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HomeMy WebLinkAbout02-3689TAMMY SIPES, Plaintiff RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.O~-~'7 CIVIL TERM CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice ara served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be enterad against you by the Court without further notice for any money claimed in the Complaint of for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 TAMMY SIPES, Plaintiff RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. ~,,,,~- .3'~,~)CIVIL TERM CIVIL ACTION - LAW COMPLAINT AND NOW COMES the Plaintiff, Tammy Sipes, by and through her attorneys, Turo Law Offices, and respectfully represents the following: 1. The Plaintiff, Tammy Sipes, is an adult individual who currently resides at 17 Allison Drive, Shippensburg, Cumberland County, Pennsylvania, 17257. 2. At all times relevant herein, the Plaintiff, Tammy Sipes, served as the Secretary/Treasurer to the Board of Supervisors for South Newton Township. 3. The Defendant, Ronald Bouch, is an adult individual who currently resides at 20 West Main Street, Walnut Bottom, Pennsylvania, 17266, in Cumberland County. 4. The Defendant, Ronald Bouch, serves as the Chairman of the Board of Supervisors for South Newton Township. 5. The Defendant, Thomas Bixler, Jr., is an adult individual who currently resides at 3 Brandy Lane, Walnut Bottom, Pennsylvania, 17266 in Cumberland County. 6. The Defendant, Thomas Bixler, Jr., serves as the Vice Chairman for the Board of Supervisors of South Newton Township. 7. The Defendant, Donald Gruver, is an adult individual who currently resides at 29 Firehouse Road, Walnut Bottom, Pennsylvania, 17266, in Cumberland County. 8. The Defendant, Donald Gruver, serves as a Supervisor on the Board of Supervisors for the South Newton Township. 9. The official address of the Board of Supervisors for South Newton Township is: Township Building, 11 High Mountain Road, Walnut Bottom, Pennsylvania 17266. 10. On April 23, 2002, a group of South Newton residents filed a Complaint in the Court of Common Pleas for Cumberland County seeking the recall of Defendant Ronald Bouch from his position on the Township Board of Supervisors. Said Complaint is docketed at 02-1916. 11. Plaintiff, Tammy Sipes, was a signator on the Petition circulated among township residents seeking support for the legal action to remove Defendant Bouch from office as Township Supervisor. 12. Plaintiff Sipes further provided an Affidavit outlining incidents of alleged harassment and potential wrongdoing by the Defendant Bouch, which said Affidavit was attached to the Complaint filed in Court. 13. Thereafter, on or about April of 2002, Plaintiff Sipes was requested by the State Ethics Commission to submit to an interview regarding allegations pending before that Commission related to Defendants Ronald Bouch and Thomas Bixler, Jr. 14. At all times Plaintiff Sipes acted in good-faith in reporting information of wrongdoing and/or waste to appropriate authorities. 15. Subsequent to the State Ethics Commission lengthy interview of Plaintiff Sipes Defendant Bixier became insistent that she relate to him what questions were asked of her and what answers she provided to the Commission. 16. Plaintiff Sipes declined to provide the requested information to Defendant Bixler, based on her understanding from the State Ethics Commission that she was not permitted to discuss her interview while the investigation was pending. 17. Defendant Bixler became very angry with Plaintiff Sipes when she refused to relate the substance of the interview with the State Ethics Commission. 18. At a regularly scheduled monthly public meeting, on June 11,2002, and immediately following a closed Executive Meeting, Defendant Bouch motioned for the immediate suspension of Secretary/Treasurer Tammy Sipes from all job duties. Defendant Bixier seconded, and the motion passed unanimously. 19. Plaintiff Sipes was required to immediately hand over her Township Building keys while in the presence of the public attendees at the Township Meeting. 20. At the public meeting on June 11,2002, Defendant Bouch specifically stated that the suspension was not performance based. Defendant Bouch further specifically stated that Plaintiff Sipes was being suspended based on her involvement in the litigation pending in the Court of Common Pleas for Cumberland County. 21. Thereafter, at a public meeting on July 16, 2002, Defendant Gruver made a motion to reinstate Plaintiff Sipes to her position as the Secretary/Treasurer to the Board of Supervisors for South Newton Township. This motion was not seconded and did not carry. 22. The Pennsylvania Whistleblower Law, 53 P.S. {}1421-1428, provides that a government body, in its capacity as an employer, may not discharge or retaliate against an employee, because that employee made a good-faith report, verbally or in writing, to an appropriate authority concerning alleged wrongdoing or waste. 23. The aforesaid suspension of Plaintiff Sipes was a direct result of her participation in the Complaint filed in an attempt to remove Defendant Bouch from his position as Township Supervisor, and also was a result of her participation in the ongoing investigations by the State Ethics Commission. 24. The Plaintiff, Tammy Sipes, has suffered personal embarrassment and humiliation because of the suspension from her position as Secretary/Treasurer with the South Newton Township Board of Supervisors. 25. The Plaintiff, Tammy Sipes, has endured emotional distress because of the suspension from her position as Secretary/Treasurer with the South Newton Township Board of Supervisors. WHEREFORE, the Plaintiff, Tammy Sipes, demands: A full reinstatement to her position as Secretary/Treasurer for South Newton Township Board of Supervisors; · An award of all costs of litigation, including attorney fees, pursuant to §1425 of the Whistleblower Law; · The assessment of fines against Defendants pursuant to §1426 of the Whistleblower Law; and · Defendant Bouch's suspension from public service for a period of six (6) months pursuant to §1426 of the Whistleblower Law. · Defendant Bixler's suspension from public service for a period of six (6) months pursuant to §1426 of the Whistleblower Law. Date: ~'.~ )- ,2002 RESPECTFULLY SUBMITTED TURO LAW OFFICES 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for the Plaintiffs VERIFICATION I, Tammy Sipes, Plaintiff herein, have sufficient knowledge of the facts contained in the foregoing Complaint and verify that the statements made therein are true and correct to the best of my knowledge, based upon information received from the Plaintiffs. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Date Tammy Sipes VERIFICATION I, Tammy Sipes, Plaintiff heroin, have sufficient knowledge of the facts contained in the forogoing Complaint and vedfy that the statements made theroin aro true and correct to the best of my knowledge, based upon information roceived from the Plaintiffs. I understand that false statements heroin made aro subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Date Tammy Sipes IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TAMMY SIPES, Plaintiff RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants Civil Action No. 02-3689 : ENTRY OF APPEARANCE To the Prothonotary: Kindly enter my appearance on behalf of Defendants Ronald Bouch and Thomas Bixler, Jr. in this matter. o/~aomey I.D. # 40417 FOX, ROTHSCHILD, O'BRIF~N & FRANKEL, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 Counsel for Defendant Dated: September 6, 2002 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing entry of appearance was served on counsel of record, via first class mail, postage prepaid, on the 6th day of September, 2002, addressed as follows: Dated: September 6, 2002 Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Counsel for Plaintiff John P. McLaughlin, Esquire Ballard, Spahr, Andrews & Ingersoll, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 864-8241 Counsel for Defendant Donald Gruver IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TAMMY SIPES, Vo Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR. DONALD GRUVER, in their Official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Civil Action No. 02-3689 ENTRY OF APPEARANCE To the Prothonotary: Kindly enter my appearance on behalf of Defendant, Donald Gruver in this matter. Dated: September 10, 2002 John P. McLaughlin, Esq~re ~ Attorney I.D. # 49765 , ~ ..... Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103 (215) 864-8241 Attorney for Defendant Donald Graver PHL_A #1665458 vl CERTIFICATE OF SERVICE I h~reby certify that on the l0th day of September, 2002 a tree and correct copy of the foregoing Entry of Appearance was served on counsel of record, via first class mail, postage prepaid as follows: Steven K. Ludwig, Esquire Fox, Rothchild, O'Brien & Frankel 2000 Market Street, 10th Floor Philadelphia, PA 19103 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff John P. ~Lat~~ PHL_A #1665458 vl SHERIFF'S CASE NO: 2002-03689 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SIPES TAMMY VS BOUCH RONALD ET AL RETURN - REGULAR BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BOUCH RONALD the DEFENDANT at 1452:00 HOURS, on the 19th day of August at 20 W MAIN STREET 2002 WALNUT BOTTOM, PA 17266 by handing to RONALD BOUCH a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.66 Affidavit .00 Surcharge 10.00 .00 37.66 Sworn and Subscribed to before me this ~--~ day of ' Prothonotary So Answers: R. Thomas Ktine 08/20/2002 CAROLB~iNGR3~NEI~ ~[~ Deputy Sheriff SHERIFF'S RETURN - CASE NO: 2002-03689 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SIPES TAMMY VS BOUCH RONALD ET AL REGUI2kR BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BIXLER THOMAS JR the DEFENDANT , at 1456:00 HOURS, on the 19th day of August , 2002 at 3 BRkNDY LANE WALNUT BOTTOM, PA 17266 MICHELLE BIXLER, WIFE by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 ~ ~'? Service 9.66 ~' ~ Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 25.66 Sworn and Subscribed to before me this ~ day of ~z~r~,~J~ ~ A.D. # /Prothonotary 08/20/2002 CAROL CINGRANE~I / Deputy Sheri-ff SHERIFF'S RETURN - REGULAR CASE NO: 2002-03689 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SIPES TAMMY VS BOUCH RONALD ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon the GRUVER DONALD DEFENDANT , at 1502:00 HOURS, on the 19th day of August at 29 FIREHOUSE ROAD , 2002 WALNUT BOTTOM, PA 17266 by handing to DONALD GRUVER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 9.66 Affidavit .00 Surcharge 10.00 .00 25.66 Sworn and Subscribed to before me this ,~ day of So Answers: R. Thomas Kline 08/19/2002 CAROL C INGRANELL I ~~ Deputy Sheriff Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire Identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 TO: Plaintiff YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. TAMMY SIPES, Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL No. 02-3689 DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR.'S ANSWER TO PLAINTIFF'S COMPLAINT~ WITH NEW MATTEl[ Defendants Ronald Bouch and Thomas Bixler, Jr., by their undersigned counsel, answer the Complaint of Tammy Sipes ("Sipes" or "PlaintifF') as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. By way of further answer, said complaint has been dismissed. 11. Admitted. 12. Denied. Answering Defendants are without sufficient information to respond to the allegations of paragraph 12 of Plaintiff's Complaint regarding an Affidavit and they are, therefore, denied. Answering Defendants specifically deny that an Affidavit signed by Plaintiff was attached to the complaint referenced in paragraph 12 of Plaintiff's Complaint. 13. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 13 of Plaintiff's Complaint and they are, therefore, denied. 14. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 14 of Plaintiff's Complaint and they are, therefore, denied. 15. Denied. By way of further answer, Defendant Bixler specifically denies that he had any independent knowledge that Plaintiff had been interviewed by the State Ethics Commission or that he asked Plaintiff about the substance of any such interview. Moreover, when Plaintiff voluntarily informed Defendant Bixler that she had been required to give information to the State Ethics Commission, Defendant Bixler responded that he understood that that was her job. 16. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 16 of Plaintiff's Complaint with respect to any instructions from the State Ethics Commission regarding Plaintiff's permission to discuss her interview or Plaintiff's understanding of these instructions and they are, therefore, denied. By way of further answer, Defendant Bixler specifically denies that he requested any information of Plaintiffpertaining to any interview she may have had with the State Ethics Commission. 17. Denied. By way of further answer, Defendant Bixler specifically denies that he requested any information of Plaintiff pertaining to any interview she may have had with the State Ethics Commission. 18. Admitted. By way of further answer, the motion that was brought and passed provided for Plaintiff to be suspended with pay. 19. Admitted. By way of further answer, the Board of Supervisors also agreed on June 11, 2002 that Defendants Bouch and Bixler also would surrender their privileges, as Assistant Secretaries, to access records maintained by South Newton Township. Defendants Bouch and Bixler incorporate by reference the averments contained in their New Matter. 20. Admitted in part; denied in part. It is admitted that Defendant Bouch announced the Board's suspension with pay of Plaintiff at a monthly public meeting held on June 11, 2002 and that he indicated that the Board's rationale for the decision to suspend Plaintiffwas a necessary step to avoid any conflict because of the suit pending in the Court of Common Pleas. It is further admitted that Defendant Bouch stated at that time that the suspension was not then directly related to Plaintiff's performance as Secretary/Treasurer. By way of further answer, Defendants Bouch and Bixler suspended their own access to Township records to remove any concerns about the integrity of Township records in light of the suit pending in the Court of Common Pleas and other pending investigations into their conduct. In addition, subsequent examination of Township records reveal that Plaintiff's performance was substandard. Defendants Bouch and Bixler incorporate by reference the averments contained in their New Matter. 21. Admitted. 22. Denied. The averments of paragraph 22 constitute conclusions of law to which no response is required and are, therefore, denied. 23. Denied. The averments of paragraph 23 constitute conclusions of law to which no response is required. To the extent these averments are deemed to be factual, they are also denied. 24. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 24 of Plaintiff's Complaint and they are, therefore, denied. 25. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 25 of Plaintiff's Complaint and they are, therefore, denied. WHEREFORE, Defendants Ronald Bouch and Thomas Bixler, Jr. request that judgment be entered in their favor along with costs, reasonable attorneys' fees and such other relief as the Court may deem just and proper. NEW MATTER By way of further answer, Defendants Ronald Bouch and Thomas Bixler, Jr. assert the following New Matter: 26. Defendants South Newton Township Supervisors Bouch, Bixler, and Gruver met in Executive Session on June 11, 2002 to discuss with the Township Solicitor their desire that a neutral party serve as Township Secretary. 27. Defendants' meeting on this topic was due to their concern with the integrity of Township records, which could be evidence reviewed by the State Ethics Commission as part of their investigation of complaints made against Defendants Bouch and Bixler. 28. The concern about the neutrality of Plaintiff, who served as the Township's Secretary/Treasurer, arose from the fact that Plaintiff was involved in a lawsuit that sought the removal of Defendant Bouch from office, which suit involved various allegations of wrongdoing that allegedly would be evidenced, at least in part, by Township records or the lack thereof. 29. As a result of discussions held during the Executive Session, Defendants Bouch and Bixler, in their capacities as members of the Board of Supervisors, formed a good faith belief that the suspension of Plaintiff, with pay, along with the surrender of Defendants Bouch and Bixler's access to Township records, was a neutral, privileged action justified by the need to maintain the integrity of Township records pending the conclusion of the investigations by the State Ethics Commission. 30. The Board of Supervisors voted on June 11, 2002 to suspend Plaintiff with pay. 31. At that time, the Board of Supervisors also requested that Plaintiffreturn any Township records in her possession and required Defendants Bouch and Bixler to surrender the keys that provided them, as Assistant Secretaries, access to Township records. 32. Plaintiffhas not returned to the Township various records that she is believed to have removed from the premises without the authorization of the Board of Supervisors. 33. Following Plaintiff's suspension on June 11, 2002, the Board of Supervisors learned that Plaintiff, prior to her suspension, had been remiss in making timely payments on behalf of the Township, including a property tax payment to Cumberland County, state and federal payroll taxes, and various invoices for goods and services, which, in some cases, resulted in the Township being assessed late fees and penalties. 34. Since her June 11, 2002 suspension, Plaintiffhas continued to receive her regular rate of pay for the position of Secretary/Treasurer, which at all times has been a part-time position. 35. At all times relevant hereto, Defendants Ronald Bouch and Thomas Bixler, Jr. acted in good faith. 36. At the time the Board of Supervisors voted to suspend Plaintiff with pay, Defendants Ronald Bouch and Thomas Bixler, Jr. had no knowledge as to whether Plaintiff had engaged in any activity protected under the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq~ 37. Defendants' action to suspend Plaintiff with pay was taken for the separate and legitimate purpose of preserving the integrity of Township records during the pendency of State Ethics Commission investigations and not as a pretext for retaliation in violation of the Pennsylvania Whistleblower Law, 43 P.S. § 142 I, et _seq. 38. Defendants Ronald Bouch and Thomas Bixler, Jr. are liable for no damages. 39. Plaintiffhas failed to set forth a cause of action upon which relief can be granted. 40. Plaintiff's claims are barred, in whole or in part, by the doctrines of absolute immunity and legislative immunity. 41. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver, laches and/or estoppel. 42. Plaintiff's claims are barred by the doctrine of unclean hands. 43. Plaintiff has not acted in good faith. 44. Plaintiff is not entitled to equitable relief. 45. Plaintiff is not entitled to relief suspending Defendants Ronald Bouch and/or Thomas Bixler, Jr. from public service for any period of time. 46. Plaintiff has failed to mitigate her damages. 47. Defendants Ronald Bouch and Thomas Bixler, Jr. have no knowledge or means of ascertaining the truth or falsity of the averments concerning the injuries, sufferings, or damages alleged to have been sustained by Plaintiff and the same are accordingly denied and strict proof thereof demanded at the time of trial. WHEREFORE, Defendants Ronald Bouch and Thomas Bixler, Jr. request that judgment be entered in their favor along with costs, reasonable attorneys' fees and such other relief as the Court may deem just and proper. Dated: October 4, 2002 ~t ~ SA~t~n R~ichert, Esquire e torney I.D. Nos. 40417, 86500 FOX, ROTHSCHILD, O'BRIEN & FRANKEL, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. yERIFICATION I, Ronald Bouch, hereby verify that the facts set forth in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I verify that these statements are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. Dated: RONALND~ .......... ' VERIFICATION I, Thomas Bixler, Jr., hereby verify that the facts set forth in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I verify that these statements are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. Dated THOMAS BIXLI~R, Jla. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendants Ronald Bouch and Thomas Bixler, Jr.'s Answer to Plaintiff's Complaint with New Matter was served on counsel of record, via first class mail, postage prepaid, on the 4th day of October, 2002, addressed as follows: Dated: October 4, 2002 Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff John P. McLaughlin, Esquire Ballard, Spahr, Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 Counsel for Defendant Donald Gruver LUDWIG.k, 10 You are hcreby notified to~l~d to enclosed .................. withh t~eMy (20) BALLARD SPAHR ANDREWS & INGERSOLL, LLP By: John P. McLaughlin, Esquire Attorney I.D.# 49765 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 (215) 864-8999 (facsimile) TAMMY SIPES, Plaintiff, Vo RONALD BOUCH, THOMAS BIXLER, JR., and DONALD GRUVER, in their Official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorney for Defendant Donald Gruver COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 02-3689 ANSWER AND NEW MATTER OF DEFENDANT DONAI,D GRUVER Defendant Donald Gruver ("Graver"), by and through his undersigned attorney, hereby answers the Complaint filed by Tammy Sipes ("Plaintiff") and asserts the following New Matter. Gruver denies each and every averment set forth in Plaintiff's Complaint, except as expressly admitted below. In support of his Answer and New Matter, Gruver avers as follows: 1. Admitted. 2. Gruver admits only that Sipes is the Secretary Treasurer to the Board of Supervisors ("Board") for South Newton Township ("Township") and that she is currently PHL_A #1674730 vl suspended with pay from that position. Gruver is without knowledge or information regarding the meaning of "at all relevant times". Therefore, said allegation is denied. 3. Gruver admits only that Ronald Bouch ("Bouch") is a defendant. After reasonable investigation, Gruver is without sufficient knowledge or information to form a belief as to the troth of the remaining averments in paragraph 3 of Plaintiff's Complaint. Therefore, the allegations are denied. 4. Admitted. 5. Gruver admits only that Thomas Bixler, Jr. ("Bixler") is a defendant. After reasonable investigation, Gruver is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in paragraph 5 of Plaintiff's Complaint. Therefore, those allegations are denied. 6. Admitted. 7. Admitted. 8. Gruver admits only that he currently is a member of the Board. 9. Admitted. 10. It is admitted only that residents of the Township filed a Complaint with the Court of Common Pleas of Cumberland County, naming Bouch as a defendant and seeking his removal as a Supervisor. That Complaint, being a written document, speaks for itself and no averment as to its contents or meaning is appropriate or necessary. 11. It is admitted only that Plaintiff was a signator on a petition that was attached to the Complaint referenced in paragraph 10. That petition, being a written document, speaks for itself and no averment as to its contents or meaning is appropriate or necessary. PHL_A #1674730 vl 2 12. After reasonable investigation, Gruver is without sufficient knowledge or information to form a belief as to the truth of the averments in paragraph 12 of PlaintifFs Complaint. Therefore, the allegations of paragraph 12 of Sipes' Complaint are denied. By way of further answer, Gruver believes that statements regarding alleged harassment exist, but cannot determine whether those statements were attached to the Complaint filed in the Cumberland County Court of Common Pleas. 13. It is admitted only that Sipes purportedly met with a representative of the State Ethics Commission in the Spring of 2002. Gruver was not involved in the meeting between the State Ethics Commission and Sipes and therefore does not know the content of that meeting. After reasonable investigation, Gruver is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in paragraph 13 of Plaintiff's Complaint. Therefore, those allegations are denied. 14. Gruver is without sufficient knowledge or information to foim a belief as to the troth of the averments in paragraph 14 of Plaintiff's Complaint. Gruver was not involved in the meeting between the State Ethics Commission and Sipes and therefore does not know the content of that meeting. Therefore, the allegations in paragraph 14 of Plaintiff's Complaint are denied. 15. After reasonable investigation, Gruver is without sufficient knowledge or information as to both the content of those conversations between Plaintiff and Bixler referenced in paragraph 15 of Plaintiffs Complaint. Gruver was not present or involved in the conversation between Sipes and Bixler referenced in paragraph 15 of PlaintilTs Complaint. Therefore, the allegations in paragraph 15 of Plaintiff's Complaint are denied. 16. After reasonable investigation, Gruver is without sufficient knowledge or information as to both the content of the conversation between Plaintiff and Bixler or Plaintiff's PHL_A#1674730 vl 3 understanding from the meeting with the State Ethics Commission. Therefore, the allegations in paragraph 16 of Plaintiff's Complaint are denied. 17. After reasonable investigation, Gruver is without sufficient knowledge or information regarding the allegations contained in paragraph 17 of Plaintiff's Complaint. Therefore, the allegations in paragraph 17 of PlaintiWs Complaint are denied. Admitted. By way of further answer, Sipes' suspension was and still is with 18. pay. 19. 20. Admitted. It is admitted only that it was stated at the June 11, 2002 meeting that Sipes' suspension was with pay, was not performance based and that this was a temporary measure. Gruver denies that it was stated that Sipes was suspended for her "involvement" in the pending litigation in the Common Pleas Court of Cumberland County. By way of further answer, it was stated at the meeting that Sipes was suspended to avoid a conflict because of the matter pending in the Cumberland County Court of Common Pleas. 21. Admitted. 22. Denied as a conclusion of law. The Whistleblower law, being a written document, speaks for itself and no averment as to its content or meaning is relevant or appropriate. 23. Denied. By way of further answer, Gruver voted for the suspension with pay so Sipes would not be terminated, and at the next meeting, Gruver moved to have Sipes reinstated. 24. Denied. It is specifically denied that Sipes suffered any type of embarrassment or humiliation or any other injury as a result of any action by Gruver. PHL_A #1674730 vl 4 25. Denied. It is specifically denied that Sipes suffered any type of emotional distress or any other injury as a result of any action by Gruver. NEW MATTER 26. States that Gruver incorporates by reference his answers to paragraphs 1 through 25 of PlaintiWs Complaint as though set forth fully herein. 27. Plaintiff's Complaint fails to state a claim upon which relief can be granted against Defendant Gruver. 28. Defendant Gruver acted at all times in good faith and for legitimate reasons. 29. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver, laches, estoppel and unclean hands. 30. Plaintiff has failed to mitigate her damages, if any. 31. Defendant Gruver did not violate any duty to or right of Plaintiff. 32. If Plaintiff suffered any damages or loss, the existence of which are denied, such damages or loss were caused in whole or in part by her own acts, omissions and/or conduct of parties other than Defendant Gruver for which Defendant Gruver is not legally responsible. 33. If Plaintiff suffered any damages or loss, such damages or loss were not caused by any wrongful action or conduct on the part of Defendant Gruver. At all material times, Defendant Gruver acted in good faith, without malice or 34. intent to harm. 35. Plaintiffis not entitled to attorney fees or any other relief against Gruver under the Whistleblower Law. 36. Plaintiff's claims against Gruver are barred, in whole or in part, by absolute immunity and legislative immunity. PHL_A#1674730 vl 5 37. Plaintiff is not entitled to any relief against Gruver as alleged in Sipes Complaint under the Whistleblower law. WHEREFORE, Donald Gruver respectfully requests that this Court enter judgment in his favor and against Plaintiff, awarding to him his costs and disbursements of this action, including reasonable attorneys' fees, and such other relief as this Court may deem just and proper. DATED: October~_~ 2002 John P. McLau'ghlin,"Baq~ Attorney I.D.# 49765 Attorney for Defendant Donald Gruver OF COUNSEL: BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 PHL_A #1674730 vl 6 CERTIFICATE OF SERVICE I hereby certify that on this i~Tl~ day of t~Jfl)~o¢~, ., 2002, I caused a tree and correct copy of the foregoing Answer and New Matter of Defendant Donald Graver to Plaintiff's Complaint to be served upon the following via First Class Mail, postage prepaid, addressed as follows: Steven K Ludwig, Esquire Fox, Rothchild, O'Brien & Frankel 2000 Market Street, l0th Floor Philadelphia, PA 19103 Counsel for Defendants Ronald Boueh and Thomas Bixler, Jr. Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff Tammy Sipes Date: tO l vi 10 a- John~. McLatighlih ~ PHL_A #1674730 vl 7 VERIFICATION I, Donald Gruver, verify that I am a defendant in this matter and that I make this verification on my own behalf. I verify that I have read the foregoing Answer and New Matter of Defendant Donald Gruver to Plaintiff's Complaint and that the facts set forth therein are tree and correct to the best of my knowledge, information and belief. I understand that these statements are made subject to the penalties set forth in 18 Pa. Cons. Stat. Ann. § 4904, relating to unswom falsification to authorities. Date: '~7' PHL_A #1674730 vl 8 TAMMY SIPES, Plaintiff RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · NO. ~/_~CIVIL TERM : CIVIL ACTION - LAW AMENDED COMPLAINT AND NOW COMES the Plaintiff, Tammy Sipes, by and through her attorneys, Turo Law Offices, and respectfully files the following Amended Complaint: 1. The Plaintiff, Tammy Sipes, is an adult individual who currently resides at 17 Allison Drive, Shippensburg, Cumberland County, Pennsylvania, 17257. 2. At all times relevant herein, the Plaintiff, Tammy Sipes, served as the Secretary/Treasurer to the Board of Supervisors fOr South Newton Township. 3. The Defendant, Ronald Bouch, is an adult individual who currently resides at 20 West Main Street, Walnut Bottom, Pennsylvania, 17266, in Cumberland County. 4. The Defendant, Ronald Bouch, serves as the Chairman of the Board of Supervisors for South Newton Township. 5. The Defendant, Thomas Bixler, Jr., is an adult individual who currently resides at 3 Brandy Lane, Walnut Bottom, Pennsylvania, 17266 in Cumberland County. 6. The Defendant, Thomas Bixler, Jr., serves as the Vice Chairman for the Board of Supervisors of South Newton Township. 7. The Defendant, Donald Gruver, is an adult individual who currently resides at 29 Firehouse Road, Walnut Bottom, Pennsylvania, 17266, in Cumberland County. 8. The Defendant, Donald Gruver, serves as a Supervisor on the Board of Supervisors for the South Newton Township. 9. The official address of the Board of Supervisors for South Newton Township is: Township Building, 11 High Mountain Road, Walnut Bottom, Pennsylvania 17266. 10. On April 23, 2002, a group of South Newton residents filed a Complaint in the Court of Common Pleas for Cumberland County seeking the recall of Defendant Ronald Bouch from his position on the Township Board of Supervisors. Said Complaint is docketed at 02-1916. 11. Plaintiff, Tammy Sipes, was a signator on tile Petition circulated among township residents seeking support for the legal action to remove Defendant Bouch from office as Township Supervisor. 12. Plaintiff Sipes further provided an Affidavit outlining incidents of alleged harassment and potential wrongdoing by the Defendant Bouch, which said Affidavit was attached to the Complaint filed in Court. 13. Thereafter, on or about April of 2002, Plaintiff Sipes was requested by the State Ethics Commission to submit to an interview regarding allegations pending before that Commission related to Defendants Ronald Bouch and Thomas Bixler, Jr. 14. At all times Plaintiff Sipes acted in good-faith in reporting information of wrongdoing and/or waste to appropriate authorities. 15. Subsequent to the State Ethics Commission lengthy interview of Plaintiff Sipes Defendant Bixler became insistent that she relate to him what questions were asked of her and what answers she provided to the Commission. 16. Plaintiff Sipes declined to provide the requested information to Defendant Bixler, based on her understanding from the State Ethics Commission that she was not permitted to discuss her interview while the investigation was pending. 17. Defendant Bixler became very angry with Plaintiff Sipes when she refused to relate the substance of the interview with the State Ethics Commission. 18. At a regularly scheduled monthly public meeting, on June 11, 2002, and immediately following a closed Executive Meeting, Defendant Bouch motioned for the immediate suspension of Secretary/Treasurer Tammy Sipes from all job duties. Defendant Bixler seconded, and the motion passed unanimously. 19. Plaintiff Sipes was required to immediately Ihand over her Township Building keys while in the presence of the public attendees at the Township Meeting. 20. At the public meeting on June 11,2002, Defendant Bouch specifically stated that the suspension was not performance based. Defendant Bouch further specifically stated that Plaintiff Sipes was being suspended based on her involvement in the litigation pending in the Court of Common Pleas for Cumberland County. 21. Thereafter, at a public meeting on July 16, 2002, Defendant Gruver made a motion to reinstate Plaintiff Sipes to her position as the Secretary/Treasurer to the Board of Supervisors for South Newton Township. This motion was not seconded and did not carry. 22. The Pennsylvania Whistleblower Law, 53 P.S. §1421-1428, provides that a government body, in its capacity as an employer, may not discharge or retaliate against an employee, because that employee made a good-faith report, verbally or in writing, to an appropriate authority concerning alleged wrongdoing or waste. 23. The aforesaid suspension of Plaintiff Sipes was a direct result of her participation in the Complaint filed in an attempt 1lo remove Defendant Bouch from his position as Township Supervisor, and also wa.,; a result of her participation in the ongoing investigations by the State Ethics Commission. 24. The Plaintiff, Tammy Sipes, has suffered personal embarrassment and humiliation because of the suspension from her position as Secretary/Treasurer with the South Newton Township Board of Supervisors. 25. The Plaintiff, Tammy Sipes, has endured emotional distress because of the suspension from her position as Secretary/Treasurer with the South Newton Township Board of Supervisors. WHEREFORE, the Plaintiff, Tammy Sipes, demands: · A full reinstatement to her position as Secretary/Treasurer for South Newton Township Board of Supervisors; · An award of all costs of litigation, including attorney fees, pursuant to §1425 of the Whistleblower Law; and · The assessment of fines against Defendants pursuant to §1426 of the Whistleblower Law. RESPECTFULLY SUBMITTED TURO LAW OFFICES Date.' ~d_ ~' ,2002 ("Carol L. Cingranelli,~rsqbire 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for the Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the forgoing Amende¢ Complaint by depositing same in the United States Mail, first class, postage pre-paid on the ~'~.. day of December, 2002 addressed as follows: Steven Ludwig, Esquire Fox, Rothschild 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 John P. McLauglin, Esquire Ballard, Spahr 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 TURO LAW OFFICES Carol L. Cingranelli~sq[~ire 28 South Pitt Street Carlisle, IDA 17013 (717) 245-9688 Attorney for Plaintiff Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire Identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 TAMMY SIPES, Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PE, NNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL Nc). 02-3689 ORDER AND NOW, this day of ,2003, upon consideration of the Motion of Defendants Ronald Bouch and Thomas Bixler, Jr. to Strike Plaintiff's demand for their suspension from public service for a period of six (6) months, and any response thereto, it is hereby ORDERED that said motion to strike is GRANTED. It is FURTHER ORDERED that Plaintiff' s demands for the suspensions of Defendants Bouch and Bixler from public service for a period of six (6) months pursuant to § 1426 of the Whistleblower Law, found in the ad damnum clause following ¶ 25 of her Complaint, are hereby STRICKEN WITH PREJUDICE from Plaintiff's Complaint. BY THE COURT: Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire Identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 TAMMY SIPES, Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL No. 02-3689 DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR.'S MOTION TO STRIKE PLAINTIFF'S DEMAND FOR RELIEF Defendants Ronald Bouch and Thomas Bixler, Jr. (hereinafter "Moving Defendants"), by their undersigned counsel, hereby move for an Order striking from the Complaint of Plaintiff Tammy Sipes the demand for Moving Defendants' suspension f~om public service for a period of six (6) months pursuant to § 1426 of the Whistleblower Law, and, in support thereof, aver as follows: 1. On August 1, 2002, Plaintiff filed a complaint alleging that Defendants acted in violation of the Pennsylvania Whistleblower Law, 53 P.S. §§ 1421-1448. A true and correct copy of Plaintiff's Complaint is appended hereto as Exhibit "A." 2. Moving Defendant Ronald Bouch serves as the Chairman of the Board of Supervisors for South Newton Township, and Moving Defendant Thomas Bixler, Jr. serves as the Vice Chairman for the Board of Supervisors of South Newton Township. See Complaint [Ex. A], at ¶¶4,6. 3. In their capacities as officers of the Board of Superviisors of South Newton Township, Moving Defendants are both elected officials. See 53 P.S. §§ 6:5402-65403 (providing for election of township supervisors in townships of the second class). 4. Plaintiff's Complaint demands, inter alia, Moving Defendants' "suspension from public service for a period of six (6) months pursuant to § 1426 of the Whistleblower Law." See Complaint [Ex. A], at ad darnnum clause following ¶ 25. 5. On October 2, 2002, counsel for Moving Defendants sent Plaintiff's counsel a letter requesting that Plaintiff stipulate to strike her request for this relief, as such relief is not permitted under 43 P.S. § 1426 with respect to persons holding an elected public office. A true and correct copy of the October 2, 2002 letter from Steven K. Ludwig is appended hereto as Exhibit "B." 6. On October 11, 2002, counsel for Plaintiff responded, agreeing that the suspension requested regarding Moving Defendants was not available under the statute due to their status as elected officials and that she would file an amended complaint t]hat would exclude this demand for reliefi A true and correct copy of the October 11, 2002 letter from Carol L. Cingranelli is appended hereto as Exhibit "C." 7. Having not received an amended complaint from Plaintiff's counsel, on November 15, 2002, counsel for Moving Defendants again wrote to counsel for Plaintiff and asked that by November 25, 2002 she either prepare a stipulation to strike this demand from the Complaint or circulate the proposed amended complaint that she previously offered. A true and correct copy of the November 15, 2002 letter from Steven K. Ludwig is appended hereto as Exhibit "D." 8. In his letter of November 15, 2002, counsel for Moving Defendants advised that if Plaintiff did not file a praecipe to withdraw this request from the Complaint or cimulate a proposed amended complaint, with court order and stipulation, by November 25, 2002, Moving Defendants would file a Motion to Strike this demand for relief. See id. 9. To date, counsel for Plaintiff has neither contacted counsel for Moving Defendants in response to his November 15, 2002 letter, nor has Plaintiff filed a praecipe to withdraw this request from the relief from the Complaint or circulated a proposed amended complaint. 10. The Pennsylvania Whistleblower Law provides for the very specific and limited and penalties of a civil fine and, in certain cases, suspension from public service for up to six months but not "where the person holds an elected public office." See 43 P.S. § 1426. 11. Due to the fact that moving Defendants hold elected public offices, Plaintiff's demand for the six-month suspension of Moving Defendants frc, m public service represents a demand for improper relief and thus must be stricken pursuant to Pennsylvania law. 12. Counsel for Plaintiff has failed to rectify a demand in a complaint that she knows to be improper and despite both her acknowledgement of this impropriety and Moving Defendants' notification to her that they would file the instant motion if Plaintiff failed to act. WHEREFORE, Defendants Ronald Bouch and Thomas Bixler, Jr. respectfully request that this Court enter an order striking with prejudice Plaintiff's demand for their suspension from public service for six (6) months. Respectfully submitted, Steven K. Ludwig, Esquire Maren Reichert, Esquire Attorney I.D. Nos. 40417, 86500 Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164/2103 Dated: December 6, 2002 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. Exhibit A ~U~-21-2002 ~D 02:31PH INSERVCO FAX NO, 9?050140 P.4 P, 05/12 TAMMY plaintiff i BOUCH, THOMAS I~IXLER, JR., DONALD GRUVER, in.',air capscrd as S_upsrvLsora_ 8ol~h Ne,~on Township supetVlaOrs, Defelldants : IN THE COURT OF COMMON PLEA8 OF ; CUMBERLAND COUNTY, PENNSYLVANIA ; : NO. GIVIL TERM : CIVIL ACTION - LAW ; : ; : : : D NOW COMES the plaintiff. TsmmY $ip~,. by and through her attorneys, Turo JwNOfficas, and respeotfully repmsenta the follavang: 1. The Plaintiff, Tammy Slpe$, Is an adult ilxlivJdual who currentlY resides at 17 Allison Drive, Slllppensburg, Cumberland County, pennsylvania, 17257. At all times relevant herein, the PlaintS, Tammy Sipes, served as the 2. .... r to the Beam of Supelvisors fro' Soutil Newton Township. Sooretary/Tmeaum ~fendant. Ronald Bout. In, is an adult individual who ~urrenlly resides at 3. The D .... "66, In Cumberland CountY. 20 West Main Street, walnut l~ottom, Pennsylvama, ~'- 4. The Defendant, Ronaid Bouoh, sewes as the Chairman of ~e Board of supervieom for South Newtan Township. 5. The Defendant, Thomas Blxler, Jr., is an adult individual who currently resides at 3 Brandy Lane, walnut Bottom, Pennm/lvania, .~'/266 in Cumberland CountY- RUC--21-2002 ~D 02:31 PH INSERVO0 ...... F~I NO, 97050140 cia! address of the Board of supewlsors~ for South Newton Township ia: g. The offi . ~ ,,,_~. k, .... ~in Road, Walnut [tottom. Pennsyhrania 17268, Township Building, l~ n~. ,.,.. ......... group of South Newton re,siderite 1lied a Comptai? In the 10. On Apnl 23. 2002, a for Cumbarlllrtd County seeking the ;~call of Defendant Court of Common Pleas Ronald Bouch from his position on the Towr~ship Board of 8upetvisom. 8aid Complaint ie d~l(eted at 02.19~6. J t. plaintiff, Tammy 81pea, was a algnator on t~e petition circulated among tov~ship residents seeking support for the ~egal a~ion t~ remeve Defendant Bouch from office as Town.tip Supervisor. 12. plaintiff Sipee further provided an Aflidavlt oul[lning incidents of alleged i~atassment end potential wrongdoing by the Defendant Boue. h, wl~lch satd Afficlavit was attached to the Complaint filed in C.,ourL t3, Thereafter, on or about April of 2002, plaintiff' 8ipee was requested by the State Ethice Commission to eubmtt to an interview rega,rding allegationa pending before ti~at Commission related to Dafendenta Ronald Bouctt and Thomas Bixier, Jr, 14. At all times Plalntilf Sipes eared in good.faith in reporting information of wrongdo'~ng and/or waste to apl~opr~ate authoriti~.'s. P, 06/12 6. The Defendant, Thomas BiyJet, Jr,, se~ves as the Vice Chairman for the Board of 8upe~sors of South Newton Township. 7. The oefendanL Donaki ~3ruver, is an adult ihdivi~Jual who currently resides at 29 Fireheuee Road, Walnut Bottom, pannsyiveni$, ~7:~66, in Cumberland CountY. 6, The Defendant, Donald (3myer, sen/es es a 8u;~rvisor on the Board o[ Supewisors for the South Newton TOwnship. AUG-21-2002 CD 02:31 PH INSERVCO .... FAX NO. 970hOt40 P. RUG;. t~. L:~aa~ r Oe~ant B~er ~e~.m ,,~ ..... her a~ ~at an~m she pmv~ ~ ~e Commi~n. 18. Plmntiff$1Pe . .~_ e~.~ Ethics Commission tiler based on her understanding from mu ,,,=,~ permitted to discuss her intewlew while the investigation was pending. 17. Defendant Bb~er be, mime very angry with Fqaintjff 6ipee when she refused to relate the substance of the Interdew with the ~tat~ Ethics CommL~nion. 18, At a regulmly schedUled monttd¥ public meet~na, on dune t 1, 2002, and lmrnedla~Y following a dosed Exe~lflve Meeting, 1defendant BoUCh motioned for the immediate aespension ~f 5ea~'~nj/Treaaumr Tammy slpes from all lob drills& Defendant BLxler seconc~ed, and the motian pas~ed unanimously. . alnfiff 8lpea was required to immediately t~snd over her Township Building ,9 PI ......... of the eublic attendees at the Towr~hip Meeting, keys whtle in ~e pre,,=.,~, r the ubllo meeting on June ,t,2002, Defelnd_ant..Bouoln ap.ac, ifi~&te~ their t~le 8uspullel,~, ...a n . stated that Plaintiff 81pas was being suspended based on her Involvement in the litigation pending in the Court of oommon Pleas fro' Cumberland County. 21. Thereafter. at · publio meeting on July 16. 200~. Defendant Graver made a mo~n to reinstate Pla'alliff $1pes to Ilar position ss the saoretary/Tma~urer to the Bgardi of ~uperviaors ~ South Newton Township. This Illoflon was not seconded atto[ dtd not carry. 07/12 ~UG-21-2002 ~D 02:3! PH INSERVCO F~X NO, 97050140 P. o8Z 2 . The pannsyNania Wlllstleblower Law. 53 P.5. §t421-1426, p~ ~a~I ~mme~ ~Y, In ~ ~pn~ as ~ ~plo~, m~ n~ disease or agaln~ an emp~Y~, ~use ~ e~toyee ~de n g~ m~ verily or tn w~Sng, ~ an appmpdam au~ mn~nl~ alleg~ ~d~ng or ~d~n in ~e ~mpla~m ~l~n ~ T~hip 8upe~a~, and a~ w~ · msuR ~ her ~N~on In ~e ongo~g inVe~ge~ana by ~ S~ E~ ~mmts~n. ..... "i-ca has s~ pe~,nal emba~t a~ 24. The Plnin~, ~am~ - P , . ,. ...... S~r~surer ~ humtlin~n ~ ~e ~ens~ ~m ncr ~,s~ ~- '- 25, T~ Plain~. Tnm~ Si~a. ~ e~umd em~nal die. ss ~use ~ ~e nuspenalon ~m her ~s~n ns 8~e~m~urer wi~ ~e 8a~ N~ To~iP AUC--21-2002 ~D 02:32 PH INSERVCO FAX NO,, 970b0140 P. 09/12 WHEREFORE, the Plaintiff, Tamm¥ ~lp~, d®mand$: A ~JIl reinatatement to her pos'd~o~ as Secretary/Treasurer for South · Newton Township Board of lSupervls?rs; · An award of ail costs of litigation, ~notuding attorney fee~, pumusmi to §1425 of the Whietleblower Lsw; The asae. s~ment of fines against Defendants pursuant to §1426 of the i Whi~ebloW~ LAW:, and s period ~ six I~fendant Beuch'a suspensim from pul~lo servi~e for mont~s pursuant to li~ 426 of the Whi~e:b.!ower Law. Defendant laiXter's su~penalon from pubic aenaoa for a pe~od of st~ {6) ' months pursuant to §1426 of the Whistleblowar Law. Date: -~ )_--~-~' 2002 RESPECTFULLY gUBMITTED T~IJRO LAW OFFICES :!8 S, P~ Samet CanUte, PA 17013 ~71T1245-966e ,~meys for the Plaintfffi RUC,-21-2002 14ED 02:32 PH ]NSERVCO NO. 97050140 P, 10/12 YEI~IRCA'flON !, Tammy Sipes, Plaintiff herein, h&ve suffl~ienti kno~edge of the faot~ ~nt~inad in the foregoing Comi~laint ami verify that the statenlent~ made therein are t~e and correot to the best of my knowledge, based ul~n information re~eived from the I undemt~d that falee statements herein made are s~bj~t t~ the penaltlee of 18 Pa, C.S,A. ~4g04 relating to unswom falsification to authmlfies. Tmr~my Sipes ; o · AUG-21-2002 ~D 02:30 PM INS£RVCO FAX NO. 97050140 P. 04/12 I TAMMY $1PES, Plaintiff :IN THE COURT OF COMMON PLEA~ OF ; C~UMBERLANO COUNTY. pF_NNSYLVN~IA : ~-~i~ CIVIL TE~ V. ' BOUCH. : CI~L A~ION - ~W . ~ 8o~h N~n T~sRIp u~ m -- D~enaan~ · ~ '~ YOU HAVE BEEN SUED IN COURT. If ~:)u wish to defend against the ~lair~ eat forth in the followirtg page, s, you must take a~o~a within twenty [20) days alter this Con'~iaint and Native are served, I~y e~ltering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections t~ the claims set forth against y~u. You are warned that If you fail to do so the ~ase may proceed v4th~ut you and a Judgment may be entered against you by the Cour~ without further notice for any money claimed in the Complaint of for any other ctalm or relief request~ by the Ptaintiff. You may lose money or property or olher rights imp~rtent to you. · YOU SHOULD TAKE THI-~ PAPER TO yOUR LAWYER AT ONCE. IF YOU DO OFFICE SET FORTH BELOW TO FIND OUT WHE1RE YOU CAN GI:/~.c~,~- - Cumberland County Bar Assooiation 2 Liberty Avenue Carlisle, PA t7015 (717) 249-~t88 Exhibit B FOX · ROTHSCHIiLD O'BP,,IEN & F~ANKEL~ ATTORNEYS AT LAW 2000 MAI~KET STP. EET * TENTH FLOOP. * PHILADELPHIA, PA 19103-3291 215-299-2000 * FAX 215-299-2150 * www. frof. com Steven K. Ludwig Direct Dial: (215) 299-2164 Intemet Address: sludwig~frof..com October 2, 2002 Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Re: Tammy Sipes v. Ronald Bouch, et al. Court of Common Pleas of Cumberland County Civil Action No. 02-3689 Dear Ms. Cingranelli: In reviewing the Complaint in the above-referenced matter, I see that Plaintiff demands, inter alia, Defendants Bouch and Bixler's "suspension from public service for a period of six (6) months pursuant to § 1426 of the Whistleblower Law." I ask that you stipulate to strike this request for relief, as it is not permitted under the Whistleblower ]Law. Section 1426 of Pennsylvania's Whistleblower Law provides for the very specific and limited penalties of a civil fine and, "except where the person holds an elected public office," suspension from public service for up to six months. 43 P.S. § 1.426 (emphasis added). As the statute clearly carves out elected officials, such as Supervisors Bouch and Bixler, from the universe of those persons subject to the suspension penalty, the Court is not authorized to award the relief requested by Plaintiff. Should your client not agree to strike this portion of her demand, we will file a Motion to Strike with the Court. Please advise us promptly of your position. Very'truly~ y.,m~r~/q ,//Stev~n K. Ludwig ATLANTIC CITY, NJ * DOYLESTOWN, PA * EXTON, PA · LANSDALE. PA "LAWKENCEV[LLE, NJ * PHILADELPHIA. PA "VOOP. HEES. NJ · WILMINGTON, DE Exhibit C Turo Law Offices RON TURO, Esquire ROBERT J. MULDERIG, Esquire GALEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire CAROL L. CINGRANELLI, Esquire www. TuroLaw. com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 October 11, 2002 Steven K. Ludgwig, Esquire Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market Street, 10m Floor Philadelphia, PA 19103-3291 Re: Tammy Sipes v. Ronald Bouch, et al. Civil Action 02-3689 Dear Mr. Ludgwig: I am responding to your letter dated October 2, 2002 regarding Plaintiff's Request for Relief, which included the suspension of Defendants Bouch and Bixler. As you suggested, I now find that this particular statutory remedy is limited to non-elected officials. Therefore, I agree to eliminate this Request for Relief from our Complaint. It is my intent to file an Amended Complaint, which will exclude this particular demand, and I will forward same to your attention as soon as possible. Thank you for your attention to this matter. Sincerely Yours, CAROL L. CINGRANELLI, ESQUIRE Cingranelli@TuroLaw.com CLC/jge cc: John P. McLaughlin, Esquire Exhibit D Steven K. Ludwig Direct Dial: (215)299-2164 Internet Address: sludwig~frof, com November ]15, 2002 Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Re.' Tammy Sipes v. Ronald Bouch, et al. Court of Common Pleas of Cumberland County Civil Action No. 02-3689 Dear Ms. Cingranelli: In your letter of October 11, 2002, you agreed that the demand in Plaintiff's Complaint for the suspension from office of Defendants Bouch and Bixler was not available under the statute and represented that you would be filing an Amended Complaint that would remove this particular demand. It is my understanding that, to date, however, an Amended Complaint has not been filed. Please file a praecipe to withdraw this request for relief firom the Complaint or circulate a proposed Amended Complaint, with court order and stipulation, no later than November 25, 2002. Otherwise, I will file a Motion to Strike this demand for relief and seek sanctions, as appropriate. Thank you. Very truly yours, SKL:mr cc: John P. McLaughlin, Esquire Steven K. Ludwig PHI 443501vl ! 1/15/02 Fox, Rothschild, o'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 ~ ~-2164 TAMMY S1PES, Plaintiff, RONALD BoUCH, THOMAS B1XLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants- Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. 1N THE CouRT OF coMMON pLEAS OF cUMBERLAND coUNTY, pENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL No. 02-3689 pRAECIPE FOR ARGUMENT To the Prothonotary: Argument date requested is: February 12, 2003 (2) The matter to be argued is Motion of Defendants Ronald Bouch (3) and Thomas Bixler, Jr. to Stri plaintiff' s Demand for Their Suspension from Office. The party who has the burden is Defendants Ronald Bouch and Thomas Bixler, Jr. (4) (a) The case will be argued for Plaintiff by Carol L. Cingranelli, Esquire. (b) The case will be argued for Defendants Ronald Bouch and Thomas Bixler, Jr. by Steven K. Ludwig, Esquire, or Maren Reichert, Esquire. (c) The case may be argued for Co-Defendant Donald Gruver by John P. McLaughlin, Esquire. Dated: December 6, 2002 Steven K. Ludwig, Esquire Maren Reichert, Esquire Attorney I.D. Nos. 40417, 86500 Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164/2103 Counsel for' Defendants Ronald Bouch and Thomas Bixler, Jr. Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire Identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 TAMMY SIPES, Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL No. 02-3689 AFFIDAVIT OF SERVICE FOR ARGUMENT COURT Maren Reichert, Esquire, certifies that the Praecipe for Argument, Motion of Defendants Ronald Bouch and Thomas Bixler, Jr. to Strike Plaintiffs' Dernand for Their Suspension from Office and the Brief in support thereof were served this date via first class mail, postage prepaid, pursuant to the Cumberland County Rules of Court, addressed as follows: Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff John P. McLaughlin, Esquire Ballard, Spahr, Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 Counsel for Defendant Donald Gruver I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. Steven K. Ludwig, Esquire Maren Reichert, Esquire Attorney ]i.D. Nos. 40417, 86500 Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164/2103 Counsel fbr Defendants Ronald Bouch and Thomas Bixler, Jr. Dated: December 6, 2002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TAMMY SIPES, Plaintiff, Vo RONALD BOUCH, THOMAS BIXLER, JR. DONALD GRUVER, in their Official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Civil Action No. 02-3689 ENTRY OF APPEARANCE_ To the Prothonotary: Kindly enter my appearance on behalf of Defendant Donald Gruver in this matter. Dated: January_/.3., 2003 Allison V. Kinsey, Esquire._J Attorney I.D. No. 88486 Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 (215) 864-8241 (215) 864- 8999 (facsimile) Attorney for Defendant Donald Gruver PHL_A #1707943 vl CERTIFICATE OF SERVICE. I, Allison V. Kinsey, hereby certify that on this 13th day of January, 2003, I caused a tree and correct copy of the foregoing Entry of Appearance, to be served upon the following, via first class mail postage prepaid, addressed as follows: Steven K. Ludwig, Esquire Fox, Rothchild, O'Brien & Frankel 2000 Market Street, 10th Floor Philadelphia, PA 19103 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. Ron Turo, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff Date: January .~_, 2003 Allison V. Kinsey PHL_A#1707943 vl By: John P. McLaughlin (I.D. No. 49765) Allison V. Kinsey (I.D. No. 88486) BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 (215) 864-8999 (facsimile) TAMMY SIPES, Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR. and DONALD GRUVER, in their Official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorneys for Defendant Donald Gruver COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 02-.3689 DEFENDANT DONALD GRUVER'S MOTION TO STRIKE PLAINTIFF'S AMENDED COMPLAINT AND FOR JUDGMENT ON THE PLEADINGS Defendant Donald Gruver ("Gruver"), by and thorough his undersigned counsel, hereby moves to strike Plaintiff Tammy Sipes ("Plaintiff") Amended Complaint and moves for judgment on the pleadings pursuant to Rule 1034 of the Permsylvania Rules of Civil Procedure. In support of this motion, Gruver avers as follows: 1. On August 31, 2002, Plaintiff filed and served a Complaint against Gruver, Ronald Bouch and Thomas Bixler, Jr. (collectively, the "Defendants"), alleging that they acted in violation of the Pennsylvania Whistleblower Law, 53 P.S. §§ 1.421 et seq. ("Whistleblower Law"). (See Plaintiff's Complaint, attached hereto as Exhibit A). 2. Pursuant to a stipulation between the parties, the Defendants were granted until October 8, 2002 to answer, move or otherwise respond to Plaintiff's Complaint. PHL_A #1706346 vl 3. On October 4, 2002, Defendants Bouch and Bixler filed and served an Answer and New Matter to Plaintiff's Complaint. (See. Defendants Ronald Bouch and Thomas Bixler, Jr.'s Answer and New Matter, attached hereto as Exhibit B). 4. On October 7, 2002, Gruver filed and served a verified Answer and New Matter to Plaintiff's Complaint denying the legal sufficiency of the Complaint. (See_ Defendant Donald Gruver's Answer and New Matter, attached hereto as Exhibit C). 5. On December 9, 2002, Plaintiff purported to file an Amended Complaint. (See Plaintiff's Amended Complaint, attached hereto as Exhibit D). 6. The purported Amended Complaint did not contain a Notice to Defend. 7. Pennsylvania Rule of Civil Procedure 1033 provides that "Iai party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend a pleading." Pa. R.C.P. 1033. 8. Pennsylvania Rule of Civil Procedure 1029(h) provides in pertinent part: "Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by implication. A general denial or a demand for proof.., shall have the effect of an admission." Pa. R.C.P. 1029(b). Pennsylvania Rule of Civil Procedure 1026(a) provides that "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading .... "Pa. R.C.P. 1026(a). 9. Plaintiff did not seek or obtain Gruver's con,sent or the consent of the other Defendants to amend her Complaint. Complaint. 10. 11. Plaintiff did not seek leave of this Court to amend her Plaintiff did not answer Gruver's New Matter. Plaintiff did not answer Bixler's or Bouch's New Matter. PHL_A #1706346 vl 2 12. Plaintiff's Amended Complaint is invalid as a matter of law and must be stricken because Plaintiff failed to seek or to obtain Gruver's consent or the consent of the other Defendants. She also failed to obtain leave of this Court prior to amending her Complaint. 13. Plaintiff's Amended Complaint fails as a matter of law because Plaintiff failed to substantively respond to Gruver's New Matter or the New Matter of the other Defendants. 14. Since Plaintiff did not serve her Amended Complaint with a Notice to Defend, Gruver was not required to respond to the Amended Complaint. See Pa. R.C.P. 1081.1. 15. In support of this Motion, Gruver incorporates herein by reference the attached Memorandum of Law in support of Defendant Donald Gruver's Motion to Strike Plaintiff's Amended Complaint and for Judgment on the Pleadings. WHEREFORE, Defendant Donald Gruver respectfully requests that this Court grant his Motion to Strike PlaintiW s Amended Complaint and :for Judgment on the Pleadings. January i~,, 2003 Respectfully submitted, John P.~I~:~La~ (I.D. No.,/49765) Allison V. Kinsey (I.-TD?Nrr~8486) BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 (215) 864.- 8999 (facsimile) Attorneys for Defendant Donald Gruver PHL_A #1706346 vl 3 TAMMY SlPES, Plaintiff RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : · NO. 02:-3689 CIVIL TERM : · CIVIL ACTION - LAW : : : PLAINTIFF'S REPLY TO DEFENI[:)ANTS' NEW MATTER 30. 31. 26. The allegations of this paragraph are matters not within the control of the Plaintiff and to such extent are denied. The Defendants are demanded to produce information that would allow tl~e Plaintiff to form a reasonable conclusion as to the veracity of the allegations. 27. The allegations of this paragraph are matters not within the control of the Plaintiff and to such extent are denied. The Defendants are demanded to produce information that would allow the Plaintiff to form a reasonable conclusion as to the veracity of the allegations. 28. The allegations of this paragraph are matters not within the control of the Plaintiff and to such extent are denied. The Defendants are demanded to produce information that would allow the Plaintiff to form a reasonable conclusion as to the veracity of the allegations. 29. The allegations of this paragraph are matters not within the control of the Plaintiff and to such extent are denied· The Defendants are demanded to produce information that would allow the Plaintiff to form a reasonable conclusion as to the veracity of the allegations. Admitted. Admitted. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. Denied. By way of further answer, proof of the same is demanded at Trial. Denied. Proof of the same is demanded at Trial. Admitted and denied. It is admitted that the Plaintiff received her regular rate of pay for the position of Secretary/Treasurer; however, such rate of pay and compensation halted as of January 1, 2003, when she was terminated, without pay, from her position of Secretary/Treasurer of the Township. Denied. Proof of the same is demanded at Trial. Denied. Proof of the same is demanded at Trial. Denied. Proof of the same is demanded al: Trial. Denied. This allegation is a legal conclusion to which no responsive pleading is required. However, if a responsive pleading is required, Plaintiff realleges that Defendant Bouch and Bixler are liable for damages. Denied. This allegation is a legal conclusion to which no responsive pleading is required. However, Plaintiff realleges her allegations and requests the relief indicated above. Denied. This allegation is a legal conclusion to which no responsive pleading is required. However, Plaintiff realleges her' allegations and requests the relief indicated above. Denied. This allegation is a legal conclusion to which no responsive pleading is required. However, Plaintiff realleges her allegations and requests the relief indicated above. Denied. This allegation is a legal conclusion to which no responsive pleading is required. However, Plaintiff realleges her allegations and requests the relief indicated above. Denied. This allegation is a legal conclusion to which no responsive pleading is required. However, Plaintiff realleges her allegations and requests the relief indicated above. Denied. This allegation is a legal conclusion to which no responsive pleading is required. However, Plaintiff realleges her allegations and requests the relief indicated above. Admitted. 46. 47. Denied. By way of further answer, the Plaintiff continues to work to the best of her ability; however, is unable to obtain work in the public service sector because of the actions of the Defendants. Denied. By way of further answer, both Defendants both Bouch and Bixler had sufficient knowledge and means to determine what injuries, sufferings and damages the Plaintiff has suffered as a result of their negligent and illegal actions WHEREFORE, Plaintiff Tammy Sipes dem.ands judgment against the Defendants Bouch and Bixler as set-forth in her Complaint in that their New Matter be stricken. RESPECTFULLY SUBMITTED TURO LAW OFFICES ,2003 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for the Plaintiff VERIFICATION I, Ron Turo, Esquire, am the attorney for Plaintiff Tammy Sipes. I have prepared the Answer to New Matter based on new information provided to me, which I believe to be accurate and correct Ron Turo, Esquire CERTIFICATE OF SERVlCF I hereby certify that I served a true and ,correct copy of the Plaintiff's Reply to Defendants' New Matter upon Steven Ludwig, Esquire and John P. McLauglin, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the ~)/ day of .~-=~,,~,,D' cCC'?, 2003, from Carlisle, Pennsylvania, addressed as follows: " Steven Ludwig, Esquire Fox, Rothschild 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 John P. McLauglin, Esquire Ballard, Spahr 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 TURO LAIN OFFICES / on Turo, Esquire .,./ 28 South Pitt Street Carlisle, PA 17013 (717) 245-(,)688 Attorney for Plaintiff Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire Identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 TAMMY SIPES, Plaintiff, Vo RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL No. 02-3689 To the Prothonotary: (1) (2) (3) PRAECIPE FOR ARGUMENT Argument date requested is: February 12, 2003 The matter to be argued is Motion of Defendants Ronald Bouch and Thomas Bixler, Jr. to Strike Plaintiff's Amended Complaint and for Judgment on the Pleadings. The party who has the burden is Defendants Ronald Bouch and Thomas Bixler, Jr. (4) Dated: (a) The case will be argued for Plaintiff by Ronald A. Turo, Esquire. (b) The case will be argued for Defendants Ronald Bouch and Thomas Bixler, Jr. by Steven K. Ludwig, Esquire, or Maren Reichert, Esquire. (c) The case may be argued for Co-Defendant Donald Graver by John P. McLaughlin, Esquire or Allison V. Kinsey, Esquire. Steven K. Ludwig, Esquire Maren Reichert, Esquire Attorney kiD. Nos. 40417, 86500 Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market Street, Tenth Floor Philadelphm, PA 19103-3291 (215) 29%2164/2103 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. January 20, 2003 Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire Identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 TAMMY SIPES, Plaintiff, Vo RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. 11'4 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL No. 02-3689 DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR.'S MOTION TO STRIKE PLAINTIFF'S AMENDED COMPLAINT AND FOR JUDGMENT ON THE PLEADINGS Defendants Ronald Bouch and Thomas Bixler, Jr. (hereinafter "Moving Defendants"), by their undersigned counsel, hereby move for an Order striking the Amended Complaint filed by Plaintiff Tammy Sipes and for judgment on the pleadings pursuant to Rule 1034 of the Pennsylvania Rules of Civil Procedure, and, in support thereof, aver as follows: 1. On August 1, 2002, Plaintiff filed a complaint alleging that Defendants acted in violation of the Pennsylvania Whistleblower Law, 53 P.S. §§ 1421-1448. A true and correct copy of Plaintiff's Complaint is appended hereto as Exhibit "A." 2. Pursuant to a stipulation between the parties, the Defendants were granted until October 8, 2002 to answer, move or otherwise respond to Plaintiff's Complaint. 3. On October 4, 2002, Moving Defendants filed and '.served a verified Answer and New Matter to Plaintiff's Complaint containing a notice to plead. A copy of Moving Defendants' Answer and New Matter was sent, via first class mail, to then-counsel of record for Plaintiff on October 4, 2002, and was not returned by the U.S. Postal Service. A true and correct copy of Moving Defendants' Answer and New Matter, with transmittal letter, is appended hereto as Exhibit "B." 4. On October 7, 2002, Defendant Gruver filed and served a verified Answer and New Matter to Plaintiff's Complaint containing a notice to plead. A true and correct copy of Defendant Gruver's Answer and New Matter, with transmittal letter, is appended hereto as Exhibit "C." 5. To date, Plaintiff has not filed a response to the New Matter asserted by either Moving Defendants or Defendant Gruver. 6. Rule 1026(a) of the Pennsylvania Rules of Civil Procedure provides that "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading ...."Pa. R.C.P. 1026(a). 7. Rule 1029(b) of the Pennsylvania Rules of Civil Procedure provides in relevant part that "[a]verments in a pleading to which a responsive pleading is required are admitted when not 2 denied specifically or by implication. A general denial or a demand for proof.., shall have the effect of an admission." Pa. R.C.P. 1029(b). 8. On December 9, 2002, Plaintiff purported to file ant Amended Complaint, which did not contain either a notice to defend or a notice to plead, and which did not purport to respond to the New Matter asserted by either Moving Defendants or Defendant Gruver. A true and correct copy of Plaintiff's Amended Complaint is appended hereto as Exhibit "D." 9. Rule 1033 of the Pennsylvania Rules of Civil Procedure provides that "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." ]?a. R.C.P. 1033. 10. While counsel for Moving Defendants suggested in correspondence to counsel for Plaintiff that a motion to strike an improper demand in the original complaint would not be filed if Plaintiff promptly sought to amend her complaint to remove that demand, Plaintiff did not seek or obtain the consent of any of the Defendants to amend her Complaint prior to filing an Amended Complaint on December 9, 2002, nor did she seek leave of this Court to amend her Complaint. 11. Defendants did not file a response to the Amended Complaint because Plaintiff neither served her Amended Complaint with a notice to plead nor filed the Amended Complaint with leave or Court or consent of the parties. 12. Plaintiff's Amended Complaint is invalid as a matter of law and must be stricken because Plaintiff failed to seek or to obtain the consent of any of the Defendants and failed to obtain leave of this Court prior to amending her Complaint. 13. In support of this Motion, Moving Defendants incorporate herein by reference the attached Memorandum of Law. WHEREFORE, Defendants Ronald Bouch and Thomas Bixler, Jr. respectfully request that this Court enter an order striking Plaintiff's Amended Complaint and enter a judgment in favor of Defendants Ronald Bouch and Thomas Bixler, Jr. and against Plaintiff Tammy Sipes. Respectfully submitted, Steven K. Ludwig, Esquire Maren Reichert, Esquire Attorney I.D. Nos. 40417, 86500 Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market Street, Tentlh Floor Philadelphia, PA 19103-13291 (215) 299-2164/2103 Dated: January 20, 2003 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. 4 Exhibit A RUCr21-2002 MD 02:31 PM INS£RVCO FaX NO, 97050140 P, 05/12 TAMMY $1PE8, Pla'mtifl' RoNALD BOUCH, THOMAS BIXLER. JR., DONALD (3RUVER, in their official capscrdes as .n ra. South Newlon Townsl~ip eoam m SupeWiaors, Defendants ' IN THE COURT OF COMMON PLEA8 OF : CUMBERLAND couNTY, PENNSYLVANIA ; · NO. GIVIL TERM · CIVIL ACTION - LAW ; : : : : : AND NOW COMES the Plaintiff, Tammy Sipe=t by and through her attorneys, Turn Law Offices, and respe0tfully repmsenta the following: 1. The Plaintiff, Tammy Slpe$. is an adult il~dividual who currently resides at t7 Allison Drive, 8hlppensburg, Cumberland County, pennsylvania. 17257. 2. At all times relevant herein, the Plaintiff, Tammy 8ipes, sewed aa the Se=mtmy/l'rea~urer to the Board of Supervisors for SoutYt Newton Township. 3. The Defendant, Ronald Bout, is an adult Individual who ourrently resides at 20 Waat Main Street, Walnut Bottom, Pennsylva~ia, 17266, In cumberland County. 4. The Defendant, Ronaid Bout, serve8 as the Chairman of t~e Board of Supervisors for South Newton TownshiP- 5. The Defenda~lt, Thomas Blxler, Jr., is an adult Individual who curren§Y resides et 3 Brandy Lane, Walnut Bottom, Pennsylvania, 47266 in Cumberland County. ~UC--21-2002 ~D 02:3! PM INS£RVO0 FAX NO, 97050140 P, 08/12 6. The Defendant, Thomas Bixler, Jr., serves as the Vioe Chairman for the Board of Supervisors of south Newton Townsl~tp. 7, The oofendanL Donald Gruver, i$ an adult indMdual who currently resides at 29 Firehouse Road, Walnut Bottom, pannsyiveni$, ti 72~6, in Cumberland CountY. 8. The Defendant, Donald Graver, seems as a Supervisor on the Board Supervisors for the South Newton 'township. 9. The official address of the Board of supervisors for South Newton TownshiP ia: Township Building, Jl High Mountain Road, Walnut Bottom. Pennsylvania 17268, 10. On Apnl 23, 2002, a group of 6outh Newton residents filed a Comptai.nt in the Gourt of Common Pleas for Cumbarlartd County seeking the recall of Defendant Ronald Bouch from his position on the Towr~chip Board of Superv[som. Said Complaint Is d~x~keted at 02.1916. 11. Plaintiff, Tammy 81pea, was a $1gnamr on the Petition circulated among township residents seeidllg support for the legal action to remove Defendant Bouch from office aa Town~ip Supervisor. 12. plaintiff 8ipem ftl~her provided an Affidavit ouliining inc4dents of alleged harassment and potential wrongdoing by the Defendant Boueh, which said Affictavlt w~s atteched to tile Complaint filed in Court. t3. Thereafter, on or about April of 2002, Plaintiff 6ipee was requested by the 8tare Ethica Commiseion to submit to an interview regarding allegations pending before that Commission related to Defendants Ronald gouch and Thomas l~Ner, Jr, 14. At all times Plaintiff $ipes ao/md In good-faith in reporting information of wrongdoing and/or waste to appropriate authorities. ftUCr"'21-2002 I,~D 02:31 ""-"'-'-'' RUG. (~,21;~a2 9=~ PN IN~£RVCO Ft~X ]~0. 970~0140 HO. ~ 16. Subsequent to the State Ethic~ Commission lengthy interview of Plaintiff 8lpes Defendant Bixlet became insistent that sl~e miata to him what questJorts wee asked of her end whet ansWerS she provided to the Commission. 16, Plaintiff $1pes de~line(i to provide the requested information to Defendant Bixler, based on her understanding from the b'tate Ethics Commission that she was not permitted to discuss her interview while the Investigation was pending. 17. Defendant Bixler became very angry with Plaintiff 8ipes w~en she refused to relate the substance of the interview wi~h the 8tats Ethics Commission. lB, At a regularly ~.heduled monthly public meeting, on June t 1, 2o02, and Immediately following a closed F. xe~tlve Meeting, Defendant BoUch motioned for the immediate suspension ~f Secretary/Treasurer Tummy Slpes from all Job d~tles. Defendant Bbder seconded, end the motion passed unanimously. 10. Plaintiff 81pas was required 1~ immediately bend over her Township Building keys whne in the presence of the public attendee~ atthe Township Meeting, 20, At the public meeting on June 1t, 2002, Defendant, Bouch specifically stated that the suspension was not performance baaed, I:)efendant Bouch further epedfimd~y stated that Plai~iff Sipes was being suspended based on her Involvement In the litigation pending in the Court of Common Pleas fei' Cumt3erland County. 21. Themdter, at a publia meedng on J~ly 16, 2002, Defendant Gruver made a motion to reinstate Plaintiff 81pes to her position as the Secretary/Treasurer to the Board of Supep~om for South Newton Township, This me, on was not seconded and did not ram/. 07/12 AUG-21-2002 14ED 02:31 PH INS£RVC0 FAX N0, 97050140 p. 08Y12 ~LIG. a.~ 9:L="Ji=H ~ SNYD£R E;E3,F'T NO.~ P.? 22. The Pennsylvania WNstlebloWer Law, 53 P.6, §~421-1428, p.rovide~ that a government body, in its ~paolty as an employer,, may not disb'~herge or retaliate against an employee, beoause that er/tployee made a good-faith report, verbally or in writing, to an appropriate authority conc, ernlng alleged wrongdoing or waste. 23, The aforesaid suspension of Plaintiff Sip~ was a direct result of her participation tn the Complaint flied in an attempt to remove Defendant Couch from ttts i~oaltion aa Township 8uperviam', and also was a result of her partioipafion in the ongoing investigations by the State Ethics Commission. 24. The Plaintiff, Tammy $1pea, has suffered pemonal embarrassment and humiliation I=ecauae of the suspension from her position as Secretary/Treasurer with the South Newton Township Board of Supervisors. 25, The Plaintiff, Tammy Sipea, has endured emotional distress because of the suspension from her lx~sition as Secretary/Treasurer with the South Newton Township Board of Supervisors. RU8-21-2002 MD 02:32 PH INsERVO0 FRX NO. 97060140 WHEREFORE, the Plaintiff', Temmy ,..'Sipes, demands:: · A full reinstatement to her position as Secretary/Treasurer for South Newton Township Board of Supe~lsors;: · An award of ell cos~ of IMg~tion, including attorney fees, pursua~ to §1425 of the Whletleblower Law;, · The assessment of fines against Defendants pursuant to §t426 ~f the Whi~eblowar Law;, and · Defendant l~euch'a suspens'~ from I~bllc service for a period of slx months pumuant to §~426 of the Whietleblower Law. . Defendant BL~er's su=pension from public aervlce far a period of slx (6) moetha purauent to §1426 of the WhistlebiOWer Law, 09/12 Date: -~ ).~_.~~, 2002 RESPECTFULLY BUBMITTEO T'URO LAW OFFICES ~UG-21-2002 ~D 02:32 PR INS£RVCO F~ NO, 97050140 P. 10/12 I, Tammy $ipes, Plaintiff herein, have sufficient knowleclge of the faots contained in the foregoing Complaint and verify that the ~tatement= made therein are true and correGt to the best of my knowledge, based upon information received from the PlalntJff~. I undend~'nd that f~lm~ statements heroin made are subject te the penaltlee of 18 Pa, C.~,A. ~4la04 relating to unswom falelt~cation to authorities. Date Tammy Sipes /~UC--21-2002 NED 02:30 PH INSERVCO FAX NO, 97050140 P. 04/12 TAMMY $1PE$, Plaintiff :IN THE COURT OF COMMON PLEA8 OF : oUMBERLAND COUNTY, PENNSYLVANIA NO. ClVlU TERM V. : CIVIL ACTION - LAW RENALD BOUCH. DONALD GRUVER. in their official Capaoitles as Supervisors of the South Newton Township Board of Defenclants YOU HAVE BEEN SUED IN COURT. If you ~vlsh to defend against the claims eat forth in the followi~l pages, you must take MOtion W'~hin twanty (20) days alter this Cort~plaint and Notioe are senfecl, ay entering a ~nffien appearance pemonally or by attomey and filing in writing with the Cou~t your defenses or obJeottons to the Maims set dh a [n~t you, You are warned that If you fall to do so the ~ase may proceed wi~out fo ga ....... ~e Court wlthout further notice for a ud ent may be entere~ agalnet you w u, and J gm · b the yo~ ..... . ,_. ..... ,,~,~r etmm or rMlef requestei$ Y any money claimed in tile comptalm ~ ,u[ ,,.~ ,,-:¥- -:- .... .. Plaintiff. You may lose money er property or other nghts important to you, · YOU SHOULD TAKE THII~ PAPER TO yOUR LAWYER AT ONCE, IF YOU DO OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN at: I ~t:~/~- - Cumberland County Bar Assoeiatlo~ 2 Uberb/Avellu.e Cmflale, PA 170~$ (717) 241)-3188 Exhibit B vOX ° ROTHSCHILD O'BKIEN & F1ZANKELLL, ATTOKNEYS AT LAW 2000 IVIARKET STP-,.EET * TENTH FLOOK * PHILADELPHIA, PA 19103-3291 215-299-2000 * FAX215-299-2150 * www. fro£.com Steven K. Ludwig Direct Dial: (215) 299-2164 Interact Address: sludwig~frof.¢om October 4, 2002 VIA FEDERAL EXPRESS Prothonotary Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 Re: Tammy Sipes v. Ronald Bouch, et al. Cumberland County C.C.P. Civil Action No. 02-3689 To the Prothonotary: Enclosed for filing is an original and two (2) copies of Defendants Ronald Bouch and Thomas Bixler, Jr.'s Answer to Plaintiff's Complaint, with New Matter in the above-referenced matter. Please return a date-stamped copy in the enclosed self-addressed stamped envelope. Thank you. Very truly 2/ours, Steven K. Ludwig Enclosures cc: Carol L. Cingranelli, Esquire (w/encl.) John P. McLaughlin, Esquire (w/encl.) ATLANTIC CITY, lN-J * DOYI.~TOWN, PA · EXTON, PA · LANSDAL~, PA * LAWR.ENCEXrlLLE, NJ * PHILADELPHIA, PA · VOOg. HE~S, NJ * WILMn,~GTON, DE Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire Identification Nos. 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 TAMMY SIPES, Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. TO: Plaintiff YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE NEW MATrER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. FOX, S , 'BRIEN & FRANKEL, LLP s~,~k, l~ufiw'lG ~- Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL Nc,. 02-3689 DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR.'S ANSWER TO PLAINTIFF'S COMPLAINT, WITH NEW MATTER Defendants Ronald Bouch and Thomas Bixler, Jr., by their undersigned counsel, answer the Complaint of Tammy Sipes ("Sipes" or "Plaintiff") as follows: 1 Admitted. 2. Admitted. 3. Admitted. 4. Admitted. C) 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. By way of further answer, said complaint has been dismissed. 11. Admitted. 12. Denied. Answering Defendants are without sufficient information to respond to the allegations of paragraph 12 of Plaintiff's Complaint regarding an Affidavit and they are, therefore, denied. Answering Defendants specifically deny that an Affidavit signed by Plaintiff was attached to the complaint referenced in paragraph 12 of Plaintiff's Complaint. 13. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 13 of Plaintiff's Complaint and they are, therefore, denied. 14. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 14 of Plaintiff's Complaint and they are, therefore, denied. 15. Denied. By way of further answer, Defendant Bixler specifically denies that he had any independent knowledge that Plaintiff had been interviewed by the State Ethics Commission or that he asked Plaintiff about the substance of any such intervilew. Moreover, when Plaintiff voluntarily informed Defendant Bixler that she had been required to give information to the State Ethics Commission, Defendant Bixler responded that he understood that that was her job. 2 16. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 16 of Plaintiff's Complaint with respect to any instructions from the State Ethics Commission regarding Plaintiff's permission to discuss her interview or Plaintiff's understanding of these instructions and they are, therefore, denied. By way of further answer, Defendant Bixler specifically denies that he requested any information of Plaintiff pertaining to any interview she may have had with the State Ethics Commission. 17. Denied. By way of further answer, Defendant Bixler specifically denies that he requested any information of Plaintiffpertaining to any interview she may have had with the State Ethics Commission. 18. Admitted. By way of further answer, the motion that was brought and passed provided for Plaintiff to be suspended with pay. 19. Admitted. By way of further answer, the Board of Supervisors also agreed on June 11, 2002 that Defendants Bouch and Bixler also would surrender their privileges, as Assistant Secretaries, to access records maintained by South Newton Township. Defendants Bouch and Bixler incorporate by reference the averments contained in their New Matter. 20. Admitted in part; denied in part. It is admitted that Defendant Bouch announced the Board's suspension with pay of Plaintiff at a monthly public meeting held on June 11,2002 and that he indicated that the Board's rationale for the decision to suspend Plaintiff was a necessary step to avoid any conflict because of the suit pending in the Court of Common Pleas. It is further admitted that Defendant Bouch stated at that time that the suspension was not then directly related to Plaintiff's performance as Secretary/Treasurer. By way of further answer, Defendants Bouch and Bixler suspended their own access to Township records to remove any concerns about the integrity of Township records in light of the suit pending in the Court of Common Pleas and other pending investigations into their conduct. In addition, subsequent examination of Township records reveal that PlaintiWs performance was substandard. Defendants Bouch and Bixler incorporate by reference the averments contained in their New Matter. 21. Admitted. 22. Denied. The averments of paragraph 22 constitute conclusions of law to which no response is required and are, therefore, denied. 23. Denied. The averments of paragraph 23 constitute conclusions of law to which no response is required. To the extent these averments are deemed to be factual, they are also denied. 24. Denied. After reasonable investigation, Answering Defendants are without sufficient information to respond to the allegations of paragraph 24 of PlaintiWs Complaint and they are, therefore, denied. 25. Denied. After reasonable investigation, Answering iDefendants are without sufficient information to respond to the allegations of paragraph 25 of Plaintiff's Complaint and they are, therefore, denied. WHEREFORE, Defendants Ronald Bouch and Thomas Bixler, Jr. request that judgment be entered in their favor along with costs, reasonable attorneys' fees and such other relief as the Court may deem just and proper. 4 NEW MATTER By way of further answer, Defendants Ronald Bouch and Thomas Bixler, Jr. assert the following New Matter: 26. Defendants South Newton Township Supervisors Bouch, Bixler, and Gruver met in Executive Session on June 11, 2002 to discuss with the Township Solicitor their desire that a neutral party serve as Township Secretary. 27. Defendants' meeting on this topic was due to their concern with the integrity of Township records, which could be evidence reviewed by the State Ethics Commission as part of their investigation of complaints made against Defendants Bouch and Bixler. 28. The concern about the neutrality of Plaintiff, who served as the Township's Secretary/Treasurer, arose from the fact that Plaintiff was involved in a lawsuit that sought the removal of Defendant Bouch from office, which suit involved various allegations of wrongdoing that allegedly would be evidenced, at least in part, by Township records or the lack thereof. 29. As a result of discussions held during the Executive Session, Defendants Bouch and Bixler, in their capacities as members of the Board of Supervisors, formed a good faith belief that the suspension of Plaintiff, with pay, along with the surrender of Defendants Bouch and Bixler's access to Township records, was a neutral, privileged action justified by the need to maintain the integrity of Township records pending the conclusion of the investigations by the State Ethics Commission. 30. The Board of Supervisors voted on June 11, 2002 to suspend Plaintiff with pay. 31. At that time, the Board of Supervisors also requested that Plaintiff return any Township records in her possession and required Defendants Bouch and Bixler to surrender the keys that provided them, as Assistant Secretaries, access to Township records. 5 32. Plaintiffhas not retumed to the Township various records that she is believed to have removed from the premises without the authorization of the Board of Supervisors. 33. Following Plaintiff's suspension on June 11,2002, the Board of Supervisors learned that Plaintiff, prior to her suspension, had been remiss in making timely payments on behalf of the Township, including a property tax payment to Cumberland County, state and federal payroll taxes, and various invoices for goods and services, which, in some cases, resulted in the Township being assessed late fees and penalties. 34. Since her June 11, 2002 suspension, Plaintiff has continued to receive her regular rate of pay for the position of Secretary/Treasurer, which at all time,,; has been a part-time position. 35. At all times relevant hereto, Defendants Ronald Bouch and Thomas Bixler, Jr. acted in good faith. 36. At the time the Board of Supervisors voted to suspend Plaintiff with pay, Defendants Ronald Bouch and Thomas Bixler, Jr. had no knowledge as to whether Plaintiff had engaged in any activity protected under the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq. 37. Defendants' action to suspend Plaintiff with pay was taken for the separate and legitimate purpose of preserving the integrity of Township records during the pendency of State Ethics Commission investigations and not as a pretext for retaliation in violation of the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq. 38. Defendants Ronald Bouch and Thomas Bixler, Jr. m'e liable for no damages. 39. Plaintiff has failed to set forth a cause of action upon which relief can be granted. 40. Plaintiff's claims are barred, in whole or in part, by the doctrines of absolute immunity and legislative immunity. 6 41. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver, laches and/or estoppel. 42. Plaintiff's claims are barred by the doctrine of unclean hands. 43. Plaintiffhas not acted in good faith. 44. Plaintiff is not entitled to equitable relief. 45. Plaintiff is not entitled to relief suspending Defendants Ronald Bouch and/or Thomas Bixler, Jr. from public service for any period of time. 46. Plaintiff has failed to mitigate her damages. 47. Defendants Ronald Bouch and Thomas Bixler, Jr. have no knowledge or means of ascertaining the truth or falsity of the averments concerning the injuries, sufferings, or damages alleged to have been sustained by Plaintiff and the same are accordingly denied and strict proof thereof demanded at the time of trial. WHEREFORE, Defendants Ronald Bouch and Thomas Bixler, Jr. request that judgment be entered in their favor along with costs, reasonable attorneys' fees and such other relief as the Court may deem just and proper. Dated: October 4, 2002 St ~ ~. L~d&iEg7 Es.q~,[e ~eRye~ ~e~q'o s s4q;i4r[71 86'500 FOX, ROTHSCHILD, O'BRIEN & FRANKEL, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. VERIFICATION I, Ronald Bouch, hereby verify that the facts set forth in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I verify that these statements are made s. ubject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. Dated: RONAt~~_ ............... VERIFICATION I, Thomas Bixler, Jr., hereby verify that the facts set forth in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I verify that these statements are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Dated THOMAS BIXL~R, JR. CERTIFICATE OF SERVICE I hereby certify that a tree and correct copy of the foregoing Defendants Ronald Bouch and Thomas Bixler, Jr.'s Answer to Plaintiff's Complaint with New Matter was served on counsel of record, via first class mail, postage prepaid, on the 4th day of October, 2002, addressed as follows: Dated: October 4, 2002 Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff John P. McLaughlin, Esquire Ballard, Spahr, Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 Counsel for Defendant Donald Gruver S ~,,~l~"I~. LODWIGk' / 10 Exhibit C LAw OFFICES BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 MARKET STREET, 5 IST FLOOR PHILADELPHIA, PENNSYLVANIA 19103-7599 2 I 5-665-8500 FAX: 215-e64-8999 WWW.BALLARDSPAH R.COM JOHN P. McLAUGHLIN DIRECT DIAL: 215-8~4-8 PERSONAL FAX: 215-864-9150 M CLAU G H LIN JOEIALI-AR OSPAH R .EOM BALTIMORE, MD DENVER, CO SALT LAKE CITY, UT VOORHE£S, NJ WASHINGTON, DC October 7, 2002 By Federal Express Prothonotary Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 Re: To the Prothonotary Tammy Sipes v. Ronald Bouch, et al. Court of Common Pleas of Cumberland County Civil Action No. 02-3689 Enclosed for filing is an original and two (2) copies of Defendant Donald Gruver's Answer and New Matter in the above-referenced matter. you JPM/vw Enclosure CC: Please return a date-stamped copy in the enclosed self addressed envelope. Thank Very tmly_y__ours, Steven K. Ludwig, Esquire (w/enc.) Carol L. Cingranelli, Esquire (w/enc.) PHL_A#1675572 vl BALLARD SPAHR ANDREWS & INGERSOLL, LLP By: John P. McLaughlin, Esquire Attorney I.D.# 49765 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 (215) 864-8999 (facsimile) TAMMY SIPES, Vo Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR., and DONALD GRUVER, in their Official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorney for Defendant Donalq Graver COURT OF COMMON PLEAS CUMBERL~ COUNTY, PENNSYLVANIA CIVIL ACTION NO. 02-3689 ANSWER AND NEW MATTER OF DEFENDANT DONALD GRUVER Defendant Donald Graver ("Graver"), by and through his undersigned attorney, hereby answers the Complaint filed by Tammy Sipes ("Plaintift?') and asserts the following New Matter. Graver denies each and every averment set forth in Plaintiff's Complaint, except as expressly admitted below. In support of his Answer and New Matter, Graver avers as follows: 1. Admitted. 2. Graver admits only that Sipes is the Secretary 'Treasurer to the Board of Supervisors ("Board") for South Newton Township ("Township") and that she is currently PHL_A#1674730 vl suspended with pay f~om that position. Graver is without knowledge or information regarding the meaning of "at all relevant times". Therefore, said allegation is denied. 3. Gruver admits only that Ronald Bouch ("Bouch") is a defendant. After reasonable investigation, Graver is without sufficient knowledge or information to form a belief as to the troth of the remaining averments in paragraph 3 of Plaintiff's Complaint. Therefore, the allegations are denied. 4. Admitted. 5. Gruver admits only that Thomas Bixler, Jr. ('"Bixler") is a defendant. After reasonable investigation, Gruver is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in paragraph 5 of Plaintiff's Complaint. Therefore, those allegations are denied. 6. Admitted. 7. Admitted. 8. Graver admits only that he currently is a member of the Board. 9. Admitted. 10. It is admitted only that residents of the Township filed a Complaint with the Court of Common Pleas of Cumberland County, naming Bouch as a defendant and seeking his removal as a Supervisor. That Complaint, being a written document, speaks for itself and no averment as to its contents or meaning is appropriate or necessary. 11. It is admitted only that Plaintiff was a signator on a petition that was attached to the Complaint referenced in paragraph 10. That petition, being a written document, speaks for itself and no averment as to its contents or meaning is appropriate or necessary. PHL_A #1674730 vl 2 12. After reasonable investigation, Gruver is without sufficient knowledge or information to form a belief as to the truth of the averments in paragraph 12 of Plaintiff's Complaint. Therefore, the allegations of paragraph 12 of Sipes' Complaint are denied. By way of further answer, Gruver believes that statements regarding alleged harassment exist, but cannot determine whether those statements were attached to the Complaint filed in the Cumberland County Court of Common Pleas. 13. It is admitted only that Sipes purportedly met 'with a representative of the State Ethics Commission in the Spring of 2002. Gruver was not involved in the meeting between the State Ethics Commission and Sipes and therefore does not know the content of that meeting. Af[er reasonable investigation, Gruver is without sufficient knowledge or information to form a belief as to the truth of the remaining averments in paragraph 13 of Plaintiff's Complaint. Therefore, those allegations are denied. 14. Graver is without sufficient knowledge or infi)rmation to form a belief as to the truth of the averments in paragraph 14 of Plaintiff's Complaint. Gruver was not involved in the meeting between the State Ethics Commission and Sipes and therefore does not know the content of that meeting. Therefore, the allegations in paragraph 14 of Plaintiffs Complaint are denied. 15. Af[er reasonable investigation, Gruver is without sufficient knowledge or information as to both the content of those conversations between Plaintiff and Bixler referenced in paragraph 15 of Plaintiff's Complaint. Gruver was not present or involved in the conversation between Sipes and Bixler referenced in paragraph 15 of Plaintiff's Complaint. Therefore, the allegations in paragraph 15 of Plaintiff's Complaint are denied. 16. Aiter reasonable investigation, Gruver is without sufficient knowledge or information as to both the content of the conversation between Plaintiff and Bixler or Plaintiff's PHL_A #1674730 vl 3 understanding from the meeting with the State Ethics Commission. Therefore, the allegations in paragraph 16 of Plaintiff's Complaint are denied. 17. After reasonable investigation, Gruver is without sufficient knowledge or information regarding the allegations contained in paragraph 17 of Plaintiff's Complaint. Therefore, the allegations in paragraph 17 of Plaintiff's Complaint are denied. 18. Admitted. By way of further answer, Sipes' suspension was and still is with pay. 19. 20. Admitted. It is admitted only that it was stated at the June 11, 2002 meeting that Sipes' suspension was with pay, was not performance based and that this was a temporary measure. Gruver denies that it was stated that Sipes was suspended for her "involvement" in the pending litigation in the Common Pleas Court of Cumberland County. By way of further answer, it was stated at the meeting that Sipes was suspended to avoid a conflict because of the matter pending in the Cumberland County Court of Common Pleas. 21. Admitted. 22. Denied as a conclusion of law. The Whistleblower law, being a written document, speaks for itself and no averment as to its content or meaning is relevant or appropriate. 23. Denied. By way of further answer, Gruver voted for the suspension with pay so Sipes would not be terminated, and at the next meeting, Gruver moved to have Sipes reinstated. 24. Denied. It is specifically denied that Sipes suffered any type of embarrassment or humiliation or any other injury as a result of any action by Gruver. PHL_A #1674730 vi 4 25. Denied. It is specifically denied that Sipes suffered any type of emotional distress or any other injury as a result of any action by Gruver. NEW MATTER 26. States that CJmver incorporates by reference his answers to paragraphs 1 through 25 of Plaintiff's Complaint as though set forth fully herein. 27. Plaintiff's Complaint fails to state a claim upon which relief can be granted against Defendant Graver. 28. Defendant Graver acted at all times in good faith and for legitimate reasons. 29. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver, laches, estoppel and unclean hands. 30. Plaintiff has failed to mitigate her damages, if any. 31. Defendant Graver did not violate any duty to or right of Plaintiff. 32. If Plaintiff suffered any damages or loss, the existence of which are denied, such damages or loss were caused in whole or in part by her own acts, omissions and/or conduct of parties other than Defendant Graver for which Defendant Graver is not legally responsible. 33. If Plaintiff suffered any damages or loss, such damages or loss were not caused by any wrongful action or conduct on the part of Defendant Gruver. At all material times, Defendant Gruver acted in good faith, without malice or 34. intent to harm. 35. Plaintiff is not entitled to attorney fees or any other relief against Graver under the Whistleblower Law. 36. Plaintiff's claims against Graver are barred, in whole or in part, by absolute immunity and legislative immunity. PHL_A #1674730 vl 5 37. Plaintiff is not entitled to any relief against Graver as alleged in Sipes Complaint under the Whistleblower law. WHEREFORE, Donald Gruver respectfully requests that this Court enter judgment in his favor and against Plaintiff, awarding to him his costs and disbursements of this action, including reasonable attorneys' fees, and such other relief as this Court may deem just and proper. DATED: OctoberV~, 2002 John P. McLaughlin, ~ Attorney I.D.# 49765 Attorney fix Defendant Donald Crruver OF COUNSEL: BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 (215) 665-8500 PHL_A #1674730 vl 6 VERIlqCATION I, Donald Graver, verify that I am a defendant in 'this matter and that I make this verificatiOn on my own behalf. I verify that I have read the foregoing Answer and New Matter of Defendant Donald Gruver to Plaimiff's Complaim and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that these statements are made subject to the penalties set forth in 18 Pa. Cons. Stat. Ann. § 4904, relating to unswom falsification to authorities. PHL_A #1674730 vl 8 CERTIFICATE OF SERVICE I hereby certify that on this ~it day of ~c~D~.~ ,2002, I caused a true and correct copy of the foregoing Answer and New Matter of Defendant Donald Gruver to Plaintiff's Complaint to be served upon the following via First Class Mail, postage prepaid, addressed as follows: Steven K Ludwig, Esquire Fox, Rothchild, O'Brien & Frankel 2000 Market Street, 10t~ Floor' Philadelphia, PA 19103 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff Tammy Sipes ate: John~. McLaughlih ~ PHL_A#1674730 vl 7 Exhibit D TAMMY SIPES, Plaintiff Vo RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND.COUNTY, PENNSYLVANIA NO. O;~..~ ~2 ¢ CIVIL TERM CIVIL ACTION - LAW AMENDED COMPLAINT AND NOW COMES the Plaintiff, Tammy Sipes, by and through her attorneys, Turo Law Offices, and respectfully files the following Amended Complaint: 1. The Plaintiff, Tammy Sipes, is an adult indMdual who currently resides at 17 Allison Drive, Shippensburg, Cumberland County, Pennsylvania, 17257. 2. At all times relevant herein, the Plaintiff, Tammy Sipes, served as the Secretary/Treasurer to the Board of Supervisors for South Newton Township. 3. The Defendant, Ronald Bouch, is an adult individual who currently resides at 20 West Main Street, Walnut Bottom, Pennsylvania, 17266, in Cumberland County. 4. The Defendant, Ronald Bouch, serves as the Chairman of the Board of Supervisors for South Newton Township. 5. The Defendant, ThOmas Bixler, Jr., is' an adult individual who currently resides at 3 Brandy Lane, Walnut Bottom, Pennsylvania, 17266 in Cumberland County. 6. The Defendant, Thomas Bixler, Jr., serves as the Vice Chairman for the Board of Supervisors of South Newton Township. 7. The Defendant, Donald Gruver, is an adult individual who currently resides at 29 Firehouse Road, Walnut Bottom, Pennsylvania, 17266, in Cumberland County. 8. The Defendant, Donald Gruver, serves as a Supervisor on the Board of SuperviSors for the South Newton Township. 9. The official address of the Board of Supervisors for South Newton Township is: Township Building, 11 High Mountain Road, Walnut Bottom, Pennsylvania 17266. 10. On April 23, 2002, a group of South Newton residents filed a Complaint in the Court of Common Pleas for Cumberland County seeking the recall of Defendant Ronald Bouch from his position on the Township Board of Supervisors. Said Complaint is docketed at 02-1916. 11. Plaintiff, Tammy Sipes, was a signator on the Petition circulated among township residents seeking support for the legal action to remove Defendant Bouch from office as Township Supervisor. 12. Plaintiff Sipes further provided an Affidavit outlining incidents of alleged harassment and potential wrongdoing by the Defendant Bouch, which said Affidavit was attached to the Complaint filed in Court. 13. Thereafter, on or about April of 2002, Plaintiff Sipes was requested by the State Ethics Commission to submit to an interview regarding allegations pending before that Commission related to Defendants Ronald Bouch and Thomas Bixler, Jr. 14. At all times Plaintiff Sipes acted in good-faith in reporting information of wrongdoing and/or waste to appropriate authorities. 15. Subsequent to the State Ethics Commission lengthy interview of Plaintiff Sipes Defendant Bixler became insistent that she relate to him what questions were asked of her and what answers she provided to the Commission. 16. Plaintiff Sipes declined to provide the requested information to Defendant Bixler, based on her understanding from the State Ethics Commission that she was not permitted to discuss her interview while the investigation was pending. 17. Defendant Bixler became very angry with Plaintiff Sipes when she refused to relate the substance of the interview with the State Ethics Commission. 18. At a regularly scheduled monthly public meeting, on June 11, 2002, and immediately following a closed Executive Meeting, Defendant Bouch mGtioned for the immediate suspension of Secretary/Treasurer Tammy Sipes from all job duties. Defendant Bixler seconded, and the motion passed unanimously. 19. Plaintiff Sipes was required to immediately hand over her Township Building keys while in the presence of the public attendees at the Township Meeting. 20. At the public meeting on June 11, 2002, Defendant Bouch specifically stated that the suspension was not performance based. Defendant Bouch further specifically stated that Plaintiff Sipes was being suspended based on her involvement in the litigation pending in the Court of Common Pleas for Cumberland County. 21. Thereafter, at a public meeting on July 16, 2002, Defendant Gruver made a motion to reinstate Plaintiff Sipes to her position as the Secretary/Treasurer to the Board of Supervisors for South Newton Township. This motion was not seconded and did not carry. 22. The Pennsylvania Whistleblower Law, 53 P.S. {}1421-1428, provides that a govemment body, in its capacity as an employer, may not discharge or retaliate against an employee, because that employee made a good-faith report, verbally or in writing, to an appropriate authority conceming alleged wrongdoing or waste. 23. The aforesaid suspension of Plaintiff Sipes was a direct result of her participation in the Complaint filed in an attempt to remove Defendant Bouch from his position as Township Supervisor, and also was a result of her participation in the ongoing investigations by the State Ethics Commission. 24. The Plaintiff, Tammy Sipes, has suffered personal embarrassment and humiliation because of the suspension from her position as Secretary/Treasurer with the South Newton Township Board of Supervisor.,;. 25. The Plaintiff, Tammy Sipes, has endured emotional distress because of the suspension from her position as Secretary/Treasurer with the South Newton Township Board of Supervisors. WHEREFORE, the Plaintiff, Tammy Sipes, demands: · A full reinstatement to her position as Secretary/Treasurer for So~ Newton Township Board of Supervisors; · An award of all costs of litigation, including attorney fees, pursuant to {}1425 of the Whistleblower Law; and · The assessment of fines against Defendants pursuant to {}1426 of the Whistleblower Law. RESPECTFULLY SUBMITTED TURO LAW OFFICES Date.' ~).d__ ,~ ,2002 Carol L. Cingranelli,,L~quir~ 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for the Plaintiff CERTIFICATE OF SERVICI= I hereby certify that I served a true and correct copy of the forgoing Amended Complaint by depositing same in the United States Mail, first class, postage pre-paid the ~,f~ day of December, 2002 addressed as follows: Steven Ludwig, Esquire Fox, Rothschild 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 John P. McLauglin, Esquire Ballard, Spahr 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 TURO LAW OFFICES Carol L. Cingranelli~sq[Jire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff Fox, Rothschild, O'Brien & Frankel, LLP By: Steven K. Ludwig, Esquire and Maren Reichert, Esquire identification Nos' 40417 and 86500 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 299-2164 TAMMY sIPES, Plaintiff, Attorneys For Defendants Ronald Bouch and Thomas Bixler, Jr. IN THE coURT OF coMMON PLEAS OF cuMBERLAND coUNTY, pENNSYLVANIA CIVIL ACTION - LAW NON-JURY TRIAL RONALD BOUCH, THOMAS BIXLER, JR., No. 02-3689 DONALD GRUYER, in their official Capacities as Supervisors of the South Newton Township Board . of Supervisors, Defendants. : AFFIDAVIT OF sERVICE FOR ARGUMENT coURT Maren Reichert, Esquire, certifies that the Praecipe for Argument, Motion of Defendants Ronald Bouch and Thomas Bixler, Jr. to Strike Plaintiff' s Amended Complaint and for Judgment on the Pleadings and the Brief in support thereof were served this date via f~rst class mail, postage prepaid, pursuant to the Cumberland County Rules of Court, addressed as follows: Ronald A. Turo, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff John P. McLaughlin, Esquire Allison V. Kinsey, Esquire Ballard, Spahr, Andrews & Ingersoll, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 Counsel for Defendant Donald Gruver I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Dated: January 20, 2003 Steven K. Ludwig, Esquire Maren Reichert, Esquire Attorney I.D. Nos. 40417, 86500 Fox, Rothschild, O'Brien & Frankel, LLP 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2164/2103 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. TAMMY SlPES, Plaintiff RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official : Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants : · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 02-3689 CIVIL TERM · CIVIL ACTION - LAW PLAINTIFF'S REPLY TO DEFENDANTS' MOTION TO STRIKF PLAINTIFF'S AMENDED COMPLAINT AND FOR JUDGMENT ON THE PLEADINGS 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. The reply to the New Matter has been filed of record. 6. Admitted. 7. Admitted. 8. Admitted and denied· it is admitted that the Plaintiff did file an Amended Complaint, but is denied that it did not contain the procedural formalities required under the Rules of Civil Procedure. 9. Admitted. 10. Denied. Plaintiff's counsel cleady understood that the filing of an Amended Complaint would resolve any outstanding issues between the parties and, at no time, was left under the impression that a failure to file a Reply to the New Matter was at issue and, furthermore, did, in good faith, acting upon understanding with counsel, file the Amended Complaint which should now be treated by this Court as the Pleading at issue. 11. Admitted and denied. It is admitted that Defendants failed to respond to the Amended Complaint but it is denied that they failed to answer the same because of any lack of notice to plead. 12. Denied. 13. Admitted. WHEREFORE, Plaintiff Tammy Sipes requests this Court to deny Defendants' Motion to Strike Plaintiff's Amended Complaint or to enter judgment in favor of Defendants, and, by way of further relief, Plaintiff requests that all Motions filed by Defendants be dismissed and that Defendants be ordered to Answer Plaintiff's amended Complaint in due course. RESPECTFULLY SUBMITTED TURO LAW OFFICES : Ron Turo, Esquire 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorneys for the Plaintiff VERIFICATION I, Ron Turo, Esquire, am the attorney for Plaintiff Tammy Sipes. I have prepared the Plaintiff's Reply to Defendants' Motion to Strike Plaintiff's Amended Complaint and for Judgment on the Pleadings based on new information provided to me, which believe to be accurate and correct Dat~ R~'uro, Esquire CERTIFICATE OF SERVlCF I hereby certify that I served a true and correct copy of the Plaintiff's Reply to Defendants' Motion to Strike Plaintiff's Amended Complaint and for Judgment on the Pleadings upon Steven Ludwig, Esquire and John P. McLauglin, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the ~ ~ day of ~--~-~/~' ,2003, from Carlisle, Pennsylvania, addressed as follows: Steven Ludwig, Esquire Fox, Rothschild 2000 Market Street, Tenth Floor Philadelphia, PA 19103-3291 John P. McLauglin, Esquire Ballard, Spahr 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 TURO LAW OFFICES Ron~uro, Esquire J 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff By: John P. McLaughlin (I.D. No. 49765) Allison V. Kinsey (I.D. No. 88486) B^LL^RD SP^HR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 (215) 864-8999 (facsimile) TAMMY SIPES, Plaintiff, RONALD BOUCH, THOMAS BIXLER, JR. and DONALD GRUVER, in their Official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants. Attorneys for Defendant Donald Graver COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 02-3689 PRAECIPE TO WITHDRAW DEFENDANT DONALD GRUVER'S MOTION TO STRIKE PLAINTIFF'S AMENDED COMPLAINT AND FOR JUDGMENT ON THE PLEADINGS TO: Prothonotary Kindly withdraw Defendant Donald Gmver's Motion to Strike Plaintiff's Amended Complaint and for Judgment on the Pleadings filed on or about January 13, 2003, in connection with the above-captioned matter. BALLARD SPAHR ANDREWS & INGERSOLL, LLP BY: Allison V. Kinsey PHL_A #1712247 vl CERTIFICATE OF SERVICE I, Allison V. Kinsey, hereby certify that on this l0th day of February, 2003, I caused a true and correct copy of the foregoing Praecipe to Withdraw Defendant Donald Gruver's Motion to Strike Plaintiff's Amended Complaint and for Judgment on the Pleadings, to be served upon the following, via first class mail Postage prepaid, addressed as follows: Ron Turo, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 Counsel for Plaintiff Steven K. Ludwig, Esquire Fox, Rothchild, O'Brien & Frankel, LLP 2000 Market Street, l0th Floor Philadelphia, PA 19103 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. Date: February 10, 2003 Allison V. Kinsey PHL_A #1712247 vl TAMMY SIPES, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official capacities as Supervisors of the South Newton Township Board of Supervisors, DEFENDANTS 02-3689 CIVIL TERM IN RE: DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR.'$ MOTION TO STRIKE PLAINTIFF'S AMENDED COMPLAINT AND FOR JUDGMENT ON THE PLEADINGS ORDER OF COURT ~ day of February, 2003, IT IS ORDERED that AND NOW, this the above-captioned motion scheduled to be argued on February 12, 2003, IS CANCELLED. A hearing on the within motion to take what evidence is necessary for its resolution and argument on the merits shall be conducted in Courtroom Number 2, Cumberland County Courthouse, at 11:00 a.m., Friday, February 21, 2003. The additional motion of Ronald Bouch and Thomas Bixler, Jr. to strike plaintiff's demand for relief now scheduled for argument on February 12, 2003, IS CANCELLED. This argument shall be conducted on February 21, 2003. Edgar B,. Ba~l~,~//' v/Ron Turo, Esquire For Plaintiff Steven K. Esquire Ludwig, For Ronald Bouch and Thomas Bixler, Jr. :sal By: John p. McLaughlin (I.D. No. 49765) Allison V. Kinsey (I.D. No. 88486) BALLARD SPAHR ANDREWs & INGERSOLL, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 (215) 864-8999 (facsimile) Plaintiff, RONALD BOUCH, THOMAS BIX .. DONALD GRUV . ~:. . L_ER, JR. and ER, ~n th~,~ Officml Capacities as Supervisors of the South Newton Township Board of Supervisors, · Defendants. ' Attorneys for Defendant Donald Gruver COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA ~ CIVIL ACTION. LAW NO. 02:-3689 STIPULATION OF DISCONTINUANCE AS TO DEFENDANT DONALD GRUVEI~ Pursuant to Rule 229(b) of the Pennsylvania Rules of Civil Procedure, counsel for the parties hereby stipulate to the discontinuance of this action with prejudice as to defendant Donald Gruver only. Each party will bear their own costs and attorneys fees and agree not to seek such fees or costs under any applicable/aw. PHL_A#1712234 vl Date: January ~) , 2003 R'~ ~uro, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, ]?A 17013 Counsel fbr Plaintiff Tammy Sipes Date: ~'~'~'~r (", 2003 Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 (215) 864- 8999 (facsimile) Counsel for Defendant Donald Gruver Date: January ..~.;'0 , 2003 .~teven ~[. Ludwig,, Es~l.uire Fox, Rothchild, O Brien & Frankel~ LLt' 2000 Market Street, 10th Floor Philadelphia, PA 19103 Counsel for Defendants Ronald Bouch and Thomas Bixler, Jr. PHL_A #1712234 vl TAMMY SIPES, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official capacities as Supervisors of the South Newton Township Board of Supervisors, DEFENDANTS 02-3689 CIVIL TERM IN RE: MOTION OF DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR. TO STRIKE PLAINTIFF'S AMENDED COMPLAINT, AND FOR JUDGMENT ON THF PLEADINGS ON PLAINTIFF'S ORIGINAL COMPLAINT AND NOW, this ORDER OF COURT I,{~. day of March, 2003, IT IS ORDERED: (1) Defendants' preliminary objection to plaintiff's amended complaint, IS GRANTED. The amended complaint, IS STRICKEN. (2) Ron Turo, Esquire For Plaintiff Defendants' motion for a judgment on the pleadings, IS DENIED. By th~C0urt, Edgar B. Bayley, J. )ixler, Jr. :sal Steven K. Ludwig, Esquire For Ronald Bouch and Thomas TAMMY SIPES, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official capacities as Supervisors of the South Newton Township Board of Supervisors, DEFENDANTS 02-3689 CIVIL TERM IN RE: MOTION OF DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR. TO STRIKE PLAINTIFF'S AMENDED COMPLAINT, AND FOR JUDGMENT ON THE PLEADINGS ON PLAINTIFF'S ORIGINAL COMPLAINT OPINION AND ORDER OF COURT Bayley, J., March 14, 2003:-- On August 1, 2002, plaintiff, represented by Carol Cingranelli, Esquire, filed a complaint against defendants, Ronald Bouch, Thomas Bixler, Jr., and Donald Gruver, the three elected supervisors of South Newton Township, Cumberland County. Plaintiff ' avers that on June 11, 2002, she was suspended by defendants from her position as secretary/treasurer of South Newton Township. Pursuant to the Pennsylvania Whistleblower Law, 43 P.S. Section 1421-1428, she seeks, (1) restatement to her position, (2) an award of costs and attorney fees, (3) the assessment of a fine, and (4) the suspension of defendants from public service for a period of six month. Service of the complaint was made by the Sheriff against all defendants on 02-3689 CIVIL TERM August 19, 2002.' On August 22, 2002, Cingranelli, by letter, granted defense counsel Steven Ludwig, Esquire, Ronald Bouch and Thomas Bixler, Jr., until October 8, 2002, to respond to the complaint. On October 2, 2002, Ludwig wrote to Cingranelli stating that Section 1426 does not apply to elected public officials. He asked her to stipulate to strike the requested relief that defendants be suspended from public service for a period of six months. On October 7, 2002, instead of filing a preliminary objection to the claim seeking suspension, defendants filed an answer to the complaint and new matter, endorsed with a notice to plead. On October 11, 2002, Cingranelli wrote to Ludwig saying that she agreed that a six month suspension of an elected supervisor was not authorized by the Whistleblower's Law. She stated: Therefore, I agree to eliminate this Request for Relief from our Complaint. It is my intent to file an Amended Complaint, which will exclude this particular demand, and I will forward same to your attention as soon as possible. On November 15, 2002, Ludwig wrote to Cingranelli that he had received her letter of October 11, 2002, but: [t]o date, however, an Amended Complaint has not been filed. Please file a praecipe to withdraw this request for relief from the Complaint or circulate a proposed Amended Complaint, with court order and stipulation, no later than November 25, 2002. Otherwise, I will file a Motion to Strike this demand for relief and seek sanctions as appropriate. On December 9, 2002, plaintiff filed an amended complaint which was similar to the original complaint in every way except that it deleted the claim seeking the The complaint against defendant, Donald Gruver, has been discontinued. -2- 02-3689 CIVIL TERM suspension of defendants from public service for a period of six months. On December 11, 2002, defendants, despite the fact that they had filed an answer and new matter to the original complaint on October 7, 2002, filed a motion to strike the relief sought in the original complaint for the suspension of defendants from public service for six months? On January 21, 2003, plaintiff filed a reply to defendants' new matter that defendants had filed in reply to plaintiffs original complaint. On January 22, 2003, defendants, despite the fact that the amended complaint conforms exactly with the pleading that Ludwig sought when he wrote to plaintiffs counsel on October 21 2002, filed a motion to strike the amended complaint as having been filed in violation of Pa. Rule of Civil Procedure 1033.3 At the same time, despite the fact that they had an outstanding preliminary objection to the original complaint, albeit filed subsequent to their answer and new matter, defendants filed a motion for judgment on the pleadings to plaintiffs original complaint. Plaintiff responded by claiming that there was an agreement of counsel to file an amended complaint. A hearing was conducted on February 21, 2003, at which evidence was taken on that issue, and argument made on both the motion of defendants' to strike plaintiffs 2 This is a preliminary.objection to the original complaint in the form of a demurrer challenging the legal sufficiently of that claim for relief. Pa. Rule of Civil Procedure 1028(a)(4). 3 This is a preliminary objection to the amended complaint seeking dismissal for the failure of the pleading to conform to a rule of court. Pa. Rule of Civil Procedure 1028(a)(2). -3- 02-3689 CIVIL TERM amended complaint, and their motion for judgment on the pleadings to plaintiff's original complaint. I. DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFF'S AMENDED COMPLAINT Pa. Rule of Civil Procedure 1033 provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading .... (Emphasis added.) When plaintiff filed her amended complaint on December 9, 2002, she had not sought or obtained leave of court, nor was thero a filed consent of defendants to amend her pleading. Letters which are not filed with the court cannot affect the pleadings. Vetenshtein v. City of Philadelphia, 755 A.2d 62 (Pa. Commw. 2000). Therefore, the amended complaint was not filed in conformity with Rule 1033. In Vetenshtein, the Commonwealth Court of Pennsylvania stated that the failure to file a preliminary 'objection to an amended complaint waives a Rule 1033 violation. Pa. Rule of Civil Procedure 1026(a) provides: Except as provided by subdivision (b), every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead. (Emphasis added.) Defendants did not file their preliminary objection to plaintiff's amended complaint until January 22, 2003, which was more than twenty days after service. In paragraph 11 of their motion to strike, defendants aver that they did not file a response -4- · 02-3689 CIVIL TERM because there was no notice to plead on the amended complaint. However, that means that they did not have to file a responsive pleading, not that if they chose to file such a pleading they did not have to comply with the time requirement in Rule 1026(a).4 Rule 1026(a) has been interpreted as permissive rather than mandatory. Peters Creek Sanitary Authority v. Welch, 681 A.2d 167 (Pa. 1996). It is left to the sound discretion of the trial court to permit a late filing of a pleading where the opposing party will not be prejudice and justice so requires. Id. We do not, however, have to determine whether to exercise such discretion here because the failure of plaintiff to file a timely preliminary objection to defendants' untimely preliminary objection constitutes a waiver of the untimeliness of the Rule 1033 objection. Hahnernann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa. Super. 436 (1979). In Catanese v. Taorminia, 437 Pa. 519 (1970), the Supreme Court of Pennsylvania stated, in dicta, that an amended complaint filed in violation of Rule 1033 is a nullity. In Vetenshtein v. City of Philadelphia, supra, a complaint filed in violation of Rule 1033 was allowed to stand because the Commonwealth Court concluded that unlike in Catanese: (1) the complaint was not filed in direct contradiction to an outstanding court order, (2) there was no preliminary objection filed to the amended complaint, and (3) uniquely, the party who did not violate Rule 1033 would have been the party punished by allowing the amended complaint to stand. None of these factors are present in the case sub judice, Because plaintiff violated Rule 1033, and 4. Rosenbloom v. Engines, Inc., 8 D. & C.3d 787 (Phila. Co. 1979). -5- 02-3689 CIVIL TERM defendants have preliminary objected to that violation, we find that the amended compliant must be stricken. II. DEFENDANTS' MOTION FOR A JUDGMENT ON THE PLEADINGS TO PLAINTIFF'S ORIGINAL COMPLAINT Pa. Rule of Civil Procedure 1034 provides: (a) After the relevant proceedings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. (b) The court shall enter such judgment or order as shall be proper on the pleadings. Defendants aver as the sole reasons for their motion for a judgment on the pleadings that (1) plaintiff failed to answer the averments of fact in their new matter, (2) those averments of fact are therefore admitted under Pa. Rule of Civil Procedure 1029(b), and (3) based upon those admissions they are entitled to a judgment on the pleadings. Defendants, however, misstate the pleadings. The pleadings to be considered on this motion are: (1) plaintiff's complaint filed on August 1, 2002, (2) defendants' answer and new matter filed on October 7, 2002, and (3) plaintiff's reply to defendants' new matter filed on January 21,2003? When defendants filed a motion for judgment on the pleadings on January 22, 2003, plaintiff had already filed a reply to defendants' new matter on January 21, 2003. A reply to new matter is a pleading under ~ The preliminary objection filed by defendants on December 11, 2002, after they had filed the answer and new matter to plaintiffs complaint on October 7, 2002, is of no legal significance. -6- 02-3689 CIVIL TERM Rule 1017(a). Since it is endorsed with a notice to plead an answer should have been filed pursuant to Rule 1026(a) within twenty days after service. As previously stated, Rule 1026(a) has been interpreted as permissive rather than mandatory. However, as in the situation involving plaintiff's filing the amended compliant, we do not have to determine whether to exercise discretion here because when plaintiff filed an untimely reply to defendants' new matter, the failure of defendants to file a timely preliminary objection constitutes a waiver of the untimeliness? Taking into consideration the reply, plaintiff has not admitted facts pleaded in defendants' new matter that would warrant 6 If the issue of exercising our discretion as to whether to allow the late reply to new matter to Stand had not been waived, we would still allow it to stand. Defendants have not been prejudiced by the late filing. On October 2, 2002, Ludwig wrote to Cingranelli, five days before he filed the answer with new matter, asking her to stipulate to strike that part of the complaint that requested that defendants be suspended from public service for a period of six months. On October 11, 2002, four days after the answer with new matter was filed, Cingranelli wrote to Ludwig agreeing to his request and stating that she intended to file an amended complaint. Ludwig again wrote to Cingranelli on November 15, 2002. He noted that an amended complaint had not been filed, and gave her until November 25, 2002, to "circulate a proposed Amended Complaint, with court order and stipulation." Clearly, Ludwig allowed Cingranelli to believe that she could file an amended complaint deleting the request that defendants be suspended from public service for a period of six months. That would negate any need to ' reply to the new matter defendants filed in response to the original complaint. Despite the fact that the amended complaint provided the exact relief for his clients that he wanted, when Cingranelli did not follow the strict requirement of Rule 1033, Ludwig, smelling an opportunity to have the original complaint dismissed, did not waive the requirements of the Rule. Under these circumstances, discretion would warrant our allowing the previously filed late reply to new matter to stand. -7- 02-3689 CIVIL TERM entry of a judgment on the pleadings.7 For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this J/'~ ~ day of March, 2003, IT IS ORDERED: (1) Defendants' preliminary objection to plaintiff's amended complaint, IS GRANTED. · The amended complaint, IS STRICKEN. (2) Defendants' motion for a judgment on the pleadings, IS DENIED. Ron Turo, Esquire For Plaintiff By the ~ Edgar B.'Ba~,ley, J.~ Steven K. Ludwig, Esquire For Ronald Bouch and Thomas Bixler, Jr. :sal 7 We are constrained to note that we are no more enamored with the tactics of Ludwig than we are with the lack of pleading skills of Cingranelli, and Ludwig as well. This whole imbroglio could have been easily avoided as both counsel agreed that the claim for suspension of an elected official is not authorized under the Whistleblowers Act. Ironically, by trying to take advantage of the lack of Cingranelli's pleading skills, Ludwig winds up with the original complaint that still contains the request for the relief that his clients object to, notwithstanding Cingranelli's efforts to have it removed. In any event, as he has known since October 11, 2002, plaintiff will not seek to take that claim to trial. -8- TAMMY SIPES, Plaintiff RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official Capacities as Supervisors of the South Newton Township Board of Supervisors, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3689 CIVIL TERM : CWIL ACTION - LAW : NON-JU3~Y TRIAL PRAECIPE TO SETTLE, DISCONTINUE AND END To The Prothonotary: Kindly mark the above capti~on settled, C~d. tre ~t Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 Counsel for Plaintiff Tammy Sipes