTEMPT AND AWARD OF COUNSEL FEES FOR DEFENDANT'S FAILURE TO COMPLY WITH THE COURT ORDER DATED OCTOBER 1, 2008 AND NOW, comes Daniel Smith, by and through his attorney, Mark F. Bayley, and in response to Elizabeth Smith's above motion, and the Rule to Show Cause entered October 24, 2008, avers as follows: 1. The Honorable M. L. Ebert, Jr., is involved with the above matter and, by Order dated October 24, 2008, has directed the Prothonotary to forward the within pleading directly to the Court. 2. On October 22, 2008 Daniel Smith responded to Elizabeth Smith's discovery requests pursuant to Order dated October 1, 2008. 3. Mr. Smith's responses were delayed by a few days due to Undersigned Counsel's involvement with a week long criminal trial in the beginning of October. 4. Ms. Smith has not been prejudiced by the minor delay. WHEREFORE, Defendant respectfully requests that Plaintiffs motion be denied. Respectfully submitted, BAYLEY & MANGAN Date: I U z 6 I Mark F. Bayley, squire 17 West South Street Carlisle, PA 17013 (717) 241-2446 Supreme Court ID # 87663 VERIFICATION Mark F. Bayley, Esquire, states that he is the attorney for the Defendant in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: ULJ I LJ v Mark F. Bayley, Esquire CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for Daniel J. Smith, do hereby certify that I served a copy of the foregoing document upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Mary A. Dissinger 28 North Thirty-Second Street Camp Hill, PA 17011 Lindsay Gingrich Maclay 1029 Scenery Drive Harrisburg, PA 17109 Mark F. Bayley, Esquire Attorney for Daniel J. Smith Dated: ` v r"? r*.s ` ? - ": r7 ?? _,f _ ?"?? 3 tl'' ' _ ? .. -.+A: ? C,s,} r ... I 11 ELIZABETH L. SMITH, PLAINTIFF V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS RICHARD E. LALLY, PLAINTIFF V. DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2411 CIVIL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) : NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this P day of November, 2008, upon consideration of the Petitioner Elizabeth Skunk's Motion for Contempt and Award of Counsel Fees and Respondent Daniel Smith's Answer thereto, IT IS HEREBY ORDERED AND DIRECTED that based on the facts presented, sanctions are not warranted at this time and accordingly, Petitioner's Motion for Contempt and Award of Counsel Fees is DENIED. By the Court, ?*, ?-4 y M. L. Ebert, Jr., J. 0* tl i sl?.%- 0 S : I «d £- AON $00l v Mark F. Bayley, Esquire Attorney for Father ?/ Mary A. Dissinger, Esquire Attorney for Mother J/Barbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather indsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother bas Q-T ( les rrl?7 L LL ,//31 M a -a '// Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 C -------------------------------------------- 1013-lo/99 10/1/99 Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary -? w Superior Court of Pennsylvania Middle District November 12, 2008 RE: S., E. v. S., D. No. 1573 MDA 2008 Trial Court Docket Number: 06-2411 Dear: 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www. superior. court, state.pa.us Enclosed please find a certified copy of an order dated November 12, 2008 entered in the above-captioned matter. Very truly yours, 6e?-. 4444:?? James D. McCullough, Esq. Deputy Prothonotary VSL cc: Mary A. Etter Dissinger, Esq. Mark F. Bayley, Esq. Mr. Curtis R. Long Prothonotary No.: 1573 MDA 2008 Carbon Copy Recipient List Addressed To: The Honorable Merle L. Ebert, Jr. Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 Carbon Copied: Mark F. Bayley, Esq. Bayley & Mangan 17 W South St Carlisle, PA 17013 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Mary A. Etter Dissinger, Esq. Dissinger and Dissinger 28 North Thirty-Second Street Camp Hill, PA 17011 1013 -10/99 10/1/99 E.L.S. (n.k.a. E.L.S.) IN THE SUPERIOR COURT OF PENNSYLVANIA V. D.J.S. No. 1573 MDA 2008 ORDER The trial court shall complete its opinion and transmit the record to this Court by November 26, 2008. Per Curiam Date: November 12. 2008 TRUE COPY FROM RECORD Attest: NOV 12 .2008 . Deputy Prothonotary " - Superior Court of PA - Middle District a ? G m ? 7?.° ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS RICHARD E. LALLY, PLAINTIFF NO. 06-2411 CIVIL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 12th day of November, 2008, after status conference with counsel on November 10, 2008, IT IS HEREBY ORDERED AND DIRECTED that the parties are hereby advised that this Court has been attached for a medical malpractice civil trial beginning November 17, 2008. At the present time, the parties are indicating that the trial could last 7 - 10 days. If this is the case, the hearing in the above captioned matter will be continued until December 1, 2008 at 9:00 a.m. in Courtroom No. 5. 2. At this hearing, Dr. Kasey Shienvold will be the first witness called in the case. 3. Dr. Richard E. Lally, will be allowed to testify as an expert in the field of emergency room treatment. Obviously, given Dr. Lally's status as a party to this action, the weight of his testimony will be left to the discretion of the Court. 4. Given the complexity and the number of parties involved in this matter, on or before November 24, 2008, each party will submit a proposed custody/visitation order. The orders shall reasonably consider some regular visitation with the grandparents and initially some supervised visitation with the mother. 5. In regard to the interrogatories filed by Elizabeth Shunk, pursuant to Pa.R.C.P. 1915.5 (c), Daniel Smith shall provide answers only to the following: Interrogatory 3. The last address prior to his residence at 1513 Market Street, Camp Hill, and the duration. Interrogatory 4. The name and address of the landlord of your last residence prior to 1513 Market Street, Camp Hill. Interrogatory 5. The name and address of your current employer and your previous employer if you have not been employed by the same person/company for the past 2 years. Interrogatory 16. Father shall provide the name his wife has used since January 1, 2003 and her date of birth. Interrogatory 19. Father shall provide the date he began covering his children with his health insurance policy. Interrogatory 22. Father shall answer this interrogatory. Interrogatory 36. Father shall provide written authorization for Mother to obtain the child's school and daycare records. Interrogatory 37. Father shall provide written authorization for Mother to obtain the child's school and daycare records. By the Court, ?k-? ?-a\ M. L. Ebert, Jr., J. Mark F. Bayley, Esquire Attorney for Father Mary A. Dissinger, Esquire Attorney for Mother Barbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather ?-. Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother bas 5 8s :11 wv Z i J OM OZ , % t !I jo COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff, : CIVIL ACTION - LAW IN CUSTODY V. : DOCKET NO. 06-2411 Daniel J. Smith, Defendant. MOTION TO QUASH SUBPOENA AND NOW, comes Michael Zug and Pinnacle Health Psychological Associates, by and through their legal counsel, to petition that this Honorable Court quash two (2) subpoenas issued to Michael Zug and in support thereof aver as follows: 1. The movants in this matter are Michael Zug, a Pennsylvania licensed counselor (hereinafter referred to as "Zug") and Pinnacle Health Psychological Associates (hereinafter referred to as "Pinnacle Health"), a mental health provider, which is a component of the Pinnacle Health System having a principal office at 409 South Second Street, Harrisburg, Dauphin County, Pennsylvania. 2. At all times material hereto, Zug and Pinnacle Health provided mental and emotional health services to a minor child of the parties by, through and under, the direct supervision of a Pennsylvania licensed psychologist. 3. By facsimile transmission dated November 20, 2008, there was forwarded to Zug and Pinnacle Health a Subpoena issued by Plaintiff seeking the testimony of Zug 1 regarding mental and emotional health care rendered to Plaintiff's and Defendant's minor child. A copy of the Subpoena is attached hereto as Exhibit "A." There was also forwarded a Subpoena to Mr. Zug issued by Defendant. A copy of the Subpoena is attached here as Exhibit "B."' 4. At all times material hereto, Mr. Zug has acted under the supervision and direction of a Pennsylvania licensed psychologist in rendering mental and emotional health care treatment to the minor. 5. Communications between a patient and his or her mental health care provider are privileged from disclosure in response to a subpoena pursuant to both Pennsylvania and Federal law, to wit: a. Confidential communications between mental health providers and their patients are privileged from disclosure pursuant to the statutory privilege attached to confidential communications with psychiatrists and psychologists set forth at 42 Pa.C.S.A. §5944. The statute provides that such privilege is the same as that which attaches to an attorney and his or her client. Such privilege further extends to mental health professionals acting under the supervision of a psychologist or psychiatrist. b. The Federal Privacy Rule issued pursuant to the Health Insurance Portability and Accountability Act prohibits the release of psychotherapy notes in response to a subpoena. 45 C.F.R. §164.508(a)(2). 'Counsel for the parties have advised that the November 24, 2008, hearing has been rescheduled to December 1, 2008. 2 6. Pinnacle Health understands that the testimony is sought in litigation involving child custody which disclosure of information poses a particular risk of harm to the minor in that the confidential communications between the minor and her treatment providers will be exposed and used as part of an adverse proceeding between their parents. Such information, once disclosed to the litigants, may be used by one or both of the litigants against the minor and each other and will irreparably harm the trust and confidence reposed by the child in her mental health providers. 7. The minor, being approximately five years of age, is in need of the appointment of a guardian ad litem to protect her interests in maintaining the confidential psychotherapeutic information regarding the minor as her interests and those of the litigants are not the same. 8. If the mental and emotional well being of the child is at issue in this custody proceeding, the Court may appoint an independent psychotherapist to assess the same under circumstances where there does not exist an expectation of privacy on the part of the minor and where such assessment may be based solely on the issues before the Court vis-a-vis child custody. 9. Movants understand that another psychologist has already been engaged to address reunification between maternal grandparents and the child or children and Zug has not evaluated the same nor is he able to address the same. 10. Pinnacle Health's role is solely to provide for the care and treatment of the minor with the protections of privacy afforded by Federal and State law to foster such care. 11. To require Mr. Zug to testify will have a chilling effect upon Mr. Zug, Pinnacle Health and other mental health providers faced with litigation subpoenas involving children who have reposed trust and confidence in their communications with mental health professionals. 12. Parents locked in litigation between one another should not be permitted to access confidential psychotherapeutic records of their children where parents not engaged in such litigation are not permitted by law to have access to the same. 13. The minor affected by this action is entitled to the full protection of the law since her interests are contrary to that of the litigants in the attempt by one the litigants to access the minor's confidential psychotherapeutic communications. 14. A hearing or argument is not requested. 15. Discovery is not necessary. WHEREFORE, Pinnacle Health Psychological Associates and Michael Zug respectfully request that this Honorable Court enter an Order quashing the subpoenas issued by Plaintiff, Elizabeth L. Smith and by Defendant, Daniel J. Smith to Michael Zug. Respectfully submitted, Richard C. Seneca, Esquire PA Supreme Court I.D. No. 49807 564 Old York Road Etters, PA 17319 (717) 932-0465 Attorney for Michael Zug and Pinnacle Health Psychological Associates 4 e7 SY Y COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith; Plaintiff VS. Daniel J. Smith, Defendant vs. Margo E. Lally Plaintiff vs. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL $ U B POE K A To: Michael Zug 1. You are ordered by the court to come to Cumberland County Courthouse, Courtroom #5 (Specify courtroom or other place) at 1 Courthouse 9auara, Carlisle-, Cumberland County, Pennsylvania, on November 24. 2008 at 9:00 o'clock, A. M., to testify on behalf of, Elizabeth L. (Smith)_3hunk, Plaintiff in the above case, and to remain until excused. 2. And bring with you the following: If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. ISSUED BY PARTY/COUNSEL IN COMPLIANCE WITH Pa.R.C.P. No. 234.2(a) NAME: Marv A. Etter Dissin er, EscJ. ADDRESS: 28 N. 32nd Street Camp Hill. PA 17011 TELEPHONE: (717)975-2840 BY THE COURT: li-.f Z 1 Z SUPREME CO/URRT?JID# 27736 Pr/oath notary, Civil Divisio DATE ?r v ti / Seal of the Court j d / Deputy OFFICIAL NOTE: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa.R.C.P. No. 234.1. If subpoena for production of documents, records or things is desired, complete paragraph 2. EXHIBIT "A" ELIZABETH L. SMITH, Plaintiff vs. DANIEL J. SMITH, Defendant MARGO E. LALLY, plaintiff vs. ELIZABETH L. SIIUNK, and DANIEL J_ SMITH Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA '2006-2411 CIVIL ACTION LAW : IN CUSTODY RICHARD E. LALLY, : IN TUC COURT OF COMMON PLEAS OF . Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. :2008-3092 CIVIL ACTION LAW (consolidated to 06-2411 Civil by Order of DANIFL 1. SMITT-L and ; ofCourt dated October 1, 2008) ELIZABETH L. SMITII : IN CUSTODY Defendants To: Michael Zug 205 S. Front St. Harrisburg, PA 17105 1. L 1. You are ordered by the Court to come to Cumberland County Courthouse, Courtroom #5 at 1 Courthouse Square, Carlisle, Cumberland County, Pennsylvania on November 24, 2008 at 9:00 a.m., to testify at the request of Daniel J_ Smith 2. And bring with you the following: N/A If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rnle 234.5 of the Pennsylvania Ruiz of Civil Procedure, including, but not limited to, costs, attorney foes and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.RC.P. No. 234.2(a): Mark Bayley, Esquire 17 West South Street Carlisle, PA 17013 717.241-2446 Supreme Court ID # 87663 BY TH4OMT, oil Divi Date: Seal of th e Court official Note: This form of subpoena shalt be used whonovca a subpoena is imn able, including hearings, in connection with depositions aW bcf= arbitrators, master, conmiissioncrs, etc. in compliance with NLA.C.P. No. 234.1. If a subpoena for pmduction of documents, records or things is desired, complao paragniph 2. EXHIBIT "B" CERTIFICATE OF SERVICE I hereby certify that a copy of the attached Motion to Quash Subpoena was served upon the following person by depositing the same in the U.S. Mail, First Class, postage prepaid, on November 21, 2008, at Etters, Pennsylvania: Mark Bayley, Esquire 17 West South Street Carlisle, PA 17013 Mary A. Etter Dissinger, Esquire 28 North 32"d Street Camp Hill, PA 17011 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Sean Michael Shultz, Esquire Knight & Associates, P.C. 11 Roadway Drive, Suite B Carlisle, PA 17015 Lindsay Gingrich Maclay Daley Zucker Meilton Minor & Gingrich LLC 1029 Scenery Drive Harrisburg, PA 17109 Richard C. Seneca, Esquire Tj Vi I ELIZABETH L. SMITH, (N.K.A. Elizabeth L. Shunk) PLAINTIFF V. DANIEL J. SMITH DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2411 CIVIL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., November 25, 2008 - Procedural History This case began with the Mother, Elizabeth L. Smith, Appellant herein, filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that Daniel J. Smith, the Father of L.S., the child in question, and Plaintiff's former husband, refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, Appellant filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney's Office to show cause "why the investigation should not be deemed concluded and the video tapes provided to the District Attorney's Office regarding L. S. and all other reports in their possession pertaining to L. S. whether generated in house by the District Attorney's Office or provide[d] sic to them from another source be provided to petitioner herein." On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney's Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs and after argument the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then filed her notice of Appeal to the Superior Court on August 29, 2008. Factual Summary On April 21, 2007, a report was received by Cumberland County Children and Youth Services from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), the daughter of Appellant, may have been sexually abused. Cumberland County Children and Youth Services immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney and the Upper Allen Township Police Department who began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and video taped at the Children's Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to the Appellant and her current husband, Gary Shunk were prepared. On October 10, 2007, Cumberland County Children and Youth completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report "indicated" that the Appellant was a perpetrator of sexual assault. Being "indicated" the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et. seq. Appellant then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare, Office of Children, Youth and Families, completed its review of Appellant's request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. Subsequently, on March 25, 2008, the Appellant requested a hearing before the Secretary of the Department of Public Welfare or his designee. From a review of the records currently in the possession of Cumberland County Children and Youth, it appears that that hearing is now scheduled for January 14, 2009. 2 DISCUSSION The issue presented here is whether criminal investigation materials in the hands of the elected District Attorney of Cumberland County are required to be disclosed to a party in a civil custody action. In briefing the issue, neither party has provided this Court with any controlling case law. Initially, we note that in custody cases, "There shall be no discovery unless authorized by special order of court." Pa.R.C.P. No. 1915.5(c). Both parties note that the only reported case involving Rule 1915.5(c) is Ford v. Ford, 1 Pa. D.&C. 4t" 98 (1988) from the Court of Common Pleas of Monroe County. While Appellant points out that that case involved a request for a deposition and not disclosure of investigative materials in the hands of a District Attorney, Judge O'Brien concluded that discovery in custody proceedings is not presently permitted by the Pennsylvania Rules of Civil Procedure. This Court is not prepared to go quite that far. To do so would totally negate the phrase in the rule "unless authorized by special order of court" which obviously contemplates that allowing discovery is a matter within the discretion of the Court. In other types of civil cases involving a demand for discovery, it has often been said that "discovery matters are within the discretion of the trial court and the Appellate Court employs an abuse of discretion standard of review." Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). In denying the Appellant's request for discovery, this Court takes into account that the District Attorney of a county is by law designated "the Chief Law Enforcement Officer for the County in which he is elected." 71 Pa.C.S.A. §732-206(a). Accordingly, he alone can determine when to initiate a criminal investigation, the scope of the investigation, what evidence to collect during the investigation and when and if any 3 criminal charges will be filed against any person. The Appellant in her Motion for Rule to Compel Discovery requests that this Court issue a Rule to Show Cause upon the District Attorney why his investigation should not be deemed concluded. Such a request is beyond the constitutional powers of this Court. An examination of the information included in the ChildLine report, indicate that criminal charges could be filed at minimum for aggravated indecent assault of a child, a felony of the first degree, 18 Pa.C.S.A. §3125. Given the fact that the child in question is currently only 5 years old, the statute of limitations for this offense will not expire until April 1, 2053. 42 Pa.C.S.A. §5552(c) (3). The Appellant herself states in her brief that the child was of such tender years that "she was barely verbal." This being the case, it is not unusual for a District Attorney to wait until the child is older and perhaps better able to testify before completing his investigation or filing charges. Thus, the District Attorney's position that the requested video tapes and investigatory reports are not sought out of need to resolve a custody issue, but rather to formulate a defense to allegations of sexual crimes cannot be dismissed out of hand. The Court notes that at this stage, this matter remains a custody battle between two parents. The District Attorney, an executive branch investigative agency, is not a party to the custody action. If the District Attorney does not release the requested materials to either party, no party will gain any advantage at the custody hearing. Equally important is the fact that nothing in this decision would prohibit the petitioner and her husband from testifying as to what he told the police or the polygraphist. Along the same lines, Appellant's expert psychologist or psychiatrist could certainly opine that children are often misled, have been tainted, or manipulated during custody proceedings. In examining the Appellant's pre-hearing memorandum in the custody 4 matter currently scheduled to be heard before this Court on December 1, 2008, she lists no less than 15 witnesses, at least three of which are experts. In short, this court finds that the Appellant is not unduly hampered in the presentation of evidence regarding what is in the best interest of her child. At this stage, it would appear that Father will be unable to prove conclusively that the child was molested. Therefore, each party comes before the Custody Court on equal footing. As a matter of public policy, (1) given the general rule against discovery in custody cases, (2) the important constitutional consideration of separation of powers between this Court and the District Attorney's Office, and (3) the District Attorney's fundamentally sound rationale for not disclosing these investigative materials, this Court did not abuse its discretion in denying Appellant's request to compel. Interestingly, Appellant relies on the case of John M. v. Paula T., 546 A.2d 1162 (Pa. Super. 1988), for the proposition that discovery in custody cases "should be freely given where it is essential to a just disposition of the matter." Id. at 1166. Unfortunately, for the Appellant, as pointed out by the District Attorney, this decision was overturned by the Supreme Court at John M. v. Paula T., 571 A.2d 1380 (Pa. 1990). While the case is not directly on point, in that it dealt with a request to compel an individual to submit to a blood test to determine paternity, it does involve a family law case. The Court decided the matter by balancing the respective interests of the parties to determine whether the requesting party had a compelling need to justify the discovery request. The Supreme Court weighed the evidentiary value of the blood test and considered other public policy considerations. In John M. v. Paula T., the Court stated that while blood tests are useful in establishing the likelihood of paternity they are not conclusive and that a public policy existed which outweighed the value of the request for the blood test. 5 Here, the requested interview tapes and investigative reports mi ht assist the Appellant, but on the other hand, if these materials were presented to the Court and the Court concluded, as did the Children and Youth investigation and the Department of Public Welfare, that the allegations of abuse were substantiated, it would most certainly have a negative impact on Appellant's right to custody or visitation. Since these evidentiary materials sought from the District Attorney cannot be used by either party, the governmental interest of the District Attorney in properly conducting a child abuse investigation outweighs the need for the Appellant to obtain these materials. This is especially true in light of the fact that she has other evidence and numerous witnesses available to establish that the best interest of the child will be served by granting some custody or visitation to her, the natural mother. The District Attorney maintains that the Pennsylvania Right-to-Know Act, 65 P.S. § 66.1(2) prohibits the disclosure of these investigative materials. Of course, the Appellant insists that she has not made this application under the Right-to-Know Act but believes that Pa.R.C.P. 1915.5 (c) allowing discovery by special Order of Court in a custody case trumps the prohibition of the Pennsylvania Right-to-Know Act that investigative materials shall not be disclosed. Again, neither party has provided any controlling precedent directly on point. The case of Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), provides some guidance. In Amro v. Office of Attorney General, 783 A.2d 897 (Pa. Cmwlth. 2001), plaintiff, a physician, challenged the Office of the Attorney General's denial of access to certain records. Specifically, the Attorney General refused to disclose information that was part of a criminal investigation of the physician for drug offenses. No charges were ever filed against the doctor. The court ruled in favor of the Attorney General, holding that disclosure was not required because of the investigatory 6 exception to the Right-to-Know Act. The Office of the Attorney General was not required to give the plaintiff access to the investigative records. In Amro, the Appellant, Dr. Amro, much like the Appellant in the case at bar, maintained that he was "an innocent victim of orchestrated entrapment attempts and widespread misinformation." Id. at 898. Here, Appellant maintains that her former husband falsely instigated the District Attorney's criminal investigation, and that just like Amro she wants the investigative files to prove her "innocence." In these circumstances, public policy favors protection of the criminal investigation files. The Right-to-Know Act, 65 P.S. § 66.1(2) defines what are public records, and accordingly what documents are subject to disclosure. This section of the statute expressly excludes, however, "any report, communication or other paper, the publication of which would disclose the institution, progress, or result of an investigation undertaken by an agency in the performance of its official duties." Documents, reports, video, and other information pertaining to a criminal investigation by the Office of the Attorney General or the Office of the District Attorney would fall within this exception. In Amro, the requested file was prepared by the Office of the Attorney General as part of a "predecisional, internal deliberative process for determining whether to prosecute Amro." Amro, 783 A.2d 900. The reports requested by Elizabeth Smith, in the instant case, also appear to be part of the "predecisional, internal deliberative process for determining whether to prosecute" her. Id at 900. Elizabeth Smith requests video tapes and "all other reports" from the District Attorney's office pertaining to the investigation of her daughter's alleged abuse. This request must be judged in light of the general rule that there shall be no discovery in custody cases unless allowed by a special order of court. Pa.R.C.P. No. 1915.5(c). 7 In a proper exercise of its discretion, this Court concludes that no special order authorizing discovery of these materials is warranted. This decision is based on the fact (1) that the District Attorney has a legitimate reason for not disclosing the investigative materials, (2) that the Appellant has no compelling need for these investigative materials because she has adequate evidence and witnesses available to present at her custody hearing, and (3) that the constitutionally required separation of powers between this Court and the Chief Law Enforcement Officer of the executive branch of government must be observed. Accordingly, the Appellant's Motion to Compel Discovery was properly denied. By the Court, Mary A. Etter Dissinger, Esquire Attorney for Plaintiff Mark F. Bayley, Esquire Barbara Sumple-Sullivan, Esquire Lindsay Maclay, Esquire Christin Mehrtens-Carlin, Esquire Senior Assistant District Attorney bas M. L. Ebert, Jr., J. 8 C, SZ A0'N 8002 °:6 hoc i? : -'Hi ?O r.. -a CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Elizabeth L. Smith VS. Daniel J. Smith 2006-2411 Civil 1573 MDA 2008 The documents comprising the record have been numbered from No. to 1 Y3 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 1 i a(o o? Cu is R. Lon , ro honotar Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania ss: County of Cumberland In TESTIMONY WHEREOF, I have hereunto this 26th I, Curtis R Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Rl i zahpt-h r. Shi th Plaintiff, and Dal3iel T Cmith Defendant , as the same remains of record before the said Court at No. 06-2411 of Civil Term, A. D. 19 . set my hand and affixed the seal of said Court day of NovEm er A. D.,AR9008. Prothonotary 1, Edgar B Bad] e, z President Judge of the Ni nth Judicial District, composed of the County of Cumberland, do certify that Curti-, R Long by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Q gWDerl and - in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made b e ?er officer. 1 U ent fudge e Commonwealth of Pennsylvania ss: County of Cumberland I, Curtis R Long_ , Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 26 da of N .D. *XZQU. Prothonotary Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of 15Z C rnherland in the Commonwealth of Pennsylvania to No. 200632?gp 47- Nvoll Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Elizabeth L. Smith VS. Daniel J. Smith **SEE CERTIFIED COPY OF THE DOCKET ENTRIES** o' S 0 0 0 m Pt7 O N 0+ a a i -, O O ° rn ? p- H 69 0 C n 0 c x 'Y7 d P1 0 d i o 0 ? T w ? ' ? i N r , ° ?3 G o rn 00 ?o +?o I PYS511 Cumberland County Prothonotary's Office Page ] Civil Case Print 2006-02411 SMITH ELIZABETH L (vs) SMITH DANIEL J Reference No... Filed......... 4/28/2006 Case Type.....: COMPLAINT - CUSTODY Time.........: i 2:16 Judgment..... .00 on Date Execut 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1573MDA2008 Higher Crt 2.: ******************************************************************************** General Index Attorney Info SMITH ELIZABETH L PLAINTIFF BAKER DIANE S 1660 E CARACAS AVENUE HERSHEY (DAUPHIN CO) PA 17033 SMITH DANIEL J DEFENDANT BAYLEY MARK F 307 E MAIN STREET MECHANICSBURG PA 17055 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - a -? 4/28/2006 COMPLAINT - CUSTODY ------------------------------------------------------------------- l 5/08/2006 ORDER OF COURT - DATED 05-08-06 - IN RE: PRE-HEARING CUSTODY CONFERENCE ON 06-08-06 AT 2:30 PM AT MDJ MANLOVE 1901 STATE ST CAMP HILL - FOR THE COURT BY MELISSA P GREEVY ATTY CUSTODY CONCILIATOR - COPIED AND MAILED 05-08-06 ------------------------------------------------------------------- 7 5/12/2006 ACCEPTANCE OF SERVICE - CUSTODY COMPLAINT - BY KARA W HAGGERTY ATTY ------------------------------------------------------------------- ?_Cf 6/27/2006 INTERIM ORDER OF COURT - 06-27-06 - IN RE: CUSTODY - M L EBERT JR J - COPIES MAILED 06-28-062422 ------------------------------------------------------------------- 1/"ay 3/07/2008 PETITION TO MODIFY CUSTODY BY MARY A ETTER DISSINGER ESQ ------------------------------------------------------------------- 3/10/2008 ORDER OF COURT - 3/7/08 IN RE: CUSTODY - PREHEARING CUSTODY CONFERENCE SCHEDULED FOR 3/25/08 AT 9:00 AM 39 WEST MAIN STREET MECHANICSBU G - BY DAWN S SUNDAY ESQ CUSTODY CONCILIATOR - COPIES MAILED 3/1008 ------------------------------------------------------------------- o7J'?/ 4/01/2008 ORDER OF COURT - 4/1/08 IN RE: CUSTODY CONCILIATION REPORT - A HEARING ON THE MOTHER'S PETITION FOR MODIFICATION SHALL BE SCHEDULED AT THE REQUEST OF THE MOTHER AND HER COUNSEL AFTER DISCOVERY HAS BEEN COMPLETED - ORDER OF THIS COURT DATED 2126/08 ADOPTING THE MASTER'S RECOMMENDATIONS SHALL CONTINUE IN EFFECT- BY M L EBERT JR J - COPIES MAILED 4/2/08 ------------------------------------------------------------------- 3a-L' 5/19/2008 MOTION FOR RULE TO COMPEL DISCOVERY - BY MARY A ETTER DISSINGER ATTY FOR PETITIONER ------------------------------------------------------------------- 3p 5/28/2008 ORDER OF COURT - 5/28/08 IN RE: MOTION FOR RULE TO COMPEL DISCOVERY - IT IS HEREBY ORDERED AND DIRECTED THAT 1- A RULE IS ISSUED UPON THE CUMBERLAND COUNTY DISTRICT ATTY TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED 2- THE CUMBERLAND COUNTY DISTIRICT ATTY WILL FILE AND ANSWER ON OR BEFORE 6/17 08 3- THE PROTHONOTARY IS DIRECTED TO FORWARD SAID ANSWER TO TH S COURT 4- IF THE COMMONWEALTH DENIES ACCESS TO THE REQUESTED MATERIALS ELIZABETH SHUNK AS THE MOVING PARTY SHALL FILE A BRIEF WITH THE COURT SPECIFICALLY OUTLINING WHAT LEGAL AUTHORITY SHE HAS TO COMPEL THE DISTRICT ATTY TO TURN OVER EVIDENCE OBTAINED IN A CRIMINAL INVESTIGATION FOR HE USE IN A CIVIL MATTER THIS BRIEF SHALL BE FILED OF OR BEFORE 6 27ORE08 5'- THE COMMQNWEALTH SHALL FILE A RESPONSE BRIEF ON OR B F 7/21/08 6- ARGUMENT ON THIS MATTER SHALL BE HELD ON 7/31/08 AT 3:30 'PM IN CR 5 CUMBERLAND COUNTY COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 5/29/08 ------------------------------------------------------------------- 411_,V-°6/17/2008 COMMONWEALTH'S ANSWER TO PETITIONER'S RULE TO COMPEL DISCOVERY ------------------------------------------------------------------- / 8/04/2008 ORDER OF COURT - IN RE: MOTION TO COMPEL DISCOVERY - DATED JULY ??'S 31, 2008 - UPON CONSIDERATION OF THE PLAINTIFF'S MOTION TO COMPEL PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2006-02411 SMITH ELIZABETH L (vs) SMITH DANIEL J Reference No..: Filed........: 4/28/2006 Case Type.....: COMPLAINT - CUSTODY Time.........: 2:16 Judgment .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1573MDA2008 Higher Crt 2.: DISCOVERY THE COMMONWEALTH'S ANSWER THERETO CONSIDERATION OF THE BRIEFS FILED BY THE PARTIES AND AFTER ARGUMENT IT IS HEREBY ORDERED AND DIRECTED THAT THE MOTION TO COMPEL DISCOVERY IS DENIED BY THE COURT M L EBERT JR J COPIES MAILED 8/4/08 ------------------------------------------------------------------- $3-71/8/13/2008 MOTION FOR EXPEDITED CUSTODY HEARING - BY MARY A ETTER DISSINGER ATTY FOR PETITIONER ------------------------------------------------------------------- '7& 8/29/2008 NO ORDER FOR TRANSCRIPT - BY MARY A ETTER DISSINGER ATTY FOR PETITIONER ------------------------------------------------------------------- 77,g?j 8/29/2008 NOTICE OFPLFFEAL TO SUPERIOR COURT - BY MARY A ETTER DISSINGER AT FOR ------------------------------------------------------------------- ?a 8/29/2008 HORDER EARINGF-CPREHEARI//NG9CUSTODYRCONFERENCEFSSCHEDULEDT FOR CUSTODY 9/18/08 AT 12:00 PM 39 WEST MAIN STREET MECHANICSBURG - BY DAWN S SUNDAY ESQ CUSTODY CONCILIATOR - COPIES MAILED 8/29/08 ------------------------------------------------------------------- 9/05/2008 SUPERIOR-COURT-OF-PA-NOTICE OF APPEAL DOCKETING TO 41573 MDA 2008 ---------------------------------------- g? 9/08/2008 ORDER OF COURT - DATED 9/8/08 - IN RE APPEAL TO SUPERIOR COURT - UPON CONSIDERATION OF RECEIPT OF THE NOTICE FROM THE SUPERIOR COURT THAT AN APPEAL HAS BEEN TAKEN IN THIS CASE - IT IS HEREBY ORDERED AND DIRECTED THAT THE APPELLANT IS ORDERED TO FILE WITH T OF S COMPLAIN NOILATERRTHANC9/29/085- BYMMNL EBERTTJRRJ - COPIESEMAILEDD OF ------------------------------------------------------------------- ?,? 7 y/ 9/12/2008 STATEMENT OF MATTERS COMPLAINED OF IN RE: APPEAL TO SUPERIOR COURT - BY MARY A ETTER DISSINGER ATTY FOR PETITIONER ------------------------------------------------------------------- C 9/22/2008 HEARIINGB- BANMARKIEL FOROFATHERD ORDER PENDING A ------------------------------------------------------------------- ??3 10/01/2008 ORDER OF COURT - 10/1/08 IN RE: MOTION BY DANIEL SMITH TO ALTER RECOMMENDED ORDER PENDING A HEARING - IT IS HEREBY ORDERED AND DIRECTED THAT THE MOTION IS DENIED - BY M L EBERT JR J - COPIES MAILED 10/1/08 ----- ------- -------- --------------- ------------- --------------- ???_?? 7 10/01/2008 -REPORTOF-A - -HEARINGO//IS/SCHEDULED INSCR55 CUMBERLLANDICCOUNTYMARY COURTHOUSE ON 11/24/08 AT 9:00 AM - THE MATERNAL GRANDFATHERS COMPLAINT FILED TO DOCKET NO 08-3092 SHALL BE CONSOLIDATED WITH THE PREVIOUSLY FILED CLAIMS IN THESE CUSTODY PROCEEDINGS DOCKETED AT NO 06-2411 - BY M L EBERT JR J - COPIES MAILED 10/1/08 ------------------------------------------------------------------- 10/22/2008 TOTCOMPLYION HT ORDERAWARDATEDD OF BSYFOMARY ATETTERLURE DISSINGER ATTY FOR PETITIONER ------------------------------------------------------------------- 10/24/2008 ORDER OF COURT - 10/24/08 IN RE: PLFFS MOTION FOR CONTEMPT - IT IS HEREBY ORDERED AND DIRECTED THAT 1- A RULE IS ISSUED UPON THE DEFT DANIEL J SMITH TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED 2- DEFT DANIEL SMITH WILL FILE AN ANSWER ON OR BEFORE 11/7 08 3- THE PROTHONOTARY IS DIRECTED TO FORWARD SAID ANSWER TO T IS COURT 4- IF NO ANSWER TO THE RULE TO SHOW CAUSE IS FILED BY THE REQUIRED DATE THE RELIEF REQUESTED BY PLFF SHALL BE GRANTED UPON THE COURTS RECEIPT OF A MOTION REQUESTING RULE BE MADE ABSOLUTE - IF DANIEL J SMITH FILES AN ANSWER TO THIS RULE TO SHOW CAUSE THE COURT WILL DETERMINE IF A HEARING STATUS CONFERENCE OR FURTHER ORDER OF COURT IS REQUIRED - BY M L EBERT JR J - COPIES MAILED 10/24/08 -------------------------------------------------------------------- ?l? 10 10/24/2008 OR/10/08 ATU9:30 AM/IN/CHAMBERSTOFUCR50CUMBERLANDHCOUNTY HELD ON 11 COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 10/24/08 ------------------------------------------------------------------- PYS511 Cumberland County Prothonotary' s Office Page Civil Case Print 2006-02411 SMITH ELIZABETH L (vs) SMITH DANIEL J Reference No..: Filed........: 4/28/2006 Case Type ..... : COMPLAINT - CUSTODY Time.........: 2:16 Execution Date 0/00/0000 Judge Ass Disposed igned: EBERT M L JR Desc.: Jury Trial... Disposed Date. 0/00/0000 --------- --- Case Comments ------------- Higher Crt 1.: 1573MD 2008 Hiqher Crt 2.: /a ;?_/,_?(a 10/29/2008 DANIEL SMITHS ANSWER TO ELIZABETH SMITHS D OF COUNSEL FEES FOR DEFTS FAILURE MOTION FOR CONTEMPT AND TO COMPLY WITH THE COURT AWAR ORDER DATED 10/1/08 -BY MARK F BAYLEY ATTY FOR DEFT --------------- 120-1,21 11/03/2008 RE: DANI 1/3/08 // 1 NAND AWARDEOFS SWER TO COUNSELNFEES FOREDEFTSETH NTEMPT C FAILURE TO COMPLY WITH THE COURT ORDER DATED 10/1/08 - IT IS CTS PRESENTED HEREBY ORDERED AND DIRECTED THAT BASED O N THE FA SANCTIONS ARE NOT WARRANTED AT THIS TIME AND ACCORDINGLY PETITIONERS MOTION FOR CONTEMPT AND AWARD OF COUNSEL FEES IS DENIED - BY M L EBERT JR J - COPIES MAIL ----------- ED 11/3/08 --------------------------- 11/12/2008 ----------------------------- 1/12/08 IN RE: CUSTODY ORDER OF OURT - BY M L EBERT JR J - ??7 11/1 COPIES MAILED 08 ----------- --------------------------- 3 /3D-1 11/13/2008 ----------------------------- SUPERIOR COURT OF PENNSYLVANIA ORDER - THE TRIAL COURT SHALL THE RECORD TO THIS COURT BY I 3 T COMPLETE ITS OPINION AND TRANSM NOVEMBER 26, 2008 PER CURIAM ------ --------------------------- 11/24/2008 ---------------------------------- MOTION TO QUASH SUBPOENA - BY RICHARD C SENECA ATTY FOR MICHAEL ZUG AND PINNACLE HEALTH --------- --------------------------- /3,?_Ijll 11/25/2008 ------------------------------- OPINION - DATED 11-25-08 - IN RE: OPINION PURSUANT TO P A R A P COPIES MAILED 11-25-08 1925 - BY M L EBERT JR J - ------- - --------------------------- 11/25/2008 - ------------------------------- NOTICE OF DOCKET ENTRIES MAILED TO MARY A ETTER DISSINGER ESQ MARK F BAYLEY ESQ BARBARA SUMPLE-SULLIVAN ESQ LINDSAY MACLAY ESQ ADN CHRISTIN MEHRTENS-CARLIN ESQ - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - - Ii 'a 1 1 e ?-?rS t ********** *** ************************************** e,- **************************** /3 * ey+ra Pap S Escrow Information * Fees & Debits Beg Bal P*ymts/Ad? *** *** End Bal **************************** ******************************** ******** *** CUSTODY AGMT 85.00 85.00 .00 TAX ON AGMT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 CUSTODY FEE 5.20 5.20 .00 CUSTODY FEE-CO 1.30 1.30 .00 MODIFICATION CU 70.00 70.00 .00 APPEAL HIGH CT 48.00 48.00 .00 MODIFICATION CU 70.00 70.00 .00 CONTEMPT CUSTOD 70.00 70.00 .00 SUBPOENA 30.00 30.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 18.00 18.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 21.00 21.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 .00 SUBPOENA 3.00 3.00 ------------ -- .00 ---------- ------------ 469.00 469.00 .00 * End of Case Information TRUE COPY HZ:CI-A "r?Z^RD In Testimony whereof, I hc-re unto sM my hand and the seal of said Court at Carlisle, Pa. This ..... °..... day of...... ....., a? Prothonotary Elizabeth L. Smith, Plaintiff VS. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL RESPONSE TO MOTION TO QUASH SUBPOENA And now comes Elizabeth Shunk by and through her attorney, Mary A. Etter Dissinger, Esq., of Dissinger & Dissinger and avers as follows: 1. Mr. Zug has been subpoenaed to testify as to dates of service, not services rendered. 2. Mr. Zug is expected to testify as to communctions between himself and the parent who arranged services. 3. Communication between the counselor and the parent of the minor child are not privledged communiction as there was no counseling done of the parent, Mr. Daniel Smith, and there is no patient/ counselor privilege between them. 4. He can testify as to whether or not he had any contact with Elizabeth Shunk, and his reasons for having no contact so long as they do not relate to communications between him and the minor child. WHEREFORE it is respectfully requested that Michael Zug be required to either appear or testify by telephone in regard to communications between parents, or lack of communications between parents of the minor child, and the dates of service provided. Respectfully Submitted, n Mary A. ' Etter Dissinger Attorney for Elizabeth Shunk Supreme Court ID #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840- telephone (717) 975-3924- fax Elizabeth L. Smith, Plaintiff VS. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the Richard C. Seneca, Esq., Mark Bayley, Esq., Barbara Sumple-Sullivan, Esq., and Lindsay Maclay, Esq., by hand delivery: Richard C. Seneca, Esq. 564 Old York Road Etters, PA 17319 AND Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Gingrich Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 Date: November 25 -, Mary A. Etter Dissinger -vElizabeth L. Smith, Plaintiff VS. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH COURT ORDERS DATED OCTOBER 1, 2008 & NOVEMBER 12, 2008 And now comes Elizabeth Shunk by and through her attorney, Mary A. Etter Dissinger, Esq., of Dissinger & Dissinger, and requests the Court to find Defendant, Daniel J. Smith, in Contempt of Court and to implement Sanctions which this court deems appropriate and by way of further explanation avers as follows: 1. Plaintiff is Elizabeth L. Shunk, natural mother of the two (2) minor children of the parties. 2. Defendant is Daniel Smith, natural father of the two (2) minor children of the parties. 3. The Honorable Judge Merle L. Ebert has issued several Orders in this matter, most recently by order dated November 12, 2008. 4. At the custody conference on March 25, 2008, Daniel J. Smith agreed to provide Interrogatory responses and medical authorizations to Elizabeth Smith's counsel. 5. Defendant, Daniel J. Smith, was served Interrogatories on March 31 2008, requesting various items of information and was provided with HIPAA authorizations and general releases permitting Plaintiff to obtain medical records and school and daycare information for the parties children - - all he had to do was fill in the providers, which were not known by Elizabeth Shunk and sign the authorizations. 6. By Order dated October 1, 2008, Defendant was directed to "provide Answers to Mother's Interrogatories, ... within twol (2) weeks of the date of this Order..." and to "provide the authorizations to obtain medical information submitted by the Mother's counsel in March 2008 with ten (10) days of the date of this Order.". (See attached Exhibit "A") 7. On October 22, 2008, Elizabeth Shunk filed a Motion for Contempt and An Award of Counsel Fees for Failure to Answer the Interrogatories and for failure to provide authorizations, which Motion was denied. 8. By Order dated November 12, 2008, Defendant was directed to answer Plaintiff's Interrogatory questions 3, 4, 5, 6, 16, 19, 22, 36 and 37, which encompassed authorizations. (See attached Exhibit "B") 9. By Certificate of Service dated November 14, 2008, Defendant provided Interrogatory Responses Pursuant to November 12, 2008 Order of Court, but no authorizations. (See attached Exhibit "C) 10. Defendant failed to comply with the Order dated November 12, 2008, because he failed to provide authorizations for release of school and daycare records of the children to Elizabeth Shunk. 11. Defendant has refused to comply with multiple Orders of this Honorable Court. 12. Elizabeth Shunk believes it is important for the Court to know how the children are doing in school and how they are doing in daycare, as attendance and absences would be helpful to the Court in determining the ultimate custodial disposition, and as a parent whose legal custodial rights have not been removed from her, she has a right to obtain the information from the school and to know where her child or children attend daycare and get school records. 13. Elizabeth Shunk has been billed by her attorney in excess ofl $28,000.00 at this point in time. 14. A portion of those fees are attributable to efforts to obtain information from Daniel Smith as to the children of the parties. 15. The charges incurred by Elizabeth Shunk from attorney for efforts to obtain this information amount to approximately $750.00. 16. Counsel for all parties, Mark Bayley, Esq., Barbara Sumple- Sullivan, Esq., and Lindsay Maclay, Esq., have bean notified of Petitioner's intentions to file a Motion for S nctions against Defendant, Daniel J. Smith, via fax trans ission on Friday, November 21, 2008. It is expected that Attorney Bayley will have objections to this Motion. It is expected that Attorneys Sumple-Sullivan and Maclay will not object to the filing of this Motion. 17. Trial is rescheduled from, November 24, 2008, to December 1, 2008. WHEREFORE Plaintiff requests that Sanctions, as deemed appropriate and necessary by this Honorable Court, be imposed on Defendant, Daniel J. Smith, and requests that the matter either be held open pending Elizabeth Shunk's ability to obtain the records she has been requesting since March 2008, or that the Court assume the refusal to permit Elizabeth Shunk to have the information is an admission that the school and daycare records contain information adverse to Daniel Smith's request for custody of the children. Respectfully Submitted, Mary A. Etter Dissinge Attorney for Elizabeth Shunk Supreme Court ID #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840- telephone (717) 975-3924- fax Elizabeth L. Smith, Plaintiff VS. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the Mark Bayley, Esq., Barbara Sumple-Sullivan, Esq., and Lindsay Maclay, Esq., by hand delivery on December 1, 2008: Mark F. Bayley, Esq. AND Barbara Sumple-Sullivan, Esq. AND Lindsay Maclay, Esq. Date:12/1/2008 Mary A. Etter Dissinger r'y ?? ?? ?? E,:, ---; =;_ "? , r=- c ?; -? ? ,a:-' - ' _.,.. -. 7 ? ?? =?- `; ,? ? -?-- ? j r`' ? :?. _. ,,,.? ? ELIZABETH L. SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. :2006-2411 CIVIL ACTION LAW DANIEL J. SMITH, : IN CUSTODY Defendant MARGO E. LALLY, Plaintiff VS. ELIZABETH L. SHUNK, and DANIEL J. SMITH Defendants RICHARD E. LALLY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. :2008-3092 CIVIL ACTION LAW (consolidated to 06-2411 Civil by Order of DANIEL J. SMITH, and : of Court dated October 1, 2008) ELIZABETH L. SMITH : IN CUSTODY Defendants DANIEL SMITH'S ANSWER TO ELIZABETH SHUNK'S MOTION FOR SANCTIONS FILED ON OR AROUND NOVEMEMBER 26, 2008 AND NOW, comes Daniel Smith by and through his attorney, Mark F. Bayley, and answers Elizabeth Shunk's latest motion as follows: 1. Petitioning Counsel alleges that Undersigned Counsel has not provided executed authorizations to obtain medical information. 2. Undersigned Counsel recalls discussing this matter with Petitioning Counsel either before or after the in-chambers conference held on November 10, 2008. 3. Undersigned Counsel indicated to Petitioning Counsel that the release forms previously provided did not include recipient information; they were simply blank authorizations. 4. Undersigned Counsel believes that is it reasonable that Mr. Smith know, prior to signing a release, what the release is being used for. 5. Undersigned Counsel recalls requesting Petitioning Counsel to forward properly completed releases. 6. Based on said conversation, Undersigned Counsel assumed that completed releases would be forwarded; they have not been. 7. If Petitioning Counsel had a different impression from said conversation, any miscommunication could have likely been resolved by Petitioning Counsel making one phone call to Undersigned Counsel, which has not happened. 8. Additionally, Petitioning Counsel previously forwarded subpoenas several weeks ago to various heath care providers; Undersigned Counsel wonders what value releases have to Petitioning Counsel at this point and whether this motion is simply an exercise in frivolity. WHEREFORE, Daniel Smith respectfully requests the Court to dismiss Elizabeth Shunk's latest motion for sanctions. ?l-T4? Respectfully submitted, BAYLEY & MANGAN Mark F. Bayley, Esquire 17 West South Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D.#87663 VERIFICATION Mark F. Bayley, Esquire, states that he is the attorney for Daniel J. Smith in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: [ - ?- - (J: Attorney for Daniel J. Smith CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for Daniel J. Smith, do hereby certify that I served a copy of the foregoing document upon the following by hand delivery: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Mary A. Dissinger 28 North Thirty-Second Street Camp Hill, PA 17011 Lindsay Gingrich Maclay 1029 Scenery Drive Harrisburg, PA 17109 ?D Dated: LI_ Mark F. Bayley, Esqu' Attorney for Daniel J. Smith t'?J pj _L? t..? 1 ?: ::.' F C"?'3 ` -C p _ ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, / DEFENDANTS NO. 06-2411 CIVIL .../// RICHARD E. LALLY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 4th day of December, 2008, IT IS HEREBY ORDERED AND DIRECTED that the continuation of the custody hearing in this matter shall be held on Monday, February 2, 2009, at 9:30 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, M. L. Ebert, Jr., J. {L3 r - ?Mark F. Bayley, Esquire Attorney for Father -, Mary A. Dissinger, Esquire Attorney for Mother ./ Barbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother bas t " rn?at*LCCL 1 r? i ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : DANIEL J. SMITH, DEFENDANT V. : MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS NO. 06-2411 CIVIL RICHARD E. LALLY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 29th day of December, 2008, IT IS HEREBY ORDERED AND DIRECTED that Sean Shultz, Esquire shall be appointed Guardian Ad Litem for the children in this matter. All parties are directed to cooperate with Attorney Shultz. By the Court, '?\N ?3A\ M. L. Ebert, Jr., J. ,/lark F. Bayley, Esquire Attorney for Father A t 0 , : 111= V 6 Z '-rid 8 160' /Aary A. Dissinger, Esquire Attorney for Mother /arbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather indsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother an Shultz, Esquire, GAL bas COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff VS. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL MOTION TO PERMIT DISCOVERY And now comes Mary A. Etter Dissinger, Counsel for Elizabeth Shunk in the above matter requests to permit discovery and in support of this Motion avers as follows: 1. The court has heard the testimony of Dr. Paula George, and she has referenced reviewing videographic material in her possession immediately prior to testifying. 2. Attached as exhibit A is a copy of a letter from Attorney Seneca indicating that there are in fact three video recordings in the possession of the Children's Resource Center. fl 3. The Children's Resource Center of Pinnacle Health Systems declines to release the information because of their "sensitive depictions." 4. Elizabeth Shunk and her counsel believe that it is necessary to the presentation of her custody case and continuing efforts to resume a custodial relationship with the children that this information which has been testified to by one physician be made available to other physicians so they may determine whether or not the testimony of Dr. George can be supported or not. 5. A copy of this motion has been provided to all counsel in this case prior to the filing hereof, and Attorney Richard Sen counsel for the Children's Resource Center agree's/ isagree's with/ has not responded to the motion; and Attorney Sumple-Sulliva agree's disagree's with/ has not responded to the Motion; Attorney Lindsay Macla ree's disagree's with/ has not responde tI tion; Attorney Bayley agree's/ disagree's ith/ has not responded o the motion. - 6. Plaintiff, Elizabeth Shunk, requires this information for review by her medical expert, and has no personal desire to view these videos. 7. Attorney Lindsay Maclay does not require the video. Wherefore it is respectfully requested that the Children's Resource Center of Pinnacle Health Systems be directed to provide copies of the recordings to Plaintiff's expert, Dr. Janet Strausbaugh at 2675 Joppa Road, York, PA 17403 and to Dr. Richard Lally at 11020 West Amity Road, Boise, Idaho 83709. Respectfully Submitted, Mary A. Etter Dissinger Attorney for Petitioner Supreme Court ID #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840 (717) 975-3924- fax RICHARD C. SENECA ATTORNEY AT LAW West Shore Office 564 Old York Road Eters, PA 17319 (717) 932-0465 December 24, 2008 Facsimile: (717) 932-1319 E-mail: rseneca@senecalaw.com Please repty to West Shore office Richard J. Seneca Legal Assistant Mary A. Etter Dissinger, Esquire Dissinger & Dissinger 28 North 32nd Street Camp Hill, PA 17011 Re: Smith v. Smith Dear Attorneys Dissinger and Bayley: Harrisburg Office Southgate Building 409 South Second Street Harrisburg, PA 17104 (717) 231-8244 Mark Bayley, Esquire 17 West South Street Carlisle, PA 17013 1 write in reply to a series of letters I received from Attorney Dissinger regarding the above-captioned case. The Pinnacle Health System issued an invoice to Attorney Dissinger in the amount of $227.50 representing 2.5 hours of preparation time by Paula George, M.D. for the December, 1, 2008, hearing in which I am informed that both of you issued a Subpoena seeking Dr. George's testimony. Her fee for preparing for the case is $227.50. Since both of you sought and obtained Dr. George's testimony at the hearing, each party is obligated to pay % of her fee or $113.75. 1 ask that you each send to me a check in the amount of $113.75 made payable to The Children's Resource Center. Attorney Dssinger has also asked for a copy of any videos in the possession of The Children's Resource Center. The Center records the genital examination of a child as part of its clinical protocol. There are three such recordings. Pinnacle Health will not release these recordings because of the sensitive nature of the same. Dr. George has tested regarding her examination and we believe that this is sufficient as opposed to releasing such sensitive depictions. As such, we would only release the 'same in response to a Court order after we receive notice of the motion and can appear in this action to object to the release of the videos at both the trial and appellate levels. Should you choose to file a motion, please send a copy of the same to me. Mary A. Etter Dissinger, Esquire Mark Bayley, Esquire December 24, 2008 Page 2 of 2 Attorney Dissinger has also inquired as to whether Pinnacle Health will withdraw its Motion to Quash the Subpoena issued to Mr. Michael Zug of Pinnacle Health Psychological Associates. Attorney Dissinger advised that since she understood that Mr. Zug discussed the case with Attorney Bayley that any confidentiality has been waived. I respectfully disagree. It is Pinnacle Health's position that the privilege belongs to the patient and not to the practitioner. This appears to be an issue for the child's guardian ad litem unless, of course, the Court has otherwise ruled on the Motion to Quash. Attomey Dissinger inquired as to whether Pinnacle Health would issue to mother a bill for the attendance of Ms. Shannon Cossaboom at the recent hearing. Pinnacle Health will not issue an invoice to the mother. Attorney Dissinger had kindly agreed to allow Ms. Cossaboom to testify by telephone. However, Attorney Bayley insisted upon her attendance pursuant to the Subpoena which he issued. I understand that Ms. Cossaboom did not testify at the hearing but remained on standby at the courthouse for one-half day. Finally, I ask that Attorney Dissinger send to me a copy of Dr. George's testimony at the hearing. I will, of course, reimburse her for the reasonable costs associated with making the photocopy. 1 trust that this answers all of the issues raised by counsel. Thank you. Sincerely, Ck, Richard C. Seneca, Esq. VERIFICATION I, Elizabeth Shunk, verify that the foregoing facts are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. E fJza eth Shun ? U COMMONWEALTH OF PENNSYLVANIA COUNTY OF C MBERLAND Elizabeth L. Smith, Plaintiff vs. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL CERTIFICATE OF SERVICE following attorneys, by First Class United States mail addressed as follows: true and correct copy of the foregoing document upon the Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND I hereby certify that on the date set forth below I served a Richard Seneca, Esq. 564 Old York Rd Etters, PA 17319 Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Richard Seneca, Esq. 564 Old York Rd Etters, PA 17319 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Gingrich Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 Date:January 20, 2009 Mary A. Etter Dissinger C) ?-- ?? i fib - ?`t i .? ? ! i_.=: _ _. Y°-i Ca3 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff VS. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL MOTION TO PERMIT REUNIFICATION And now comes Elizabeth Shunk by and through her Attorney's Dissinger & Dissinger requests the court to direct partial reunification between her and the minor children of the parties on an interim basis, and in support of the motion avers as follows: 1. Petitioner is Elizabeth Shunk who resides at 409 Newport Road, Duncannon, PA 17020. 2. Respondent is Daniel Smith, natural father of the two minor children of the parties. 3. Petitioner has not seen her children at all since the fall of 2007 and has not been permitted to speak with them. 4. The parties have engaged in one full day of testimony before this honorable court. 5. Petitioned herein believes that from the testimony there is obvious evidence of alienation and estrangement of the children from their mother, Petitioner herein by the father and/or his family. 6. Based upon the testimony of Dr. Kasey Shienvold, Petitioner believes it is in the best interest of the children to commence partial reunification with her immediately under the supervision of Dr. Shienvold and his office. 7. Petitioner through her counsel contacted Attorney Bayley, counsel for Respondent herein asking if the father was willing to engage in reunification between the children and the mother. 8. Attached is a copy of a Attorney Bayley's reply by letter dated December 15, 2008, which states "You mentioned the idea of commencing reunification counseling relating to your client and Dr. Shienvold. Even assuming the best case scenario for Elizabeth (that the child's memories of sexual abuse are erroneous) you still have a child that believes she was molested. I recall Dr. Shienvold testify that he has no experience or training in relation to sexual abuse victims. I would imagine this applies to real or imagined scenarios. Do you have any suggestions as to who does." See copy of letter attached as "Exhibit A". 9. Counsel for Petitioner herein communicated with Dr. Shienvold's office and thereafter with Attorney Bayley indicating that "Dr. Shienvold knew of no psychologist with skills that exceeded his in regard to reunification of children who have been abused or believe themselves to have been abused," and therefore suggested various dates that Dr. Shienvold would be available to commence reunification between Petitioner herein and the minor children. (See copy of letter attached as "Exhibit B".) 10. A follow up letter was sent to Attorney Bayley on January 7, 2009 which is attached hereto as "Exhibit C", indicating that no response had been received in regard to scheduling reunification between the minor children and Petitioner herein. 11. Petitioner's desires to resume her relationship with the children on a partial basis through the supervised reunification process available through the offices of Riegler, Shienvold & Associates. 12. Petitioner believes that it is in the best interest of the children to commence reunification immediately. 13. A copy of this motion has been provided in advance to all counsel of record, and Attorney Richard Seneca, counsel for t Zrres men Resource Center agree's/ disagree's with/ has noe to the motion; and Attorney Sumple-Sullivan disagree's with/ has not responded to the Motion; torney Lindsay Maclay agree's disagree's with/ has not responded to the motion; Attorney Bayley agree's/ disagree's with/ ha not responded t the motion. Wherefore it is respectfully requested that the court direct the parties to commence reunification through the offices Riegler, Shienvold & Associates immediately. Respectfully Submitted, Mary A. Etter Dissinger Attorney for Petitioner Supreme Court ID #27736 28 N. 32nd Street Camp Hill, PA 17011 (717) 975-2840 (717) 975-3924- fax Bayley & Mangan ATTORNEYS AT LAW 17 West South Street Carlisle, Pa 17013 Mark F. Bayley, Esquire John J. Mangan, III, Esquire Julie M. Good, Paralegal December 15, 2008 Mary A. Etter Dissinger, Esquire 28 North 32nd Street Camp Hill, PA 17011 VIA FAX (975-3924) & I s"t Class Mail RE: Shunk/Lally/Smith Dear Mary: Enclosed are executed releases you had forwarded. Telephone: (717) 241-2446 Fax: (717)241-2456 You mentioned the idea of commencing reunification counseling relating to your client and Dr. Shienvold. Even when assuming the best case scenario for Elizabeth (that the child's memories of sexual abuse are erroneous) you still have a child that believes she was molested. I recall Dr. Shienvold testifying that he has no experience or training in relation to sexual abuse victims. I would imagine this applies to real or imagined scenarios. Do you have any suggestions as to who does? Since I am copying this letter to all counsel, I note that Daniel is agreeable to continuing Dr. Shienvold's efforts regarding Maternal Grandparents. I do not believe that any new sessions are scheduled. Does Ms. Lally and/or Dr. Shunk wish to schedule sessions? , (7?/IL Mark F. Bayley, Esquire $arbora,Sumple-Sullivan, Esquire VIA-FACSIMILE 774-7059 Lindsay Gingrich Maclay, Esquire VIA FACSIMILE 657-4996 1 I EXHIBIT DIS`,sINGER v DISSINGER Attorneys at Law VIA FAX ONLY Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 December 29, 2008 RE: Shunk v Smith v Lally v Lally Dear Attorney Bayley: I have spoken to Dr. Kasey Shienvold in regard to reunification. He knows of no psychologist whose skills exceed his with regard to reunification of children who have been abused or believe themselves to have been abused. Therefore, we are prepared to begin the reunification process between my client and the children with Dr. Shienvold's assistance. If you are aware of anyone with more skill or qualifications than Dr. Shienvold, please let me know so that we may make efforts to begin reunification elsewhere. Since I assume that your information is the same as mine, I propose that you select one of the following dates to commence the reunification through Dr. Shienvold's office for my client and the children: • January 12, 2009 at 9:00 am or 10:00 am, or at 2:00 pm, 3:00 pm, or 4:00 pm. • January 13, 2009 at 8:00 am or 9:00 am, or any hour between 1:00 pm and 4:00 pm. • January 15, 2009 any one (1) hour block between 8:00 am and 4:00 pm. • January 16, 2009 any one (1) hour block between 8:00 am and 4:00 pm. 28 North Thirty-Second Street 400 South State Road • b EXHIBIT 7.975.2840/voice • 717.975.3924/fax 7.3474/voice • 717.957.2316/fax Please let me know what date and time best suits your client or the children and I will find out how Dr. Shienvold would like to proceed with Ms. Shunk's reunification. I look forward to hearing from you. Very truly yours, Mary A. Etter Dissinger Attorney at Law MAED: arg cc: Dr. Kasey Shienvold (Via fax only) Elizabeth Shunk Barbara Sumple-Sullivan, Esq. (Via fax only) Lindsay Maclay, Esq. (Via fax only) File: 1-07-519 DISjINGER IDISSINGER Attorneys at Law January 7, 2009 VIA FAX ONLY Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 RE: Shunk v Smith v Lally v Lally Dear Attorney Bayley: On December 29, 2008, I sent you a letter inquiring about possible dates for reunification of the children with my client through the offices of Dr. Kasey Shienvold. If I do not hear from you on or before the close of business on January 8, 2009, I will file a motion with the court in hopes that they have already seen that reunification should commence. Very truly yours, Mary A. Etter Dissinger Attorney at Law MAED: arg cc: Dr. Kasey Shienvold (Via fax only) Elizabeth Shunk Barbara Sumple-Sullivan, Esq. (Via fax only) Lindsay Maclay, Esq. (Via fax only) File: 1-07-519 28 North Thirty-Second Street • 400 South State Road • bfa EXHIBIT • 717.915.3924/fax • 717.95 7.2316/far VERIFICATION I, Elizabeth Shunk, verify that the foregoing facts are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Eliza?l. eth ShunTTT COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff VS. Daniel J. Smith, Defendant VS. Margo E. Lally Plaintiff VS. Elizabeth L. Shunk, and Daniel J. Smith Defendants vs Richard E. Lally Plaintiff vs Daniel J. Smith, and Elizabeth L. Smith Shunk . IN THE COURT OF COMMON PLEAS OF CUMBERLAND OF PENNSYLVANIA CIVIL ACTION - CUSTODY NO. 06-2411 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) No. 08-3092 CIVIL CERTIFICATE OF SERVICE I hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the following attorneys, by First Class United States mail addressed as follows: Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 AND Richard Seneca, Esq. 564 Old York Rd Etters, PA 17319 AND Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 AND Lindsay Gingrich Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 Date:January 20, 2009 Mary A. Etter Dissinger N ?? ? _ ' ' -,? --?., ? ; `? - r:? .. ::? '? , t_. , y.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, IN THE COURT OF COMMON PLEAS Plaintiff V. OF CUMBERLAND COUNTY Daniel J. Smith, OF PENNSYLVANIA Defendant CIVIL ACTION - CUSTODY v. Margo E. Lally, Plaintiff : V. Elizabeth L. Shunk, and NO. 06-2411 Daniel J. Smith Defendants IN THE COURT OF COMMON PLEAS OF V. CUMBERLAND COUNTY, PENNSYLVANIA Richard E. Lally, Plaintiff (consolidated to 06-2411 Civil by V. Order of Court dated October 1, Daniel J. Smith, and 2008) Elizabeth L. Smith Shunk No. 08-3092 CIVIL ANSWER TO MOTION TO PERMIT DISCOVERY And now comes the Children's Resource Center, by and through its attorney, to Answer the Motion to Permit Discovery filed by Defendant, Elizabeth L. Shunk as follows: 1. Admitted. 2. Admitted. By way of further answer, the video recordings depict the examination of a child's external and internal genitalia as part of its clinical protocol. These depictions are graphic and sensitive and constitute a significant invasion of the privacy of a patient's person. By way of further answer, the video depictions were not essential to form the basis of the testimony 1 given by Paula George, M.D., Medical Director of the Children's Resource Center. By way of further answer, the Children's Resource Center believes that the prejudicial nature of the video depictions outweigh the probative value of the same. 3. Admitted 4. Denied. The Movant sets forth only a broad basis for seeking the video depictions of the child and does not, with any specificity, identify a basis upon which the probative value of such video depictions outweighs the prejudicial nature of the same. By way of further answer, Dr. George was called to testify at the hearing as a witness for the Movant. As such, there does not exist a basis for Movant to subsequently challenge the testimony of Movant's own witness. By way of further answer, the Children's Resource Center believes that the privacy rights of the minor require further protection by the appointment of a Guardian Ad Litem. 5. Admitted in Part and Denied in Part. It is admitted only that counsel for the Children's Resource Center received a copy of the Motion and that the Children's Resource Center disagrees with the Motion. After reasonable investigation, the Children's Resource Center is without knowledge or information sufficient to form a belief as to the truth of the remaining averments and the same are deemed denied. 6. Denied. After reasonable investigation, the Children's Resource Center is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and the same are deemed Denied. 7. Denied. After reasonable investigation, the Children's Resource Center is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and the same are deemed denied. 2 WHEREFORE, the Children's Resource Center respectfully requests that the Motion to Permit Discovery be denied and that a Guardian Ad Litem be appointed for the child to protect the child's privacy interests in this action. Respectfully Submitted, Richard C. Seneca, Esq. Supreme Court I.D. #49807 564 Old York Road Etters, PA 17319 Phone: (717) 932-0465 Attorney for Children's Resource Center 3 Jan. 26. 2009 2: 4dFM o y c i rens res No. d242 F. I, Paula George, M.D., verify that the facts set forth in the foregoing Answer to Motion to Permit Discovery are true and Correct to the best of my knowledge, information and belief. I understand that false statements herein ere made subject to the penalties of 18 P&C.S.§4904, relating to unworn falsification to authorities. Paula , M.D. Medical Director Children's Resource Center CERTIFICATE OF SERVICE I hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the following attorneys by First Class United States mail, postage prepaid at Etters, Pennsylvania, and addressed as follows: Mary A. Etter Dissinger, Esq. 28 N. 32"d Street Camp Hill, PA 17011 Mark F. Bayley, Esq. 17 W. South Street Carlisle, PA 17013 Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 Lindsay Gingrich Maclay, Esq. 1029 Scenery Drive Harrisburg, PA 17109 DATE: I l Z? 120 v Sean Michael Shultz, Esq. Knight & Associates, P.C. 11 Roadway Drive, Suite B Carlisle, PA 17015 Richard C. Seneca, Esq. C`? r.s r`LL i?? ? ?? C.._ ?,.? 2-? t ?z ?{ -?..1 .-- ?,. ._.,. f C ?- ? S >"3 ?. ? ? I _,L ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. : ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS NO. 06-2411 CIVIL RICHARD E. LALLY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 30th day of January, 2009, upon consideration of Elizabeth Shunk's Motion for Sanctions and Daniel Smith's Answer thereto, IT IS HEREBY ORDERED AND DIRECTED that a status conference will be held on this matter at 1:30 p.m. on Monday, February 23, 2009, in chambers of Courtroom No. 5. Counsel for Elizabeth Shunk shall prepare the appropriate releases she requests to be signed by L fl -?I I'M OC WNW 1 i ji- the Father and provide copies to this Court and Father's Counsel prior to the status conference. /lark F. Bayley, Esquire Attorney for Father .Aary A. Dissinger, Esquire Attorney for Mother .Aarbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather /ndsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother /Sean Shultz, Esquire, GAL By the Court, -?,- ?=Kl `r, M. L. Ebert, Jr., J. 4 .? f 10 ` 0/ bas ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS NO. 06-2411 CIVIL RICHARD E. LALLY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 30th day of January, 2009, upon consideration of Elizabeth Shunk's Motion to permit discovery, IT IS HEREBY ORDERED AND DIRECTED that copies of the video tapes of the three genital examinations made of Lydia Smith shall be provided to the Court in camera. All expert witnesses will then be allowed to review the tapes in chambers. By the Court, 114\ *? ?-4 M. L. Ebert, Jr., J. ?IJMWASINMd AI NO ', 1 ice",? 'rr.;,4.,jenn J I C `6 WV E- 833 6DOZ r"1±40-0311 I Zmark F. Bayley, Esquire Attorney for Father Mary A. Dissinger, Esquire Attorney for Mother ZBarbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather ./ Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother ./ Sean Shultz, Esquire, GAL ,,,,4ichard Seneca, Esquire bas (21t?s rn?LtLLL a/a?o7 ELIZABETH L. SMITH, PLAINTIFF V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, P DANIEL J. SMITH, DEFENDANTS RICHARD E. LALLY, PLAINTIFF V. DANIEL J. SMITH AND ELIZABETH L. SMITH SF DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ND NO. 06-2411 CIVIL LINK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) : NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 9t day of April, 2009, after hearing in the above captioned matters, IT IS HEREBY ORDERED AND DIRECTED: 1. Legal Custody The parties, Mother, Elizabeth L. Shunk and Father, Daniel J. Smith, shall have shard legal custody of the minor children, Asher Smith, born December 24, 1998, and kydia Smith, born April 1, 2003. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non- emergency decisions affe? ting the children's general well-being including, but not limited to, all decisions regarding her physical health, mental health, education, extracurricular activities ahd religion. Major decisions regarding these categories shall be made by the parents jointly, after discussion and consultation with each other and with a view toward obtaining and following a harmonious policy in the children's best interest. Pursuant to the Jerms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to, medical, dental, religious or school records (to include report cards), and the residence address of the children and of the 2. Ph (1) B conduct at minimum th advised of the dates of th er parent. now and April 30, 2009, Dr. Kasey Shienvold shall (3) reunification sessions with Mother. The Court shall be reunification appointments and if the parents cannot mutually establish the timo and dates for the appointments they will be scheduled by the Guardian Ad Litem (hereofter GAL). Daniel Smith shall be responsible for 70% of the costs for these three reunification sessions. Failure of the Father to pay these reunification costs will result in immediate transfer of the children to the Mother's sole custody. (2) er shall have custody for the following weekends: A. 9:00 a.m. April 25, 2009 until 6:00 p.m. April 26, 2009 B. 9:00 a.m. May 9, 2009, until 6:00 p.m. May 10, 2009 C. 9:00 a.m. May 23, 2009, until 6:00 p.m. May 24, 2009 2 (1) During the Summer school recess the parents shall have shared physical custody of the children week on/week off. Mother shall begin her first period of custody on June 7, 2009, lat 6:00 p.m. until June 14, 2009 at 6:00 p.m. at which time Father will have custody for the following week. The alternating periods will then continue throughout the Summer recess. (1) T be determined on or before August 21, 2009. (2) Guardian Ad Litem will provide the Court with a recommendation as to which school district the children should attend on or before August 14, 2009. (3) If necessary a hearing on this issue has been scheduled for 1:30 p.m. Wednesday, August 19, 2009. Each party will be limited to a one hour presentation during the h aring. 3. Maternal Gran parent Visitation: A. Maternal Grandparents will have unlimited visitation with the children during any period in whic the children are in the physical custody of their Mother as approved by Mother. 4. Reunification Plan Supervised by the Guardian Ad Litem. A. Kasey S ienvold, Psy.D., M.B.A., of Riegler Shienvold & Associates, ("the reunification counsel r") shall continue as the reunification counselor. The reunification sessions ma? continue after the initial 3 sessions ordered in paragraph 3 2 A (1) above as recommended by the reunification counselor and approved by the GAL. The parents shall eoually share the cost of these additional reunification sessions. B. Neither parent will unilaterally initiate or terminate any mental health evaluation or treatment fo( the children. If the children's present therapist, Counselor Zug, is unable or unwilling to provide the reunification services, Jamie Orris or Jamie Kunkel of Guidance Associates of Pennsylvania shall be the new therapist if either of them are willing to serve io that capacity. If an alternative therapist must be selected, the following procedure shall be used. (1) The parent providing insurance coverage will check his or her insurance for reimbursement and possible preferred provider and will inform the GAL of these providers for his referral suggestions; (2) The GAL will provide a list for three providers for the parents to review and investigate independently. They will rank order the list and may veto two names on the list. The palrents lists will be returned to the GAL within 10 days of receipt; and (3) Once assigned by the GAL, both parents agree to be involved in the counseling in an appropriate, shared manner. When recommended by the reunification counselor, Mother shall provide the transportation for the children to their individual counseling sessions. The children's counseling sessions shall be scheduled such that Mother will be able to pick up the children and take them directly to their counseling sessions. n further recommendation of the GAL, upon consulting with 4 the treatment team identified in Paragraph (6) below, the parents shall alternate taking the children to appointme fits. (4) Any information regarding the children from their treatment that the therapist feels is appropriate to divulge shall be made available to both parents. Both parents will respect the confidentiality of child therapy. The parents will optimize insurance benefits when Oossible and will equally share the uninsured costs of any treatment. (5) The reunification counselor will consult with each therapist to orient them to the case add the goals of treatment, prior to the onset of treatment if possible in the case of a dew therapist, and as soon as possible in the case of a therapist who is already providing services. (6) Al! therapists and the reunification counselor will form a treatment team, consulting with each other and coordinating their efforts; the parents agree to sign any release$ and pay fees necessary for face-to-face or telephone consultation. (7) The treatment team, with notice to the parents, shall meet together when necessary to assist parents in decreasing their conflict and to develop effective parenting and codparenting behaviors. C. Whenevor a parent has received information regarding the children - for example, academic pr§gress reports, announcements of parent-teacher conferences, notices regarding extracurricular or sports activities, medical and dental reports, and so on - that Parent shall provide a copy of the material to the other parent. It should be sent in a timely manner, particularly if it is time sensitive. If a parent 5 receives an invitation for 0 child's party, that parent shall immediately inform the other parent of this if the child v?ill be in the other parent's care and ask that parent to follow up with acknowledging and ensuring the child's attendance at the party. D. Unless otherwise agreed in advance, neither parent shall arrange for activities with or for the children when such activities would occur during the other parent's custodial period Or necessitate any involvement of that parent. Any activities mutually agreed on shall ?e equally shared in involvement and cost. E. If possible, the parents shall use email or fax when communicating with each other. Communicatipn shall be only with regard to the children and shall not include personal commends or criticism. The communication shall carry essential information about school, 1health care, and activities in a businesslike manner. Time sensitive or emergency matters can be communicated by telephone. The children should not be used to cor> municate between parents. F. Neither parent shall schedule non-emergency health care without the knowledge and consent of the other parent. The parent who takes the children to routine health care appointments or care of illnesses should inform the other parent immediately after such child's health care, emergencies, either as soon as reasonably G. Child cu manner: The parents should share their involvement in the ng appointments whenever possible. In case of can seek emergency care but will contact the other parent sible to inform them of such care. issues and disputes shall be handled in the following 6 (1) T e parents will initially attempt to resolve disputed issues personally, in an adult ma ner.. Any unresolved disputed issues will be referred to the GAL who will schedule a telephone conference or meeting to resolve each issue. The GAL shall have authority 0 propose an amendment of the custody order to the Court. Any such amendments accepted by the Court shall be binding upon the parties. (2) (child-related disputes will not be formalized by attorneys in letters of filed motions or etitions until the parents have followed the above protocol. Parents can use their atto ney for consultation at any time. (3) P ofessionals involved with the children (teachers, physicians, coaches, dentists, or orth§dontists, and therapist) shall not be engaged in disputes by the parents. Letters shall knot be requested of them, nor shall requests be made by the parents for them to take al position on disputed issues. A. The pare t beginning their custodial period shall pick up the children from the parent who has custody of the children at that time. 6. Alcohol. T A. Neither parent nor step-parent shall consume alcohol to the point of intoxication or smoke in the presence of the children while the children are in their custody. B. Any parent or step-parent may be drug tested at the call of the GAL. Any person found to be testing. isitive for controlled substances shall pay for the cost of the 7 7. Alienation: Neither pa presence of the children. shall disparage the other parent or step-parent in the r parent will allow a third party to disparage the other parent or step-parent in the presence of the children. By the Court, s M. L. Ebert, Jr., J. ZM'ark F. Bayley, Esquire Attorney for Father /ary A. Dissinger, Esquir, Attorney for Mother Barbara Sumple Sullivan, Esquire Attorney for Maternal Gra dfather Lindsay Gingrich Maclay, Esquire Attorney for Maternal Gra dmother ?ean Shultz, Esquire, GA bas I I 'C S e?7-- l ?c 8 Ono ,qNno- 1: So .a WV £ i ddv 600Z Ak 14J"ivui? odd DHl JO 3: D 1J v AUTHORITY TO PAY COURT APPOINTED COUNSEL ?f APR 0 8 2000 1. COURT ?/ ? District Justice L?l Gommon Pleas ? Appellate ? Other 2. VOUCHER N0- 13298 3. FOR (D.J., C.P., A PELI?ATE) ' 4. A (CITY SIAT) ? 5. BUDGET CODE v? ls t ; / _/ _k IN THE CASE OF ? 4 7. CHARGE/OFFENSIE (PURDON CITATION) 8. ? PETTY OFFENSE ? FELONY ? MISDEMEANOR vs ? r e 9. PROCEE INGS (Describe briefly) 11. PERSON REPRESENTED 12. CIVIL DOCKET NO. / ? Defendant - Adult 1 WL r o r ? Defendant - Juvenile 2 D //?L, ? w / I? U 3 C3 Appellant 4 ? Appellee 13. CRIMINAL DOCKET NO. !AS +& ldy 5 ? Habeas Petitioner 6 ? Material Witness 10. PERSON REPRESENTED (Full Name) 7 ? Parolee Charged With Violation 8 ? Probationer Char ed With Violation I Other. ? lA f ? _ 14. APPEALS DOCKET NO. Lyia ?%i?h id. d t &MA r h j _ G / ? TTTORNEY/PAYEE AND A 16. NAME OF Appf Date f MAILING ADDRESS lCn•gh? ? ?4s?so??a?PS, .D. C'. Gad v? ?jYe, ?Suik f3 NAME OF COMMON PLEAS JUDGE ASSIGNED TO CASE C,,fIiSi Cj N7 14015 17.7E EPHONENo. 59-5 18. SOCIAL SECURITY NO OR EIN NO 1 120- CLAIM FOR SERVICES OR EXPENSES 19. SERVICE HOURS DATES AMOUNTS CLAIMED a. Arraignment and/or Plea Multiply rate per hour times total b. Preliminary Hearing hours to obtain "In Court" com- pensation. Enter total below. a Motions and Requests 4 Bail Hearings :) O e. Sentence Hearings U Z I. Trial g. Revocation Hearings h. Juvenile Hearings i. Appeals Court 19A. TOTAL IN COURT COMP. 6 Other (Specify on additional sheets) TOTAL HOURS a X $55 PER HOUR /`? $ f!u, ! D . DU !!! 20. a Interviews and conferences Multiply rate per hour times total I& b. Obtaining and reviewing records hours. Enter total "Out of Court" compensation below. O M a Legal research and brief writing I.- :) O V d. Investigative and other work (Specify on additional sheets) 20A. TOTAL OUT OF COURT COMP. TOTAL HOURS " ?+1 11 X $45 PER HOUR $ 31 D 5 D 21. ITEMIZATION OF REIMBURSAE1E EX PENSES AMT. PER ITEM r Milage $.48 per mile x w x 21 A. TOTAL ITEMIZED EXP. _$ 22. CERTIFICATION OF ATTORNEY/PAYEE 23. GRAND TOTAL CLAIMED Has compensation and/oreimbureement for work In this case previous been ,& tied for? 81YES 0 NO d,A es were If ou aid? I? YES ONO If h H h? 2 _1'• b id? = $ y , y p yea y w om were you pa ow muc Has the person represented paid any money to you. or to your knowledge anyone els , in connection with the matter for 24. DEDUCT. PRIOR PYMTS. which you were appointed to provide representation? 0 YES NO If yes, give details on additional sheets _ff a $ I swear or affirm the truth or correctness 25: NET AMOUNT LAIM of the above statements Signatures of torney/Pays Date Zg.nr,pTTUVt[, Fuu PAYMENT Signature of Judge /Date. ?? O 27. AMT. APPROVED at $ Copy 1 - Mail to Court Administrator at completion of service Knight & Associates, PC 11 Roadway Drive, Suite B Carlisle, PA 17015 Ph: (717) 249-5373 Fax:(717) 249-0457 Lydia & Asher Smith 1513 Market Street Camp Hill, PA 17011 Attention: RE: GAL - CUSTODY DATE DESCRIPTION Mar-02-09 Telephone conference with Mark Bayley, Esquire Mar-09-09 Voicemail to Dr. Sheinvold Mar-12-09 Telephone conference with Mary Dissinger, Esquire Telephone conference with Casey Sheinvold Mar-13-09 Work on Reunification Order Mar-16-09 Attend Hearing Mar-17-09 Receive and review letter from Attorney Sumple-Sullivan Mar-18-09 Receive and review Attorney Dissinger's proposed Order Mar-23-09 Receive and review Attorney Bayley's proposed Order Receive and review Attorney Sumple-Sullivan's proposed Order Mar-24-09 Receive and review letter from Attorney Sumple-Sullivan APR 0.8 2008 April 6, 2009 File #: 4350-001 Inv #: 22878 HOURS AMOUNT LAWYER 0.90 40.50 SMS 0.10 4.50 DMH 0.20 9.00 SMS 0.20 9.00 SMS 3.20 144.00 SMS 8.00 440.00 SMS 0.10 4.50 SMS 0.50 22.50 SMS 0.40 18.00 SMS 0.20 9.00 SMS 0.20 9.00 SMS Invgice #: 22878 Page April 6, 2009 Receive and review Attorney Gingrich 0.20 9.00 SMS Maclay's proposed Order Apr-06-09 Receive and review proposed Order from 0.70 31.50 SMS Judge Ebert Totals 14.90 $750.50 Total Fees & Disbursements Previous Balance Previous Payments Balance Due Now PLEASE MAKE CHECKS PAYABLE TO KNIGHT & ASSOCIATES, P.C. $750.50 $732.60 $732.60 $750.50 Or THE Pf "' °. A17APY 2009 APR 16 Fll a: 17 4ju Via Superior Court of Pennsylvania Karen Reid Bramblelt, Esq. Middle District 100 Pine Street. Suite 400 Prothonotary Harrisburg, PA 17101 Milan K. Mrkobrad, Esq. June 25, 2009 717-772-1294 Deputy Prothonotary www.superior.court.state.pa.us Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: S., E. v. S., D. No. 1573 MDA 2008 Trial Court/Agency Dkt. Number: 06-2411 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Part Filed Date Description November 26, 2008 1 Date of Remand of Record: JUN 2 5 2009 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy oft is certificat to our office. Copy recipients (noted below) need not acknowledge receipt. Milan K. Mrkobrad, Esq. Deputy Prothonotary Signature Printed Name Date /alv OF 4MTARY 211 JUN 26 A1411: 58 i.??U'NTY' F,Cult .'vuVAt+A 3. A09001/09 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 E.L.S. (N/K/A E.L.S.), Appellant V. D.J.S., . Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1573 MDA 2008 Appeal from the Order Entered August 4, 2008, in the Court of Common Pleas of Cumberland County, Civil Division, at No. 06-2411. BEFORE: BOWES, DONOHUE and FREEDBERG, JJ. MEMORANDUM: FILED: May 18, 2009 E.L.S. (N/K/A E.L.S.) ("Mother") appeals from the order dated July 31, 2008 and entered on August 4, 2008, wherein the trial court denied her motion to compel discovery in the ongoing custody dispute with her ex- husband, D.J.S. ("Father"), concerning their two minor children, A.S. and L.S. We quash the appeal as interlocutory. The trial court succinctly summarized the facts underlying this case as follows: On April 21, 2007, a report was received by Cumberland County Children and Youth Services [("CYS")] from the ChildLine Abuse Reporting Systems that L.S. (date of birth: 4/01/03), .. . may have been sexually abused [by Mother and her current husband]. [CYS] immediately began the required civil investigation. The matter was also referred to both the Cumberland County District Attorney [("District Attorney's Office")] and the Upper Allen Township Police Department who 3. A09001/09 began official criminal investigations on or about April 25, 2007. During the course of the criminal investigation, the child was interviewed and videotaped at the Children's Resource Center in Harrisburg. Police reports relative to the investigation and polygraph reports of polygraphs given to [Mother] and her current husband ... were prepared. On October 10, 2007, [CYS] completed its child protective service investigation and filed Form CY48-6/95 with the Department of Welfare. The report 'indicated" that [Mother] was a perpetrator of sexual assault. Being "indicated" the report was required to be maintained pursuant to the Child Protective Services Law. 23 Pa.C.S.A. §6301 et.[sic] seq. [Mother] then requested the Department of Public Welfare to expunge the report of child abuse against her. The Department of Public Welfare ... completed its review of [Mother's] request to expunge on or about March 19, 2008, and stated that they found the report to be accurate and that it would be maintained in their records as originally reported. .. . Trial Court Opinion, 11/25/08, at 2. Pending the civil investigation, CYS permitted Mother supervised visitation with the children. Father maintains legal and physical custody of the children. After cooperating with Mother's supervised visitation for a short period, Father unilaterally terminated the visitation and terminated all contact between Mother and the children. The following procedural history is pertinent to the posture of this appeal. This case began with [Mother] filing a Petition for Modification of Custody on March 7, 2008. The basis for the request for modification of custody was that [Father] ... refused to return L.S. to Mother as a result of allegations of sexual abuse. On May 19, 2008, [Mother] filed Motion for Rule to Compel Discovery which requested that a Rule be issued upon the District Attorney's Office to show cause "why the -2- 3. A09001/09 investigation should not be deemed concluded and the video tapes provided to the District Attorney's Office regarding L.S. and all other reports in their possession pertaining to L.S. whether generated in house by the District Attorney's Office or provided to them from another source be provided to petitioner herein." [Motion For Rule to Compel Discovery, at 5.] On May 28, 2008, the Court issued a Rule upon the District Attorney to show cause why the requested discovery should not be provided. The District Attorney's Office filed an Answer to the Rule with New Matter on June 17, 2008. Both parties then filed briefs[,] and after argument[,] the Court denied the Motion to Compel Discovery on July 31, 2008. Appellant then hied her notice of Appeal to the Superior Court on August 29, 2008. Trial Court Opinion, 11/25/08, at 1. In filing her notice of appeal, Mother invoked the collateral order doctrine, which she contends allows our review of the otherwise interlocutory order denying her discovery request. Mother supplemented her position in subsequent correspondence with this Court that we initiated sua sponte in order to determine the propriety of Mother's appeal. Father received copies of the correspondence, and he declined to take a position on the issue.' It is beyond argument that "Under Pennsylvania law, an appeal may be taken from: (1) a final order or an order certified by the trial court as a final order (Pa.R.A.P. 341); (2) an interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission (Pa.R.A.P. 312, 1311, 42 1 On January 13, 2009, Father mailed a letter to the Prothonotary of the Superior Court of Pennsylvania informing it that he did not intend to file a brief in this matter. -3- I A09001/09 Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P. 313)." Beltran v. Piersody, 748 A.2d 715, 717 (Pa.Super. 2000) (citation omitted). Appellate courts lack jurisdiction to review an unappeaiable order. See Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 601 n.3, 782 A.2d 996, 1001 (2001). Accordingly, we first must determine whether we have jurisdiction to hear this appeal. Mother concedes that the order on appeal is not final and appealable pursuant to Pa.R.A.P. 341 or appealable as of right pursuant to Pa.R.A.P. 311. She argues, however, that the order is reviewable as a collateral order pursuant to Pa.R.A.P. 313. Our Supreme Court codified the collateral order doctrine into Pa.R.A.P. 313, which provides as follows: (a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or a lower court. (b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. We previously explained the collateral order doctrine as follows: The "collateral order doctrine" exists as an exception to the finality rule and permits immediate appeal as of right from an otherwise interlocutory order where an appellant demonstrates that the order appealed from meets the following elements: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied -4- 3. A09001/09 review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Pa.R.A.P. 313; see also Witt v. LaLonde, 2000 PA Super 347, 762 A.2d 1109, 1110 (Pa.Super. 2000) (citations omitted). Zn Re J.S.C., 851 A.2d 189, 191 (Pa.Super. 2004). Our Supreme Court has directed that Rule 313 be interpreted narrowly so as not to swallow the general rule that only final orders are appealable as of right. Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999). To invoke the collateral order doctrine, each of the three prongs identified in Rule 313(b) must be clearly satisfied. J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa.Super. 2004). Herein, we find that Mother is unable to satisfy the third prong, i.e., the question presented is such that if review is postponed until final judgment, the claimed right will be irreparably lost. In order to satisfy the third prong of the collateral order doctrine, an issue must actually be lost if review is postponed. Keefer v. Keefer, 741 A.2d 808, 813 (Pa.Super. 1999). ""Orders that make a trial inconvenient for one party or introduce potential inefficiencies, including post-trial appeals of orders and subsequent retrials, are not considered as irreparably lost." Zd. To meet the criterion of irreparably lost, ""[a]n interest or issue must actually disappear due to the processes of trial." Id. The seminal case addressing the application of the collateral order doctrine in relation to a trial court's discovery order is Ben v. Schwartz, -5- o . J. A09001/09 729 A.2d 547 (Pa. 1999). In that case, the court filed a discovery order directing the Bureau of Professional and Occupational Affairs to release an investigative file that it had maintained on Burton Schwartz, D.D.S., a defendant in a dental malpractice case initiated by Ewa Marta Ben and Arthur T. Ben. The Bureau had objected to the plaintiffs' discovery request, claiming that the information in the investigative file was both privileged and protected by the Right-to-Know Law, 65 P.S. § 66.1 et seq. The Bureau appealed the discovery order to the Commonwealth Court of Pennsylvania, which quashed the appeal as interlocutory. Our Supreme Court reversed, holding, inter aiia, that pursuant to the third prong of the collateral order doctrine, the Bureau's claims of privilege would be irreparably lost if immediate review was not granted. Id. at 552. The Supreme Court reasoned that once revealed, the disclosure of privileged documents cannot be undone, and "there is no effective means of reviewing after a final judgment an order requiring the production of putatively protected material." Id. (citation omitted). The Supreme Court's holding in Ben has produced a litany of cases, wherein this Court consistently applied the collateral order doctrine codified in Pa.R.A.P. 313 to review discovery orders directing the disclosure of putatively privileged materials, i.e., privileges that would be irreparably lost if the material was divulged in conformance with the discovery order. E.g., T.M. v. Elwyn, Inc., 950 A.2d 1050, 1058 -6- . 4 3. A09001/09 (Pa.Super. 2008) (claim of privilege would be irreparably lost if forced to disclose information in conformance with discovery orders); Berkeyheiser v, A-Plus Investigations, Inc., 936 A.2d 1117, 1124 (Pa.Super. 2007) (enforcing discovery orders would force the appellant to disclose potentially privileged documents; thus, there would be no effective means of review available); and Castellani v. Scranton Times, 916 A.2d 648 (Pa.Super. 2007) (interlocutory discovery order compelling newspaper to disclose unnamed source was appealable under collateral order doctrine, in part, because no effective means of review existed to determine putative privilege after final judgment). Herein, Mother attempts to engraft the pertinent aspects of the Supreme Court's reasoning in Ben upon the procedural posture of this case. Specifically, Mother argues that the trial court's failure to order the district attorney's office to disclose the putatively privileged information in this case caused irreparable damage to her custody claim and caused her to lose further time with her children pending the entry of final judgment. For the following reasons, we find Mother's contention unavailing. By requesting that this Court permit her to challenge the district attorney's claim of privilege in this interlocutory appeal, Mother ignores the fundamental tenet underlying Ben that compliance with a trial court's discovery order to release privileged information would permanently dissolve -7- 3. A09001/09 the confidential nature of the material. An interlocutory appeal is appropriate in limited circumstances in order to address the issue of confidentiality prior to disclosure. However, the case at bar presents the inverse situation. Mother is not attempting to protect a privilege, which if waived, cannot be resurrected. Instead, the trial court in this case denied Mother's discovery petition, and the putatively privileged information has not been disclosed. As the privileged material remains protected from invalid disclosure, the fundamental considerations at issue in Ben are not implicated in this case. Accordingly, we conclude that immediate collateral review of this issue is not appropriate under Ben and its progeny. Moreover, although Mother's interest in winning the custody dispute with Father is significant and her need to obtain potentially exculpating evidence is important to her custody claim, these realities do not warrant application of the collateral order doctrine. As previously noted, to satisfy the doctrine's criteria of an irreparably lost claim, "[a]n interest or issue must actually disappear due to the processes of trial." Keefer, 741 A.2d at 813. While the trial court's discovery ruling makes Mother's custody claims difficult to prove and might ultimately delay the relief she seeks, postponing review of that interlocutory ruling until after final judgment is entered does not vitiate Mother's custody action. Thus, Mother cannot satisfy the third prong of the collateral order doctrine. Id. -8- 3. A09001/09 For the foregoing reasons, we quash Mother's appeal from the interlocutory order denying her discovery request. Appeal quashed. Judgment Entered. Prothonotary Date: May 18, 2009 -9- D-C I #t OF THE PROTHONOTARY 2009 JUG! 26 AM I I : 5 a PBMLVN A a : COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff, : CIVIL ACTION - LAW IN CUSTODY V. Daniel J. Smith, Defendant. : DOCKET NO. 06-2411 Civil UNOPPOSED MOTION OF PINNACLE HEALTH HOSPITALS AND PINNACLE HEALTH CHILDREN'S RESOURCE CENTER TO RETRIEVE VIDEO DISCS AND NOW, come Pinnacle Health Hospitals and Pinnacle Health Children's Resource Center, by and through their counsel, to retrieve certain video discs and in support thereof aver as follows: 1. This is a child custody action heard by The Honorable M.L. Ebert, Jr. 2. By Order of Court dated January 30, 2009, this Honorable Court directed that copies of the video tapes of examinations of Lydia Smith be provided to the Court in camera with all expert witnesses being permitted to view such tapes in chambers. A copy of the Order of Court is attached hereto as Exhibit "A." 3. On February 3, 2009, three Digital Video Discs from Pinnacle Health Children's Resource Center were delivered to Chambers, a copy of the Receipt for which is attached hereto as Exhibit "B." 4. On March 9, 2009, one Digital Video Disc from Pinnacle Health Hospitals was 1 I S delivered to Chambers, a copy of the Receipt for which is attached hereto as Exhibit T." 5. Pinnacle Health Children's Resource Center and Pinnacle Health Hospitals seek the return of the video discs to restore and preserve the medical record of care provided to the minor child and to maintain the confidentiality of the depictions on the discs. 6. Counsel for Pinnacle Health Children's Resource Center and Pinnacle Health Hospitals has sought and received the concurrence of all counsel in the retrieval of the video discs. WHEREFORE, Pinnacle Health Children's Resource Center and Pinnacle Health Hospitals respectfully request the entry of an Order permitting their counsel to retrieve from Chambers the video discs provided pursuant to the Order of Court dated January 30, 2009. Respectfully submitted, Richard C. Seneca, Esquire PA Supreme Court No. 49807 564 Old York Road Etters, PA 17319 (717) 932-0465 Attorney for the Pinnacle Health Children's Resource Center and Pinnacle Health Hospitals 2 i f ELIZABETH L. SMITH, PLAINTIFF V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS RICHARD E. LALLY, PLAINTIFF V. DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2411 CIVIL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 30th day of January, 2009, upon consideration of Elizabeth Shunk's Motion to permit discovery, IT IS HEREBY ORDERED AND DIRECTED that copies of the video tapes of the three genital examinations made of Lydia Smith shall be provided to the Court in camera. All expert witnesses will then be allowed to review the tapes in chambers. C5 MBV Fql?? FEB - 5 2009 By the Court, '?,\ 1" (?4 - M. L. Ebert, Jr., J. EXHIBIT "A" Mark F. Bayley, Esquire ,/ Attorney for Father Mary A. Dissinger, Esquire Attorney for Mother Barbara Sumple Sullivan, Esquire ./ Attorney for Maternal Grandfather Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother Sean Shultz, Esquire, GAL `*" Richard Seneca, Esquire bas COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff, v. Daniel J. Smith, Defendant. CIVIL ACTION - LAW IN CUSTODY : DOCKET NO. 06-2411 RECEIPT I acknowledge receipt of -? Digital Video Disc(s) containing three (3) examinations of Lydia Smith conducted by the Children's Resource Center which Disc(s) will be transported to the Chambers of The Honorable M.L. Ebert, Jr. of the Cumberland County Court of Common Pleas in accordance with the Court's Order from the bench of February 2, 2009, directing that the Disc(s) be delivered for an in camera review by physicians retained as experts in the above-captioned action. Dated: Y 10,41)00` l? Richard J.r}?ca Legal Assistant to Richard C. Seneca, Esq. Counsel to Children's Resource Center RECEIPT BY THE COURT I acknowledge receipt of the above-referenced Digital Video Disc(s). Dated: Signature Name ?. r- b."-t Title EXHIBIT "B" COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff, : CIVIL ACTION - LAW IN CUSTODY V. Daniel J. Smith, Defendant. DOCKET NO. 06-2411 RECEIPT I acknowledge receipt of one (1) Digital Video Disc containing an examination of Lydia Smith conducted by Pinnacle Health Hospitals which Disc(s) has been transported to the Chambers of The Honorable M.L. Ebert, Jr. of the Cumberland County Court of Common Pleas in accordance with the Court's Order from the bench of February 2, 2009, directing that the Disc be delivered for an in camera review by physicians retained as experts in the above-captioned action. Dated: Richard J. Se c Legal Assistant to Richard C. Seneca, Esq. Counsel to Children's Resource Center RECEIPT BY THE COURT I acknowledge receipt of the above-refe?renced Digital Video Disc(s). Dated. Aq)-Cfl r ct Signature W, r- %J Name Title EXHIBIT "C" CERTIFICATE OF SERVICE I hereby certify that a copy of the attached Unopposed Motion of Pinnacle Health Hospitals and Pinnacle Health Children's Resource Center to Retrieve Video Discs was served upon the following person by depositing the same in the U.S. Mail, First Class, postage prepaid, on July 30, 2009, at Etters, Pennsylvania: Mark Bayley, Esquire 17 West South Street Carlisle, PA 17013 Mary A. Etter Dissinger, Esquire 28 North 32"d Street Camp Hill, PA 17011 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Sean Michael Shultz, Esquire Knight & Associates, P.C. 11 Roadway Drive, Suite B Carlisle, PA 17015 Lindsay Gingrich Maclay Daley Zucker Meilton Minor & Gingrich LLC 1029 Scenery Drive Harrisburg, PA 17109 Richard C. Seneca, Esquire OF JNc TA Y 7G 9 V'kaL 30 iii i 9: , J q ;° COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Elizabeth L. Smith, Plaintiff, V. Daniel J. Smith, Defendant. CIVIL ACTION - LAW IN CUSTODY DOCKET NO. 06-2411 Civil AUG p 3 200911 ORDER AND NOW, this VP\ day of , 2009, upon consideration of the Unopposed Motion of Pinnacle Health Hospitals and Pinnacle Health Children's Resource Center to Retrieve Discs, the Motion is hereby Granted and counsel for Pinnacle Health Hospitals and Pinnacle Health Children's Resource Center may secure from Chambers the video discs referenced in the Motion. Richard C. Seneca, Esq. 564 Old York Road, Etters, PA 17319 Counsel to Movants .,,/Mark Bayley, Esq. 17 West South Street, Carlisle, PA 17013 Counsel to Father BY THE COURT: 24\1 ?a\/ M.L. Ebert, Jr., N 0 J. /Sn Michael Shultz, Esq. 11 Roadway Drive, Suite B, Carlisle, PA 17015 Guardian Ad Litem indsay Gingrich Maclay, Esq. 1029 Scenery Drive, Harrisburg, PA 17109 Counsel to Maternal Grandmother Mary A. Etter Dissinger, Esq., 28 North 32nd Street, Camp Hill, PA 17011 Co nsel to Mother Barbara Sumple-Sullivan, Esq. 549 Bridge Street, New Cumberland, PA 17070-1931 Counsel to Maternal Grandfather (2oPI-ey rnz,-tt L s OF THE PPOTF fin TARP 2009 AUG -4 P 2.4 CI..tm?c.: 1. • l AUTHORITY TO PAY COURT APPOINTED COUNSEL i? _f t? L 1. COURT 2. VOI^?JCHER 13301 ? District Justice }d Common Pleas ? Appellate ? Other 1 2 3. FOR (D.J., C.P., APPELLATE) 4. AT (CITY/STATE) ? Sr ?l"sta." ZL_ 5. BUDGET CODE F IN THE CASE O 6 7. CHARGE/OFFENSE (PURDON CITATION) B. ? PETTY OFFENSE . , J_ 5m,-++, Vs %%mk- ? FELONY ? MISDEMEANOR 9. PROCEEDINGS (Describe briefly) 11. PERSON REPRESENTED 12. CIVIL DOCKET NO. I 2.006® - Zi( I I 4ars?• ? 1 O Defendant - Adult r J T 2 ? Defendant - Juvenile 3 ? Appellant 13. CRIMINAL DOCKET NO 4 ? Appellee 5 ? Habeas Petitioner 6 ? Material Witness t 0. PERSON REPRESENTED (Full Name) 7 ? Parolee Charged With Violation e ? Probationer Charged With Violation 14. APPEALS DOCKET NO. L yd;.. SW?i }+(? 9 Other. e.WI.tr4_-n ivi Appl Date 16. NAME OF ATTORNEY/PAYEE AND MAILING ADDRESS q.^ K?:!y??- ? ?¢???? :fir ??? Q ' TXO- I?ae?u bLa /?. ?, . Eb¢ rf fir; ' ! f ot..?.c vi re a 9e ? I ?i4 17a1? G?•ltsle NAME OF COMMON PLEAS JUDGE ASSIGNED TO CASE / i?avS 17. TELEPHONE No. 18. SOCIALSECURITYNO OR EIN NO -i 11-7• y 9 -5 37 3 10 --1 Tors i 3 CLAIM FOR SERVICES OR EXPENSES 19 SERVICE HOURS DATES AMOUNTS CLAIMED . a. Arraignment and/or Pies Multiply rate per hour times total hours to obtain "in Court" com- b. Preliminary Hearing pensation. Enter total below. c. Motions and Requests a i+,t li- d. Bail Hearings h ? i F-pe- 0 e. Sentence Hearings V I. Trial z_ g. Revocation Hearings h. Juvenile Hearings i. Appeals Court 19A. TOTAL IN COURT COMP. i. Other (Specify on additional sheets) TOTAL HOURS a r X $55 PER HOUR '5Z.570 - $ • 20. a. Interviews and conferences Multiply rate per hour times total h t t t l "O t f C t" E ours. n er u our o a o b. Obtaining and reviewing records compensation below. U. O ¢ c. Legal research and brief writing :3 O d. investigative and other work (Specify on additional sheets) 20A. TOTAL OUT OF COURT O u COMP. TOTAL HOURS : X $45 PER HOUR $ 2-7?J t • 00 21. ITEMIZATION OF REIMBURSABLE EX PENSES AMT. PER ITEM Milage $.48 per mile x W w 21 A. TOTAL ITEMIZED EXP. 0 = $ «. ?- 22. CERTIFICATION OF ATTORNEY/PAYEE d foil fYY//ES li l 23. GRAND TOTAL C?LhAIMED e y been p Has compensation and/or r bursement for work in this case previous l = $ e If yes. were you paid? ES ? NO Ifyis&bywhomwore youpaidr-alis Howmuch 7l 24. DEDUCT. PRIOR PYMTS. Has the person represented paid any money to you, or to your knowle a anyone el in connection with the matter for a $ give details on additional heets resentati O Y If yes vide re int d t r , p which you were appo e o p o I swear or affirm the truth or correctness Z Date 25: NET AMOUNT CLAIMED S O ? of the above statements Signature of Att /Payee = s 3 6 f • V 26.APPROVID FUN Signature of ?D t : 27. AMT. APPROVED a e IAYMFNI Judge ? V Copy 1 - Mail to Court Administrator at completion of service ? Y t Knight & Associates, P. C. 11 Roadway Drive, Suite B Carlisle, PA 17015 Ph: (717) 249-5373 Fax:(717) 249-0457 Lydia & Asher Smith 1513 Market Street Camp Hill, PA 17011 August 28, 2009 File #: 4350-001 Attention: Inv #: 23729 RE: GAL - CUSTODY DATE DESCRIPTION HOURS AMOUNT LAWYER Jul-15-09 Receive and review message from Attorney 0.10 4.50 SMS Dissinger Jul-28-09 Receive and review voicemail from Beth 0.10 4.50 SMS Stambaugh; Leave return message for Beth regarding need for hearing and grandparents' attendance Receive and review message from Beth 0.10 4.50 SMS Stambaugh; Telephone conference with Beth Stambaugh Jul-29-09 Receive and review email from Beth Shunk 0.10 4.50 SMS Aug-07-09 Office conference with Beth and Gary Shunk 1.10 49.50 SMS and clients; Office conference with with clients separately from Shunks Aug-12-09 Visit home of Elizabeth Shunk 2.80 126.00 SMS Aug-17-09 Telephone conference with Attorney Dissinger 0.40 18.00 SMS Aug-18-09 Telephone conference with Attorney Bayley 0.30 13.50 SMS Review file and prepare for hearing 1.10 49.50 SMS Aug-19-09 Attend hearing 1.50 82.50 SMS invoice 2.3729 Page 2 s Aug-21-09 Receive and review email from Attorney Bayley Totals Total Fees & Disbursements Previous Balance Previous Payments Balance Due Now August 28, 2009 0.10 4.50 SMS 7.70 $361.50 a301.'u $45.00 $0.00 $4 0 PLEASE MAKE CHECKS PAYABLE TO KNIGHT & ASSOCIATES, P.C. FILE D- E 2009 Si F 117 AM I I : n -1 C(?' ` w ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL J. SMITH, DEFENDANT V. MARGO E. LALLY, PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, DEFENDANTS NO. 06-2411 CIVIL RICHARD E. LALLY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. (consolidated to 06-2411 Civil by Order of Court dated October 1, 2008) DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK DEFENDANTS NO. 08-3092 CIVIL ORDER OF COURT AND NOW this day of 2009, after hearing in the above-captioned matters, IT IS HEREBY ORDERED AND DIRECTED: 1. The Court's previous Order dated April 9, 2009, is hereby vacated. 2. Legal Custody: The parties, Mother, Elizabeth L. Shunk and Father, Daniel J. Smith, shall have shared legal custody of the minor children, Asher Smith, born December 24, 1998, and Lydia Smith, born April 1, 2003. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the children's general well-being including, but not limited to, all decisions regarding her physical health, mental health, education, extracurricular activities and religion. Major decisions regarding these categories shall be made by the parents jointly, after discussion and consultation with each other and with a view toward obtaining and following a harmonious policy in the children's best interest. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to, medical, dental, religious or school records (to include report cards), and the residence address of the children and of the other parent. 3. Physical Custody (A) The parties shall alternate custody on a weekly basis. Except as otherwise provided for holidays, all custodial changes shall take place on Friday. During the school year, the party receiving custody shall pick up the children from school at the end of the school day. During the summer or on days when there is no school, if the holiday section of this Order does not apply, the parties shall exchange custody of the children at 4:00 PM at the Arby's in Camp Hill. (B) Holidays 1. The Holiday custodial schedule under this section 3(B) supersedes section 3(A). 2. Father's Day and Mother's Day: Father shall have the children on Father's Day, and Mother shall have the children on Mother's Day, from 9:00 AM until 5:30 PM. 3. In even-numbered years, Mother shall have custody of the children from 7:00 PM the day before the holiday until 7:00 PM the day of the holiday on New Year's Day, Memorial Day, and Labor Day. In even-numbered years, Father shall have custody of the children from 7:00 PM the day before the holiday until 7:00 PM the day of the holiday on Easter and Independence Day. The parties shall alternate the holidays in this paragraph on an annual basis. 4. Thanksgiving: Custody of the children on Thanksgiving will consist of Block A, which shall be from the end of school on the day before Thanksgiving until 7:00 PM on Thanksgiving Day, and Block B, which shall be from 7:00 PM on Thanksgiving Day until 7:00 PM on the day following Thanksgiving. In even-numbered years, Mother shall have Block A and Father shall have Block B. In odd-numbered years Father shall have Block A and Mother shall have Block B. 5. Christmas: Custody of the children on the Christmas holiday shall be divided between Block A, which shall commence on December 24th at noon or the end of school, which ever is later, and shall end on Christmas Day at 2:00 PM; and Block B, which shall commence at 2:00 PM on Christmas Day and shall end at 2:00 PM on December 26th. In odd-numbered years, Mother shall have Block A and Father shall have Block B. In even-numbered years, Father shall have Block A and Mother shall have Block B. 4. Maternal Grandparent Visitation: Maternal Grandparents will have unlimited visitation with the children during any period in which the children are in the physical custody of their Mother as approved by Mother. 5. As needed, Kasey Shienvold, Psy.D., M.B.A., of Riegler Shienvold & Associates, ("the reunification counselor") shall continue as the reunification counselor as recommended by the GAL. The parents shall equally share the cost of the reunification sessions. 6. Neither parent will unilaterally initiate or terminate any mental health evaluation or treatment for the children. If the children's present therapist, Counselor Zug, is unable or unwilling to provide the reunification services, Jamie Orris or Jamie Kunkel of Guidance Associate of Pennsylvania shall be the new therapist if either of them are willing to serve in that capacity. If an alternative therapist must be selected, the following procedure shall be used: (A) The parent providing insurance coverage will check his or her insurance for reimbursement and possible preferred provider and will inform the GAL of these providers for his referral suggestions; (B) The GAL will provide a list for three providers for the parents to review and investigate independently. They will rank order the list and may veto two names on the list. The parents lists will be returned to GAL within 10 days of receipt; (C) Once assigned by the GAL, both parents agree to be involved in the counseling in an appropriate, shared manner. When recommended by the reunification counselor, Mother shall provide the transportation for the children to their individual counseling sessions. The children's counseling sessions shall be scheduled such that Mother will be able to pick up the children and take them directly to their counseling sessions. Upon further recommendation of the GAL, upon consulting with the treatment team identified in Paragraph (6) below, the parents shall alternate taking the children to appointments. (D) Any information regarding the children from their treatment that the therapist feels is appropriate to divulge shall be made available to both parents. Both parents will respect the confidentiality of child therapy. The parents will optimize insurance benefits when possible and will equally share the uninsured costs of any treatment. 7. Whenever a parent has received information regarding the children - for example, academic progress reports, announcements of parent-teacher conferences, notices regarding extracurricular activities or sports activities, medical and dental reports, and so on - that parent shall provide a copy of the material to the other parent. It should be sent in a timely manner, particularly if it is time sensitive. If a parent receives an invitation for a child's party, that parent shall immediately inform the other parent of this if the child will be in the other parent's care and ask that parent to follow up with acknowledging and ensuring the child's attendance at the party. 8. Unless otherwise agreed in advance, neither parent shall arrange for activities with or for the children when such activities would occur during the other parent's custodial period or necessitate any involvement of that parent. Any activities mutually agreed on shall be equally shared in involvement and cost. 9. If possible, the parents shall use email, text message, or fax when communicating with each other. Communication shall be only with regard to the children and shall not include personal comments or criticism. The communication shall carry essential information about school, health care, and activities in a businesslike manner. Time sensitive or emergency matters can and should be communicated by telephone. The children should not be used to communicate between parents. 10. Neither parent shall schedule non-emergency health care, dental care or other medical appointments without the knowledge and consent of the other parent. If a parent must schedule a non-emergency appointment without getting the other parent's prior consent, the scheduling parent shall provide written notice of the appointment details to the other parent by email or text message within 24 hours of scheduling the appointment. (A) The parent who takes the children to routine health care appointments or for care of illnesses should inform the other parent of the results of the appointment immediately afterwards. (B) The parents should share their involvement in the child's health care, alternating appointments whenever possible. (C) In case of emergencies, either parent can seek emergency care but will contact the other parent by telephone, and email or text message, as soon as reasonably possible to inform them of such care. (D) If the custodial parent is unable to transport a child to a medical, dental, or other healthcare-related appointment or visit, the custodial parent shall first offer to the non-custodial parent the option of providing the transportation before using any step-parent or other third party for transportation. 11. Child custody issues and disputes shall be handled in the following manner: (A) The parents will initially attempt to resolve disputed issues personally, in an adult manner. Any unresolved disputed issues will be referred to the GAL who will schedule a telephone conference or meeting to resolve each issue. The GAL shall have authority to propose an amendment of the custody order to the Court. Any such amendments accepted by the Court shall be binding upon the parties. (B) Child-related disputes will not be formalized by attorneys in letters or filed motions or petitions until the parents have followed the above protocol. Parents can use their attorney for consultation at any time. (C) Professionals involved with the children (teachers, physicians, coaches, dentists, or orthodontists, and therapist) shall not be engaged in disputes by the parents. Letters shall not be requested of them, nor shall requests be made by the parents for them to take a position on disputed issues. 12. Transportation: All custody exchanges shall occur at the Arby's in Camp Hill unless otherwise specified in this Order. 13. Alcohol, Tobacco, and Controlled Substances: (A) Neither parent nor step-parent shall consume alcohol to the point of intoxication or smoke in the presence of the children when the children are in their custody. (B) Any parent or step-parent may be drug tested at the call of the GAL. Any person found to be positive for controlled substances shall pay for the cost of the testing. 14. Alienation: (A) Neither parent shall disparage the other parent, step-parent, or grandparents in the presence of the children or to daycare providers, babysitters, school employees or staff, or any individual or entity related to the employment. Neither parent will allow a third party to disparage the other parent or step-parent in the presence of the children. (B) The parties shall take all necessary steps to ensure that the children, daycare providers, babysitters, school employees or staff, or any individual or entity related to the employment of the parties or their immediate families are not exposed to comments by their spouses and other third parties that disparage the other parent, step-parent, or grandparents. (C) In the event that either party does not take the necessary steps required by this section, this court will consider the party's failure to take such necessary steps as a basis for modification of custody such that the other party would be awarded primary physical custody, and the court would consider this a basis to award the other party sole legal custody ark F. Bayley, Esquire Attorney for Father 0 V)da"ry A. Dissinger, Esquire Attorney for Mother p/frarbara Sumple Sullivan, Esquire ` Attorney for Maternal Grandfather V Vndsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother can M. Shultz, Esquire, GAL By the Court: SLED-Of" OF THE PROTRMTARY 2009 SEP 30 AM 11: 53 GI BERLA D COUNTY PENNSYL,YANIA O ELIZABETH L. SMITH, • IN THE COURT OF COMMON PLEAS Plaintiff • OF PENNSYLVANIA • vs . DANIEL J. SMITH, Defendant • NO. 06-2411 CIVIL vs . • MARGO E. LALLY fit `- f;x'- Plaintiff • vs • • -0 --1 ELIZABETH L. SHUNK, AND DANIEL J. SMITH Defendants .• RICHARD E. LALLY, Plaintiff vs . • DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK Defendants • PETITION TO MODIFY CUSTODY 1 . Petitioner is Elizabeth L. Shunk, residing at 25 South 18th Street, Camp Hill, Cumberland County, Pennsylvania. 2 . Respondent is Daniel J. Smith, residing at 225 North 21st Street, Camp Hill, Cumberland County, Pennsylvania. 3. Respondent is Margo E. Lally, residing at 1660 East Caracas Avenue, Hershey, Dauphin County, Pennsylvania. r3, PO/ 6 ck1 t/ 3 ,o 3 od33� 4 . Respondent is Richard E. Lally, residing at 11020 West Amity Road, Boise, Ada County, Idaho. 5. Petitioner and Daniel J. Smith are the parents of Asher Smith and Lydia Smith, their minor children. 6. Margo E. Lally is the maternal grandmother of the minor children. 7 . Richard E. Lally is the maternal grandfather of the minor children. 8 . The parties share legal and physical custody of the children pursuant to a Court Order dated September 30, 2009 . (A copy of the Order is attached as Exhibit "A" . ) 9. Elizabeth L. Shunk seeks to modify the current custody arrangement because father has several criminal charges pending against him, which cause Mother to be concerned for the physical safety of the children, and she seeks to modify custody because Father has consistently and flagrantly violated the terms of the Order, and Mother is better able to provide a nurturing environment in which the children may flourish, and the Guardian Ad Litem has not addressed Petitioner ' s concerns . WHEREFORE, Elizabeth L. Shunk requests the Court to modify custody and award Mother primary physical and legal custody of the children, and supervised custodial periods with Father. Respectfully Submitted: DISSINGER AND DISSINGER - By: Mary A. Etter Dissinger 1 Attorney for Petitioner Supreme Court I . D. #27736 28 North Thirty-Second Street Camp Hill, PA 17011 (717) 975-2840 - Phone (717) 975-3924 - Fax VERIFICATION I, Elizabeth L. Shunk, verify that the statements made in the Petition to Modify Custody are true and correct . I understand that false statements herein are made subject to the penalties of 18 Pa.C. S. §4904 relating to unsworn falsification to authorities . Eliza Meth L. Shunk, Defendant OF ELIZABETH L. SMITH, IN THE CUMBERLAND COICOMMON)NT PNNSYL NIA •PLAINTIFF CUMBERL • V. • • DANIEL J. SMITH, • DEFENDANT • V. • • MARGO E. LALLY, • • PLAINTIFF V. ELIZABETH L. SHUNK, AND DANIEL J. SMITH, NO, 06-2411 CIVIL DEFENDANTS • RICHARD E. LALLY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF : . CUMBERLAND COUNTY, PENNSYLVANIA V. : (consolidated to 06-2411 Civil by Order of Court : dated October 1, 2008) DANIEL J. SMITH AND : ELIZABETH L. SMITH SHUNK : DEFENDANTS : NO. 08-3092 CIVIL ORDER OF COURT AND NOW, this 16\‘\ day of S 4 l . , 2009, after hearing in the above-captioned matters, IT IS HEREBY ORDERED AND DIRECTED: 1. The Court's previous Order dated April 9,2009, is hereby vacated. 2. Legal Custody: The parties, Mother, Elizabeth L. Shunk and Father, Daniel J. Smith, shall have shared legal custody of the minor children, Asher Smith, born December 24, 1998, and Lydia Smith,born April 1, 2003. Each parent.shall have an equal right, to be exercised jointly with the other parent, to make all major EXHIBIT on-emergency decisions affecting the children's general well-being including, but not limited to, all decisions regarding her physical health, mental health, education, extracurricular activities and religion. Major decisions regarding these categories shall be made by the parents jointly, after discussion and consultation with each other and with a view toward obtaining and following a harmonious policy in the children's best interest. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the children including, but not limited to, medical, dental, religious or school records (to include report cards), and the residence address of the children and of the other parent. 3. Physical Custody (A) The parties shall alternate custody on a weekly basis. Except as otherwise provided for holidays, all custodial changes shall take place on Friday. During the school year, the party receiving custody shall pick up the children from school at the end of the school day. During the summer or on days when there is no school, if the holiday section of this Order does not apply, the parties shall exchange custody of the children at 4:00 PM at the Arby's in Camp Hill. (B) Holidays 1. The Holiday custodial schedule under this section 3(B) supersedes section 3(A). 2. Father's Day and Mother's Day: Father shall have the children on Father's Day, and Mother shall have the children on Mother's Day, from 9:00 AM until 5:30 PM. 3. In even-numbered years, Mother shall have custody of the children from 7:00 PM the day before the holiday until 7:00 PM the day of the holiday on New Year's Day, Memorial Day, and Labor Day. In even-numbered years, Father shall have custody of the children from 7:00 PM the day before the holiday until 7:00 PM the day of the holiday on Easter and Independence Day. The parties shall alternate the holidays in this paragraph on an annual basis. 4. Thanksgiving: Custody of the children on Thanksgiving will consist of Block A, which shall be from the end of schoo', on the day before Thanksgiving until 7:00 PM on Thanksgiving Day, and Block B, which shall be from.7:00 PM on Thanksgiving Day until 7:00 PM on the day following Thanksgiving. In even-numbered years, Mother shall have Block A and Father shall have Block B. In odd-numbered years Father shall have Block A and Mother shall have Block B. 5. Christmas: Custody of the children on the Christmas holiday shall be divided between Block A, which shall commence on December 24th at noon or the end of school, which ever is later, and shall end on Christmas Day at 2:00 PM; and Block B, which shall commence at 2:00 PM on Christmas Day and shall end at 2:00 PM on December 26th. In odd-numbered years, Mother shall have Block A and Father shall have Block B. In even-numbered years, Father shall have Block A and Mother shall have Block B. 4. Maternal Grandparent Visitation: Maternal Grandparents will have unlimited visitation with the children during any period in which the children are in the physical custody of their Mother as approved by Mother. 5. As needed, Kasey Shienvold, Psy.D., M.B.A., of Riegler Shienvold & Associates, ("the reunification counselor") shall continue as the reunification counselor as recommended by the GAL. The parents shall equally share the cost of the reunification sessions. 6. Neither parent will unilaterally initiate or terminate any mental health evaluation or treatment for the children. If the children's present therapist, Counselor Zug, is unable or unwilling to provide the reunification services, Jamie Orris or Jamie Kunkel of Guidance Associ:to of Pennsylvania shall be the new therapist if either of them are willing to serve in that capacity. If an alternative therapist must be selected, the following procedure shall be used: (A) The parent providing insurance coverage will check his or her insurance for reimbursement and possible preferred provider and will inform the GAL of these providers for his referral suggestions; (B) The GAL will provide a list for three providers for the parents to review and investigate independently. They will rank order the list and may veto two names on the list. The parents lists will be returned to GAL within 10 days of receipt; (C) Once assigned by the GAL, both parents agree tc be involved in the counseling in an appropriate, shared manner. When recommended by the reunification counselor, Mother shall provide the transportation for the children to their individual counseling sessions. The children's counseling sessions shall be scheduled such that Mother will be able to pick up the children and take them directly to their counseling sessions. Upon further recommendation of the GAL, upon consulting with the treatment team identified in Paragraph (6) below, the parents shall alternate taking the children to appointments. (D) Any information regarding the children from their treatment that the therapist feels is appropriate to divulge shall be made available to both parents. Both parents will respect the confidentiality of child therapy. The parents will optimize insurance benefits when possible and will equally share the uninsured costs of any treatment. 7. Whenever a parent. has received information regarding the children— for example, academic.progress reports, announcements of parent-teacher conferences, notices regarding extracurricular activities or sports activities, medical and dental reports, and so on—that parent shall provide a copy of the material to the other parent. It should be sent in a timely manner, particularly if it is time sensitive. If a parent receives an invitation for a child's party, that parent shall immediately inform the other parent of this if the child will be in the other parent's care and ask that parent to follow up with acknowledging and ensuring the child's attendance at the party. 8. Unless otherwise agreed in advance, neither parent shall arrange for activities with :'r for the child.-en when such activities would occur during the other parent's custodial period or necessitate any involvement of that parent. Any activities mutually agreed on shall be equally shared in involvement and cost. 9. If possible, the parents shall use email, text message, or fax when communicating with each other. Communication shall be only with regard to the children and shall not include personal comments or criticism. The communication shall carry essential information about school, health care, and activities in a businesslike manner. Time sensitive or emergency matters can and should be communicated by telephone. The children should not be used to communicate between parents. 10. Neither parent shall schedule non-emergency health care, dental care or other medical appointments without the knowledge and consent of the other parent. If a parent must schedule a non-emergency appointment without getting the other parent's prior consent, the scheduling parent shall provide written notice of the appointment details to the other parent by email or text message within 24 hours of ;cheduling the appointment. (A) The parent who takes the children to routine health care appointments or for care of illnesses should inform the other parent of the results of the appointment immediately afterwards. (B) The parents should share their involvement in the child's health care, alternating appointments whenever possible. (C) In case of emergencies, either parent can seek emergency care but will contact the other parent by telephone, and email or text message, as soon as reasonably possible to inform them of such care. (D) If the custodial parent is unable to transport a child to a medical, dental, or other healthcare-related appointment or visit, the custodial parent shall first offer to the non-custodial parent the option of providing the transportation before using any step-parent or other third party for transportation. 11. Child custody issues and disputes shall be handled in the following manner: (A) The parents will initially attempt to resolve disputed issues personally, in an adult manner. Any unresolved disputed issues will be referred to the GAL who will schedule a telephone conference or meeting to resolve each issue. The GAL shall have authority to propose an amendment of the custody order to the Court. Any such amendments accepted by the Court shall be binding upon the parties. (B) Child-related disputes will not be formalized by attorneys in letters or filed motions or petitions until the parents have followed the above protocol. Parents can use their attorney for consultation at any time. (C) Professionals involved with the children (teachers, physicians, coaches, dentists, or orthodontists, and therapist) shall not be engaged in disputes by the parents. Letters shall not be requested of them, nor shall requests be made by the parents for them to take a position on disputed issues. 12. Transportation: All custody exchanges shall occur at the Arby's in Camp Hill unless otherwise specified in this Order. 13. Alcohol, Tobacco, and Controlled Substances: (A) Neither parent nor step-parent shall consume alcohol to the point of intoxication or smoke in the presence of the children when the children are in their custody. (B) Any parent or step-parent may he drug tested at the ca?l of the GAL. Any person found to be positive for controlled substances shall pay for the cost of the testing. 14. Alienation: (A) Neither parent shall disparage the other parent, step-parent, or grandparents in the presence of the children or to daycare providers, babysitters, school employees or staff, or any individual or entity related to the employment. 1'neither parent will allow a third party to disparage the other parent or step-patent in the presence of the children. (B) The parties shall take all necessary steps to ensure that the children, • daycare providers, babysitters, school employees or staff, or any individual or entity related to the employment of the parties or their immediate families are not exposed to comments by their spouses and other third parties that disparage the other parent, step-parent, or . grandparents. (C) In the event that either party does not take the necessary steps required by this section, this court will consider the party's failure to take such necessary steps as a basis for modification of custody such that the other party would be awarded primary physical custody, and the court would consider this a basis to award the other party sole legal custody By the Court: . _ _ M.L. Ebert, Jr., J. Mark F. Bayley, Esquire Attorney for Father Mary A. Dissinger, Esquire Attorney for Mother Barbara Sumple Sullivan, Esquire Attorney for Maternal Grandfather Lindsay Gingrich Maclay, Esquire Attorney for Maternal Grandmother .F �. K4si t . t . � , , + , ,ti,ii ti:+.`•f 1'• 1 here 1{ :.,it 1 sy haat Sean M. Shultz, Esquire, GAL ', a id.; "L ,, - • ,• !AI ` i ie• • / ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff OF PENNSYLVANIA vs . . DANIEL J. SMITH, . Defendant NO. 06-2411 CIVIL vs . . MARGO E. LALLY . Plaintiff . vs . . ELIZABETH L. SHUNK, AND . DANIEL J. SMITH . Defendants .• RICHARD E. LALLY, . Plaintiff • vs . . • DANIEL J. SMITH AND . ELIZABETH L. SMITH SHUNK . • Defendants . CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below, I served a true and correct copy of the Petition to Modify Custody upon Sean M. Shultz, Esquire, GAL, Mark F. Bayley, Esquire, attorney for Daniel J. Smith, Lindsay Gingrich McClay, Esquire, attorney for Margo E. Lally and Barbara Sumple- Sullivan, Esquire, attorney for Richard E. Lally, by First Class United States mail addressed as follows : Sean M. Shultz, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 Mark F. Bayley, Esquire 17 West South Street Carlisle, PA 17013 Lindsay Gingrich Maclay, Esquire 635 North 12 th Street Lemoyne, PA 17043 Lindsay Gingrich Maclay, Esquire 5006 Trindle Road Mechanicsburg, PA 17050-3647 Barbara Sumple-Sullivan, Esquire 540 Bridge Street New Cumberland, PA 17070 Date: /(l° /� c•�?i" / ° in Mary Et er D singer, Esq. r. ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff OF PENNSYLVANIA VS . DANIEL J. SMITH, Defendant NO. 06-2411 CIVIL VS . • r: MARGO E. LALLY -- Plaintiff -s. VS . ..} - cn po co ELIZABETH L. SHUNK, AND p4 DANIEL J. SMITH =C) Defendants _,C: RICHARD E. LALLY, Plaintiff VS. DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK Defendants AFFIDAVIT hereby swear or affirm, subject to penalties of law including 18 Pa. C. S. §4904 relating to unsworn falsification to authorities that : 1 . I and/or another adult living in my household have or have not been convicted, pled guilty or no contest to the following crimes in Pennsylvania or any other jurisdiction, as follows : NO YES ME ADULT IN MY DATE HOUSEHOLD Contempt for violation of a Protection from Abuse order or agreement; r . NO YES ME ADULT IN MY DATE HOUSEHOLD XDriving under the influence of alcohol or a controlled substance or drugs; X Possession, sale, _ delivery, manufacturing or offering for sale any controlled substance or other drug or device; K Criminal homicide; Murder; Aggravated assault; `7t, _ Terroristic threats; _ Stalking; Kidnapping; Unlawful restraint; False imprisonment; Luring a child into a motor vehicle or structure; Rape, statutory sexual _ assault, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, indecent assault, indecent exposure, sexual abuse of children, sexual exploitation of children, sexual intercourse with an animal or incest; Sex offender non-compliance _ with registration requirements, statute, court order, probation or parole, or other requirements under 18 Pa. C.S.A. §3130 and 42 Pa. C.S. §9795.2; NO YES ME ADULT IN MY DATE HOUSEHOLD Arson and related offenses; Concealing death of a child; Endangering the welfare of children; Prostitution and related offenses; Obscene and other sexual _ materials and performances; Corruption of minors or unlawful contact with a minor; 2. I and/or another adult living in my household have present and/or past history of violent or abusive conduct including the following: NO YES ME ADULT IN MY DATE HOUSEHOLD ,��,( .0-7 A finding of abuse by a y- L Children & Youth Agency or similar agency in Pennsylvania or similar statue in another jurisdiction; Abusive conduct as defined _ under the Protection from Abuse Act in Pennsylvania or similar statue in another jurisdiction; Other: Signature COMMONWEALTH OF PENNSYLVANIA SS . . COUNTY OF �� r— On this f day of — d n 2014, before me, a Notary Public, the undersigned officer, pers pally appeared C- oaf. ( . �-� , known to me or satisfactorily proven to be the person presenting this affidavit, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My Commission Expires: 7s\ t -- Not ry u lic - COMMONWEALTH OF PENtISYI.VANIA NOTARIAL SEAL DANIELLE R SCHOONOVER Notary Public L YSVILLE BORO.PERRY COUNTY ommission Expires Jun 14,2017 ELIZABETH L. SMITH, IN THE COURT OF COMMON PLEAS Plaintiff OF PENNSYLVANIA VS. , DANIEL J. SMITH, Defendant NO. 06-2411 CIVIL VS. , MARGO E. LALLY , Plaintiff VS . , ELIZABETH L. SHUNK, AND DANIEL J. SMITH Defendants RICHARD E. LALLY, Plaintiff VS. DANIEL J. SMITH AND ELIZABETH L. SMITH SHUNK Defendants CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, hereby certify that on the date set forth below, I served a true and correct copy of the foregoing document upon Sean M. Shultz, Esquire, GAL, Mark F. Bayley, Esquire, attorney for Daniel J. Smith, Lindsay Gingrich McClay, Esquire, attorney for Margo E. Lally and Barbara Sumple- Sullivan, Esquire, attorney for Richard E. Lally, by First Class United States mail addressed as follows : Sean M. Shultz, Esquire Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 Mark F. Bayley, Esquire 17 West South Street Carlisle, PA 17013 Lindsay Gingrich Maclay, Esquire 635 North 12 th Street Lemoyne, PA 17043 Lindsay Gingrich Maclay, Esquire 5006 Trindle Road Mechanicsburg, PA 17050-3647 Barbara Sumple-Sullivan, Esquire 540 Bridge Street New Cumberland, PA 17070 Date• C� 2�7 `{ � � �� Ma y meter Dissinger, Esq. r7 ELIZABETH L. SMITH IN THE COURT OF COMMON PLEA S Q rn PLAINTIFF W t� r� CUMBERLAND COUNTY, PENNSYL $gA V. 2006-2411 CIVIL ACTION LAW DANIEL J. SMITH • < r IN CUSTODY _ DEFENDANT 7s- ^• ORDER OF COURT AND NOW, Thursday,January 30,2014 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday,Esq. ,the conciliator, at 39 West Main Street,Mechanicsburg,PA 17055 on_ Thursday,February 13,2014 10:00 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished,to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. You must file with the Court a verification regarding any criminal record or abuse history regarding you and anyone living in your household on or before the initial in-person contact with the court (including, but not limited to, a conference with a Judge or custody conciliator) but not later than 30 days after service of the complaint or petition. No party may make a change in the residence of any child which significantly impairs the ability of the other party to exercise custodial rights without first complying with all of the applicable provisions of 23 Pa.C.S. §5337 and Pa.R.C.P.No. 1915.17 regarding relocation. FOR THE COURT, By: /s/ Dawn S. Sunday, Esgj+/ Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Co 4Cfcc Cumberland County Bar Association R44,, in• ""1�+ 32 South Bedford Street !S.fia�4g�_ Carlisle, Pennsylvania 17013 S'. .S' z, Telephone (717) 249-3166 ft44* in. `` S� L� R � Ste, (>�- � aati A14 y i . fiZ .c F140). SI //20// - . l ti ELIZABETH L. SMITH IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. DANIEL J. SMITH 2006 -2411 CIVIL ACTION LAW Defendant IN CUSTODY vs. MARGO E. LALLY Plaintiff vs. ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants vs. RICHARD E. LALLY, Plaintiff vs. DANIEL J. SMITH and ELIZABETH L. SMITH SHUNK Defendants ORDER OF COURT ` t t 7 AND NOW, this 1,D day of Mal- t.\ , 2014, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The prior Order of this Court dated September 30, 2009 shall continue in effect as modified by this Order. 2. The parties shall alternate scheduling and taking the Children to regular dental, vision and medical appointments. Within 24 hours of scheduling any appointment for the Children, the scheduling parent shall notify the other parent by email of the appointment, including the professional, the date /time and the purpose for the appointment. In the event of an appointment other than regular checkups, such as sick child appointments, dental problems, etc., the parent who has custody of the Children at the time shall be responsible to make the appointment and shall notify the other parent in accordance with this provision. Within 24 hours following any appointment for the Children, the parent who took the Children to the appointment shall send an email to the other parent summarizing what took place at the appointment, including any diagnosis, treatment, follow -up and other significant information. 3. Only the parents shall take the Children to dental, vision and medical appointments. In the event a parent is unavailable to take the Child to an appointment scheduled during his or her custodial time, that parent shall contact the other parent to offer the opportunity to take the Child to the appointment before making other arrangements 4. Within seven days of the custody conciliation conference, the Father shall set up an email account for use in sending and receiving communications regarding the Children with the Mother and shall text the new email address to the Mother. The parties shall save all emails regarding the Children required by Court Order. 5. The parties shall initiate counseling for the Children with Jamie Kunkle or other professional selected by agreement at Guidance Associates. The Mother shall be responsible to schedule the first counseling appointment for each Child and shall take the Children to their first appointments. Thereafter, the parties shall alternate taking the Children to their counseling appointments at Guidance Associates. The parties shall follow the recommendations of the counselor with respect to the frequency of sessions for each Child. 6. Neither parent shall schedule events or activities for the Children which will occur during the other parent's custodial time without the advance written consent of the other parent. In the event information pertaining to an event or activity that will take place during the other parent's custodial time comes to the attention of the noncustodial parent, that parent shall share the information received with the other parent by email. 7. Neither party shall share information used by school officials to development either Child's IEP with either of the Children. 8. The parties agree to engage the services of a mediator /arbitrator for a minimum of at least three full months, for the purpose of resolving disputes between the parents regarding the Children and assisting the parents in obtaining the cooperation and communication skills necessary to enable them to make decisions on their own on an ongoing basis. The parties shall equally share the costs of mediation/arbitration. The mediator /arbitrator shall be given the authority to reallocate the costs of the process between the parties in the event either party is determined to be abusing use of the process to the other party's detriment. 9. After three months have passed from the date of initiation of mediation/arbitration, but within six months, counsel for any party may contact the conciliator to schedule a telephone conference for all counsel and to thereafter, if necessary, either arrange for reassignment of the case to conciliation or the scheduling of a hearing if the issues raised in the Mother's Petition have not been adequately addressed by the processes implemented by this Order. 10. No party shall do or say anything which may estrange the Children from the other parent, injure the opinion of the Children as to the other parties, or hamper the free and natural development of the Children's love and respect for any other party. All parties shall ensure that third parties having contact with the Children comply with this provision. 11. No party shall be permitted to relocate the residence of the Children which significantly impairs the ability to exercise custody unless every individual who has custodial rights to the Children consents to the proposed relocation or the Court approves the proposed relocation. A person proposing to relocate MUST comply with 23 Pa. C.S. §5337. 12. This Order is entered pursuant to an agreement of the parties at a custody conciliation conference. The parties may modify the provisions of this Order by mutual consent in writing. In the absence of mutual consent in writing, the terms of this Order shall control. BY THE COURT, M. L. Ebert Jr. cc: %rk F. Bayley Esquire — Counsel for Father ary A. Etter Dissinger Esquire — Counsel for Mother ,/Sean M. Shultz Esquire — GAL e6tD re.s fnLa-t lc.C., a/as /ey ELIZABETH L. SMITH IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. DANIEL J. SMITH 2006 -2411 CIVIL ACTION LAW Defendant IN CUSTODY vs. MARGO E. LALLY Plaintiff vs. ELIZABETH L. SHUNK and DANIEL J. SMITH Defendants vs. RICHARD E. LALLY, Plaintiff vs. DANIEL J. SMITH and ELIZABETH L. SMITH SHUNK Defendants Prior Judge: M. L. Ebert Jr. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3 -8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME Asher Smith Lydia Smith BIRTH YEAR CURRENTLY IN CUSTODY OF 1998 2003 Mother /Father Mother /Father 2. A custody conciliation conference was held on March 19, 2014, with the following individuals in attendance: the Mother, Elizabeth Smith, with her counsel, Mary A. Etter Dissinger Esquire, the Father, Daniel Smith, with his counsel, Mark F. Bayley Esquire, and the Guardian Ad Litem, Sean M. Shultz Esquire. 3. The parties agreed to entry of an Order in the form as attached. Date , c o,(9-0 r/ D j-A-d--- awn S. Sunday, Esquire Custody Conciliator