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HBRBHRT W. GILSDORF, JR, and I
ROBYN L. GILSDORF and their I
minor 80n BRANDON MICHABL and I
th.ir minor daughter DANA I
MARIS, I
PlAintiffs I
I
V. I
IN TilE COURT OF COMMON PLBAS
CUMBBRLAND COUNTY, PBNNSYLVANIA
NO. tJ'I- LfLfBo ~ T~
NICHOLAS DUNPHY t/a
"All That Video"
Uefrtndant
JURY TRIAL DBMANDBD
NOTICE
YOU HAVE BEEN SUED IN COUU'l'. If you wlah to defend Ili8Inllt the clalma let forth In the
foUowini pagel, you mUlt take IIOtlon wlthJn twenty (20) dayl nfter thil Complaint and Notice ere lIllrved.
by enterlni a written eppearwlce pereolwly or by attorney and I\Ilni In wrltlni with the Court your
defenlel or objeellonll to the claln\lllet forth agWnllt you, You arc warned that If you fnil to do 10 the eaae
may proceed without you 8I1d judgment may be entered agWnet you by the Court without further notice
for any money claimed In the Complalnt or for any other clalm or reUef requeeted by the plalntUT. You
may 100e money or property or other rlghtl ImportlUlt to you.
YOU SHOULD TAKE 'rHlS PAPER '1'0 YOUR LAWYER AT ONCE, III YOU DO NOT HAVE
A LAWYER OR CANNOT AFI10RD ONE, GO TO OR 'l'ELEPllONE 'l'HE Q1o'FICE SET FOU'l'H BELOW
TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Ad1l11nlatrator
4th Floor, Cumber~U1d County Courthoulle
CarIlBle, PA 170lil
(717) 240,0200
Le han de1l18l1dndo a Ulted en In corte, SI ueted qulere defenderee de eetall dem8l1dae eXpuetW
en laa p8B\naa elqulenteB, UIlted Ilene vlentn (20) dlna de pla~o III partir de In fecha de Is demanda y Is
notlllcaclon. Ueted debe preeentar ul1Jlaparlencln ellOrltn 0 en pereoM 0 por abolll1do y IlI'Ohlvar en In corte
en forma ellOrltn lUll defenll88 0 lUll objecloneB a Iaa delllandna en contra de BU perBona, Sea av\aado que
II Ulted no Be dlfienda, Is corte tomara medldaa y puede entrar una orden contra UIlted IIn previo avlao
o notlllcadon y por cunlquier queja 0 niivlo que eB pedJdo en In petlclon de den1W1dn, UBted puede perder
dlnero 0 BUI propledadeB 0 oBtroB derechoB ImportanteB para UIIted.
LLEVE ES'l'A DEMANDA A UN ABODAGO IMMEDlATAMENTE, SI NO TIENE ABOGADO
o SI NO TIENE EL DINEUO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0
LLAME POR TELEFONO A LA OFIClNA CUYA DIUECCION SE ENCUENTRA ESCRlTA ABAJO
PARA AVERIGUAR DONDE SE PUEDE CONSEQUlR ABISTENCIA LEGAL,
Court Adminlatrator
4th Floor, CU/lIberland County CourthouBe
Carllale, P A 17013
(717) 240.6200
HBRBRRT W. GILSDORF, JR, and I
ReBY" L. GILSDORF and their I
minor Ion BRANDON MICHAEL and I
th.ir minor daughter DANA I
~IR, I
Plaintifh I
I
V. I
IN THR COURT OF COMMON PLRAS
CUMBBRLAND COUNTY, PBNNSYLVANIA
NO.
NICHOLAS DUNPHY t/a
"All That Video"
Dehndant
JURY TRIAL DBMANDBD
~
The Plaintiff, by and through MIRIN & JACOBSON, and their
attorney Robert S. Mirin, files this complaint and in support
thereof aver the follcwing.
1. Plaintiff Herbert W. Gilsdorf is an adult individual,
father and next friend of Plaintiffs Dana Marie Gilsdorf and
Brandon Michael Gilsdorf who reeides at 419 North Walnut Street,
Mechanicsburg, Pennsylvania 17104.
2. Plaintiff Robyn L. Gilsdorf is an adult individual,
mother and next friend of the above minor Plaintiffs and wife of
Plaintiff Herbert W. Gilsdorf, and resides at the same address as
the above Plaintiffs.
3. Defendant Nicholas "Nick" Dunphy is the owner and trades
as Nick Dunphy's "All that Video" ( hereinftfter "the businese")
located at 224 North Second Street, Harrisburg, Dauphin County ,
Pennlylvania 17101, where it is engaged in the business of renting
videocassetes and videogame cartridges.
4.
a)
Plaintiff Herbert Gilsdorf became a member/user of
"All That Video" in 1988, when he resided at 1724 English Drive in
1
Harri.burg, Pennsylvania.
b) At the time the Plaintiff established his account
with the Defendant's business, he presented hi. Virginia driver's
license and his Ilarrisburg phone number for tho English Drive
address (717-691-0929) as identification, paying a membership fee
of $25.00.
5. a) After the initial membership prooess, the rental of
proporty from the Defendant's business required no presentation of
idontification or signature on a rental form, and was acoomplishtld
by only the verbal verifioation of a telephone number on account.
b) The Plaintiff was never advised by the Defendant of
any termination prooedure to deactivate his account.
6. The Plaintiff used the membership for only about one to
one and a half years, during whioh time the Plaintiff rented only
videocassetes of movies and never rented Nintendo cartridges.
7. On or about August 1, 1990/ the Plaintiff sold his
business, including the phone number used as identifioation for the
membership at the Defendant's business.
8. The Plaintiff subsequently relocated on or about August
2/ 1990 at 931 Allenview Drive, with a new telephone number.
9. The Plaintiff, after moving to the address in Paragraph
8 / beoame a member of Blockbuffter Video where he exolusively
thereafter rented videotapes, no longer patronizing the Defendant/s
business.
10. a) The Defendant, on or about December 19, 1991,
negligently concluded that the Plaintiff had rented and not
2
returned the Nintendo vLdeo games "Blades of Steel" and "Tetris".
b) This conclullion was based on the aforementioned
deficient business practicee, where one could rent property wLthout
presenting identifioation other than verbally communicating a phone
number.
11. The value of the rental property in question was
approximately $80.00 when new, although the property in question
was used.
12. On or about Deoember l!l, 1991 the Defendant swore out and
lodged a criminal complaint againet the Plaintiff in which
defendant maliciously and/or recklessly and without probable cause
accused the Plaintiff of having committed the crime of theft of
leased property under 18 Pa.C.S.A. sec. 3932, a second degree
misdemeanor subjeot to a fine of up to $5,000.00 and imprisonment
up to two years.
13 . a) As a
Plaintiff's location,
Plaintiff .
b) Subsequently, an open war.rant was iseued for the
Plaintiff's arreet for the above charge.
14. a) On or about July 13, 1993, The Plaintiff was
arrested without notice under this warrant at his place of business
at P.O. Box 1024, Camp Hill, Pennsylvania 17011 in front of his
employees and customers.
b) Thus, the Plaintiff was humiliated and embarrassed,
forced to contaot his wife concerning the arrest, had his privacy
result of this criminal oomplaint and
a bench warrant or capias was issued for
3
invaded by inoaroeration in jail overnight , was forced to poat
bail and inour $1500 in ooun~el's fees, kept from managing hi.
place of bu.in..a and during the period of incaroeration was denied
oontaot with his wife and minor ohildren, oausing all of them
mental anguish.
0) Particularly, the minor ohildren presently oontinue
to exprelB oonoe1.'ns about law enforoement offioers, and talk
publicly about the arrest, in publio situations, to cause the
Plaintiffs further embarrassment and humiliation.
15. On or about September 2, 1993, the DistriGt Attorney for
Cumberland County, summarily and wJ.thout hearing, dismiseed the
oharges filed by the Defendant against the Plaintiff when informed
that the Plaintiff had not used the acoount for a number of years
and that the basis of the Defendant's criminal complaint was the
aforementioned questionable practices of the Defendant Nicholas
Dunphy.
16. As a result of this arrest and incaroeration, Plaintiffs
Robyn Gilsdorf the Plaintiff minor children were subjected to
deprivation of the Plaintiff's attention while he was incarcerated,
he was deprived of their society and consortium during that same
period, and subsequently suffered mental anguish, harassment,
embarrassment, invasion of privacy, loss of life's pleasures and
oounsel costs of $1500 to defend against the reckless and malicious
oriminal charge.
COUNT I- MALICIOUS CRIMINAL PROSECUTION
Paragraphs 1 through 16 are incorporated herein by referenoe
4
.. though .et forth fully and at length.
17. The Defendant instituted oriminal prooeedings against the
Plaintiff without probable oause, evidenoed by the Defendant'.
reckless relianoe upon only the phone number reoords of his
businees for maintenanoe of the oriminal oharge, and therefore an
unreaeonable and inadequate investigation of the oiroumstanoee.
lB. The Defendant instituted the criminal prooeedings with
malioe, based on reokless and oppressive dieregard for the
Plaintiff's rights, without probable oause, evidenoed by the
Defendant's limited attempts at investigation and limited attempts
to oontaot the Plaintiff.
19. The underlying oriminal prosecution against the Plaintiff
was terminated favorably when the district attorney for Cumberland
County summarily dismissed all charges against the Plaintiff
without a hearing upon learning of the Defendant's trade praotioes
whioh had an insufficient basis for the criminal complaint.
20. As a direot and proximate cause of said criminal
oomplaint, whioh was false, malicious, and without probable oause,
the Plaintiff has been injured in Plaintiff's good name, has
.uffered humiliation and mental distress, and has incurred $1500 in
oounsel oosts in defense of the Defendant's malicious and unfounded
criminal complaint.
WHEREFORE the Plaintiffs demand damages in exoess of $20,000.
COUNT II- MALICIOUS ABUSE OF PROCESS
Paragraphs 1 through 20 are inoorporated herein by referenoe
.. though set forth fully and at length.
5
21. The Defendant'e oriminal oomplaint oonetitutee an abuee
of prooeee, for the Defendant intentionally and malioiouely ueed
the oriminal juetioe preoeee to haraee and humiliate the Plaintiff,
whioh oonetituted an illeqal, improper, and perverted use of leqal
proceee.
22. The Defendant reckhBsly andlor intentionally andlor
maliciously used the criminal justice prooe.. with the ulterior
purpoee to haraes and recklessly interfere with the Plaintiff'e
privacy, through the Defendant's reliance on the limited
information used as the basis for the oomplaint.
23. The Defendant's filing of the oriminal oomplaint direotly
and proximately oaused the Plaintiff to be injured in the
Plaintiff's good name, suffer humiliation and mental distress, and
inour expenses in dofending himself against the Defendant's
malicious abuse of process, all to the Plaintiff's damage.
WHEREFORB, the Plaintiffs demand damages in exoees of $20,000.
COUNT III- FALSE IMPRISONMENT
Paragraphs 1 through 23 are inoorporated herein by reference
as though set forth fully and at length.
24. The Defendant's act of filing the oriminal oomplaint
oaused Plaintiff to be falsely imprisoned in that the Defendant
aoted knowingly and lor recklessly causing the oonfinement of the
Plaintiff within boundaries fixed by the County in causing the
Plaintiff to be inoarcerated overnight.
25. The Defendant's filing of the oomplaint directly and/or
indireotly resulted in the unlawful and or involuntary restraint
6
r,\m.~N\III\l'1II)1"I\VU'II~\"
HERBER'l' W. 0IU10orU~, .m, IInd
ROBYN L, (IJUlOORlf IInd tholr
minor son, BRANDON MIOHAEL IInd
tholr minor dllul(hter, DANA MAItIE,
PllllntilTs
IN 'l'HE COlJR'l' Ol~ COMMON PLEAS
UUMBEHLAND COUN'l'Y, PENNSYLVANIA
CIVIL ACTION. LAW
NO, 114.4480 CIVIL 'mHM
v,
NICHOLAS DUNPHY UII
"All 'l'hllt Video"
,JUHY 1'HIAL DEMANDED
Dufundunt
PHELIMINAHY OB,mC'l'IONS
AND NOW, comes Dl!fundunt IIboVI' nllml,d by his IIttornoy, MARTSON,
DEARDORFF, WILLIAMS & 0'1'l'{), und demm's to the Plllinliffs' Compluintus follows:
I. D1~MlJHHlm AS '1'0 'l'lm gN'I'IHI~ COMPLAINT
1. 1'1l!! incident which fOl'll1s tho gl'llVllmlll\ of till! instllnt COll1pluint is the nl'l'cst
at' Pluinliff husllllnd un 7/l:l/!l:l, Illll'SUllnt to WUl'l'lInt, though it is not IIllelled which court
issued the wUl'l'IInl.
2, The COlllphlintulleges thut Defendunt filod II CI'IIIIII1II1 Complllint of M.2 Theft
against Plnintlff Husbnnd 11IIsed un the miatllkon bl!lil!f on thl! pmt of Defcndnnt (who owna
and opel'lltoa u videu I'entul storu in HUl'l'iaburg) thllt Plllintiff Huabllnd fnilod to l'etul'Il two
NIntendo video gnmea. The Compllllnt llllogl!a thut this lIIiatukl' wus CIIUSI!d by till!
Defondunt's busilll!as pl'llctice "whore OIl!! could l'tmt property without pl'eaenting
identificntion othcr thnu vOl'bully commuuicutinllll phune number." (Compluint lO(b.)
:I, 1'ho Compluint nlloges tllIlt Pluintiff Husbund cllllllgod his uddl'ess und phone
number uncI' becoming u membCl' of Dofimdunt'a I'entul pl'ogJ'lUll, TIll! Compluint ullllged thllt
Plaintiffs did nut ront two Nintendo vidl!o gumes in '1uostion, und implil!a thllt aomllonll
fnlsely obtnined them uaing Plnlntiffs pholll! numb!!l',
4, 1'he Compluint fuils to ullege nny fucta suffici!!llt to form u concluaion thut
Defenduntllcted inteutionully 01' mllliciously with I'l!glll'd to tho criminul chm'gl!s of M.2 1'hoft
thut he bl'oughtngninat Pluinliff Huahllnd, At moat, till! Compbllnt CIIll Ill! inll!rpretod to
llllege thnt Defendllllt WIIS miatllkun In hia Iwlief thut Plnintiff wua the thil!f, und ahould hUVll
Investigllted more thol'uughly IIl!fol'l! briuginll cl'imilllll Chal'lll!S,
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(,) rf.r:!.....
DEC06~%
. ..
'~"HB'RBiRT'--W.GILSDORF , JR., and
ROBYN L. GILSDORF, and their
minor Bon, BRANDON MICHABL, and
their minor daughter DANA MARIE,
Plaintifh,
IN THB COURT OF COMMON PLBAS
CUMBBRLAND COUNTY, PA
CIVIL ACTION - LAW
V.
NO. 94-4480 CIVIL TERM
NICHOLAS DUN~HY tla
"ALL THAT VIDEO"
Defendant,
JURY TRIAL DEMANDED
PLAINTIFF'S BRIEF IN OPPOSITION OF DEFENDANT'S
~IMINARY OBJECTIONS
I. FACTS
ThiB oaBe ariBeB from the thoft of two Nintendo game
oartridgeB from the Defendant's bUBiness and the subsequent arrest
of the Plaintiff, Herbert w. Gilsdorf, Jr., foe the theft of theBe
game oartridgeB.
The chargee were later dropped when the
Cumberland County Distriot Attorney realized there was insuffioient
evidenoe to maintain the aotion against Mr. Gilsdorf.
The Plaintiff, Herbert w. Gilsdorf, Jr., initiated thh aotion
on or about August 10, 1994, by the filing of a Complaint against
the Defendant, Nioholas Dunphy t/a "All that Video." Tho Complaint
oontains three Counts, the first for Malicious Criminal
Proseoution, the sdoond for Malioious Abuse of Prooess, and the
third for False Imprisonment. Plaintiff, Herbert Gilsdorf's wife
and ohildren have also joined in this Complaint for, inter AliA,
deprivation of attention, loss of oonsortium, and mental anguish.
The Plaintiff, beoame a member of "All That Video" in 1988,
when he reBided at 1724 English Drive in Harrisburg, Pa. At the
time the Plaintiff established his aocount, at the Defendant's
plaoe of business he provided identifioation in the form a Virginia
1
,
Drivers lioens., and a phone number at his plaoe of business, and
paid a membeuhip fee of $25.00. After the init,lal membenhip
prooe.., the rental of property from the Defendant's buBine..
required only the US8 of a telephone number without any showing of
identifioation from the pereon renting the property. The Plaintiff
was never advised of any procedure to terminate his membership or
any procedur~ to deaotivate his aocount.
The Plaintiff used his membership for about 1 to 1 1/2 years
renting only video oassettes, and never during this period did the
Plaintiff rent any Nintendo oartridges. On or about August 1, 1990
the Plaintiff Bold his business and the phone number used to
identify him as a member of the Defendant's video busineBB was
deaotivated from th~ Plaintiff's name. The Plaintiff SUbsequently
relooated on or about August 2, 1990 to a new address at 931
Allenview Drive with a oorresponding change in phone number.
On or about December 19, 1991 the Defendant negligently
oonoluded that t.he Plaintiff rented and had not returned two
Nintendo gamesl "Blades of Steel" and "Tetris". This oonolusion
was based upon a defioient business praotice where an individual
oould rent property from the defendant by merely annunciar.ing a
telephone number and without showing any proper identification to
establish the identity of the renting party. The value of the
property in question was approximately $80.00 when new and would
have a decreased value as used property. On or about Deoember 19,
1991, the Defendant swore out and lodged a criminal complaint
against the Plaintiff. The Defendant maliciously and negligently
2
.
and\or reokleBBly and without probable oauee, aoouBBd the Plaintiff
of oommitting the orime of theft of lealed property, under 18
Pa.C.S.A. 5 3932, a eeoond degree miedemeanor eubjeot to a fine of
$5000.00 and imprisonment of 2 yeare.
The Defendant filed a oriminal ccmplaint, and thereafter a
benoh warrant or oapias was issued. Subeequently, an open warrant
wae ieeued for the Plaintiff's arreet. On or about July 13, 1993
the Plaintiff was arrested without notioe in his plaoe of bUBineBB
bef.ore hiB ooworkers and cuetomers at P.O. Box 1024, Camp Hill, Pa.
17011. The Plaintiff was humiliated and embarrassed, foroed to
oontaot his wife conoerning the arrest, and his privacy was invaded
by his incarceration, and he incurred $1500.00 in ccunsel fees to
defend himself against the uneubstantiated oharges of the
Defendant. During his incarceration, he was not denied contact
with hie wife and minor children. This caused the family to suffer
from mental anguish.
On or about September 2, 1993, the District Attorney's office
for cumberland County diBmissed the charges Bummarily and without
hearing. The DiBtrict Attorney's office dismissed the charges when
they learned of the business practices of the Defendant to this
action and through their inveatigation realized that the charges
lodged by the Defendant were unBubstantiated and without merit.
II. QUESTIONS PRESENTED I
A. DOES THE COMPLAINT FAIL TO STATE A CAUSE OF ACTION
FOR MALICIOUS CRIMINAL PROSECUTION?
SUGGESTED RESPONSE I No.
B. DOES THE COMPLAINT FAIL TO STATE A CAUSE OF ACTION
3
, " .
, .
FOR MALICIOUS ABUSB OF PROCBSS?
SUGGBSTBD RBSPONSBI No.
C. DaBS THB COMPLAINT FAIL TO STATB A CAuse OF ACTION
FOR FALSe IMPRISONMENT?
SUGGBSTBD RBSPONSBI No.
D. DOBS THB COMPLAINT FAIL TO STATB A CAUSB OF ACTION
AGAINST THB DBFBNDANT BY THB PLAINTIFFS, ROBYN L.
GILSDORF, BRANDON MICHAEL GILSDORF OR DANA MARIB
GILSDORF?
SUGGBSTBD RESPONSE I No.
II I. ARGUMBNT I
A. Plaintiff' B complaint doe IS not fail to Btate a caUBe
of action for malicious criminal prosecution.
Count I of the Plaintiff' B oomplaint is a claim by all
Plaintiffs againBt the Defendant for malicious criminal
proB8oution.
In order to maintain an aotion for malioiouB
proB8oution, Plaintiff must establish the following elementBI
1. That the Defendant initiated oriminal prcoeeding
against the Plaintiff,
2. That the chargeB wore not Buppcrted by probable
oauBe,
3. That the chargeB were brcught with actual malio.l.ouB,
and
4. That the criminal prcceedings were terminated in
favor of the Plaintiff.
Kellv v. General Team~~, 518 Pa. 517, 544 A.2d 940 (1988).
The Defendant initiated criminal proceeding against the
Plaintiff on or about December 19, 1991, when the Defendant 8wore
out and lodged a criminal complaint againBt the Defendant in
4
"
Cumb.,rland County, The D.,tendant initiated the oriminal
proeeoution by oharging that the Defendant stole leased property
under 18 Pa.C.s.A. 83932, whioh is a seoond degree misdemeanor and
subjeot up to fine of $5,000.00 and imprisonment up to two years.
The faots upon whioh the lodged oharges were based were erroneous
and the Plaintiff was subsequently exonerated of the oharges when
the oharges were dropped by the Cumberland County Distriot
Attorney's Offioe. Thus, one and four under the standarde set
forth in Kelly, euora, have been met by the Plaintiff in that the
Plaintiff was oharged with a odme by the Defendant and the
prooeeding were terminated in the Plaintiff's favor.
Th~ Plaintiff must also establish that the ohargss brought
against him were not supported by probable oause. Kelly, euora.
An examination of the faots as alleged by the Plaintiff show that
the Defendant swore out a criminal oomplaint without probable oause
to believe that the Plaintiff oommitted a orime. A plaintiff in a
malioious proseoution case may establish lack of probable oauee
when the faots and circumstances are insuffioient to warrant a
reasonable belief in the oharges. 7 AmJur, POF 2d. Lack of
probable cause may also be established by proof that the initiator
or the Defendant in this action possessed only information which
was unreliable, and that the initiator failed to make further
inquiry which a reasonable person would have made. 52 AmJur 2d
553-54. The Plaintiff in this case avsrs that the defioient
bueiness practices of the Defendant would not have lead reasonable
pereon to believe that the Plaintiff had committed a crime. The
5
"
fact., a. eatabliehed in the ccmpliant, provide that the Defendant
in thi. case was missing two Nintendo cartridge a from hia
inventory. Thele two Nintendo cartridges were rented under the
phone number of the Plaintiff. The budne.. practice of the
Defendant wal to permit the rental of property without the Ihowing
of proper identification in order to lubstantiate the perl on who
actually rented the property. In thil oaee, the Plaintiff has not
uaed the eervice. of the Defendant for a period of approximately
one and one-half yearB before this inoident. Additionally, the
Plaintiff had never rented any Nintendo gamee from the Defendant.
If the Defendant would have made a curlory inveltigation before
filing the criminal chargel, he would have known that the Plaintiff
had moved and he could have located by the Plaintiff by uling
common gener-al knowledge.
The Plaintiff had changed residents but was still within a
reasonable distance of the location of the Defendant and the
Defendant was under an affirmative duty to realonable affix the
looation of the Plaintiff and to determine whether the Plaintiff
wal, in aotuality, the perlon who ablconded with the property in
queltion. Given that the only facts that the Defendant had to
determine whether the Plaintiff, in faot, stole his property was
that the property was rented under the phone number of the
Plaintiff and that the tapes were never returned. There was never
any proper identification made of the Plaintiff which would have
enabled the Defendant to be secure in his criminal complaint that
the Plaintiff was actually the person who absconded with his
6
property. Therefore, the Plaintiff allertl that the chlrgel were
not lupported by probable caUBe, that the charges were brought for
the purpose of collecting a civil debt, that the deficient budne..
practice of the Defendant cauBed the Plaintiff to be maliciouwly
prolecuted, and that a reaBonable perlon would have made further
inquiriel into the reliability of the information uleel bring the..
criminal chargel bofore Bwearing out a complaint. ElecauBe the
Defendant in thiB cale failed in hie duty to make a reaBonable
inveltigation, i. t is blllieved that the Defendant lacked probable
caule to initiate criminal proceedingB againBt the Plaintiff.
The Plaintiff must alBo aBBert that the chargeB brought by the
Defendant were brought with aotual maliciouB. The iuue of
maliciouB iB irrelevant in this matter becauBe malice can be
inferred from the lack of probable caUBe AB auerted by the
Plaintiff. Kellv, BUlJra. BecaUBe the Plaintiff can eBtabliBh that
the Defendant brought chargeB without probable caUBe, the Plaintiff
need not prove actual malicious becauBe maliciouB will be inferred
from the lack of probable caUBe.
WHBREFORE, the eBtablishment by proof that the initiator
pOBseBBed only information which waB unreliable haB been met by the
Plaintiff in this matter. The information uBed to bring the
criminal chargeB against the Plaintiff waB inBufficient and
unreliable. The deficient business practices of the Defendant were
the proximate caUBe of the enBuing arrest and detention of the
Plaintiff. Therefore, the Plaintiff believes that the preliminary
objections to the Plaintiff' B complaint in regard to maliciouB
7
..
, " -
pro.ecuticn count .hould be di.mi..ed and the Oefendant .hould be
required to an.wer the oomplaint within twenty (20) day. of the
date of thi. Court'. Order.
B. PLAIN'l'IFF'S COMPLAINT DOBS NOT FAIL TO STATB A CAUSB
OF ACTION FOR MALICIOUS ABUSB OF PROCBSS.
The Oefendant in the above oaptioned matter initiated oriminal
prooeeding again.t the Plaintiff, Herbert W. Gilsdorf, Jr. Count
II of the Complaint seeks reoovery based upon malioiou. abu.e of
prooess. (Complaint at 5.) An examination of the averment. of the
Complaint whioh are supported by relevant Pennsylvania law, olearly
e.tablishes that the Plaintiff has Btated a suffioient OAu.e of
action for abuse of process.
In an action for abuse of proceBB, the gravamen of the action
is the improper use of process after it has been issued or that a
perversion of the process has been initiated and used by the
Defendant for .ome improper purpose. Mggee v. FeeQe, 517 Pa, 247,
253, 535 A.2d 1020, 1023 (19B71 I Jordan V. Berman, 75B F.Supp. 269,
280 (B.O.Pa. 1991).
The Defendant in this action initiated a criminal complaint in
which the Plaintiff. was arrested and imprisoned for a short period
of time due to the theft of two Nintendo cartridges for which the
Plaintiff was not responsible. Upon the release of the Plaintiff
from prison, the Plaintiff hired counsel at Mirin & Jaoobson to
represent him in the oriminal proBecution which was initiated
against him. After the Plaintiff's oounsel discussed the relevant
matters with the Defendant, the Defendant failed to promptly
dismiss the oharges or provide a more detailed investigation of the
8
I o' ..
theft of the two tapes. Bsoause of the defioient business praotioe
of the Defendant, Plaintiff was required to defend himself against
oharges whioh laok probable cause. When the District Attorney
investigated the oharges brought by the Defendant, they were
promptly dismined. Had the Defendant done a proper investigation,
there would have been no need to continue the process of criminal
oharges against the Plaintiff and the Plaintiff would not have
inourred attorney's fees in the amount of approximately $1,500.00.
WHERBFORE, the Plaintiff in this matter has established that
the laok of probable cause to believe that he oommitted any kind of
crime is a suffioient basis for his count of malioious abuse of
prooess. The Defendant pervsrted the prooess by failure to
establish any probable oause to believe that this Plaintiff
oommitted any crime whatsoaver and oontinued ths proseoution until
suoh time as the District Attorney's office, through a reasonable
investigation, concluded that there was a lack of probable cause to
believe thllt the Plaintiff committed a crime. Therefore, Count II
of the Plaintiff's complaint should be sustained and the
preliminary objections by the Defendant to Count II should be
dismissed and the Defendant should be required to answer the
Plaintiff's compldnt within twenty (20) days of this Court' s
Order.
C. THE COMPLAINT DOES NOT FAIL TO STATE A CAUSE OF
ACTION FOR FALSE IMPRISONMENT.
Count III of the Plaintiff's Complaint alleges false
imprisonment for the detention for the Plaintiff on or about July
13, 1993 in the Cumberland County prison. In order to state a
9
I '. II
claim for the tort of falle imprhonment in penn.ylv.nb, two
raqui.ite. mu.t be .hownl
(1) The detention of the pereon, and
( 2 ) The unlawfulne.. of suoh detenUon.
Lokey v. Kinnev, 57 LANC. REV, 491 (1961).
An examination of the Complaint will reveal that the Plaintiff
ha. eetabliehed both of the prerequisites to state a claim for
false imprisonment. It has been held that the essenoe of an aotion
tor false imprisonment is unlawful or illegal detention, and that
it is a reetraint upon an individual's liborty and freedom without
color of legal authority. Forqione v. Uniteg States, 200 F.Supp.
239 (1951), affirmed 202 F.Supp. 249, oert. denied 73 S.Ct. 950,
345 U.S. 966, 97 Led. 1384. AlIIo, if the prooess used for the
arrest was void on its faoe, then an aotion for false imprisonment
may be maintained. Lvnoh v. Johnstol}, 76 Pa.Cmwlth. 8, 463 A.2d 87
(1983) .
The prooess by whioh the Defendant oonoluded that the
Plaintiff was responsible for the theft of two Nintendo tapes was
negligent. Upon a proper invQstigation whioh the Defendant should
have oonsummated before bringing the oharges showed that the
Plaintiff had never rented Nintendo games, had not used his account
for over a year and a half, the business did not require the
showing or proper identification to rent these tapes and therefore
the Complaint lodged and the subsequent arrest of the Plaintiff was
void upon ite face for laok of probable cause. Because of the
Defendant's improperly initiated oriminal charges against Herbert
10
. ... ~
f '. I
w. Gilldorf, Jr., the Plaintiff luffered and had Ipent one night in
detention at the cumberland County prilon. Baid arrelt being void
in it. hce. Because of the void arrest, the action for falle
imprilonment should be sustained becauslt the confinement Wal an
unlawful or illegal detention that WaI a restraint upon the
individual's liberty. forgione, ,~.
WHEREFORE, because the Plaintiff has established an action for
false imprisonment pursuant to Pennsylvania Case Law, the action
for falee imprisonment should be sustained and the Defendant' II
preliminary objections to this count should be dismillsed and the
Defendant IIhould be required to file an answer to the Plaintiff'lI
Complaint within twenty (201 days of this Court's Order.
D. THE COMPLAINT DOES NOT FAIL TO STATE A CAUSE OF
ACTION AGAINST THE DEFENDANT ON BEHALF OF THE PLAINTIFF,
ROBYN GILSDORF, BRANDON GILSDORF OR DANA MARIE GILSDORF.
The Plaintifta, RobYll, Brandon and Dana Marie Gilsdorf are the
wife and minor ohildren of the Plaintiff, Herbert Gillldorf. Theile
Plaintiffs seek reoover on each of the above desoribed countll,
malioious criminal proseoution, malioious abuse of process, and
false imprisonment. As a result of the arrest and inoaroeration of
the Plaintiff, Herbert W. GilBdorf, Jr., the Plaintiffs Robyn
aillldorf and his minor children were subjeoted to deprivation of
the Plaintiff's attention while he was incaroerated. They were
also deprived of their society and consortium during that same
period and subsequently suffered mental anguish, harassment,
embarrassment, invasion of privacy and loss of life's pleasures.
The family has alBo inourred the expense of hiring counsel to
11
I .__
, -, ,
defene. again.t the.e reckle.. and maliciou. criminal charge. to
the tune of $1,500.00. Therefore, the Plaintiff., Robyn, Brandon,
and Dana Marie have pl,ead .ufficient facta to .upport their claim.
for the.. 10.... incurred by the reckl... and maliciou. Plo..cution
of the criminal chargee against the Plaintiff, Herbert w. Gilsdorf,
Jr. For theee rsasons, the Plaintiffs believe that they have
.ufficiently plead the aause of action pureuant to the Plaintiffs
which are the family of the Plaintiff, Herbert w. Gilsdorf, Jr. and
therefore the preliminary objectione to the Counte based on their
involvement should be dismieeed and the Defendant ehould be
required to file an answer to the Plaintiff's Complaint within
twenty (201 daye of this Court's Order.
V. CONCLUSION I
For the above stated reasons, the Plaintiff respectfully
request that this Honorable Court BUBtain the counts of the
Plaintiff's complaint and order that the Defsndant file a
responeive pleading in the fOlm of an answer to the Plaintiff's
Complaint within twenty (20) days of this Court's Order.
Respectfully submitted,
MIRIN & JACOBSON
DATEDe December 6, 1994
8150 Derry Street
Harrisburg, PA 17111-5260
(717) 561-1515
9il
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111IJ'/I~'NNJ;jIHIII)I"'HI Hh'"
Ill'" t11lH11 " U.....
~1"ld 1111"1'1 II 1111<4
HERnERT W WLsnORF. lIt IIl1d
ROBYN L (i1LSDORF IIl1d Ihelr
milloI' ~on, BRANDON MIClIAEL IInd
their minor dllughter, DANA MARIE.
Plllintllls
IN TIlE couln OF COMMON PLEAS
CUMBElU.AND COUNTY. PENNSYLVANIA
CIVIL ACTION - I.AW
NO lJ4-44HlJ CIVIL TERM
v,
NICHOLAS DUNPIIY tIll
"ALL TIIAT VIDEO"
Delcndunl
JURY TRIAL DEMANDED
DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS
I, FACTS:
This clI~e IIrises Ihlm the Ihell of two Nintendo gllme cllrtrldges Ii'om the Defelldllnt,
operating liS II video IInd Nintendo gllme renlill entily IInd the sub~equent arre~1 of the Phllntlll' ,
Herbert GllsdorC Il.lr Ihe thell oflhe~e gllme cUl!ridges. The chllrges were IlIter dropped,
The Plllinllll: Herbel! W, Gilsdorl: lr, initiuled Ihis uCllonon or IIbout Aogust 10. 1994. by
the l1Iing of II Complulnl llglllnst the Detcl1(hlllt, Nicholus Dunphy t/u "All thlll Video," The
('ompluint (;ontuins three Counts, the Ilrsl j()r MIlIi~ious Cril11il1li.!.'rllsecutlon. the second lor
~~2U:I;.Q~~s. und Ihe third Il.)I' FI\I~risomnent Plllintltf Herbel! Gilsdorl"s ~e
und children lire ulso nUl11ed liS PIII/nlills. seeking recovery bllsed on these sUl11e counts Il.lr. inter allll.
-
( deprivlltlon of ullentlon, loss of CllnSOl!iUl11l1nd l11entlllllnguish)
The Defendunt tiled Preliminury Objections in the nlllure of demurrers 10 1111 counts of lhe
('omphlll1l, Theses prelil11il1ury Objections lire now befl.lre this Honol'llble Court fl.)r resolution,
II, ISSUES
A, Docs the Comphlintfililto Slate II cause of action fl.Jr Mullcious Criminal
Prosecutlol1"
B. Does the Complulntl1li1to stllte u cuuse of uction fl.Jr Malicious Abuse of Process?
C. Does the Compllllnt 111i1IO stille a cuuse of uctionll.Jr Fulse Imprisonl11ent?
0, Docs lhe Complulnt 111i1 10 slute II cuuse of uctlol1 uguinst the Delcl1dunt by the
l'luinlill'o; Robynl. Gilsdort: Brnndon Michael Gilsdorf or Dunil Muriu Gilsdorl'l
III, ARGUMENT
A, 1'Lt\INTIFI'S' COMI'LAINT FAILS TO STATE A CMJSE OF ACTION FOR
MALlCIOllS CRIMINAL 1'ltoSEClITION,
Count I of the Plnllllillii' ('olllpllllnt I~ II c1l1illl by 1111 I)llllllllllii IIl!lIin~t lhe Defendant lor
Mnllclou~ Crimlnllll)ro~eclltlon, Recol!nlzlnl! the chilllnl! ellect ~lIch IIctlllll~ hllve on the proper
enlorcclIlent of IIIWS, the Penn~ylvllnlll court~ 11IIve never favored the lort of 1Il1lllclou~ pro~eculion,
Ks:lly v General Tenm~lel'~. (,hnulleul'~. and Ilclpel'~. Local Union 2.19, ~ III PII ~ 17,544 A 2d 940
(191111), In order to 1Il1llntllln such IInllction. II plllinllt!' lIlust e~tllbll~h the 'llllowlnl! e1elllent~: (I)
thatlhe Delendllntlnllluted crimhllll proceedlnl!s IIgulnstthe 1)lulntlll: (2) thlltlhe churges were not
~uppol1ed by prullllble Clluse, (.l) Ilult the churge~ were brought with IIctuullllllllce, IlJId (4) thlllthe
clilllirllll proceedlng~ were terlllinllted In fllvor of the Plllintltl' Kelly v General Tcam~tel'~, 5111 PII,
517,~44 A2d 940 (191111). An eXlIlIlinlltion of the COlllpllllnt, however, illuslrute~ thntlhe Plulntlllii
hllve 'hlled 10 ~tllte u c1uilll 'llr 1Illllicious prosecution liS to either Pllllruill'llerbert Gilsdort: Robin
Gilsdorf: or their children As such ('ountl of the 1'11I1Iltll1's Compluint should be dismissed,
The Compllllnt IIl1eges thllt the Delendunt llled II Crilllinlll Complllint IIgllinsl he Pluillllll:
Ih:rbert W Gilsdort; Jr" bllsed upon II negligent conclusionthllt Pluintill'hlld rented IInd not returned
two Nintendo gllmes (Colllphlint 10, 11(11)). PllIimills Ibrther liver thlllthis conclusion WIIS bllsed
upon Defendant's deticient business pmctiel's. where one could rent property without pre~enlinl!
idenlitlclltion other thun verblllly comlllumclltinl! II phone nUlllber (Complalllt II(b)). Ihe
illlplielltion being Ihllt someone other tllllJ1 the Pluintit}' lIerbert W. Gilsdorl: 11' lillsely obtllined
these tllpes using Phlintllls' telephone number The Complaint 1I1so livers thlll the I'hlintill'moved
IInd Irtlnsferred 10 IInother the phone number used liS the IICCOUIll number (('olllplllim 7. 8),
Pllrlll!raph 17 of the Complaintllllempts to chllmclerize Ihe Delendllnls relillnce upon the lIletbod
of using telephone numbers liS equivlllent to IIbsence of probllble clluse. Such chlll'l\cterizations,
however, lire insutlicient to support II <:Iaim lor Mllllcious Prosecution,
As. noted IIbove, Wllnt of probllble clluse is IIn essentilll element fllr IlIluction of malicious
prosecution. See, IIlso, Brown v Johnston. 67~ F,Supp 2117 (W, D, 1)11, 19117); Kelly v Geneml
Teamsters. Clmulli~urs & Hclpers LocalLJnion 249, ~ III 1'11517, ~44 A2d 940 (I 9BB), If probllble
clluse is '!lUnd, then the prosecutor's intent. I.e,. IIllllice, is irrelevllnt, liS there clln be no IIction till'
mlllicious prosecution, Burch v Clarck, 3~2 PII,Super 22~, 507 A2d 1I~4 (19116). Moreover, the
issue ofprobllble clluse is II question OflllW, 'llr the court to determine Thonllls v Klll'Velle. fnc .
476 F2d 471 (3rd Cir. 197]); Simpson v Montllllmel)' Ward & Ul., 354 PII 117.46 A,2d 674
(19~ I), Lconard v Colc.l.l4 PIICmwlth 14, ~711 A2d ~3 (1990),~, SUPI'll
Jlrobllble couse is dellned lIS U reusonuhle ground thr suspicion Kupported hy clrcumstunces
to worrolll on ordillluy, pl1ldelll persllllln the Kllme sltuutlllll In bellevlngthutthe Jllulntlfl'lK guilty
oflhe oflense, Jd ThiK docs notmcllII Ihutthe Delendunt must he right in Ihis belief but only that
this bellefis reusonuble
Probable cuuse [doesJ nOlllndlcatelullucluul stute of guilt, One Isjustilled
In IUUl\l:hingu climlnul prosecution If the IItcts convlllce him. lIS II reusolluble, hOllcst
and inlelligent humun being, that the suspectcd person Is guilty of u crlmllllll ollense,
The u/Testing person muy be In crror, hut If his error Is Ull honest OIlC, not motivated
hy pcrsonulmulice, blus or revellge, the luw will hold him hurmless, rcgllrdless of Ihe
evclltuul rcsult of crimlnul prosccutlon
.Ilw:.I:h, supra. ut S23, S07 A2d ut HS6
Morcover, probuble CIIUSC is dctennincd by thc IIlcts ulld circumslllllces us kllown to the
Delendant ut the time the prosecullon wus initluted Stritmaller v Nese, 347 Jlu.9,31 A,2d S 10
(1943), Iluscd upon Ihe fucts pled In the ('ompluintulld ull reusollllble Interellccs ther\~on, it cunnol
be suld thut tbe DetendulII inltHlled crimi nul churges uguinstthe Ph,intitl' without probuble cuuse or
with mulice Nintendo curtrldge gumcs were upjlurently ret1led on tlte Plulntill's IICCOUt1l number
(telepholle number). The gume curtlidgcs Wl:re not relurned ulld lbere wus 110 reaching the Pluit1lill'.
Cleurly, buscd upon Kuch Iilcts it Cllllnot be suid thut Delendunt inltiatcd the churgcs without
probuble Clluse, u rcasonuble bcliefthut Plaintifl'had ubsconded with the games, As such it Is clear
thut the Defendant acted reasllflllble ulld had probable cuuse in liIing the crimlnul churges agulnst
Phllntlll' Ilerbert W Gilsdorf: Jr. Illld all Plaintill's' c1uims based upon Mlllicious Criminal
Prosecution should be dismissed,
0, PLAINTIFFS' COMPLAINT FAILS TO STATE A CAlISE OF ACTION I'OR
MALlCIOlJS AlnJSE Of' I'IWO:SS.
Based upon Detendat1l's Initiation of criminal procecdillgs againstlhe Plaintifl' Herbert W,
GlIsdort: Jr" COUIII 1101' the ('omplult1l seeks recovcry based upon "Malicious Ahuse of Process,"
(Complalt1l IllS.) Howevcr, un eXlunlllation of the avcrments of this c1l11rge and of the relevant
Pellnsylvanltl law, clearly establishes lhulthe Plaintitl's huvc IIliled 10 state a claim bused upon abuse
of process, Therethre. COUt1l II of the 1'laintil1's' ('omplait1l should he dismissed
In support ofthcir Abuse of Process ('OUt1l, the Plalntll1's have uvcrred,
(21) The Detcndllllt's erimillal complaint constitutes all uhuse of process, t(Jr the
Detendunt intentionally and maliciously used the criminal justice process to haf'l\ss
Rnd hUll1l1l1l1e the /lllIllltilt: which cOllstltuted IIn lIIelllll, hnproper. IIlld perverted IIse
oflellal p/'lICllSS,
(22) The Defimdlllll recklessly IIlld/or Iflleflllonlllly IInd/ur fllllllclously uKed Ihe
criminal Justice prlll:ess with the ulterior purpose to hlll'llss IInd recklessly interfere
with Ihe 1'IIIIntlll's prlVIICY, through the Delendllnt's rcllllnce Oil the IImlled
Infill'lnlltlon used liS the hllsls fill' the ('omplllhll
(23) The Delendllnt's flllnll of the crlmhllll compllllnt directly IInd proxlnllllely
cllused Ihe 111111 nl 111' to be Injured in the 1'IIIIIlIIII's good nllme, sullcr humllhllion and
mentlll distress, IInd incur expenses in defcndlng himself ullllinst Ihe Dclcndunt's
malicious IIbuse of process, ullto the Illuintill's dlllnuge,
Alluln, the cOlltlnued gruvllmen of the Compluint Involves Ihe Defcndllnt's Initiation of the
criminal proceedings agllinst the PIIII III I I}; Hcrbcrt W Gllsdorl: Jr, Howcver, such is Insul11clenl
to stllte a claimlilr IIbuse of process, As stilted by the I'ennsylvunill Supreme Court, "The Ilistof 1111
action lilr IIbuse of process is the improper use of process of lIlli:r It hilS been Issued, Ihal Is, a
perversion 01'11." McGee v, Feelle, 517 1'11,247,253,535 A,2d 1020, I02.l (I91l7); J.w:dJllD!.
Bennllll. 758 F,Supp. 269, 2110 (E.D I'll 1991), As such. II hilS heen repelltedly been held Ihlltthere
Is no clluse of IIction for IIbuse of process if the I'llIilllill: even wllh blld Inlenllons. merely carries
out the process to its lIuthonzed conclusion Shaner v Stewllrt, 326 I'll, Super, 135.473 A,2d 1017,
1019 (1984); Cameron v Grophic Mallllllemel1l Assoc. 1117 1', Supp, 19 (ED, 1'11,1992); ~
lWw,Goodman v Frank and Seder ofPhiladelphill Inc" 70 D&C 622 (CI' ofl'hillldephill Counly
1950)
Nevertheless, the averments under Counlll of the Complllintllre \~ompletely devoid of any
allegllllon liS 10 how Ihe Delcndlllll perverted any process IIller the proceedings were Initlllted. but
merely repelltlhe alleglllions thlll Defendafll insliluted the proceedings IiII' improper reasons, As the
PlaintiIl's have t\liled 10 aver that Defendant IIbused the legul process lIlli:r iniliulion of the
proceedings, Ihey have tililed to stille II claim based upollubuse of process, ClIl1l1nerol1 v. Gmphic
Manallemenl Associates. Inc. 817 F, Supp. 19, 22 (ED, IIa, 1992); Zappala v Huh Foods. Inc., 6113
F, Supp, 127 (W,D, Pa, 19118), Therclilre, Coul1ll1 ofl'laintill's' Complaint should be dismissed as
It fails to state a cause of uction based 011 abuse of process,
C. TUE COMI-LAINT "'AILS TO STAn: A CAllS..: 011 ACTION 1101t 11ALSF.
1M PRISON M t:NT,
Counllll of Plnlnlllli>' Complulnt, IllIel:llng Hllse Imprlsonmenl nlso Hills 10 stille n cnusc of
nCllonllnd therelbrc should be dismissed In order 10 Slnle II dnimlllr the tort of tillse imprisonment
In Pennsylvnnln. two requisites must be shown: I) the detention of the person. nnd 2) the
unlllwlllhless of such detention, Lokey v Kinney. 57 Lnnc, Rev, 49 I (1961), An eXllmlnntlon of
the Complninl, however, revenls thnt the Plnlntltls 11IIve tililed to e61nblish the Illller of these
requirements nnd Iherelllre hllve tidied to stnte n c1uim IIII' tiilse Imprisonment
It hns been held thut Ihe essence "of nn Ilction lor tillse Imprisonment Is unlllwlill or Iilegnl
detention, Ihnl Is II restrlllnt upon nn indlvlduul's liberty IlIld li'eedom without color of leglll
nUlhonty," FOl'lllone v United Stntes. 200 F Supp 2.19 (195 I), ntlirmed 202 F,2d 249. cert denied
73 S, Ct 950. .145 US, 966. 97 Led, UN4 In this respect. It is not enough 1I1lIIthe chllrges were
unjustified nnd tlllltln order fell' nn nCllonlllr lalse nnestto succeed. itmustnppenr thntthe process
used lor the nrresl wns void on Its tilce or thntthe issuing tribunnl WIIS wlthoutnuthority, Lynch v.
Johl1stol1,76 I-II, CllIwlth 8,463 A.2d 87 (l9N3),
Nowhere in the COlllplnil\l do the Plnintills nver thlltthe IIlTest nnd imprisonmel\l of the
Plnintilf Herbert W, Gilsdorl: Jr \Vns unlnwlul. Indeed. the Complnilll speclllcnlly stntes tllllt II
wllrrallllor snid IIrrest wns issued by a COUl1, nit hough not idel\lil1ed (Complllintnt 13), The essence
of this CoUIll continues to be thut the Defendant Improperly inltiuted criminal charges ugnlnst
Herbert W, Gilsdorf, Jr. In such clrcumstnnces. no claim IIII' tillsc Imprisonmelll CIIII bc permitted,
and a demurrer is proper Lokey v Kinney, 57 LIIIIC Rev 491 (1961),
I), nlE COMPLAINT FAILS TO STATE ANY CAliSE OF ACTION AGAINST
I)EI1ENI)ANT AS ON BEIIALF OF I-LAIN1WFS ItOBYN GILSI)ORF.
BRANDON GILSl>OltF OR I>ANA MARIE GILSI)OIUI,
The Plaintills Robyn. Brundon and Danll Marie Gilsdorf arc the wlfc and children of the
Plaintill: Herbert Gilsdorf These Plnintills seek recovery on each of the nbove described cOUIllS.
Mnliclous Criminal Prosecution, Mnliclous Abusc of Process, nnd False Imprisonmcnt Clearly.
however. there arc no lacts wlllltsoever to support such dnlms by these Plnlntllfs nor cnn it
reasollnbly be inferred that these Plnintill's hnve mctthc requlremcnts IIII' the pled cnuses of nctlon,
Indced. the only rclationship thutthese pnrtlculnr Plaintills hnve to the prcsent Cllse is tlllltthey are
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IIERBERT W GILSDORF, lit 1I11d
ROBYN L GILSDORF IIl1d lhdr
minor NOli. BRANDON MICIIAEL lInd
their milloI' dllUl!llIcr. I>ANA MARIE,
PllIlntitlil
IN TIlE COllin OF COMMON PLEAS 01'
CllMBEI\LANIl COIJNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO '14.44HO ('IVIL TERM
v
NICIIOLAS DllNI)IIY t/lI
"ALL TIIAT VIDEO"
Dclimdlllll
llllW TI\lAL DEMAN liED
ANSWER
TO IIEIUlERT W GILSDORF, lit 1I11d ROBYN L GILSDORF, lInd their minor son,
BRANDON MICHAEL, 1I11d thcir minor dlluglllcr. DANA MARIE, PllIlnlitlil, and their
1I110rney, ROBERT PATRICK McPHERSON. ESQUIRE
YOU ARE HEREBY NOTIFIED TO FlI.E A WRITTEN RESPONSE TO TIlE
ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE IIEREOF OR A
JljJ)(jMENT MAY BE ENTERED AGAINST YOll.
AND NOW. comeN Dcfclldllnts lIbovc namcd. by IInd through hiN 1I1101'llCYN, MARTSON,
DEARDORFF, WILLIAMS & OTTO. lInd hcrcby dcnicN gCllemlly 111101' the 1I11egationN Net forth
In Phlilllitli;' Complllint in lICCOrdlll\Ce with PII. R,C,P, 102'1 (e). except liS specitlcally set forth
below:
3. It is specificlllly denied Ihat Defcndant Nicholas "Nick" Dunphy is the owner and/or
tmdeN liS Nick Dunphy's "All thllt Video," or that samc is located lit 224 North Second Street.
Ilarrisbmg, Dlluphin County, Pcnnsylvanill 17101,
10, It is spccifically dcnied that Defcndalll, on or about Dcccmber 19. 1991, negligently
concluded thatPlaintifl'had rented and not retul'llcd thc Nintendo vidco games "BllIdes of Steel" and
"Telris," or tlmt Defcndant engaged deficient business practices, To the contrury, numerous allempts
were made to locllte PllIilllifl' by persons other than Detcndanl.
12 It is specifically denied that on or about December 19, 1991, the Defcndant swore
out and lodged a criminal complaint against the Plaintitl: in which Defcndllnt mllliciously and
recklessly and without probable cause accused the Plaintill' of having committed the crime of theft
uf/euued property, 1 K I'll C.SA. ~.1l).12 To the contl'llry, thl! cumplllintlll!uinstthe I'lulnlU1' WUK
broul!ht by the Uppcr Allcn Township Police
1.1. It is specil1clllly dcnicd 111111 II bcnch Wllmllll 01' cllplllU WIIS issucd Ihl' I'lulnlll\' us u
I'cuull of this cl1mlnlll complllllll. On thc contl'lllY, thc wllITllntllppllrenlly iusued Illl' I'luinllll's un'est
WIIU due 10 his tilllure 10 IIppelll'
COUNT I
MAL1ClOUS CRIMINAL PROSECUTION
Pllrlll!rllphs Ilhrough 16 hcrcofure Incorpol'lllcd herein by refercncc Ihcl'clo,
17, Ills dcnicd thllt Delcndllnllnstllllled crimll1ll1 proccedlngs liS 10 PllIintil1' 01' he did so
wllhout probllble Clluse, It is thrther denied Ihllt Defendunl recklcssly relied upon only the telephone
number records of his business fllr mlllnlenllnce of the crlmlnlll chllrgc. On the contra 1)'. the
investiglltion of the missing gllme cllrtridges WIIS rCllsonllblc undcr thc circumstllnces
I K Ills dcnlcd thllt Defcndllnllnstitutcd crimi nil I proceedings liS 10 Plllintill' 01' he did
so without probllblc CIIUSC, II is tllrther denied thlll Detcndllnt mllliciously relied upon only the
telephone number records of his business for mllinlCl1l1l1Ce of the crlminlll chllrgc, On the contl'lllY,
the invcsIlglltion of the missing gllmc cllrtrldges WIIS rellsOllllblc under the circumstllnces,
WHEREFORE. Defcndllnt dcmunds Ihlltlhc Pllllntill\;' Complllint bc dismissed,
COUNT II
MAL1CIOLJSL Y ABUSE OF PROCESS
PlIl'I\graphs I through 20 hereof lire incorporutcd herein by refcrence thereto,
21, It Is specit1clllly denicd thut Defcndant brought II crlmlnlll compllllnt against Plaintifl'
or that same constitu,,:d IInllbuse of process, whcthcr Defendllntlnlcntiol1lllly IInd maliciously used
Ihe criminlll justice process 10 hal'llss alld humillllle the Pluintitl'. On the contl'lll)'. Defendant at all
timcs aCled as II rcasonable cillzen,
22. It Is specil1clllly denied that Defendllnl recklessly lind/or intentionally lind/or
maliciously used the crimlnlll justice process with Ihe ulterior purpose to hllrass and recklessly
interfcre with the Plllintll1's privacy, The Defcndllnt relied upon the limited information used as a
basis for the complain\. On the contrary, Defendant at all times IIcted In good faith and as a
rellsonable cilizen,