Case 1:20-cv-00252-SPB Document 1 Filed 08/27/20 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HANNA SILBAUGH, Plaintiff, v. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER AND THE CITY OF ERIE, Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No: 1:20cv252 Electronically Filed PETITION FOR REMOVAL FROM A CIVIL ACTION AND NOW, come Defendants, MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, DANIEL SPIZARNY, JOSEPH V. SCHEMBER AND THE CITY OF ERIE, by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin and PAUL D. KREPPS, ESQUIRE and file the within Petition for Removal of a Civil Action from the Court of Common Pleas of Erie County, Pennsylvania, to the U.S. District Court for the Western District of Pennsylvania, representing as follows: 1. Plaintiff filed a Praecipe for a Writ of Summons on June 22, 2020, captioned as “Hannah Silbaugh vs. John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, Daniel Spizarny, Joseph V. Schember and the City of Erie, Defendants, at Docket Number: 11247-2020. A true and correct copy of the Praecipe for Writ of Summons is attached hereto and marked as Exhibit “A”. Case 1:20-cv-00252-SPB Document 1 Filed 08/27/20 Page 2 of 5 2. Plaintiff also filed a Notice of Service of Discovery in Aid of Preparation of a Complaint upon Defendant, City of Erie, attached hereto and marked as Exhibit “B”. 3. See attached hereto a true and correct copy of the Court of Common Pleas of Erie County Docket as marked as Exhibit “C”. 4. The Sheriff’s Return of Service indicated that the Praecipe for Writ of Summons and Interrogatories and Requests for Production of Documents directed at the Defendant, City of Erie, were both served on June 23, 2020 at 4:00 p.m. See attached hereto a true and correct copy of the Sheriff’s Return of Service marked as Exhibit “D”. 5. In response, Defendants filed and served the following documents on Plaintiff: a. Rule to File Complaint marked as Exhibit “E”; b. Motion for Protective Order marked as Exhibit “F”; and c. Brief in Support of Motion for Protective Order marked as Exhibit “G”. 6. The Honorable John J. Mead, Judge of the Court of Common Pleas of Erie County, entered an Order directing Plaintiff to file a Response to Defendants’ Motion for Protective Order within ten days. See attached hereto a true and correct copy of Judge Mead’s Order marked as Exhibit “H”. 7. Plaintiff then filed the following documents with the Court: a. Civil Complaint marked as Exhibit “I”; and b. Motion to Amend Caption marked as Exhibit “J”. 2 Case 1:20-cv-00252-SPB Document 1 Filed 08/27/20 Page 3 of 5 8. Judge Mead entered an Order granting Plaintiff’s Motion to Amend the Caption attached hereto and marked as Exhibit “K”. 9. Upon review of the Complaint, it is clear that jurisdiction in this matter lies with this Court as, inter alia, Plaintiff alleges in Count III of the Complaint (Paragraphs 47 through 53) that the Defendant Police Officers violated her First, Fourth and Fourteenth Amendment Rights regarding unreasonable seizure, substantive due process and excessive force. See Exhibit “I” at Paragraphs 47 – 53. 10. In addition, Plaintiff alleges in Count IV that Chief Spizarny, Mayor Schember violated her First, Fourth and Fourteenth Amendment Rights which are in the nature of a Monell claim. See Exhibit “H” at Paragraphs 54 – 63. 11. This Court therefore has original jurisdiction of Plaintiff’s claims pursuant to 28 U.S.C. § 1331 and 28 U.S. C. § 1343. 12. This action is thereby removed to this Court pursuant to the procedures authorized by 28 U.S.C. § 1441 and is removed within the time permitted under 28 U.S.C. § 1446. 13. Notice of the filing of the Removal has been provided this same date to Plaintiff through her counsel as well as the Court of Common Pleas of Erie County, Pennsylvania. See attached hereto a true and correct copy of the Notice of Filing of Petition for Removal marked as Exhibit “L”. WHEREFORE, Defendants, MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, DANIEL SPIZARNY, JOSEPH V. SCHEMBER AND THE CITY OF ERIE, 3 Case 1:20-cv-00252-SPB Document 1 Filed 08/27/20 Page 4 of 5 respectfully request this Honorable Court to remove the above-captioned action pending in the Court of Common Pleas of Erie County, Pennsylvania, at Case Number: 11247-2020 to the United States District Court for the Western District of Pennsylvania. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: _________________________________________ PAUL D. KREPPS, ESQUIRE PA ID #73038 pkrepps@mdwcg.com Counsel for above-named Defendants Union Trust Building, Suite 700 501 Grant Street Pittsburgh, PA 15219 (412) 803-1149 // (412) 803-1188 fax 4 Case 1:20-cv-00252-SPB Document 1 Filed 08/27/20 Page 5 of 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Petition for Removal from a Civil Action has been served upon the following party of record this 27th day of August, 2020, via U.S. First Class Mail, postage prepaid: Timothy D. McNair, Esquire McNAIR LAW OFFICES, PLLC 821 State Street Erie, PA 16501 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: _________________________________________ PAUL D. KREPPS, ESQUIRE PA ID #73038 pkrepps@mdwcg.com Counsel for above-named Defendants Union Trust Building, Suite 700 501 Grant Street Pittsburgh, PA 15219 (412) 803-1140 // (412) 803-1188 fax Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-2 1-1 Filed Filed08/27/20 08/27/20 Page Page11ofof11 GISMNUN PLISAS COURF ERIE. PA IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA ZN 2020 JUN 22 PH l2= lu HANNAH SILBAUGH, Plaintiff CIVIL ACTION - LAW CL£;#;M SV ,EECORUS PRUTHUHOTARY V. Case No. : 11891 -2020 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DGE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons in Civil Action against the above-named Defendants on behalf of the Plaintiff in the above captioned matter. Respectfully submitted, I certify that this Hung complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and do its. I Timothy D. McNair, Esquire MCNAIR LAW OFFICES, PLLC Q By: Tim thy D. McNair, Esquire 821 State Street Erie, PA 16501 (814)452-0700 (814) 4544371 (fax) tmcnair@mcnairlaw.com EXHIBIT n Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-3 1-2 Filed Filed08/27/20 08/27/20 Page Page11ofof11 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILLBAUGH7 Plaintiff CIVIL ACTION _ LAW 9 U i• Ia * V. • Came No.:l I347 -2020i tC", 8')\"" 0 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN Dom 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEM8ER, and CITY OF ERIE, Def8Ilda]0ts . --. ---»4 zz: 1 1 rD 5'-1 --4; 1 -*. 4 n l 9 .»*~J . » ,~.3(i3 -(KJ tG"\'a . o O I a; of: '8 to (5 f<'!'.-it ca c.. c: z N N 9 8? Ut w mr' - 1'11 _'UP *"'L)"J ,ii CD c.: 3; NQTICE OF SERVICE OF DISCQVERY IN AID QF PREPARATIQN QF A OOM1>LAIN'1j Take notice THAT, ON THE 22d day of June, 2020, Plaintiff, Hannah Silbaugh, served Discovery Requests in Aid of Preparation of a Complaint upon Defendant, City of Erie, consisting of Interrogatories 1 through 4 and Requests for Production of Documents 1 through 5, by Hand Delivery upon Edward Betta, Esquire, Counsel for the Defendant City of Erie. Respectfully submitted, MCNAIR LAW OFFICES, PLLC M 8 Byz' . * / Timothy D. McNair, Esquire 821 State Street Erie, PA 16501 (814)452-0700 (814)454-2371 (fax) tmcnair@menairlaw.com '~ EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-4 1-3 Filed Filed08/27/20 08/27/20 Page Page11ofof33 11191408262020 PYSPRT Case No........... 2020-11247 Page Erie County Prothonotary Civil Case Detail Report HANNAH SILBAUGH (vs) JOHN DOE NO l Filed.......... Time........... Execution Date. Jury Trial.... Disposed Date.. Higher Crt 1 ... Higher Crt 2... Reference No Case Type......... TORT - INTENTIONAL Judgment. $ » 00 Judge Assigned MEAD JOHN J Disposed Desc. Case Comments 1 8/26/2020 6/22/2020 10:53 0/00/0000 0/00/0000 ************************* *********************>¥**%*ir***4<**i<*****************************i ++ GENERM, INDEX ++ Attorney Info 924439494§ Party MCNAIR TIMOTHY D, ESQ SILBAUGH HANNAH PLAINTIFF SELF 821 STATE ST ERIE, PA 16501 DOE JOHN 1 DEFENDANT DOE JOHN 2 DEFENDANT DOE JOHN 3 DEFENDANT DOE JOHN 4 DEFENDANT DOE JOHN 5 DEFENDANT SPIZARNY DANIEL DEFENDANT KREPPS PAUL D, ESQ UNION TRUST BUILDING 501 GRANT ST, STE 700 PITTSBURGH, PA 15219 GARCIA G MICHAEL, ESQ 717 STATE ST SUITE 701 ERIE, PA 16501 SCHEMBER JOSEPH v~ DEFENDANT KREPPS PAUL D, ESQ UNION TRUST BUILDING 501 GRANT ST, STE 700 PITTSBURGH, PA 15219 GARCIA G MICHAEL, ESQ 717 STATE ST SUITE 701 ERIE, PA 16501 ERIE CITY DEFENDANT KREPPS PAUL D, ESQ UNION TRUST BUILDING 501 GRANT ST, STE 700 PITTSBURGH, PA 15219 GARCIA G MICHAEL, ESQ 717 STATE ST SUITE 701 ERIE, PA 16501 NELSON MARC DEFENDANT SMITH DAVID DEFENDANT ATTALLA ANTHONY DEFENDANT ********%***************i****************** ****%********Jr**3r****i*******************~k**** ++ DOCKET ENTRIES ++ Date Entry Text .. FIRST ENTRY 6/22/2020 CAPTION : HANNAH SILBAUGH VS. JOHN DOE 1, JOHN DOE 2, JOHN DOE 3/ JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, AND CITY OF ERIE 6/22/2020 CIVIL COVER SHEET FILED. 6/22/2020 PRAECIPE FOR WRIT OF SUMMONS F/TIMOTHY D MCNAIR, ESQ., W/CERT OF COMPLIANCE 1 Image page(s) exists for this entry EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-4 1-3 Filed Filed08/27/20 08/27/20 Page Page22ofof33 11191408262020 PYSPRT Case No. Page Erie County Prothonotary Civil Case Detail Report 2020-11247 2 8/26/2020 HANNAH SILBAUGH (vs) JOHN DOE NO. 1 Reference No Case Type......... TORT - INTENTIONAL Judgment.......... S 00 Judge Assigned MEAD JOHN J Disposed Desc..... Case Comments Filed.......... Time........... Execution Date. Jury Trial.... Disposed Date.. Higher Crt 1... Higher Crt 2... 1 Image pag@(s) exists for this entry 6/22/2020 NOTICE OF SERVICE OF DISCOVERY IN AID OF PREPARATION OF A COMPLAINT UPON DEFT CITY OF ERIE ON 6/22/20 BY HAND DELIVERY UPON EDWARD BETZA, ESQ., COUNSEL FOR THE DEFT CITY OF ERIE F/TIMOTHY D MCNAIR, ESQ. l Image page(s) exists for this entry 6/22/2020 PRAECIPE FOR WRIT OF SUMMONS F/TIMOTHY D MCNAIR, ESQ. I W/CERT OF COMPLIANCE ** CORRECTING SPELLING IN CAPTION ** 1 Image page(s) exists for this entry 6/22/2020 WRIT OF SUMMONS ISSUED » 6/24/2020 SHERIFF'S FILE RETURNED TO PROTHONOTARY'S OFFICE, FILED. CASE TYPE. : WRIT OF SUMMONS RET TYPE: REGULAR LITIGANT..: CITY OF ERIE ADDRESS...¥ 626 STATE STREET CRY/ST/ZIP: ERIE, PA 16501 HND TO.... : CHRISTINA SCHAFFER, CITY OF ERIE CLERK/AI SHF/DPTY.. : SABASTIAN CHRZANOWSKI DATE/TIME.: 6/23/20 @ 1600 COSTS. » $88,00 3 Image page(s} exists for this entry 7/01/2020 PRAECIPE FOR ENTRY OF APPEARANCE ON BEHALF OF DANIEL SPIZARNY, JOSEPH v. SCHEMBER, AND CITY OF ERIE F/PAUL D KREPPS, ESQ W/CERT OF COMPLIANCE AND CERT OF SERVICE 4 Image page(s) exists for this entry 7/16/2020 PRAECIPE FOR ENTRY OF APPEARANCE ON BEHALF OF DEFENDANTS, DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND CITY OF ERIE, ONLY. F/G. MICHAEL GARCIA, II., ESQ. W/CERT OF SERVICE AND CERT OF COMPLIANCE 3 Image page(s) exists for this entry 7/16/2020 MOTION FOR PROTECTIVE ORDER ON BEHALF OF DEFENDANTS, DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND CITY OF ERIE, ONLY F/PAUL D. KREPPS, ESQ. AND G. MICHAEL GARCIA II, ESQ. W/EXHIBITS A & B, CERT OF SERVICE, CERT OF COMPLIANCE AND PROPOSED ORDER OF COURT 16 Image page(s) exists for this entry 7/16/2020 BRIEF IN SUPPORT OF' MOTION FOR PROTECTIVE ORDER ON BEHALF OF DEFENDAN"I'S, DANIEL SPIZARNEY, JOSEPH v. SCHEMBER AND CITY OF ERIE, ONLY F/PAUL D. KREPPS, ESQ. AND G. MICHAEL GARCIA II, ESQ W/CERT OF COMPLIANCE AND CERT OF SERVICE 8 Image page(s) exists for this entry 7/16/2020 NOTICE OF SERVICE OF DEFENDANT'S RESPONSES TO PLAINTIFF'S FIRST SET OF DISCOVERY UPON ALL COUNSEL OF RECORD AND UNREPRESENTED PARTIES, ELECTRONICALLY OR BY MAILING SAME TO THEM AT THEIR DESIGNATED OFFICES BY FIRST CLASS U.S. MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE AT THEIR RESPECTIVE OFFICES, ON 7/16/20: TIMOTHY MCNAIR, ESQ., 821 STATS ST, ERIE, PA 16501. 9/PAUL D. KREPPS, ESQ. W/CERT OF COMPLIANCE 2 Image page(s) exists for this entry 7/16/2020 PRAECIPE FOR RULE TO FILE COMPLAINT UPON PLAINTIFF, HANNAH SILBAUGH F/PAUL D. KREPPS, ESQ- AND G. MICHAEL GARC1A II., ESC W/CERT OF SERVICE AND CERT OF COMPLIANCE 4 Image page(s) exists for this entry 7/17/2020 RULE TO FILE COMPLAINT MAILED TO G. MICHAEL GARCIA, II., ESQ. l Image page(s) exists for this entry 1 image page(s) exists for this entry 6/22/2020 10:53 0/00/0000 0/00/0000 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-4 1-3 Filed Filed08/27/20 08/27/20 Page Page33ofof33 1119140B262020 PYSPRT 3 8/26/2020 Page Erie County Prothonotary Civil case Detail Report Case No........... 2020-11247 HANNAH SILBAUGH (vs) JOHN DOE NO. 1 Filed.......... Reference No Time,........... Case Type......... TORT -. INTENTIONAL Execution Date. Judgment. $ . 00 Jury Trial.... Judge Assigned MEAD JOHN J Disposed Dose..... --- Disposed Date.. Higher Cut 1... Higher Crt 2... Case Comments 7/20/2020 6/22/2020 10:53 0/00/0000 0/00/0000 ORDER DTD 7/20/20, IT IS HEREBY ORDERED THAT PLTF SHALL FILE A RESPONSE TO DEFTS' MOTION FOR PROTECTIVE ORDER WITHIN 10 DAYS. S/JOHN J MEAD, JUDGE **RULE 236 NOTICE PROVIDED ON 7/20/20** 1 Image page(s) exists for this entry 8/12/2020 CAPTION CHANGE : HANNAH S1LBAUGH VS. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5/ DANIEL SPIZARNY, JOSEPH v. SCHEMBER, AND CITY OF ERIE 8/12/2020 MOTION TO AMENO CAPTION ON BEHALF OF' PLTF F/TIMOTHY D, MCNAIR, ESQ W/CERT OF' COMPLIANCE, PROPOSED ORDER, AND CERT OF SERVICE 5 Image page(s) 8/12/2020 exists ' for this entry ORDER DTD 8/12/20, UPON CONSIDERATION OF FOREGOING STIPULATIQN TO AMEND CAPTION, IT IS ORDERED THAT SAID MOTION SHALL BE, AND IS HEREBY GRANTED. THE PROTHONOTARY IS DIRECTED TO AMEND THE CAPTIQN IN THIS MATTER TO READ As FOLLOWS! HANNAH SILBAUGH VS. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4/ JOHN DOE 5/ DANIEL SPIZARNY, JOSEPH V. SCHEMBER, AND THE CITY OF ERIE. S/JOHN J. MEAD, JUDGE (RULE 236 NOTICE PROVIDED ON 8/12/20) 2 Image page(s) exists for this entry 8/12/2020 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, AND FOR DAMAGES COUNTS I - v, IN AN AMOUNT IN EXCESS OF THE APPLICABLE LIMITS FOR MANDATORY AR8ITRATION IN ERIE COUNTY, TOGETHER WITH PUNITIVE AND EXEMPLARY DAMAGES, PREJUDGMENT INTEREST, COSTS OF SUIT AND SUCH OTHER AND FURTHER RELIEF AS THE COURT DEEMS JUST W/NOTICE TO PLEAD WITHIN 20 DAYS. F/TIMOTHY D. MCNAIR, ESQ W/CERT OF COMPLIANCE VERIFICATION, AND CERT OF SERVICE 18 Image page(s) exists for this entry 8/13/2020 NOTICE OF SERVICE OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFT, CITY OF ERIE TO: G MICHAEL GARCIA, II, E3Q,, AND PAUL D KREPPS, ESQ., BY HAND DELIVERY ON 8/13/20. F/TIMOTHY D MCNAIR, ESQ., W/CERT OF COMPLIANCE AND CERT OF SERVICE 2 Image page(s) exists for this entry LAST ENTRY *******+* -------------- ***************+******************a(»w*+*************+*+*+**********+**++*+******* Cost / FAQ SUMMONS TAX SUMMONS COPY COSTS JCS/ATJ AUTOMATION FEE ++ Escrow Information ++ Beg . Balance $.50 $92.00 $4.50 $40.25 $5.00 $142.25 *************************** Pymts/Adimt___s $.50 $92.00 $4 .50 $40.25 $5.00 $142.25 End . Balance $.00 $.00 $.00 $.00 $ .00 $.00 **ir****9r9c~k*******~k**'Jr***9c9c**************~)c9c*******:%******')<9<~k*** End of Case Information Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-5 1-4 Filed Filed08/27/20 08/27/20 Page Page11ofof33 i SHERIFF'S OFFICE OF ERIE COUNTY 3 I JOHN T. LOOM¥§ S he f f CHRIS CAMPANELLI Captain JEFFREY GUILD Chief Deputy WILLIAM FENTON Lieutenant FORCED mm PRIDE in M HANNAH SILéAUGH VS. 1 CITY OF Elfug (et al.) * Case Number 2020-11247 SHERIFF'S RETURN OF SERVICE 06/23/2020 04:00 PM - Deputy Sabasiian Chrzanowski, being duly sworn according to law, served the requested Waif OF Summons (WOSM) AND INTERROGATORIES AND REQUEST FOR PRODUCTION OF DPCUMENTS DIRECTED TO THE DEFENDANT, CITY OF ERIE, by handing a true copy to a person representing themselves to be CHRISTINA SCHAFFER, CLERK, who accepted as "Adult Person in Charge" for CITY OF ERIE at 626 STATE STREET, ERIE, PA 16501 . I II / T SHERIFF COST i $8800 CH N'()W3KI, DEPUTY SOANSWERS, June 24, 2020 OWN T. LOONIIS, SHER F to 1 3"71" °-T-'TJ ns: ir»_» 1 1 f`"- c:» 4'» Q :Ra 53 I c: 2: Q-» or .:r: 78)'>> ;=- C"U 8; :- -w_ -< t' 41 lL '*'q (") ¢""'\ *r ~- -- 4-',,* EXHIBIT I\ I I 1 , F Rla:5WfflAttomey. 'MCNA'fRIM. lgY-'OEFrCES'P£ECT82'fS TATE'Sj;ERTE,'PA'165OV (cj CounlySui£e Sheriff. Teleasoll Inc. lII #l Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-5 1-4 Filed Filed08/27/20 08/27/20 Page Page22ofof33 SHERIFF'S OFFICE OF ERIE COUNTY i JOHN T. LOOMIS CHRIS CAMPANELLI Captain Sheriff JEFFREY QUILD' Chief Deputy : WILLIAM FENTON Lieutenant roncfn Www pmnf SILBAUGH, HANNAH vs. CITY OF ERIEI(et aL) Case Number 2020»11247 o SERVICE COVER SHEET N o ,~ - 1 N v-v' ( I . [Senlc9'Déf8ils: ' - ¢».` 4-¢,. _, .' ' an ..._ . r~ o Category . civil Action -Writ of Summons (WOSM) v U J: I. *.1 . . i , 'b :'¢a ,. . 'r \ -~ :I >< UJ Adult in Charge Manner: Notes : al M-. I - ..--- --..-.-.-- --~- A, .s 1, lZI*"t.t{,.*" 1 Adult In Charge: T Date: Personally - in. .I 11 :_ ., 4- -M .. To.. ,H 4»*8'.~¢1*5»~:.*~= *~ »~1;° _ w!u;;1ll[*Ji, _ ., ». ...r_\ ".. MCNAIR LAW OFFICES PLLC Phone: "*,*:§1. *. , of" .. fsewfée Attempts I =J '°".*?i£*$£"*'""*,r 1`/:="~h4¥ '__ .4 'T CZ,€¢'K. , LQLLp9 l 1 3? . ,L . Um? Time ' Le*~ 23- 39 ¢~.8%'. 191 'n . " xv = 4 V'4- 4. uit In Charge P65ted Other [Zj5_'§£Qi1*m§-3 Deputy: tttoi*h"ey / Origihatorx**13~ Name: Relation: DOB: UJ Phone. or I-° to Alternate 3 Address: < +w Phone: /if/ga/* ['Firial.~S§tvl€€.L'* Sewed: Primary e2§ STATE STREET Address : PA 16501 8 -7 LI.J (D N (D Warrant: SERVE WRIT OF SUMMONS AND INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO THE DEFENDANT, CITY OF ERIE 1o QI En- Hm 4 **¢;.¥ 'M ID fSéW3'To:; , I '~§ .l.'._'. WI. f ».~ w I 1* < ciiTvoF ERIE o. Name: 1 .of8 m Zone: 07/22/2020 Expires: \¥\ . -. r" ' o++-'I Mileage: ;iiI*¢.=c».2 F"!.' n. 9 W9a; ;_a §=¢4 I 8':$"<='rL Date: t~ v N 1- 'T o N o N Time: Mileage: 1 Deputy . fserk/i¢4=>.Arfemprnbzési;: . 2 3 8 ac m u. o >*= o 2 v* 4° 3 445* s >r.,.! :*i** i .¢,;\,§3?!§+1F»'988= ,l..9_41l*é' ;~ J. .E u * * ' f.*,.9 *r »* * 3? }Vi * I \ \ = .1»=-1 <21 .I 'I \ l 4 5 6 lc; f,QL:r'E."$LIllB SWell? Tefeoswt Inc l 4 5 43 6 L '. "nu w . $34 **l-a¢*sa-°» kw# 4 g, c Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-5 1-4 Filed Filed08/27/20 08/27/20 Page Page33ofof33 I CFFICE OFTHE SHERIFF ERIE COUNTY, PENNSYLVANIA 140 WEST SIXTH STREET l ERIE, PENNSYLVANIA 16501 814/451-6254 FAX 814/451-6323 i I ERIE C6UNTY SHERIFF'S SERVICE please type or print legibly, I PROCESS RECORD PLAINTIFF TERMAND NO 11347 Hannah Silbaugh I DEFENDANT -2020 l`YPE OF WRIT John Doe 1k, John Doe 2, John 10oe 3,}ohu Doe 4, John Dun 5, Danie( Spizafny, Joseph v. Schernbef, City of Erie Writ of Summons NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC.. TQ SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN SERVE] any of Erie* . <' ADDRESS C$!/ef/ or //d apart/nenl Na, C/U4 5/are and0/0 Code/ AT 1626 Stage Street, Erie, PA 16501 ...................................................................... SEND NOTICIE OF SERVICE COPY TO NAME AND ADDRESS BELOW Timothy D. McNalir, Esquire Mcnair Law Offices, PLLC 821 State Street Erie, PA 16501 SHOW number of this writ and total number of wries submitted. i.e., 1 of 1, I of 3. elc. ) Total No. 1 of 2 Qfzeck i/app//h'ab/e.- Q Serve Secretary of Commonwealth D Depulized Service . 0 publiculion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... Special insvuciions required for all of the above SHOW IN THIS SPACE 8ELOWANY SPECIAL INSTRUCTIONS OR OTHER INFORMATION PERTINENT TO SERVING THE WRI7 DESCQIBED ABOVE Please serve the dull in charge of Defendant at the above-referenced address. J1T('I'rF0 i NAME AND SIGNATURE OF ATORNEY OR OTHER gRIGINATOu Timothy D. Mcnair I =~ '\ I DEPOSIT DATE 814-452-0700 06/22/2020 DiSTRICT TO SERVE TO DATE SIGNATURE OF AUTHORIZED DEPUTY OR CLERK I acknowledge feceipl for Me total number of writs indicated and for the depose (in applicable) shown. OVERTIME AUTHORIZATION TELEPHONE NUMBER SPACE BELOW FOR USE OF SHERIFF ONLY . DO NOT WRITE BELOW THIS LINE J Show amount of prepared fees and sign W/\. f DEPUTY AUTIIORIZING ATTORNEY DATE AND TIME I hereby certify and relunl ha! I have personally served. have legal evidence of service. or have executed as shown in 'R€MARKS," the writ described on the[%ndivieual. . company, corporation. elc., at the address shown above on the inniuidual, company 0 corporation. inserted below. 8(C». a\ Me address . 1 _ . . _ , . . thereby cenify and return hal, after drllgenl Inveslrgalron. 1 am unable lo locale the lndwldual. company. corporation, erm U named above within the {>ailiwick or Erie County, Pennsylvania. NAME AND TITLE OF INDIVIDIUAL SERVED (///70f 5/70Wl7 above) IO AD D R E SS (Co/np/s/e only /7 T/ferent I/:an s//own arc vc/ OATE(S] OF ENDEAVOR (UTremark;/Inecefsngd DATE OF SERVICE TIME AM PN REMARKS l I A person of suitable age than abiding in the defencianVs usual place of abode. F E E H/5pp//ZI8b/E/ MILEAGE s S SIGNATURE OF SHERIFF OR DEPUTY Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-6 1-5 Filed Filed08/27/20 08/27/20 Page Page11ofof11 In the Court of Common Pleas of Erie County, Pa. No. 11247404 Hannah Silbaugh vs. John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, Daniel Spizarny, Joseph V. Schember, and City of Erie And Now, to-wit: July 16, 2020, Daniel Spizamy Joseph V.. Schcmber a_nd City of Erie. by Attorneys come(s) and enter(s) a rule on plaintiff(s) to file a complaint within twenty (20) days. F/G. Michael Garcia, H., Esq. and Paul D. Krepps, Esq. Attorneys for Daniel Spizarny, Joseph V. Sehember and City of En'e, only Witness my hand and the seal of said Court, at Erie, this 17th day of July, 2020. 294, 112 (seal) Prothonotary or Deputy .this, the day of by giving him a rue and arrested copy of the same, and informing him of the contents thereof Served the within rule upon __ _ So answers, Sworn and subscribed to before me this _ . day of .I 2020. Notary Public EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page11ofof16 16 y CHSC No: 11247 . 2020 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HANNAH SILBAUGH, Plaintiff, Case No: 11247 - 2020 v. JOHN DOB 1, JQHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, MOTION FOR PROTECTIVE ORDER Filed on Behalf of Defendants DANIEL SPIZARNY, JOSEPH V. SCHEMBER AND) CITY OF ERIE, only Defendants . Counsel of Record for this Party: PAUL D. KREPFS, ESQUIRE PA LD. No, 73038 pdl<1°epps@mdw9g.com MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Union Trust Building 501 Grant Street, Suite 700 Pittsburgh, PA 15219 412/803-1140 412/803-1188-Fax G. Michael Garcia II, Esquire 717 State Street, Suite 70 I Erie, PA 16501 814-480-7800 gmgarcia@mdwcg.cpm i r-s 9 l'*»J - ior:. iv* on -o UJ (JO -.4 EXHIBIT I Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page22ofof16 16 1 v Case No: 11247 .. 2020 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff, Case No: 11247 - 2020 714 1:23 I--.a <;::=~ <.£4 I" v. JOHN DOE 1, JOHN D018 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE s, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, "Hz *i m <23 "O '_;'¢*; .. ... .. r_*,J "inJ L__'9 (*> _J Defendant. »- u a--Iv C_> "=1 :L ,.' "\ D . ¢ .1-1\ tJ *.i , MOTION FOR PROTECTIVE opp-ER AND NOW, come DEFENDANTS, DANIEL SPIZARNY, JOSEPH V. SCHEMBER and CITY OF ERIE by and through their counsel, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, and in response to Plaintiffs pre-complaint discovery, file the within Motion for Protective Order as follows : 1. Plaintiff initiated these proceedings by filing a Praecipe br Writ of Summons which was served on Defendants on Jul y 23, 2020. 2. Named as Defendants are Chief Daniel Spizarny, Mayor Joseph V, Schember and the City of Erie. In addition, Plaintiff has identified John Does l through 5. 3. Along with service of the Praecipe for Writ of Summons, Plaintiffs counsel also served pre-complaint discovery in the nature of interrogatories and Request for Production of Documents. A true and correct copy of the written discovery requests are attached hereto and marked as Exhibit '°A". 4. Defendants served responses to Interrogatory Nos. 1, 2 and 3 on July 15, 2020. 2 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page33ofof16 16 CnscNo: 11247-2i)20 5 5U Prior to responding to the written discovery, at the request of Plaintiff's counsel, Dgfendauts informally provided copies of the policies that were 1°efe1'enced in response to Inte1'1'ogato1y No. 3 and a copy of the policy 1'egarding intel'ual affairs. 6. Defendants object to Inte1'1'ogato1'y No. 4 and Requests bi' Production Nos. 1 through 5 on the basis that these requests are not calculated to be a means to the specific end of getheritlgsufficient information for the filing of a complaint. 7. Furthermore, Plaintiff, through her counsel, has demonstl'ated that she is already in possession of More than sufficient information with which to file her Complaint, See correspondence from Timothy D. McNair, Esq. to Mayor Joseph Schenlber dared June 2, 2020 attached hereto and marked as Exhibit "B". 8. The only critical piece of information not in Plaintiffs possession until being served with responses to the written discovery requests is the identity of the only three police officers known to Defendants at this time who were in close proximity to Plaintiff. This information is now known to Plaintiff, 9. The1~eflo1'e,~Defendants seek a Protective Order that Deténdants need not respond to the objectionable Intel'rogatories and Request fm' Production of Documents. 10. Defendants incorporate herein the Brief in Suppoit of the Motion for Protective Order as if fully set f`o1'th. WHEREFORE, Defendants, DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE request that the Court enter an Order granting Defendants' Motion that Defendants, at this stage of the litigation, need not respond to Interrogatory No. 4 or Requests for Production l Nos. 1 through 5. I Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page44ofof16 16 Case No; 1 1247 - 2020 Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: /Z /D, /9/*PAUL D. KREPPS, ESQUHUQ PA ID. #73038 G. Michael Garcia II, Esquire PA ID No. 31 1594 Counsel for Defendants, DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE, only LEGAL/l3 1220886,v1 o Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page55ofof16 16 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILLBAUGH, Plaintiff CIVIL ACTION -. LAW v. : Case No.:. JOHN DOE 1, JOHN DOE 2; JOHN DOE :3> JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants »2020 I r I. I> I p » I I• INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT. CITY OF ERIE. NOW COMES the Plaintiff, Hannah Silbaugh and respectfully requests answers to the following discovery requests to aid her in the preparation of her Complaint in this matter : INSTRUCTIONS AND 1J151;'1N1'1'10ns A. "Incident" shall mean the incident occurring on the evening of May30, 2020 at or near the intersection of State Street and North Park Row in Erie, Pennsylvania involving an interaction between the Erie Police and Hannah Silbaugh, who was seated in the street. B. "You" or "your" refers to Defendant(s) herein and to all other persons acting or purporting to act on behalf of Defendant(s), including agents and employees. C. "Communications" shall mean all inquiries, discussions, conve1°sations, negotiations, agreements, understandings, meetings, telephone conversations, letters, correspondence, notes, telegrains, telexes, advertisements, facsimiles, e~mai1, or other forms of verbal and/or communicative intercourse. EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page66ofof16 16 D. "Documents" shall mean all written or graphic matter of every kind or description, however, produced or reproduced, whether draft or final, original or reproduction signed Of' unsigned, and regardless of whether approved, signed, sent, received, redrafted, or executed, including but not limited to: written communications, letters, correspondence, facsimiles, e-mail, memoranda, minutes, notes, films, recordings, of any type, transcripts, contracts, agreements, purchase Ol` sales orders, memoranda of telephone conversations of personal conversations, diaries, desk calendars, interoffice communications, reports, studies, bills, receipts, checks, checlcbooks, invoices, requisitions or material similar to any of the foregoing however denominated, by whomever prepared, and to whomever addressed, which are in your possession, custody or control or to which you have had or can obtain access. E. "Persons" means an individual, corporation, partnership, trust, associations, company, organization, or any form of a business or commercial entity. F. "Identify" when used with respect to an individual, means to state (1) their name; (2) business affiliation and official title and/or position; and (3) their last known residential and business address. G. "Identify" when used with respect to a document, means to state (1) the type of document (e.g. letter, memorandum, hand-written note, facsimile, e-mail), (2) its date of origin or creation; (3) its author and addressee; (4) its last known custodian or locations; and (5) a brief description of its subj et matter and size. In lieu of identifying any docurnent(s), you may attach a copy of it to your answer, indicating the question to which it is responsive. H. "Identify" when used with respect to a company Of' other business entity, means to state, (1) the company's legal name, any former names, and the name under which it trades or does business (2) the address of its principal place of business; and (3) the identity of its chief executive officer. I. "Relate to" means consist of, refer to, reflect or be in any way logically connected with the matter discussed. J. The period of time encompassed by these requests shall be from the date of the alleged accident to the date of answering, unless otherwise indicated. Note, this request is continuing up to and at the time of trial. 2 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page77ofof16 16 INTERRO GATORIES 1. Identify the police officer whose three-day suspension was announced on June 15, 2020. ANSWER: 2. Identify each police officer who was within a fifteewfoot radius of the officer identified in response to Interrogatory No. 1 at the time of the incident involving Hannah Silbaugh. ANSWER: \ 3. Please identify the policy or procedure of the Erie Police Department that you claim justifies kicking or pushing an individual with the foot where that individual is offering no threat to the officer or others. ANSWER : 3 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page88ofof16 16 4» Identify each individual who was questioned or who gave B. written, ora] O1` recorded statement in the course of the internal affairs investigation of the officer identified in response to Inte1°rogato1'y No, 1. ANSWER: REQUEST FOR PRODUCTION OF DOCUMENTS 1. Please produce all written and/or recorded, or substantially verbatim notations of any and all statements given during the internal affairs investigation of the officer identified in Interrogatory No. 1 arising out of the incident occu1'1'ing on May 30, 2020. RESPONSE: 2. Please produce the complete personnel file of the officer identified in response to Interrogatory No. 1. 4 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page99ofof16 16 RESPONSE: 3. Please produce copies of any and all correspondence, emails, or other written O1' digital c:ommunica'rion between the City of Erie and any nomattorney third party which refer O1` relate to the incident of May 30, 2020 or the investigation thereof. RESPONSE: 4-. Please produce copies of any and all videos, documents, photographs, .or social media posts which were reviewed in the investigation of the officer identified in Interrogatory No, 1. RESPONSE: 5~ Please produce the entire investigation file pertaining to the incident of May 30, 2020 and/or the officer identified in Interrogatory No. 1. RESPONSE: 5 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page10 10ofof16 16 RespectfUlly submitted, MCNAIR LAW OFFICES, PLLC By: _ Timothy D. McNair, Esquire 821 State Street Erie, PA 16501 (814) 452-0700 (814) 454-2371 (fax) tmcnair@mcnair]aw.com 6 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page11 11ofof16 16 1 McNair Law llffioes, PLLC \ ATFORNEY5 Aero CQUN5ELORS AT LAW June 2, 2020 Honorable Joseph V. Schernber, Mayor viafwv C814-870-1208) and email (j.8chG1nbez'@eria,pa,us) City of Erie 626 State Street Erie, PA 16501-1128 Dear Mayor Schember: This office represents Hannah Silbaugh, who was subjected to unreasonable use of force by officers of the City of Erie Bureau of Police on Saturday evening at the intersection of State Street and North Park Row. Ms. Silbaugh, a 21-year-old woman, was sitting on the street and exercising her First Amendment right to petition for redress of grievances. In support of that she was engaging in civil disobedience by sitting in the street. A group of approximately five City of Erie police officers, in riot gear and carrying riot shields, approached the group of protestors and ordered them to disperse, within seconds spraying them with mace or pepper spray. Many of the protestors yielded to this sudden and unnecessary use of force; Ms. Silbaugh did not. As police continued to mace her, she covered her face with her hands. At that point, she was viciously kicked in the left shoulder by a City of Erie police officer and was knocked to the ground. The , police used this as an opportunity to spray mace under her hands and into her eyes. She remained in her position and waethreated with a laser, at which point she left the scene. She was not arrested or cited for any criminal offense. We believe this is because it would have required the officers in question to identify themselves which they did not wish to do for obvious reasons. There is, as you know, extensive video of the incident and the events leading up to it. No video 01' witness we are aware of indicates that Ms, Silbaugh engaged in any act of violence or destruction of property. Nothing she did justified the use of excessive force including mace and aggravated assault by a foot strike, We are not yet aware of the true motives of the officers involved, except to say that the video speaks for itself and it appears that they were carried away with their Mandate to clear the streets. However, there is no reason that, if they neededto progress past her, they could not have simply walked around her or driven the SWAT van around her. Given the very large size of the give officers, they could easily have lifted her under her arms and moved her out of the street if that was deemed necessary without causing any injury or threatening serious bodily injury. 82 I STATE STREET - ERIE, PENNSYLVANIA [650 I- I 3 18 TZLEPHoNa 5 1 4.452.0700 - FACSIMILE 8 l 4.454-2371 - TOLL FHEE (500)453'05E E-MA}L; TMCNAIR@MCNA\RLAW.OOM .. URL: HTTP://WWW.MCNAIRLAW.COM EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page12 12ofof16 16 I l The Honorable Joseph V. Schember June 2, 2020 Page 2 There is no question but that the actions of the officers were intentional and they were intended to interrupt Ms. Silbaugll's exercise of her right to free expression. MS. Silbaugh did suffer injury as a result and continues to recover from the effects of the mace or pepper spray. . Please accept this letter in lieu of Form 118K, City of Erie Bureau of Police Citizen Complaint Form. . Ms. Silbaugh may be contacted through me. We are unaware of the identity of the officers involved. We are aware of several witnesses, including Lisa Clark, who video taped approximately 3 and 1/2 hours of the demonstration. There are numerous other videos available on social Fredia which we are attempting to collect. In our constitutional democracy, preservation of the freedoms guaranteed by the Bill of Rights should be of paramount importance to the civil authorities, including the police. While we recognize that the police may have a difficult job to do, that does not justify the indiscriminate use of force against citizens who are peacefully protesting an incident where a nonviolent person was killed by a police officer. While the events certainly generated excitement among the police department, its leadership was not able to keep that excitement in check and harness it for its intended purpose, but permitted it to turn into raw emotion and senseless physical attacks. We believe that it is essential that the officers who assaulted Ms. Silhaugh be identified and held to account, which we intend to do. As you know, there are many avenues to accomplishing this goal, some of which can be accomplished cooperatively and easily, others of which may require litigation. We would certainly hope to be able to resolve this issue without resort to litigation but you should be aware we are willing to use whatever tools are necessary to effect justice. 82 I STATE STREET - ERIE. PENNSY1.VANM 1650 I - l 3 I 6 TeLePHONE e I 4,452.0700 - FAC5SMILE B I 4.454~237 I - T04 FREE (eoo)45:a-0566 E-MAIL: TMCNAIR@MCNA1RLAW.COM - URL: H1-rp;//ww\v.mcnA~rrzLAw,com \ Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page13 13ofof16 16 The Honorable Joseph V. Schember June 2) 2020 Page 3 Please have someone from the City contact with the identity of the officers and adwlse as to the City's intention on investigating and imposing disciplinary action on these officers. Thank you. Very truly yours, MCNAIR LAW OFFICES, PLLC ) By" \ .A *\ s Timothy D. cc, Y x%"'J\ >¥air, Esquire Hannah Silbaugh via email Dan Spizarny, Chief via email Citizens Response Center via hand delivery 82 I STATE STRQET - ERIE, PENN5YL.VANlA I 650 I - I 3 I e TELEPHONE 6 I 4.452.07OO - FACSIMILE 8 I 4.454-2371 . TOLL FREE (BooM53-0566 E-MAIL: TMCNAIR@MCNA1RLAW.COM URL~ HTTP://WWW.MCNAIRLAW.COM Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page14 14ofof16 16 » Case No: l 1247 - 2020 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGI-I, CIVIL ACTION - LAW Plaintiff, Case No: 11247 - 2020 v. JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH \/ SCHEMBER, and CITY OF ERIE, Defendant . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded to all parties listed below by: Hand Delivery X . U.S. First Class Mail, Postage Prepaid of l4> 9020 Electronic Mail ONLY Certified Mail, Return Receipt Requested Facsimile Transmittal at the following address : Timothy D. McNair, esquire McNAIR LAW OFFICES, PLLC 821 State Street Erie, PA 16501 (Counsel for Pl'ainrw MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN /Q 0. /47"*BY: PAUL D. KREPPS, ESQUIRB PA LD. #73038 Counsel for Defendants DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE, only Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page15 15ofof16 16 Case No: l 1247 . 2020 r IN THE COURT OF COMMON FLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff, Case No: 11247 - 2020 V. JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHBMBER, and CITY OF ERIE, Defendant. CERTIFICATE OF COMPLIAN CE I ceifify that this filing complies with the provisions of the Public Access Policy of /he Unjfzed Judicial System ofPennsy!vanic1.' Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nomconfidential information and documents. Submitted by: Paul D. Krepps. Esquire /I, I1/7~' Signature : Name: Paul D. Krepps, Esquire Attorney No. (if applicable): #73038 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-7 1-6 Filed Filed08/27/20 08/27/20 Page Page16 16ofof16 16 I IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION »< LAW Plaintiff, Case No: 11247 - 2020 v. JOHN D018 t, JOHN D018 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCI-IEMBER, and CITY OF ERIE, Defendant. ORDER OF COURT AND NOW, this day of 2020, upon consideration of Defendants' Motion for Protective Order, the same is hereby GRANTED. Defendants need not respond to Interrogatory No. 4 or Request for Production Nos. 3 through 5 as set out in Exhibit "A" to Defendants' Motion for Protective Order. IT IS FURTHER ORDERED that Plaintiff is not BHIillBd to any additional discovery until a&er she files her Complaint and any Preliminary Objections have been resolved and Defendants file an Answer. BY THE COURT: LEGAL/I31200518,vi Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page11ofof88 9 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, piainufn JOHN DOE 1, JOHN DOB 2, JOHN D018 3, JOHN DOE 4, JOHN DOE 5, DANIEL SP1ZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants. CIVIL ACTION .. LAW Case No: 11247 » 2020 BRIEF IN SUPPORT OF MOTION FOR PROTECTIVE ORDER Filed on Behalf of Defendants DANIEL SPIZARNY, JOSEPH v. SCI-IEMBER AND CITY OF ERIE, only Counsel of Record for this Party : PAUL D. KREPPS, ESQUIRE PA LD. No. 73038 pdkl'eDDs@mdwcg.com MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Union Trust Building 501 Grant Street, Suite 700 Pit'Fsbu1'gh, PA 15219 412/803-1140 4124803-1188 -. Fax G. Michael Garcia H, Esquire PA ID No. 311594 717 State Street, Suite 701 Erie, PA 16501 814-480-7800 grngarcia@,mdwcg.com 4 {* *\ -Ur-- r 3 f...-4 "J I Cr: "_" -r"J8 L V-:I *».* w com C)'- r* \ IJ' .-~\ v *J 21 1 "U O *, :az 'y f'-1 ."» r*-" :'J 4 <1 ;_r.\ ,JL ,-~ J l\J co: 9? C47 l""l \ of] 'J- ") CP CO I -p -we UJl v»~¢J \ EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page22ofof88 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff, CIVIL ACTION - LAW Case No: 1 1247 .-.. 2020 v. 1-..:> an JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCI-IEMBER, and CITY OF ERIE, 1--J ., -4- £:::> *KJ'» ¢w* *J J ". CQ: ' _,» *'":'1 in* i »-»- 6 Jur . " 1 .AI A .-1J' . 'TJ :ez 49 Defendant. I. w ...1 SUMMARY OF THE ARCUMENT Defendants have been served with a Praecipe for a Writ of Summons in which the City,the Mayor and Chief of Police are named Defendants. Plaintiff also served interrogatories and requests for production on Defendants. See Exhibit "A". PIaintiff°s counsel wrote to the Mayor and made a formal citizen complaint "in lieu of Form I 18K..." on behalf of his client in which he desclibed in significant detail the events of "Saturday evening" [May 30, 2020]. See Exhibit ¢9B». The City has been re.asonable and provided responses to Interrogatories I»3, providing the identity of the known officers who were in close proximity to Plaintiff during the events as described in Plaintiff-counsel's June 2, 2020 letter and identifying policies which at this time appear to be applicable to the situation that the officers faced. The City also gratuitously, prior to receipt of the written discovery, provided copies of applicable policies to Plaintiffs lawyer. Plaintiffs request for discovery are otherwise unreasonable and- it is appropriate to enter a Protective Order accordingly. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page33ofof88 I \ 11. ARGUMENT The Supreme Court addressed pre-complaint discovery in a 2006 decision, McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006). Until that decision, tllel'e was an inconsistency in how the Courts addressed pre-complaint discovery and the Count noted that it had not issued ah opinion setting the parameters Of such discovery. Pre-complaint discovery is envisioned in the Rules of Civil Procedul'e. See, for example, Pa.R.C.P. 4001(c) and 4007.l(c). McNeil, 894 A.2d at 1268-1269. The Court cited favorably to a decision of the Honorable R. Stanton Wettick, Jr., and noted that Judge Wettick adopted the test ".,.pel'mitting their own p1°e~cornplaint discovery .only when necessary to the drafting of a legally sufficient complaint;.." Id at 1272. The Supreme Court concluded its analysis as follows: ...pre~complaint discovery is a means to the specific end of gathering sufficient information for the filing of a complaint, and it only appropriate only whom there is probable cause to believe that it will achieve that end. Accordingly, to obtain pre-complaint discovery, a litigant should be required to demonstrate his good faith as~ well as probable cause that the information sought is both material and necessary to the filing of a complaint in a pending action. A plaintiff should describe in reasonable detail the material sought, and state with particularity probable cause for believing the information will materially advance his pleading, as well as averring that, but for the discovery requests, he will be unable to formulate a legally sufficient pleading Under no circumstance should a plaintiff be allowed to embark upon a "fishing expedition", or otherwise rely on an amorphous discovery process to detect the cause of action he lacks probable cause to anticipate prior to the pre~complaint discovery process under this standard. The reasonableness, as well as the existence of'probable cause in the good faith of the party seeking discovery, are matters for the trial court to determine in the exercise of its sound discretion. Id, at I278.(emphasis added) Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page44ofof88 Defendants assert that Plaintiff has adequate information at this time without the benefit of any discovery to file a sufficient Complaint, This is evidenced by the detail contained in the correspondence June 2, 2020 which was intended to be accepted "...in lieu of Form l AK , City of Erie Bureau of Police Citizen Complaint Form." See Exhibit "B". The facts that are asserted by Plaintiff"s counsel and the evidence referenced in his letter are a clear indication that Plaintiffs counsel has far more information at his disposal at this time than most lawyers do when initiating civil litigation. Plaintiffs counsel is aware of the date of the incident as well as significant details with regard to the interaction between the police officers and his client, including events both before and the police interaction with his client. As he related, "There is, as you know, extensive video of the incident and the events leading up to it." Plaintiflf's counsel further asserted, "We arc aware of several witnesses, including Lisa Clark, who videotaped approximately three and one~half hours of the demonstration, Tllere are numerous other videos available on social media which we are attempting to collect." See Exhibit "BM. It would be appropriate for Plaintiffs counsel to proceed with the filing of a Complaint with the information available to him at this time, including referencing "John Doe" Defendants and setting out the conduct of those Defendants and then waiting until the discovery phase of the litigation to serve written discovery and take depositions of individuals to identify the officers. Instead, Plaintiff served four Inte1'rogato1°ies and five Requests for Production of Documents, some of which are narrowly crafted and others of which could best be described as a shotgun approach to gathering information whose relevance is not apparent at this time. Plaintiff failed throughout the discovery to is .state with pai'ticula1'ity probable cause for believing the information will matel'ially advance his pleading." Id at 1278 . Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page55ofof88 4 I Defendants responded to the written discovery requests by providing the identities of the officers that it is aware of al this time who were in close proximity to Plaintiff at the moment that the encounter with the police took place. In addition, the City provided policies that were requested by Plaintiff counsel even before ha served the Writ 01' his discovery requests. Defendants object to being required to provide infol'mation regarding the conduct of an Internal Affairs investigation as well as producing all of the documentation pertaining to that investigation and providing "complete personnel file[s]", providing.,.copics of any and all correspondence, emails Of' other written or digital communications between the City of Erie and any non~atto1'ney third-party... J:> producing "...thl'ee copies of any and all videos, documents, photographs, 01' social media posts which were reviewed...)> and finally the greatest shotgun request "...produce the entire investigation f81e pertaining to the incident of May 30, • 5: l These discovery requests are not made in good faith as part of pre-complaint discovery but rather are a fishing expedition and clearly ate not narrowly draw&ed to afford Plaintiff the ability to draft a legally sufficient Complaint. In addition, before engaging in in-depth discovery Defendants should be afforded "...the opportunity to test the Complaint before submitting to discovery....in order that discovery requests follow pleadings to facilitate the narrowing of issues and concomitant narrowing of discovel'y", Id at 1272. Contemporaneously with the filing of the MotioN for Protective Order and Brief in Support, Defendants have filed a Rule to File Complaint, giving Plaintiff 20 days to file her Complaint. Under the circumstances presented it is appropriate for the Court to grant Defendants' Motion and hold Plaintiff to the time period within which he is' required to file a Complaint pursuant to the Rule issued by the Prothonotary. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page66ofof88 \ 111. CONCLUSION For all of the above reasons, Defendants respectfully request that the Court enter an Order recognizing that Defendants have responded to Inte170oato1~y Nos. 1 through 3 and taking into account that Plaintiffs counsel has already been provided with applicable policies and recognizing the amount of evidence that Plaintiff's counsel 1'efe1'enced in his June 2, 2020 Citizen Complaint and compelling the Tiling of a Complaint. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN of,{,(' 0. //7' ' BY: PAUL D. KREPPS, ESQUIRE PA LD, #73038 G. Michael Garcia II, Esquire PA ID No. 311594 Counsel for Defendants, DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE, Oil/y c LEGAL/I3 l202040.v I Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page77ofof88 l I Case No: H247 - 2020 IN T1118 COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION -. LAW Plaintiff, Case No: 11247 .. 2020 v. JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendant, CERTIFICATE OF COMPLIANCE I certify that this filing complies with the provisions of the Public Access Policy Qf the Uny'ied Judicial 63/stem of Pennsylvanz'a.' Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. Submitted by: Paul D, Krepps, Esquire Signature: Name: Paul D. Krepps, Esquire At'Fo1'ney No, (if applicable): #73038 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-8 1-7 Filed Filed08/27/20 08/27/20 Page Page88ofof88 I f Case No: I 1247 » 2020 1% IN TH18 COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff, Case No: H 247 - 2020 V. JOHN DOE I, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendant. CERTIFICATE OF SERVICE I hereby ce1"tify that a true and correct copy of the foregoing has been forwarded to all parties listed below by: . Hand Delivery X . U.S. First Class Mail, Postage Prepaid - Q')lf(9/8070 Electronic Mail ONLY Certified Mail, Return Receipt Requested r Facsimile Transmittal at the following address: Timothy D. McNair, Esquire McNAIR LAW OFFICES, PLLC 821 State Street Erie, PA 16501 (Counselor Plaint MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN /5. BY: - PAUL D. KREPPS, ESQUIRE PA I.D. #73038 Counsel for Defendants DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE, only Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-9 1-8 Filed Filed08/27/20 08/27/20 Page Page11ofof11 HANNAH SILBAUGH, Plaintiff, IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA s 5 v. CIVIL DIVISION JOHN DOE 1, JOHN DOE 2, JOHN DOE 3,1 JOHN DOE 4, JOHN DOE 5, : DANIEL SPIZARNY, JOHN V. SCHEMBER, and CITY OF ERIE Defendants. No. 11247-2020 oRDER AND now, this 20*" day of July 2020, if is hereby ORDERED that Plaintiff 811 file a response to Defendants' Motion for Protective Order within ten (10) days. BY THE COURT: as J dge Mead Timothy McNair, Esq. McNair Law Offices 821 State Street Erie, PA 16501-1316 Paul D. Krepps, Esq. G. Michael Garcia, Esq. Marshall Dennehey Warner Coleman & Goggin 717 State Street Suite 701 Erie, PA 16501 ..I- * \ '» 1 EXHIBIT Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 11 of of 18 18 IN THE COURT OF COMMON PLHAS OF ERIE COUNTY, PENNSYLVANIA • 1 Q l . \ l » l I l I i • I HANNAH SILBAUGH, Plaintiff v. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants -u l-'r go;YIM CIVIL ACTION -.. LAW Case N0.I11247-2020 CJ --4 --47'~ a : in (89 "11 z 354 _{rv1 :=>4:9 :1 -<341 4.9 in 8 Ian or: in II? ":»° ** c;> £=1I zz: "'*.*la to no :nr 1.9 w an f""li"* In in "by -~. ?'53 ("J CL! Cl" 88;*Et JURY TRIAL OF 12 DEMANDED NOTICE TO DEFEND TO* MARC NELSON, DAVID SMITH, ANTHONY ATPALLA, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE c/o G. Michael Garcia, II, Esquire Marshall Dennehey Warner Coleman & Goggin 717 State Street, Suite 701 Erie, PA 16501 YOU HAVE BEEN SUED IN COURT, IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED. BY ENTERING A WRITTEN APPEARANCE PERSQNALLY OR BY ATTORNEY AND FILING IN WRITING WTTH THE COURT YOUR DEFENSES OR OBJECTIONS TO THI8. CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WI'1IHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BYTHE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS FAPER '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. IAWYERS REFERRAL SERVICE 429 West 6"' Street Erie, Pennsylvania 16507 {814) 459-4411 u \ Timothy D McNair, Esquire 821 State Street Erie, PA 16501 814-452-0700 814-454-5216 tmcnair@mcnairlaw.com EXHIBIT Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 22 of of 18 18 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA -wr8 :1u"'7* 51=* aw-c: m 3 9* .r :is :Hz <'.l»1* Q HANNAH SILBAUGH, Plaintiff CIVIL ACTION .. LAW i 33: 1"'4t;v. ,..< -4. v. Case N0.:11247-2020 MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants £0 W *is 7:81 c.:> 51] ac: :mfr "9 l"1'1 i""` -' W E 213 IE' .**"'up 9? (419 85 JURY TRIAL OF 12 DEMANDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. _AND FOR DAMAGES NOW COMES the Plaintiff, Hannah Silbaugh, by counsel and claims damages of Defendants abovemamed upon a cause or causes of action whereof the following is a statement : 1. Plaintiff is Hannah Silbaugh, an adult resident of Erie, Erie County, Pennsylvania. 2. Defendant Marc Nelson ("Nelson") is an adult individual believed to reside at Erie, Pennsylvania and who is employed by the Defendant, City of Erie Bureau of Police. On May 30, 2020, Nelson, without reason OI` provocation as set forth below, l(icl(ed Plaintiff on her left shoulder, knocking her down and causing injury. 3. Defendant David Smith ("Smith") is an adult individual believed to reside in Erie County, Pennsylvania and who is employed by the City of Erie Bureau of Police. I Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 33 of of 18 18 On May 30, 2020, Smith, without provocation or reason, and in violation of established procedures attacked Plaintiff with mace or pepper spray. 4, Defendant Anthony Attalla ("Attalla") is an adult individual believed to reside at Erie County, Pennsylvania and is employed by the City of Erie Bureau of Police. On May 30, 2020, Attalla, with no reason or provocation, sprayed Plaintiff with mace or pepper spray in violation of the established procedures of the City of Erie Bureau of Police and in violation of my civil rights, 5. John Doe 4 is an adult individual believed to reside at Erie County, Pennsylvania and is employed by the City of Erie Bureau of Police. Upon information and belief, John Doe 4 conspired with or participated in the assault on me by Nelson, Smith, Attalla and John Doe 5. 6. John Doe 5 is an adult individual believed to reside in Erie County, Pennsylvania whose identity remains unknown to me. Upon information and belief, John Doe 5 conspired with or participated in the assault on me by Nelson, Smith, Attalla, and John Doe 4. 7. Defendant Daniel Spizarny is an adult individual residing at Erie County, Pennsylvania. Defendant Spizarny is employed by Defendant City of Erie as Chief of Defendant City of Erie's Bureau of Police. AS such, Defendant Spizarny is responsible for the establishment of policy, training of officers in established policies, supervision of officers engaged in the execution of those policies and has an affirmative duty to train officers to avoid the violation of the civil rights of person present within the City of Erie. 2 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 44 of of 18 18 8. Defendant Joseph V. Schember is an adult individual residing at Erie County, Pennsylvania. Defendant Schernber is the elected Mayor of Defendant City of Erie. As Mayor, Defendant Schember has ultimate responsibility for the establishment of procedures and supervision of the officers employed by Defendant City of Erie's Bureau of Police. 9. Defendant City of Erie is a body corporate and politic which governs the City of Erie. City of Erie maintains a Bureau of Police, charging it with the responsibility of law enforcement and maintenance of civil order. To do so, the City of Erie establishes and maintains procedures to which police officers are required to conform their behavior. 10. All of the events giving rise to this Complaint occurred on or after May 30 , 2020 in the City of Erie, Erie County, Pennsylvania. 11. On May 25, 2020, a white police officer in Minneapolis murdered an individual named George Floyd by kneeling on his neck for over eight minutes. This murder, born of excessive force used by the Minneapolis, Minnesota police department, resulted in protests against police violence throughout the county and internationally. The death of George Floyd became a cause celebre leading to a strong public outcry against the excessive use of force by police and the pervasive institutional racism and unnecessary killing of persons of color by police. 12. On May 30, 2020, a demonstration in protest of unnecessary and excessive police violence took place in downtown Erie, Pennsylvania. This 3 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 55 of of 18 18 demonstration was predominately peaceful although certain individuals acted in violation of the law after the events complained of herein . 13. Plaintiff, Hannah Silbaugh, participated in the demonstration. She participated in the demonstration because she is opposed to the use of excessive force by police and she was offended and outraged by the murder of George Floyd. Prior to May 30, 2020, Ms. Silbaugh had not participated in a public demonstration. 14. It has been alleged that while Ms. Silbaugh was present at the demonstration, certain individuals also participating in the demonstration committed various violations, including property damage. Ms. Silbaugh did not participate in any violations of law nor was she aware of any instances of property damage. 15. At approximately 11 o'clock p.m., Ms. Silbaugh was with a group of people near the intersection State Street and North Park Row. The group was confronted by a large number of Bureau of Police officers garbed in riot gear and carrying shields and clubs as well as chemical weapons and other less lethal weapons, in addition to their lethal firearms. 16. It appeared that the police wanted to advance into the crowd of people. 17. In an act of resistance against police authority, Ms. Silbaugh sat on the pavement near the intersection of State Street and North Park Row. 18. While Plaintiff was seated, she was approached by several Erie police officers, including Nelson, Smith and Attalla, and possibly John Does 4 and 5 who without saying anything and without warning, began to spray her with mace or pepper 4 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 66 of of 18 18 spray. In response to this unjustified attack, Ms. Silbaugh covered her face, but remained sitting, continuing her resistance to what she determined to be unnecessary force » 19. At no time did Plaintiff pose any threat or danger to any officer of the City of Erie Bureau of Police. In fact, her resistance was completely passive. 20. Upon realizing that Plaintiff was not going to be cowed into submission by the inappropriate use of chemical weapons, Nelson approached Plaintiff and, with the intent to injure her as punishment for her perceived disobedience and her demonstration against police brutality, viciously kicked her on her left shoulder, knocking her to the street. 21. Nelson was reckless in the action of kicking Plaintiff since Plaintiff could easily have sustained serious injury either to her shoulder or head by hitting the street. Further, upon being knocked down, Plaintiff used her hands to regain a sitting position. When she removed her hands from her face, Nelson, Smith, and Attalla and possibly others, took the opportunity to recklessly spray her in the face at close range directly with chemical weapons in violation of the policies of the City of Erie Bureau of Police. 22. As they continued to mace and/or pepper spray the Plaintiff, one of the defendants, deliberately and with the intent to deprive Plaintiff of necessary First aid, kicked away a bottle of water adj cent to Plaintiff which prevented Plaintiff from rinsing her eyes once the assault had ended. 23. Ultimately, Plaintiff, upon being threatened with the potentially lethal force of a laser, stood up and left the area. 5 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 77 of of 18 18 24. Defendants made no effort to detain the Plaintiff and did not arrest her or file any criminal charges against her for any violation. 25. A video of Nelson's vicious attack on the Plaintiff was posted on social media and "went viral," drawing hundreds of thousands of views and creating national outrage at the unjustified and excessive use of force by Nelson against Plaintiff. 26. As the result of the publicity resulting from the video (which Plaintiff did not post), Plaintiff became known and quickly became the subject of public comment, some of which was sympathetic and supportive, and some of which was vitriolic and hateful. Plaintiff did not choose to publicize the attack or be the subject of public comment. Plaintiff continues to be the subject of vitriolic threatening, and hateful comments on social media. 27. Shortly after the attack, Plaintiff filed a complaint with the City of Erie Bureau of Police. The attack on Plaintiff was supposedly investigated by the Bureau of Police's own internal affairs division which found that Nelson, Smith, and Attalla had acted in accordance with the established policies of the Bureau. 28. No established policy of the City of Erie Bureau of Police authorizes the use of force, let alone a vicious kick, against an individual who is not presenting a threat of harm or who is not subject to arrest for a violation. 29. Defendants Spizarny and Schember authorized and ordered an investigation of the event. What resulted was a mischaracterization of the events, characterizing the vicious kick to Plaintiffs left shoulder as a "push," and finding that the officer in question, Nelson, acted in accordance with established policy. To the 6 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 88 of of 18 18 extent that Nelson, Smith, and Attalla were, as found by Defendants City of Erie, Spizarny and Schernber, acting in accordance with the established procedures of the City of Erie Bureau of Police, said procedures are constitutionally defective and render Spizarny, Schember and the City of Erie liable for the violations of Plaintiffs civil rights pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978) . 30. If Nelson's actions were in accord with the policies of the City of Erie, said policies are in violation of the Constitution of the United States, including the Fourth and Fourteenth Amendments, which have long been interpreted as prohibiting the use of excessive force by police. COUNT I - HANNAH SILBAUGH v. MARC NELSON ... ASSAULT AND BATTERY 31. Plaintiff incorporates herein by reference the averments of Paragraphs 1 through 30 of this Complaint as though fully set forth at length. 32. At no time did Plaintiff consent to physical contact or touching by Defendant Nelson. :3~ Plaintiff took no action to threaten Nelson nor did she do anything to justify the use of force in self-defense. 34- Plaintiff was at no time subject to arrest, nor did any defendant use force against her to effect a lawful arrest. 35. Defendant Nelson, without consent or privilege, illegally touched and injured the Plaintiff by viciously kicking her in the left shoulder with his foot, causing 7 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 99 of of 18 18 her to fall to the street. He further assaulted the Plaintiff by spraying her, at close range, in the eyes and face with a chemical weapon, mace or pepper spray. 36. Plaintiff sustained injury to her left shoulder, right side and her eyes as the result of the attack by Defendant Nelson . 37. Nelson caused bodily injury to the Plaintiff in that the unconsented physical contact resulted in pain and bruising, as well as eye irritation that persisted for approximately one week; Defendant Nelson's threat of more significant physical assault in the application of potentially lethal force in the form of a laser placed her in apprehension of imminent physical harm from another unconsented assault. 38. As the result of the assault committed by Nelson and the resulting injuries, and the attendant publicity and notoriety, Plaintiff suffered pain, shock, embarrassment and mental anguish, all of which are compensable. 39- The actions of Defendant Nelson were in violation of 18 Pa.C.S. §§ 2701 and 2702 in that the actions of Nelson constituted an attempt to cause serious bodily injury and/or were undertaken intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; and constituted an attempt to cause bodily injury to another. 40. Given that Defendant Nelson knowingly committed an illegal act, he is not entitled to any defense of official immunity pursuant to 42 Pa.C.S. § 8546. See Kuzel v. Krause 658 A2.d 856 (Pa.Cmwlth 1995). 8 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 10 10 of of 18 18 41. Nelson was aware that the use of excessive force against an individual not subject to arrest was unconstitutional. His use of force was not objectively reasonable since there was no reason for it and it was not justified by self-defense or the need to prevent flight. WHEREFORE, Plaintiff demands judgment in her favor and against Defendant Nelson in an amount in excess of the applicable limits for mandatory arbitration in Erie County, together with punitive and exemplary damages, prejudgment interest, costs of suit and such other and further relief as the Court deems just. TRIAL BY JURY01312 IS HERE_BY QEMANDED COUNT II - HANNAH SILBAUGH v. NELSON, SMITH, AND A'ITALLA -v ASSAULT AND BATTERY 42. Plaintiff incorporates herein by reference the averments of Paragraphs 1 through 30 as though fully set forth at length herein. 43. Nelson, Smith and Attalla acted in concert pursuant to an agreement and entered into a conspiracy, the object of which was to punish the Plaintiff for the exercise of her rights under the First and Fourteenth Amendments to the United States Constitution to petition for redress of grievances and because they were personally offended by her conduct and perceived lack of respect for the authority of the police. 44- In the course of the conspiracy, Defendants Nelson, Smith and Attalla jointly assaulted the Plaintiff with noxious chemical weapons, either mace or pepper spray, with the intent to deprive her of sight and with the intent to inflict great pain 9 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 11 11 of of 18 18 upon her. Further, in the course of said conspiracy, Nelson viciously kicked the Plaintiff in her left shoulder, causing pain and physical injury. 45- As the result of the aforesaid civil conspiracy, Plaintiff suffered the damages set forth above. 46. The actions of the Defendants, undertaken jointly, constitute willful misconduct, constitute a crime, and were motivated by actual malice on the part of the conspirators, were done in the disregard of the right of the Plaintiff and were intended to inflict injury and damage upon Plaintiff. The actions of the conspirators were outrageous, illegal and intentional, and beyond the scope of their employment and/or authority, thereby depriving Defendants of the defense of official immunity pursuant to 42 Pa.C.S. § 8546 or any other doctrine or statute. WHEREFORE, Plaintiff demands judgment in her favor and against Defendants Nelson, Smith and Attalla in an amount in excess of the applicable limits for mandatory arbitration in Erie County, together with punitive and exemplary damages, prejudgment interest, costs of suit and such other and further relief as the Court deems just. TRIAL BY JURY OF 12 IS HEREBY DEMANDED COUNT III _ HANNAH SILBAUGH v. MARC NELSON, DAVID SMITH, AND ANTHONY ATTALLA DEPRIVATION OF RIGHTS UNDER THE FIRST, FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION IN VIOLATION OF 42 U.S.C. § 1983 47- Plaintiff incorporates herein by reference the averments of the preceding Paragraphs as though fully set forth at length herein. 10 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 12 12 of of 18 18 48. The actions of Defendants Nelson, Smith and Attalla constituted an unreasonable seizure in violation of the Fourth and Fourteenth Amendments to the United States Constitution. 49 I The actions of Defendants Nelson, Smith and Attalla constituted a violation of the substantive Due Process rights guaranteed to Plaintiff by the Fourteenth Amendment. 50. The amount of force used by the Defendants was unnecessary and excessive, risking serious bodily injury to the Plaintiff. 51. At the time the Defendant conspirators physically attacked the Plaintiff with chemical weapons and a foot strike, they had no intention of arresting the Plaintiff or charging her with any criminal offense, as evidenced by the fact that they told her to leave the area after completing their assault and threatening Plaintiff with serious bodily injury or death through the use of a laser. 52. Defendants, at all times, were aware that the Plaintiff had a constitutional right to bodily integrity and that the use of excessive and unnecessary force violated Plaintiffs rights under the constitutional provisions aforesaid. 53. The actions of the Defendants were intentional and outrageous, were undertaken in retaliation for Plaintiffs exercise of her rights under the First Amendment to the United States Constitution, and justify an award of punitive damages. WHEREFORE, Plaintiff demands judgment in her favor and against Defendants, jointly, severally and individually, in an amount in excess of the applicable limits for 11 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 13 13 of of 18 18 mandatory arbitration in Erie County, together with punitive and exemplary damages, attorney's fees and expenses of litigation and such other and further relief as the Court deems just. TRIAL BY JURY QF 8. Is HEREBY DEIMNDED COUNT IV HANNAH SILBAUGH v. DANIEL SPIZARNY, JOSEPH SCHEMBER AND CITY OF ERIE - VIOLATION OF RIGHTS GUARANTEED BY THE FIRST, FOURTH AND FOURTEENTH AMENDMENTS TO THE ` UNITED STATES CONSTITUTION 42 U.s.c. § 1983 INADEQUATE TRAINING, CONTROL AND SUPERVISION 54- Plaintiff incorporates herein by reference the preceding averments of this Complaint as though fully set forth at length. 55. In a news conference on June 15, 2020, the City of Erie, through its Mayor Joseph V. Schember and Chief of the Erie Bureau of Police, Defendant Daniel Spizarny, gave a press conference. 56. During that press conference, Defendant Schetnber stated that the actions of Defendant Nelson were undertaken in compliance with "approved police procedure." To date, however, despite requests, Defendants have failed and refused to identify the particular procedure justifying physical assault on a seated individual posing no threat to the police officer in question. 57. To the extent that "approved police procedure" of the city of Erie permits a police officer to viciously attack an individual exercising her constitutional right to protest police violence who is not being arrested and who poses no threat with mace, 12 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 14 14 of of 18 18 pepper spray and foot strikes, said procedure is violative of the First, Fourth and Fourteenth Amendments to the United States Constitution. 58. Further, the City of Erie Bureau of Police, with the knowledge of Defendants Spizarny and Schember, who have the power to control the actions of the Bureau, engages in a pattern and practice of excessive force as evidenced by the significant number of lawsuits filed against the City and its police officers for the use of excessive force and the large number of notorious instances where Erie bureau of Police officers have been video recorded physically abusing arrestees and other persons. The use of excessive force occurs with sufficient frequency to constitute an official policy or custom. 59- The official police policies of the City of Erie should not authorize, permit or justify the use of excessive force to control individuals who are not in the process of being arrested or who are not threatening to commit crimes of violence. Despite this, the City has interpreted its policies to permit such actions. 60. The City has failed to train its officers, including Nelson, Smith, and Attalla, in the appropriate use of force in non-arrest situations. 61. Given the lack of appropriate training of its police officers, it is highly predictable that officers will engage in the unconstitutional use of excessive force in non-arrest situations. 62. In fact, in the June 15th press conference, the City admitted that its training was inadequate in that it self-imposed a remedy of "sensitivity training" for all 13 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 15 15 of of 18 18 Bureau of Police officers, including Nelson, Smith and Attalla intended to reduce or eliminate further instances of excessive force. 63. As a direct and proximate result of the failures of the Defendants, City of Erie, Schember and Spizarny to adequately train the members of the Bureau of Police, and to permit, and permit to continue, a pattern or practice of excessive force by those officers, Plaintiff suffered the injuries and damages set forth above. WI-IEREFORE, Plaintiff demands judgment in her favor and against Defendants, jointly, severally and individually, in an amount in excess of the applicable limits for mandatory arbitration in Erie County, together with punitive and exemplary damages, attorneys fees and expenses of litigation and such other and further relief as the Court deems just. TRLAL BY JURY 018 12 1.S_HEREBY D8MAr.qDEN COUNT V - HANNAI1 SILBAUGH vs. CITY OF ERIE DECLARATORY AND INJUNCTIVE RELIEF 64. Plaintiff incorporates by reference the preceding paragraphs of this Complaint as though Fully set forth at length. 65, Plaintiff is entitled to a declaration that the City of Erie Bureau of Police engages in a pattern or practice of excessive force police violence in violation of the First, Fourth and Fourteenth amendments to the United States Constitution . 66. Plaintiff is entitled to an injunction against the City of Erie mandating that it reform its police practices, remedy the deficient training of its police force, enforce policies for the protection of the residents and others who may be in the City, and 14 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 16 16 of of 18 18 enforce policies regarding the use of force that exclude violence against persons not subject to arrest and who do not pose a threat. WHEREFORE, Plaintiff respectfully demands that this Court make such declaration and issue a permanent injunction as set forth above. Respectfully submitted, I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and documents . (Q ' \ MCNAIR LAW OFFICES, PLLC -\~. Timothy D. ~W\J\» c air, Esquire 821 State Street Erie, PA 16501 (814) 452-0700 (814) 454-2371 (fax) Y Timothy D, McNair, Esquire tmcnair@mcnairlaw.com 15 Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 17 17 of of 18 18 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SI LBAUGH, p la iwff CIVIL ACTION - LAW v. Case N0.:11247-2020 MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCI-IEMBER, and CITY OF ERIE, Defendants JURY TRIAL DEMANDED VERIFICATIQN I, HANNAH SILBAUGH, verify that the facts set forth in the within the Complaint are true and correct to the best of my knowledge, information and belief. I .understand that The statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Hannah Silbaugh Date : o`/2)\1207.0 I Case Case 1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-10 1-9 Filed Filed 08/27/20 08/27/20 Page Page 18 18 of of 18 18 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION ... LAW Plaintiff v. Case N0.:11247~2020 MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants JURY TRIAL OF 12 DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Complaint was served via electronic mail on this 12th day of August, 2020 : G. Michael Garcia, II, Esquire via email gmgarcia@mdwcg.com Paul D. Krepps, Esquire via email pdkr'epps@mdwco.com _ Marshall Dennehey Warner Coleman & Goggin Marshall Dennehey Warner Coleman & Goggin 717 State Street, Suite 701 717 State Street, Suite 701 Erie, PA 16501 Erie, PA 16501 Respectfully submitted, MCNAIR LAW OFFICES, PLLC By:< Timothy D. McNair, Esquire Pa. ID#34304 821 State Street Erie, PA 16501 (814) 452-0700 (814) 454-2371 tmcnair@mcnairlaw.com Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-11 1-10 Filed Filed08/27/20 08/27/20 Page Page11ofof55 r IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff CIVIL ACTION ... LAW V. Case No.: 11247-2020 of"9?' :1:a*"T1 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants C>_,, .._,,x :flea CJ zz an > at ~»»4 _.<:v 41 8° as 8" go :1- "to" G .1 "I CI? r-. gr: .».'32-v r*1 frIn i n "Et.3¢.. so w \"'J CE? c;':: $3 I MOTION TO AMEND CAPTION NOW COMES the Plaintiff, Hannah Silbaugh, by counsel and, pursuant to Pa.R.C.P. 2005(c), moves for amendment of the caption in this action, respectfully representing : 1. This was commenced via Writ of Summons naming John Doe 1, John Doe 2, John Doe 3, John Doe 4 and John Doe 5 as Defendants, 2. After pre-Complaint discovely, Plaintiff has learned the following: a. John Doe 1 is Marc Nelson; b. John Doe 2 is David Smith; and c. John Doe 3 is Anthony Aiitalla. d. The identities of John Does 4 and 5 remain unknown at this time. 3. Defendants, through counsel, do not object to this motion . WI-IEREFORE, Plaintiff respectfully moves the Honorable Court to amend the caption in the above-captioned matter to read as follows: EXHIBIT t 4 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-11 1-10 Filed Filed08/27/20 08/27/20 Page Page22ofof55 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff CIVIL ACTION .. LAW v. Case N0.:11247-2020 JURY TRIAL OF 12 DEMANDED MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants Respectfully submitted, I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and documents. lo Timothy D. McNair, Esquire MCNAIR LAW OFFICES, PLLC B R Mm .M Timothy D. McNair, Esquire 821 State Street Erie, PA 16501 (814) 452-07()O (814) 454-2371 (fax) tmcnair@mcnairlaw.com Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-11 1-10 Filed Filed08/27/20 08/27/20 Page Page33ofof55 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff CIVIL ACTION - LAW v. Case No.: 112474020 JOHN DOE 1> JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants ORDER AND NOW to wit, this day of August, 2020, upon consideration of foregoing Stipulation to Amend Caption, it is ORDERED that said Motion shall be, and is hereby GRANTED. The Prothonotary is directed to amend the caption in this matter to read as follows: Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-11 1-10 Filed Filed08/27/20 08/27/20 Page Page44ofof55 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION * LAW Plaintiff v. Case No.: 11247-2020 JURY TRIAL OF 12 DEMANDED MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants BY THE COURT John J. Mead, J. Cc: Timothy D. McNair, Esquire G. Michael Garcia, Esquire Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-11 1-10 Filed Filed08/27/20 08/27/20 Page Page55ofof55 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff v. Case N0.:1124'7-2020 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JQHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants JURY TRIAL OF 12 DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Motion to Amend Caption was served via electronic mail on this 12th day of August, 2020 : G. Michael Garcia, II, Esquire via email gmgarcia@mdwcg.com Paul D. Krepps, Esquire via email pdlcrepps@mdweg.com Marshall Dennehey Warner Coleman & Goggin Marshall Dennehey Warner Coleman & Goggin 717 State Street, Suite 701 717 State Street, Suite 701 Erie, PA 16501 Erie, PA 16501 Respectfillly submitted, MCNAIR LAW OFFICES, PLLC By: Timothy D. McNair, Esquire Pa. ID#34304 821 State Street Erie, PA 16501 (814)452-0700 (814)454'2371 tmcnair@mcnairlaw.com Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-12 1-11 Filed Filed08/27/20 08/27/20 Page Page11ofof22 W 8' 'i'§§§f I IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA r r \ 1, • 9 HANNAH SILBAUGI-I, . I Flaintiff CIVIL ACTION - LAW U I l V u I I I Case No.: 11247-2020 \ . MARC NELSQKJ, -DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants I • JURY TRIAL OF 12 DEMANDED . Q i c fe) .4 l I J -J :Tig I I is I 1 **"\II iv .,.- .rx f I I, BY T \ " Ur w.*w -» C URT lo l\J U1 I John J. Mead, J. Cc: Timothy D. McNair, Esquire 92?1l/Iichael Garcia, Esquire f 4 \ 6 \ *u EXHIBIT s Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-12 1-11 Filed Filed08/27/20 08/27/20 Page Page22ofof22 4.-. Q, s ,{ _- s v \ 1 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff CML ACTION w LAW \1 v. Case No.: 11247-2020 JOHN DOE 1; JOHN DOE 27 JOHN DOE 3, JOHN DOE4;»JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants $'-J "W Ing 11 r,_. Q .. 1 ( "8 =r5 ---¢ xv <.'TT.> . ,4 AND now to at, this l8 II \I . N I " L ....... --* day of August, 2020, upon considégjatimry of foregoing Stipulation to Amend Caption, it is ORDERED that said Motion shall be, and is hereby GRANTED . The Prothgnotary is directed to amend the caption in this matter to read as follows : K l. : 'i w ,.. ~...:1 --..i' ' .'v\ ORDER »: Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page11ofof71 71 Case No: 11247 2020 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff, CIVIL ACTION * LAW Case No: 11247 2020 v. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants. NOTICE OF FILING OF PETITION FOR REMOVAL FROM A CIVIL ACTION Filed on Behalf of Defendants MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND CITY OF ERIE, only Counsel of Record for this Party: PAUL D. KREPPS, ESQUIRE PA I.D. No. 73038 pdkrepps@mdwcg.com MARSHALL DENNEHEY WARNER COLEMAN & GOGCIN Union Trust Building, Suite 700 501 Grant Street Pittsburgh, PA 15219 412/803-1140 412/803-1188-Fax EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page22ofof71 71 Case No: l 1247 - 2020 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HANNAH SILBAUGH, Plaintiff, Case No: 11247 - 2020 v. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants. NOTICE OF FILING OF PETITION FOR REMOVAL FROM A CIVIL ACTION 1. Pursuant to 28 U.S.C. § 1446, you are hereby notified that the Defendants in the above-captioned action have, on this date, filed a Petition for Removal of this action from the Court of Common Pleas of Erie County, Pennsylvania, to the United States District Court for the Western District of Pennsylvania. A copy of Petition for Removal is attached hereto as Exhibit cc 19)0 Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: /4»-m-w, PAUL D. KREPPS, ESQUIRE PA I.D. #73038 Counsel for above-named Defendants, Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page33ofof71 71 Case No: 11247 - 2020 CERTIFICATE OF COMPLIANCE I certify that this filing complies with the provisions of the Public Access Policy of the Unu'ied Judicial System of Pennsylvania.' Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. Submitted by: Paul D. Krepps, Esquire Signature : MUM Name: Paul D. Krepps, Esquire Attorney No. (if applicable): #73038 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page44ofof71 71 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HANNA SILBAUGH, ) ) v. ) ) MARC NELSON, DAVID SMITH, ANTHONY ) ATTALLA, JOHN DOE 4, JOHN DOE 5, ) DANIEL SPIZARNY, JOSEPH V, SCHEMBER ) AND THE CITY OF ERIE, ) ) Defendants, ) Plaintiff, Civil Action No : Electronz'ca[ly Filed PETITION FOR REMOVAL FROM A CIVIL ACTION AND now, come Defendants, MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, DANIEL SPIZARNY, JOSEPH V. SCHEMBER AND THE CITY OF ERIE, by and through their counsel, Marshall, Dennehey, Wamer, Coleman & Goggin and PAUL D. KREPPS, ESQUIRE and file the within Petition for Removal of a Civil Action from the Court of Common Pleas of Erie County, Pennsylvania, to the U.S. District Court for the Western District of Pennsylvania, representing as follows: l. Plaintiff filed a Praecipe for a Writ of Summons on June 22, 2020, captioned as "Hannah Silbaugh vs. John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, Daniel Spizamy, Joseph V. Schember and the City of Erie, Defendants, at Docket Number: 11247-2020. A true and correct copy of the Praecipe for Writ of Summons is attached hereto and marked as Exhibit ccAaa EXHIBI Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page55ofof71 71 2. Plaintiff also filed a Notice of Service of Discovery in Aid of Preparation of a Complaint upon Defendant, City of Erie, attached hereto and marked as Exhibit "B". 3. See attached hereto a true and correct copy of the Court of Common Pleas of Erie County Docket as marked as Exhibit "C". 4. The Sheriffs Return of Service indicated that the Praecipe for Writ of Summons and Intenogatories and Requests for Production of Documents directed at the Defendant, City of Erie, were both served on June 23, 2020 at 4:00 p.m. See attached hereto a true and correct copy of the Sheriffs Return of Service marked as Exhibit "D". 5. In response, Defendants filed and served the following documents on Plaintiff: a. Rule to File Complaint marked as Exhibit "E", b. Motion for Protective Order marked as Exhibit "F", and c. Brief in Support of Motion for Protective Order marked as Exhibit "G". 6. The Honorable John J. Mead, Judge of the Court of Common Pleas of Erie County, entered an Order directing Plaintiff to file a Response to Defendants' Motion for Protective Order within ten days. See attached hereto a true and correct copy of Judge Mead's Order marked as Exhibit MHZ 7. Plaintiff then filed the following documents with the Court: a. Civil Complaint marked as Exhibit "I", and b. Motion to Amend Caption marked as Exhibit "J". 2 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page66ofof71 71 8. Judge Mead entered an Order granting Plaintiffs Motion to Amend the Caption atTached hereto and marked as Exhibit "K". 9. Upon review of the Complaint, it is clear that jurisdiction in this matter lies with this Court as, inter alia, Plaintiff alleges in Count III of the Complaint (Paragraphs 47 through 53) that the Defendant Police Officers violated her First, Fourth and Fourteenth Amendment Rights regarding unreasonable seizure, substantive due process and excessive force. See Exhibit "I" at Paragraphs 47 - 53 . 10. In addition, Plaintiff alleges in Count IV that Chief Spizamy, Mayor Schember violated her First, Fourth and Fourteenth Amendment Rights which are in the nature of a Mane!! claim. See Exhibit "H" at Paragraphs 54 -- 63 . 11. This Court therefore has original jurisdiction of PlaintifFs claims pursuant to 28 U.S.C. §1331 and 28 U.S. C. § 1343. 12. This action is thereby removed to this Could pursuant to the procedures authorized by 28 U.S.C. § 1441 and is removed within the time permitted under 28 U.S.C. § 1446. 13. Notice of the filing of the Removal has been provided this same date to Plaintiffthrough her counsel as well as the Court of Common Pleas of Erie County, Pennsylvania. See attached hereto a true and correct copy of the Notice of Filing of Petition for Removal marked as Exhibit g;14959 WHEREFORE, Defendants, MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND THE CITY OF ERIE, 3 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page77ofof71 71 respectfully request this Honorable Court to remove the above-captioned action pending in the Court of Common Pleas of Erie County, Pennsylvania, at Case Number: I 1247-2020 to the United States District Court for the Western District of Pennsylvania. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN , D //7 BY: PAUL D. KREPPS, ESQUIRE PA ID #73038 pkrepps@mdwcg.com Counsel for above-named Defendants Union Trust Building, Suite 700 501 Grant Street Pittsburgh, PA 15219 (412) 803-1149 // (412) 803-1188 fax 4 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page88ofof71 71 CIVIL COVER SHEET JS 44 (Rev. 02/19) The JS 44 civil cover sheet and the information contained herein.neither rplacc nor supplement the filjn and service of plcadings or other papers as required by law, except as , . , rules of court. This form, approved by the Judlclal Con erencc of the n1\ed States m eplember 1974, IS rcqulred for the use of the jerk ofCoual for the provided by. local purpose of lnltlatlng the civil docket sheet. (SEE INSTRI./C77ONS ON NEXT PAGE of 77-IIS FORM) .. I. (8) PLAINTIFFS DEFENDANTS Marc Nelson, David Smith, Anthony Attalla, Daniel Spizarny, Joseph V. Schember and City of Erie Hanna Silbaugh .Erie County (b) County of Residence of First Listed Plaintiff' County of Residence of First Listed Defendant (EXCEPT IN L/.s. PLAINTIFF CASE$ NOTE: (C) A Attorneys (Firm Nu/ne, Address, and Yblep/ione Number) II. BASIS OF JURISDICTION (Place an "X" in One Box Only) D 2 U.S.Governm¢n! Plaintiff 53 U.S. Govcnuncm Defendant D 4 I K » Union Trust Building, Suite 700, 501 Grant Street Pittsburgh, PA 15219 111. CITIZENSHIP OF PRINCIPAL PARTIES (Place GN "X" in One Box for l'laiv!{H (Fur Diversity Cases Only) PTF Citizen of This Stale 8 1 Federal Question (US Government Nu/ n Parry) Diversity (Imlica/e Cltlzenx/lip 0/Parliex in I/em Ill) CONTRACT ' UH4IPR aPER l v 'W 210 Land Condemnation 220 Foreclosure 7 230 Rent Lease & Ejcctment - 240 Tons to Land 'I 245 T011 Product Liability 290 All Other Real Property PERSONAL INJURY 310 Airplane 315 Airplane Product Liability ' 320 A ;Sault, Libel W Slander ' 330 Federal Employers' Liability " 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 'l 360 Other Personal Injury - 362 Personal Injury Medical Malpractice Jcrvn; H I £: HTS I 440 l' F:r Civil Rights 1 441 Voting "I 442 Employment 443 Housing/ A :commodulions ' 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other * 448 Education V. ORIGIN (Place an "X" in One Bax Only) Original M2 Removed from D Incorporated and Principal Place of Business In Another Stale B 2 D Citizen or Subjeci of a Foreign Country o 3 0 3 Foreign Nation PERSONAL INJURY I 365 Personal injury Froduci Liabiliiy ` 367 Hcalth Cure/ Pharmaceutical Personal Injury Product Liability * 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY - 370 l her Fraud 'I 371 Truth in Lending * 380 Other Personal Property Damage - 385 Property Damage Product Liability ,QFORFEITURE/PENALTY.. D 625 Drug Relater Seizure of Property 21 USC 88 l 0 690 Other P I is NEW a :PETMONS*.» 'l 790 I- :r Labor Litigation " 791 Employee Reiirelnent 870 Taxes (U.S. Plainli * H abets Corpus: or Dcfcndam) Income Security Act ' 463 Alien Delaines 871 IRS-Third Party 510 Motions to Vacate 26 USC 7699 Sentence 530 I»:neral 535 Des 1- Penalty ".,He»IM]GR}ST] r' 'u . 462 Naturalization Application H then: 465 Other Immigration 540 Mandamus & Other * 550 Civil rights Actions 555 Prison Condition 560 Civil Delaines .. Conditions of Confinement Remanded from Appellate Court DEF 04 D S D 5 D 6 D 6 OTHER STATUTES , D 4 Reinstated or Reopened D 8 Multidistrict Lmgatzon .. Direct File 28 USC Section 1331 and 28 USC Section 1343 Brief description of cause: First, Fourth and Fourteenth Amendments DEMAND $ r:1 CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P, COMPLAINT: VIII. RELATED CASE(S) (See im-!rlrcJfon.\j: IF ANY JUDGE DATE August 27, 2020 CHECK YES only if demanded in complaint: JURY DEMAND: DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD s/ Paul D. Krepps, Esquire FOR OFFICE USE ONLY RECEIPT # PTF U4 D 375 False Claims As D 376 Qui Tam (31 USC 3729(8)) 400 State Reapponioulnenl 410 Aniimlsl 430 Banks and Banking 450 Commerce 460 Deportation 470 Rzlckciccr Inf3uenc¢d and Comlpt Organizations 480 Consumer Credit 485 Telephone Consumer Protection Act 490 Cable/Sa1 TV 850 Securities/Commcditics/ Exchange 890 Odlcr Statutory Actions 89] Agricultural Acts 893 Environmental v matters 895 Freedom oflnfonnation Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of` Agency Decision 'W 950 Constitulionali 1. of Stale Stalulcs U 5 Transferred from D 6 Multidistrict Lmtigation Another District Transfer (WWW) Cite the U,S. Civil Statute under which you are filing (Do not cirejzarzWicrin/sal slnrnlar uvulars diversity): D 1 Proceeding 2 Incorporated or Principal Place oflBllsiness In This Stale Click here for: Mature of Suit Code Descrip_tions. JTORTS . I 10 Insurance - 120 Marine 130 Miller Ac: 'I 140 Negotiable lnsmlmem ' 150 Recovery of Ovcrpaylncn! & Enforcement ofJudgmcllt 151 Medicare Act '1 152 Recovery of Dcfaulted Student Loans (Excludes Veternns) 'w 153 Recovery of Ovcrpaylncnt of Vclcran's Benefits 160 Stockholders' Suits "1 190 Other Contract 195 Contract Product Liability 196 Franchise auf/ One Bnxfor Dcfclldanu DEF 94 I Citizen of Another Slate IV. NATURE OF SUIT (Place an "X" in One Box Only) 1. > pa63°BT°¥€r&/p;3§': Esquire (Phone: 412-803-1140) Timothy D. Mcnair, Esquire (Phone: 814-452-0700) 821 State Street, Erie, PA 16501 D l Erie County (IN us PLA/N77FI=CASL~'S ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. AMOUNT APPLYING IFP JUDGE MAG, JUDGE D Yes No Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page99ofof71 71 JS 44A REVISED June, 2009 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA THIS CASE DESIGNATION SHEET MUST BE COMPLETED PART A This case belongs on the ( Erie Johnstown O Pittsburgh) calendar, 1. ERIE CALENDAR - If cause of action arose in the counties of Crawford, Elk, Erie, Forest, McKean. Venang or Warren, OR any plaintiff or defendant resides in one of said counties 2. JOHNSTOWN CALENDAR - If cause of action arose in the counties of Bedford, Bl ai r, Cambria, Clear field or Somerset OR any plaintiff or defendant resides in one of said counties . 3. Complete if on ERIE CALENDAR: I cer if y that the cause of action arose in_ County and that the resides in County. 4. Complete if on JOHNSTOWN CALENDAR: I certify that the cause of action arose in County and that the resides in _County. PART B (You are to check ONE of the following) 1. 2. O This case is related to Number . Short Caption This case is not related to a pending or terminated case. ® L DEFINITIONS OF' RELATED CASES : CIVIL: Civil cases are deemed related when a case filed relates to property included in another suit or involves the same issues of fact or it grows out of the same transactions as another suit or involves the validity or infringement of a patent involved in another suit EMINENT DOMAIN: Cases in contiguous closely located groups and in common ownership groups which will lend themselves to consolidation for trial shall be deemed related. HABEAS CORPUS &CIVIL RIGHTS: All habeas corpus petitions filed by the same individual shall be deemed related. All pro se Civil Rights actions by the same individual shall be deemed related. PARTC 1. C1V;L CATEGORY (Select the applicable category). Antitrust and Securities Act Cases 1. 2. Labor-Management Relations Habeas corpus 3. 4. Civil Rights 5. Patent, Copyright, and Trademark 6. Eminent Domain 7. All other federal question cases 8. All personal and property damage tort cases, including maritime, FBLA, Jones Act, Motor vehicle, products liability, assault, def amation, malicious prosecution, and f also arrest 9. O Insurance indemnity, contract and other diversity cases. 10.0 Government Collection Cases (shall include HEW Student Loans (Education), V A Overpayment, Overpayment of Social Security, Enlistment overpayment (Army, Navy, etc.) , HUD Loans, GAO Loans (Misc. TYQQSM Mortgage Foreclosures, SBA Loans, Civil Penalties and Coal Mine Penalty and Reclamation Fees.) O 0 ® O O 0 O I cer tif y that to the best of my knowledge the entries on this Case Designation Sheet are true and correct s/ Paul D. Krepps, Esquire Date August 27, 2020 ATTORNEY AT LAW NOTE! ALL SECTIONS OF' BOTH FORMS MUST BE COMPLETED BEFORE CASE CAN BE PROCESSED. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page10 10ofof71 71 IS 44 Reverse (Rev. 02/19) INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk oflCourt for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) (b) (0) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a govcmment agency, use only the full name or standard abbreviations. If the plaintiff oi* defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of tiling. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis ofjurisdiction, precedence is given in the order shown below. United States plaintiff. (I) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiffs suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box l or 2 should be marked, Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties arc citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. Iv. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature oIISuit Code Descriptions. v. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Count, (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. Remanded from Appellate Court, (3) Check this box For cases remanded to the district court for further' action. Use the date of remand as the filing date, Reinstated or Reopened. (4) Check this box for cases reinstated Of reopened in the district court. Use the reopening date as the filing date. Transferred from Another District, (5) For cases transferred under Title 28 U.S.C. Section l404(a). Do not use this for within district transfers or Multidistrict litigation transfers. Multidistrict Litigation - Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation _ Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue. VI. Cause of Action. Report the civil 0tamte directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity, Example: U.S. Civil Statute: 47 USC 553 BrieflDescription: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand, In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. vm. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, inscN the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page11 11ofof71 71 GGHMUN PLEAS COURF ERIE. PA IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA ZN 2020 JUN 22 PH l2= 14 HANNAH SILBAUGH, Plaintiff CLLEQI so 55C0983 PRGTHUHOTARY CIVIL ACTION -. LAW v. Case No.: 11497 -2020 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons in Civil Action against the above-named Defendants on behalf of the Plaintiff in the above captioned matter. Respectfully submitted, I certify that this Filing complies with the prmdsions of the Case Records Public Access Policy of the Unified Judicial stem of Pennsylvania that require tiling confidential information and documents diHerently than non-con8dential information and do it s . 82v-J\' Timothy D. McNair, Esquire MCNAIR LAW OFFICES, PLLC J\, \ R, 1, By: 1 Tim thy D. McNair, Esquire 821 State Stream Erie, PA 16501 (814)452-0700 (814) 454-2371 (fax) tmcnair@mcnairlaw.com EXHIBIT M - l . Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page12 12ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILLBAUGH, Plaintiff CIVIL ACTION _ LAW v. <": Case No.:l I5247 -2020' 8u J' ;.' CJ Ur ...,>~ .'££Q;> o-11 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants CJ , C 'J c5> 7. W -< 3.1 1; J (,=\ 3% K a c.. or CJ WWI »\.}v-1̀.J c z N N mr' 9 1'9 as *up .x/g'> T? 01 Ca) CO co ICO 9 4-tv anlll nofrlcs OF SERVICE QF DISQQVERY IN Am QF PREPARATIQN ore GOMPLAINT Take notice THAT, ON THE 22d day of June, 2020, Plaintiff, Hannah Silbaugh, served Discovery Requests in Aid of Preparation of a Complaint upon Defendant, City of Erie, consisting of Interrogatories 1 through 4 and Requests for Production of Documents 1 through 5, by Hand Delivery upon Edward Betza, Esquire, Counsel for the Defendant City of Erie. Respectfully submitted, MCNAIR LAW OFFICES, PLLC By: . K 81 ¢v» * Timothy D. McNair, Esquire 821 State Street Erie, PA 16501 (814)452-0700 (814)454-2371 (fax) , tmcnair@mcnairlaw.com f EXHIBIT I Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page13 13ofof71 71 11191408262020 PYSPRT Page Erie County Prothonotary Case No........... 2020-11247 HANNAH SILBAUGH (vs) JOHN DOE no. 1 Filed.......... Reference No Time........... Case Type......... TORT - INTENTIQNAL Execution Date. Judgment. S .00 Jury Trial.... MEAD JOHN J Judge Assigned Disposed Date.. Disposed Desc . Higher Crt 1,.. Higher cut 2... Case Comments 1 8/26/2020 Civil Case Detail Report 6/22/2020 10:53 0/00/0000 0/00/0000 *****************************************************v\'*********1k*****************~k******** lndeqged Party ++ GENERAL INDEX ++ PLAINTIFF SILBAUGH HANNAH A;§9rney Init MCNAIR TIMOTHY D, ESQ SELF 821 STATE ST ERIE, PA l 6501 DOE JOHN 1 DEFENDANT DOE JOHN 2 DEFENDANT DOE JOHN 3 DEFENDANT DOE JOHN 4 DEFENDANT DOE JOHN 5 DEFENDANT SPIZARNY DANIEL DEFENDANT KREPPS PAUL D, ESQ UNION TRUST BUILDING 501 GRANT ST, SHE 700 PITTSBURGH, PA 15219 GARCIA G MICHAEL, ESQ 717 STATE ST SUITE 701 ERIE, PA 16501 SCHEMBER JOSEPH V DEFENDANT KREPPS PAUL D, ESQ UNION TRUST BUILDING 501 GRANT ST, STE 700 PITTSBURGH, PA 15219 GARCIA G MICHAEL, ESQ 717 STATE ST SUITE 701 ERIE, PA 16501 ERIE CITY DEFENDANT KREPPS PAUL D, ESQ UNION TRUST BUILDING 501 GRANT ST, STE 700 PITTSBURGH, PA 15219 GARCIA G MICHAEL, ESQ 717 STATE ST SUITE 701 ERIE, PA 16501 NELSON MARC DEFENDANT SMITH DAVID DEFENDANT ATTALLA ANTHONY DEFENDANT ********+*+***************~k****+*******++****************************************++******* Date 6/22/2020 Entry Text ++ DOCKET ENTRIES ++ --- ..~ - FIRST ENTRY CAPTION; HANNAH SILBAUGH vs. JOHN DOE 11 JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, AND CITY OF ERIE 6/22/2020 CIVIL COVER SHEET FILED. 6/22/2020 PRAECIPE FOR WRIT OF SUMMONS F/TIMOTHY D MCNAIR, ESQ. I W/CERT OF COMPLIANCE 1 Image paqe(s) exists for this entry EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page14 14ofof71 71 11191408262020 PYSPRT Case No........... 2020-11247 Page 2 8/26/2020 Erie County Prothonotary Civil Case Detail Report HANNAH SILBAUGH (vs) JOHN DOE no. 1 Reference No Case TyPe......... TORT -. INTENTIONAL Judgment.......... S . 00 MEAD JOHN J Judge Assigned Disposed Desc..... Case Comments Filed.......... Time. Execution Date. Jury Trial. _ .. Disposed Date.. Higher Cr t 1 ... Higher Crt 2 ... 1 Image page(s) exists for this entry 6/22/2020 NOTICE OF SERVICE OF DISCOVERY IN AID OF' PREPARATION OF A COMPLAINT UPON DEFT CITY OF ERIE ON 6/22/20 BY HAND DELIVERY UPON EDWARD BETZA, ESQ., COUNSEL FOR THE DEFT CITY OF ERIE F/TIMOTHY D MCNAIR, ESQ. 1 Image pag@(s) exists for this entry 6/22/2020 PRAECIPE FOR WRIT OF SUMMONS F/TIMOTHY D MCNAIR, ESQ., w/CERT OF COMPLIANCE ** CORRECTING SPELLING IN CAPTION ** 1 Image page(s) exists for this entry 6/22/2020 WRIT OF SUMMONS ISSUED. 6/24/2020 SHERIFF'S FILE RETURNED TO PROTHONOTARY'S OFFICE, FILED. CASE TYPE.: WRIT OF SUMMONS RET TYPE; REGULAR LITIGANT. : CITY OF ERIE ADDRESS...: 626 STATE STREET CITY/ST/ZIP: ERIE, PA 16501 HND TO....: CHRISTINA SCHAFFER, CITY OF ERIE CLERK/A1 SHF/DPTY..I SABASTIAN CHRZANOWSKI DATE/TIME.: 6/23/20 @ 1600 COSTS. , $88.00 3 Image page(s) exists for this entry 7/01/2020 PRAECIPE FOR ENTRY OF APPEARANCE ON BEHALF OF DANIEL SPIZARNY, JOSEPH v. SCHEMBER, AND CITY OF ERIE F/PAUL D KREPPS, ESQ W/CERT OF COMPLIANCE AND CERT OF SERVICE 4 Image page(s) exists for this entry 7/16/2020 PRAECIPE FOR ENTRY OF APPEARANCE ON BEHALF OF DEFENDANTS, DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND CITY OF ERIE, ONLY. F/G. MICHAEL GARCIA, II., ESC W/CERT OF SERVICE AND CERT OF COMPLIANCE 3 Image page(s) exists for this entry 7/16/2020 MOTION FOR PROTECTIVE ORDER ON BEHALF OF DEFENDANTS, DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND CITY OF ERIE, ONLY F/PAUL D. KREPPS, ESQ. AND G. MICHAEL GARCIA 11, ESQ. W/EXHIBITS A & B, CERT OF SERVICE, CERT OF COMPLIANCE AND PROPOSED ORDER OF COURT 16 Image page(s) exists for this entry 7/16/2020 BRIEF' IN SUPPORT OF MOTION FOR PROTECTIVE ORDER ON BEHALF OF DEFENDANTS, DANIEL SPIZARNEY, JOSEPH v. SCHEM8ER AND CITY OF ERIE, ONLY F/PAUL D. KREPPS, ESQ. AND G. MICHAEL GARCIA II, E80 W/CERT OF COMPLIANCE AND CERT OF SERVICE 8 Image page{s) exists for this entry 7/16/2020 NOTICE OF SERVICE OF DEFENDANT'S RESPONSES TO PLAINTIFF'S FIRST SET OF DISCOVERY UPON ALL COUNSEL OF RECORD AND UNREPRESENTED PARTIES, ELECTRONICALLY OR BY MAILING SAME TO THEM AT THEIR DESIGNATED OFFICES BY FIRST CLASS U.S. MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE AI THEIR RESPECTIVE OFFICES, ON 7/16/20: TIMOTHY MCNAIR, ESQ., 821 STATE ST, ERIE, PA 16501. E/PAUL D. KREPPS, ESQ. W/CERT OF CQMPLIANCE 2 Image page(s) exists for this entry 7/16/2020 PRAECIPE FOR RULE TO FILE COMPLAINT UPON PLAINTIFF, HANNAH SILBAUGH F/PAUL D. KREPPS, ESQ. AND G. MICHAEL GARCIA II., ESQ. W/CERT OF SERVICE AND CERT OF' COMPLIANCE 4 Image page(s) exists for this entry 7/17/2020 RULE TO FILE COMPLAINT MAILED TO G. MICHAEL GARCIA, 11., ESQl Image page(s) exists for this entry 1 Image page(s) exists for this entry 6/22/2020 10:53 0/00/0000 0/00/0000 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page15 15ofof71 71 Page Erie County Prothonotary Civil Case Detail Report 11191408262020 PYSPRT Case No........... 2020-11247 HANNAH SILBAUGH (VS) JOHN DOE NO. 1 Filed.......... Time........... Execution Date. Jury Trial.... Disposed Date.. Higher Crt 1 ... Higher Crt 2... Reference No Case Type......... TORT .- INTENTIONAL Judgment. S . 00 Judge Assigned MEAD JOHN J Disposed Desc..... Case Comments 7/20/2020 ORDER DTD 7/20/20, IT IS HEREBY ORDERED THAT PLTF SHALL FILE A RESPONSE TO DEFTS' MOTION FOR PROTECTIVE ORDER WITHIN 10 DAYS » S/JOHN J MEAD, JUDGE **RULE 236 NOTICE PROVIDED ON 7/20/20** l Image page(s) exists for this entry 8/12/2020 CAPTION CHANGE: HANNAH SILBAUGH vs. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, AND CITY OF ERIE 8/12/2020 MOTION TO AMEND CAPTION ON BEHALF OF PLTF F/TIMOTHY D. MCNAIR, ESQ W/CERT OF COMPLIANCE, PROPOSED ORDER, AND CERT OF SERVICE for this entry 5 Image page(s) exists ' 8/12/2020 ORDER DTD 8/12/20, UPON CONSIDERATION OF FOREGOING STIPULATION TO AMEND CAPTIQN, IT IS ORDERED THAT SAID MOTION SHALL BE, AND IS HEREBY GRANTED. THE PROTHONOTARY IS DIRECTED TO AMEND THE CAPTION IN THIS MATTER TO READ AS FOLLOWS: HANNAH SILBAUGH VS. MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4/ JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, AND THE CITY OF ERIE. S/JOHN J. MEAD, JUDGE (RULE 236 NOTICE PROVIDED ON 8/12/20) 2 Image page(s) exists for this entry 8/12/2020 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, AND FOR DAMAGES COUNTS I - V, IN AN AMOUNT IN EXCESS OF THE APPLICABLE LIMITS FOR MANDATORY ARBITRATION IN ERIE COUNTY, TOGETHER WITH PUNITIVE AND EXEMPLARY DAMAGES, PREJUDGMENT INTEREST, COSTS OF SUIT AND SUCH OTHER AND FURTHER RELIEF As THE COURT DEEMS JUST W/NOTICE TO PLEAD WITHIN 20 DAYS. F/TIMOTHY D. MCNATR, ESQ W/CERT OF COMPLIANCE VERIFICATION, AND CERT OF SERVICE 18 Image page(s) exists for this entry 8/13/2020 NOTICE OF DOCUMENTS E8Q,, AND F/TIMOTHY 998t / Fee SUMMONS TAX SUMMONS COPY COSTS JCS/ATJ AUTOMATION FEE 6/22/2020 10:53 0/00/0000 0/00/0000 SERVICE OF' INTERROGATORIES AND REQUEST FOR PRODUCTION OF DIRECTED TO DEFT, CITY OF ERIE TO: G MICHAEL GARCIA, II, PAUL D KREPPS, ESQ., BY HAND DELIVERY ON 8/13/20. D MCNAIR, ESQ., W/CERT OF' COMPLIANCE AND CERT OF' SERVICE 2 Image page(s) exists for this entry --LASTENTRY *******9c********** 3 8/26/2020 ---------~--- %****Jr*********'Ar***************************1\'$'************~k *****~k****** ++ Escrow Information ++ Beg. Balance is _A-djmts $.50 $.50 $92.00 $92.00 $4.50 $4.50 $40.25 $40.25 $5.00 $5.00 $142.25 $142.25 End . Balance $.00 $.00 S . 00 $ » 00 S . 00 $.00 **********************+***********a<*********+******************-J.-******+******************* End of Case Information Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page16 16ofof71 71 I SHERIFF'S OFFICE OF ERIE COUNTY 8 CHRIS CAMPANELL1 Captain JOHN T. Looms. Sheriff JEFFREY GUILD Chief Deputy WILLIAM FENTON Lieutenant! FORCED M174 PRIDE WANNAH SILéAUGH VS. CITY OF ERl (et al.) Case Number 2020-11247 SHERIFF'S RETURN OF SERVICE 06/23/2020 04:00 PM - Deputy Sebastien Chrzanowski, being duly sworn according to law, served the requested writ oQSummons (WOSM) AND INTERROGATORIES AND REQUEST FOR PRODUCTION OF DQCUMENTS DIRECTED TO THE DEFENDANT, CITY OF ERlE, by handing a true copy to a person representing themselves to be CHRISTINA SCMAFFER, CLERK, who accepted as "Adult Person in Charge" for CITY OF ERIE at 626 STATE STREET, ERIE, PA 16501 . Tl SHER:FF COSTS $88.00 4 NOWSKI, DEPUTY SO ANSWERS, OHN T. LOOMIS, SHERIFF June 24, 2020 4_} <:;~ IW 'um O m, ""'*. II.'("* QUO_ * F l. . g: -at! (___ IM c; ..__l!' 1 I :- f";» 8r -l' 9---» (71 "u " in . _ »~ :_` v; * .J° ¥; H4 4- ""*. {.. . QQ 1- ..1-... *- . EXHIBIT I I I l i I §i§iWrf'A'rromey;'h3CTv",¢T?Ei°'£'A'18?6i§F?EESlf5L'EcI'BI2?'§TJ2i?E'STj'ERliE,"t5A.. 168W (c} cnumysui1e Sheriff. Teisosofl Inc. .," Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page17 17ofof71 71 SHERIFF'S OFFICE OF ERlE COUNTY E JOHN T. LOOMIS Sheriff CHRIS CAMPANELLI Captain JEFFREY GUILI5 Chief Deputy : WILLIAM FENTON Lieutena n t FURGED mm PRIDE SlLBAUGH, HANNAH vs. CITY OF ERIEI(et al.) Case Number 2020-11247 o N SERVICE COVER SHEET o i, -v u<* c e . N "y he 44 a- Isewice-oexaff; n ~ . r~ o Category: civil Action - Writ of Summons (WOSM) 1 dl x LU Manner: Adult in Charge Notes: I R x. *4 i 'J n 1.I"{l 'as I I* In I I l . In v»v4 T C a '2 Zone: 07/22/2020 Expires: . , ' 'Inu Warrant: . ,-_.._< _.-,_.. SERVE WRIT OF SUMMONS AND INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO THE DEFENDANT, CITY OF ERIE . r 1- o ID <9 {`Firial.-S§Wi€e:_~*- v- < G. Name: 9 n: LU 625 STATE STREET Primary Address: ERIE, PA 16501 F m Phone: ET u.l nr iin < - (D Io C`ITYOP ERIE [@3_é;1m<"l5 Relation : LE + 04 646 jerk Alternate Address: Date: Lc*~22~;l> Phone: Deputy: DOB: N L J pa ttoriijey/ originator'4*', n _».' ..'. . L Name: L .at . W V' g '.I I. E ' .k*= _w ? jI':!{?1*';»71\'\ F ( 3(4 Time: Mileage ' _ , . . I I M 34%. }'> 'I .. 1"l.1l I in »'¢-,.." ¢»£ 4. 4,'-¢». *w moass"/* .~ ,4 3+ fs., F" h 1? ii 4 ¢ MCNAIR LAW OFFICES PLLC LG08 \ vi ?8?~4%4¢;~¥8'18~i='T?4 Phone: t' *l .. "r"1** ==~,I :, ~%-Im. [Sér1\iir8e Attempts:" . 1" ] JT -U-'* .\. 'MSW Date: l~ v N v' 'T o N o N ' . r 14, -k * Time: r ..... ~;;;., Mileage ° Deputy: 1 2 L l§_eEvi¢é.A!fempt-'nbl§§5.. \ in ! " 4 3 L .. 11 ,r*£§l*.r*§-' .4 : ¢ * * l ii: .r "1"h85' .. g.. »- I i=+i.3l§ *'f.;r-*§..~°»'-=-f=»-'--'4§..1r;»»§ 1 2 3 4 4 m lu 5 Ll. o >LT. o 6 I 1 lc; f Ez§r'l,'8LiIte Shell Telwsofl l§1C 5 6 .a 9~4w¥i14'.?' ¥T8l%'4'8Y"l~' ivj Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page18 18ofof71 71 I C)FFICE OF THE SHERIFF ER1E COUNTY, PENNSYLVANIA 140 WEST SIXTH STREET' ERIE, PENNSYLVANIAWGSOW 814/451-6254 FAX 814/451-6323 I ERIE cdunTv $l-lERIFF'$ SERVICE please type or print legibly PROCESS RECORD r PLAINTIF F TEQM AND NO 1347 Hannah Silbaugh I DEFENDANT -2020 VYPE OF WRIT Writ of Summons John Doe la, John Doe 2, John 1Doe 3,Johu Doe 4, John Doe 5, Danial Spizarny, Joseph V, Schernbel, City of Erie NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN S E R V E City of Erie ( ADDRESS (SlreIet or /fd aparrmenl No., C/44 S/are and up Code/ AT 1626 Slate Street, Erie, PA 16501 . . . . . . . . . . . SEND . . . . .NOTIC . . . .IE. OF . . .SERWCE . . . . . . COPY . . . . .TO. .NAME . . . .AND . . . ADDRESS . . . . . . . BELOW ................... Timothy D. McNair, Esquire Mcnair Law Offices, PLLC 821 State Street Erie. PA 16501 SHOW number of this wail and 10i81 number of wries submitted. i.e., 1 of 1, 1 of 3, etc, 1 of 2 Check I/aPp//tab/9: Q Serve Secfelary of Commonwealth 0 Deputized Service . ... O Total no, .................................................................., 0 Publication Special instructions required for ail of the above SHOW IN THIS SPACE BELOWANY SPECIAL INSTRUCTIONS OR OTHER INFORMATION PERTiNENT 70 SERVING THE wRIt DESCRIBED ABOVE Please serve the dull in charge of Defendant at the above-referenced address. 5 ./> IW'rFa 4 NAME AND SIGNATURE OF ATTORNEY OR OTFIER . , I Tmmoihy D. McNa:r l DEPOSIT -r> I acknowledge receipt for Me total number 01 writs indicated and for the deposit (Iflapplicable) shown. OVERTIME AUTHORIZATION l . l/vu,/\ r TELEPHONE NUMBER DATE 814.452.0700 0612212020 SPACE BELOW FOR USE OF SHERIFF ONLY .. DD NOT WRITE BELOW THiS LINE r Show amounx of prepared (ees and Sign GINATO '. _m DISTRICT TO SERVE DATE SIGNATURE OF AUTHORIZED DEPUTY OR CLERK DEPUTY AUTHORIZING ATTORNEY DATE ANDTIME I hereby cerlity and rel un that I have personally setveo, have legal evidence of service, or have executed as shown in "REMARKS," U the w i:_descfibed on me[inoivauua:. company, corporation, etc., at the address shown above on me individual, company, corpof align, elc., al the address inserted below. thereby certify and reluil lhal. after diligent investigation, I am unable to locale the individual, company, corporation, ego, U named above within me bailiwick of Erie County, Pennsylvania. NAME AND TITLE OF InolviquA1. SERVED (///701 shown above/ D AD DR E SS (Cone/e/e only /7 T/ferent1/7 in 5/lowfr Abo vc) DATE(S) O F E ND E AVOR (0518 remarks ffnecessayl REMARKS I l DATE OF SERVICE TIME AM PM A person of suétabln age then abiding in me defendants usual place of abode, due (//appWZ'ab/e/ MILEAGE s s SIGNATURE OF SHERIFF OR DEPUTY Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page19 19ofof71 71 In the Court of Common Pleas of Erie County, Pa. No. 11247-202_Q Hannah Silbaugh vs. John Doe l, John Doe 2, John Doe 3, John Doe 4, John Doe 5, Daniel Spizarny, Joseph V. Schember, and City ofElie And Now, to»wit: July 16, 2020, Da1;iQ_Spizamy. Joseph V. Schemer and City of_Q1§_, by Attorneys come(s) and enter(s) a rule on plaintiff(s) to file a complaint within twenty (20) days. F/G. Michael Garcia, H., Esq. and Paul D. Krepps, Esq. Attorneys for Daniel Spizarny, Joseph V. Schember and City of Erie, only Witness my hand and the seal of said Could, at Erie, this 17"' day of July, 2020. ZM- /ML (seal) Served the within rule upon Prothonotary or Deputy _this, the . day Of by giving him a true and atte.s'ted copy of the same, and informing him of the contents thereof _.__ ........ So answers, Sworn and subscribed to before me this day of 2020. Notary Public EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page20 20ofof71 71 ) Case No: 1 1247 . 2020 9 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff, CIVIL ACTION .. LAW Case No: 1 1247 - 2020 v. JOHN DOB 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, MOTION FOR PROTECTIVE ORDER Filed on Behalf of Defcndants DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND CITY OF ERIE, only Defendants . Counsel of Record for this Party: PAUL D. KREPPS, ESQUIRE PA LD. No. 73038 pd1<1'epps@mdw9g.com MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Union Trust Building 501 Grant Street, Suite 700 Pittsburgh, PA 15219 412/803-1140 412/803-1188 -Fax G. Michael Garcia II, Esquire 717 State Street, Suite 701 Erie, PA 16501 814-480~7800 r-:» ir-.J n 114 .up , gmgarcia@mdwcg._i8o@ (___ '*-* Qt r_ 11 '* ¢-l_ on "") ? LO (JO -J c EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page21 21ofof71 71 r Case No: I 1247 2020 4 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION , LAW Plaintiff, Case No: 11247 - 2020 I"-J 4:21 I<:::> J v. (_. L. JOHN DOE l, JOHN D018 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, _j C "I 1 L 'r1 of I 0F"1 `1 K" ' 4 *"> \ .Q r' Defendant. I J 1" . { \, Fw '12 BE 42 (/3 MOTION FOR PROTECTIVE ORDER AND NOW, come DEFENDANTS, DANIEL SPIZARNY, JOSEPH V. SCHEMBER and CITY OF ERIE by and through their counsel, MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN, and in response to Plaintiff's pre-complaint discovery, file the within Motion for Protective Order as follows : 1. Plaintiff initiated these proceedings by filing a Praecipe for Writ of Summons which was served on Defendants on July 23, 2020. 2. Named as Defendants are Chief Daniel Spizarny, Mayor Joseph V. Schember and the City ofE1°ie. In addition, Plaintiff has identified John Does 1 through 5. 3. Along with service of the Praecipe for Writ of Summons, Plaintiffs counsel also served pre-complaint discovery in the nature of Inter1'ogato1'ies and Request for Production of Documents, A true and con'ect copy of the written discovery requests are attached hereto and marked as Exhibit "A". 4. Defendants served responses to Interrogatory Nos. I, 2 and 3 on July 15, 2020 I Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page22 22ofof71 71 v Cnsc No: H247 -2020 5. Prior to responding to the written discovery, at the request of Plaintiffs counsel, Defendants informally provided copies of the policies that were 1°eferenced in response to Interrogatory No. 3 and a copy of the policy regarding internal affairs, 6. Defendants object to Interrogatol'y No. 4 and Requests for Production Nos. 1 through 5 on the basis that these requests are not calculated to be a means to the specific end of gathe1'ing~sufficient infol'matior\ for the filing of a complaint. 7. Furthe1'mo1'e, Plaintiff, tlirough her counsel, has demonstrated that she is already in possession of more than sufficient information with which to file her Complaint. See correspondence from Timothy D. McNair, Esq. to Mayor Joseph Schember dated June 2, 2020 attached hereto and marked as Exhibit "B". 8. The only critical piece of information not in P1aimiff's possession until being served with responses to the written discovery requests is the identity of the only three police officers known to Defendants at this time who were in close proximity to Plaintiff. This information is now known to Plaintiff. 9. The1°efo1'e,Defendants seek a Protective Order that Defendants need not respond to the obj actionable Interrogatories and Request for Production of Documents. 10. Defendants Inco1'po1°ate herein the Brief in Support of the Motion for Protective Order as if fully set forth, WHEREFORE, Defendants, DANIEL SPIZARNY, JOSEPH V. SCHEMBER and CITY OF ERIE request that the Court enter an Order granting Defendants' Motion that Defendants, at this stage of the litigation, need not respond to InteIrogatory No, 4 or Requests for Production 4 Nos. 1 through 5. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page23 23ofof71 71 Case No: I 1247 - 2020 Respectfully submit"£ed, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: ' /5 /PAUL D. KREPPS, ESQUIRE PA LD. #73038 G. Michael Garcia II, Esquire PA ID No. 311594 Counsel for Defendants, DANIEL SPIZARNY, JOSEPH V. SCHEMBER and CITY OF ERIE, only LEGAL/l3I2208B6.vl 4 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page24 24ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILLBAUGH, Plaintiff v. JOHN DOE 1, JOHN DOE 2; JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants I I l Il I I I I •a CTVIL ACTION - LAW Case No. : -2020 9 1 Q . 4 I. INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT, CITY OF ERIE. NOW COMES the Plaintiff, Hannah Silbaugh and respectfully requests answers to the following discovery requests to aid her in the preparation of her Complaint in this matter : INSTRUCTIONS AND DEFINI'1IIONS A. "Incident" shall mean the incident occurring on the evening of May 30, 2020 at or near the intersection of State Street and North Park Row in Erie, Pennsylvania involving an interaction between the Erie Police and Hannah Silbaugh, who was seated in the street. B. "You" or "your" refers to Defendant(s) herein and to all other persons acting or purporting to act on behalf of Defendant(s), including agents and employees. C. "Communications" shall mean all inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations, letters, correspondence, notes, telegrams, telexes, advertisements, facsimiles, e~Inai1, Of' other forms of verbal and/or communicative intercourse. EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page25 25ofof71 71 I D. "Documents" shall mean all written Of' graphic matter of every kind or description, however, produced or reproduced, whether draft or final, original or 1'ep1'oduction signed or unsigned, and regardless of whether approved, signed, sent, received, redrafted, or executed, including but not limited to: written communications, letters, correspondence, facsimiles, e-mail, memoranda, minutes, notes, films, recordings, of any type, transcripts, contracts, agreements, purchase or sales orders, memoranda of telephone conversations of personal conversations, diaries, desk calendars, interoffice communications, reports, studies, bills, receipts, checks, clleclENNSYLVANIA I 650 l- I 3 I 6 TELEPHONE 8 I 4.45Z.070O 9 FACSIMILE B I 4.454-2371 "TOLL FREE (BOO)453'O5€ E-MAlL~ TMCNA1R@MCNAlRLAW.COM -- URL: H1'rp://www.mcnA1nl.Aw.oom EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page31 31ofof71 71 The Honorable Joseph V. Schember June 2, 2020 Page 2 There is no question but that the actions of the officers were intentional and they were intended to interrupt Ms. Silbaugh's exercise of her right to free expression. MS. Silbaugh did suffer injury as a result and continues to recover from the effects of the mace or pepper spray. Please accept this letter in lieu of Form 118K, City of Erie Bureau of Police Citizen Complaint Form. . Ms. Silbaugh may be contacted through me. We are unaware of the identity of the officers involved. We are aware of several witnesses, including Lisa Clark, who video Taped approximately 3 and 1/2 hours of the demonstration. There are numerous other videos available on social media which we are attempting to collect. In our constitutional democracy, preservation of the freedoms guaranteed by the Bill of Rights should be of paramount importance to the civil authorities, including the police. While we recognize that the police may have a difficult job to do, that does not justify the indiscriminate use of force against citizens who are peacefully protesting an incident where a nonviolent person was killed by a police officer. While the events certainly generated excitement among the police department, its leadership was not able to keep that excitement in check and harness it for its intended purpose, but permitted it to turn into raw emotion and senseless physical attacks. We believe that it is essential that the officers who assaulted Ms. Silbaugh be identified and held to account, which we intend to do. As you know, there are many avenues to accomplishing this goal, some of which can be accomplished cooperatively and easily, others of which may require litigation. We would certainly hope to be able to resolve this issue without resort to litigation but you should be aware we are willing to use whatever tools are necessary to effect justice. 82 I STATE STREET - ERIE. PaNNSYLVANIA ! 650 I - I 3 I 6 TELEPHONE e I 4.452.0700 - FACSIMILE 6 I 4.454-2271 TOLL FREE Ieoo>4ss»o5ee EMAIL; WC~AIR@MCNAIRLAW.COM - URL' HTTp:l/www.mcnAIRmw.com 1 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page32 32ofof71 71 The Honorable Joseph V. Schember June 2, 2020 Page 3 Please have someone from the City contact with the identity of the officers and advise as to the Ci'cy's intention on investigating and imposing disciplinary action on these officers. Thank you . Vexjy truly yours, MCNAIR LAW OFFICES, PLLC \. 1 l, By: M " '°°'\ Timothy D, cc, al" ,)\" air, Esquire Hannah Silbaugh via email Dan Spizarny, Chief via email Citizens Response Center via hand delivery 82 I STATE STREET - Sale. PZNN5YL.VAN1A I 650 I - I 3 I 6 TELEPHONE 8 I 4.452_070O - FACSIMILE 8 I 4.454~237 I - TOLL FREE (800)453-0566 E-MAIL: TMCNAIR@MCNAlRLAW.COM URL: H7'rP://WWW.MCNAIRLAW,COM Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page33 33ofof71 71 x Case No: l 1247 .. 2020 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION .. LAW Plaintiff, Case No: 11247 .. 2020 v. JOHN DOE 1, JOHN-DOE 2, JOHN D018 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBBR, and CITY OF ERIE, Defendant . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded to all pafcies listed below by: Hand Delivery X U.S. First Class Mail, Postage Prepaid 09 14: 901 Electronic Mail ONLY Certified Mail, Return Receipt Requested Facsimile Transmittal at the following address: Timothy D. McNair, Esquire McNAIR LAW OFFICES, PLLC 821 State Street Erie, PA 16501 (Counsel for Plclinfw MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: /" /5 // PAUL D. KREPPS, ESQUIRE PA LD. #73038 Counsel for Defendants DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE, only Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page34 34ofof71 71 Case No: l 1247 - 2020 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff, Case No: 11247 - 2020 v. JOHN DOE 1, JOHN DOB 2, JOHN DOE 3, JUHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERI18, Defendant. CER"8§ICATE OF COMPLIANCE I ceitify that this filing complies with the provisions of the Public Access Policy of the Un{)?ed Judicial System of Pennsy!vanicz.' Case Records Q/"the Appellate and Trial Courts that require filing confidential information and documents differerltly than nomoonfidential information and documents, Submitted by: Paul D. Krepps, Esquire Signature : Name: Paul D. Krepps, Esquire Attorney No. (if applicable): #73038 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page35 35ofof71 71 J IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION w LAW Plaintiff, Case No: 11247 2020 V. JOHN DOE 1, JOHN DOE 2, JOHN D018 3, JOHN DOE 4, JOHN DOE 5, r DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendant. ORD1;.R Q_F .QOURT AND now, this day of 2020, upon consideration of Defendants' Motion for Frotective Order, the same is hereby GRANTED. Defendants need not respond to Inte1'rogato1'y No. 4 or Request for Production Nos. 1 through 5 as set out in Exhibit "A" to Defendants' Motion for Protective Order. IT IS FURTHER ORDERED that Plaintiff is not entitled to any additional discovery until afar she files her Complaint and any Preliminary Objections have been resolved and Defendants file an Answer. BY THE COURT: JI LEGAL/I312005 I8.vl Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page36 36ofof71 71 1 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff, CWIL ACTION - LAW Case No: 11247 - 2020 V. JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBBR, and CITY OF ERIE, Defendants. BRIEF IN SUPPORT OF MOTION FO'R PROTECTIVE ORDER Filed on Behalf of Defendants DANIEL SPIZARNY, JOSEPH v. SCHEMBER AND CITY OF ERIE, Ollly Counsel of Record for this Party: PAUL D. KREPPS, ESQUIRE PA I.D.No. 73038 pdk1'epps@mdwcg.com MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Union Trust Building 501 Grant Street, Suite 700 Pi'Ftsbu1'gh, PA 15219 412/803-1140 4121803-1188-Fax G. Michael Garcia II, Esquire PA ID No. 311594 717 State Street, Suite 701 Erie, PA 16501 814-480-7800 gmgaroia@mdwcg.com I 1 5 1'' 'u 'Of*\"i vq 8 I I ,-»-1 .... ho 3 x~a 4 Q.. Cr: l v-L on 'Ra ITS 9? C47 H v r" i_ cc: ...,, .M r-\.1 r": } Q" _-4 .4 '-U r"'1 I 5 l"T] or; 8=- "" } M »h-A4 an5 4*-I i-»-I \ EXHIBlT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page37 37ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff, Case No: 1 1247 .-- 2020 v. I-. Q 11::> JOHN DOE I, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V, SCHEMBER, and CITY OF ERIE, Defendant, I. '-1 <13 \' up 'G '_8>'l LD of i 1" ) w ...J SUMMARY OF THE ARGUMENT Defendants have been served with a Praecipe tor a Writ of Summons in which the City, the Mayor and Chief of Police are named Defendants, Plaintiff also served interrogatories and requests for production on Defendants. See Exhibit "A". Plaintiffs counsel wrote to the Mayor and made a formal citizen complaint "..in lieu ofFol'm HSK. , ." on behalf of his client in which he deschbed in significant detail the events of "Saturday evening" [May 30, 2020]. See Exhibit ¢cB>>l The City has been reasonable and provided responses to Inter1°ogato1'ies 1~3, providing the identity of the known officers who were in close proximity to Plaintiff during the events as described in Plaintiff-counse1's June 2, 2020 letter and identifying policies which at this time appear to be applicable to the situation that the officers faced. The City also gratuitously, prior to receipt of the written discovery, provided copies of applicable policies to P1ain'Fiff' s lawyer. Plaintiffs request for discovery are otherwise unreasonable and it is appropriate to enter a Protective Order accordingly. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page38 38ofof71 71 I \ 11. ARGUMENT The Supreme Court addressed pre-complaint discovery in a 2006 decision, McNeil v, Jorda/1, 894 A.2d 1260 (Pa. 2006). Until that decision, there was au inconsistency in how the Courts addressed p1'e~complaint discovery and the Cold noted that it had not issued air opinion setting the parameters Of such discovery. P1'e~complaint discovery is envisioned in the Rules of Civil Procedure. See, for example, Pa.R.C.P. 4001(c) and 4007.l(c). McNeil, 894 A.2d at 1268-1269. The Court cited favorably to a decision of the Honorable R. Stanton Wettick, Jr., and noted that Judge Wettick adopted the test "...pel'mitting their own pre~complaint discovery only when necessary to the drafting of a legally sufficient complaint..." Id. at 1272. The Supreme Court concluded its analysis as follows: ...pre-complaint discovery is a means to the specific end of gathering sufficient information for the filing of a complaint, and it only appropriate only when there is probable cause to believe that it will achieve that end. Accordingly, to obtain pre-complaint discovery, a litigant should be required to demonstrate his good faith as~ well as probable cause that the information sought is both material and necessary to the filing of a complaint in a pending action, A plaintiff should describe in reasonable detail the material sought, and state with paniculamity probable cause for believing the information will materially advance his pleading, as well as averring that, but for the discovery requests, he will be unable to formulate a legally sufficient pleading Under no circumstance should a plaintiff be allowed to embark upon a "fishing expedition", or otherwise rely on an amorphous discovery process to detect the cause of action he lacks probable cause to anticipate prior to the pre~cornplaint discovery process under this standard. The reasonableness, as well as the existence of'probable cause in the good faith of the party seeking discovery, are matters for the trial court to determine in the exercise of its sound discretion. Id. at 12'/8(emphasis added) Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page39 39ofof71 71 1 Defendants assexi that Plaintiff has adequate information at this time without the benefit of any discovery to file a sufficient Complaint. This is evidenced by the detail contained in the co1'1°esp0nde11ce June 2, 2020 which was intended to be accepted "...in lieu of Form l IAK , City of Erie Bureau of Police Citizen Complaint Form." See Exhibit "B". The facts that are asserted by Plailmtiffs counsel and the evidence 1'efe1'enced in his letter are a clear indication that Plaintiffs counsel has far more information at his disposal at this time than most lawyers do when initiating civil litigation. Plaintiffs counsel is aware of the date of \ the incident as well as significant details with regard to the interaction between the police officers and his client, including events both before and the police interaction with his client, As he related, "There is, as you know, extensive video of the incident and the events leading up to it." Plaintiffs counsel further asserted, "We are aware of several witnesses, including Lisa Clark, who videotaped approximately three and one-half hours of the demonstration, There ate numerous other videos available on social media which we are attempting to colIeet." See Exhibit GIBM It would be appropriate for Plaintiffs counsel to proceed with the filing of a Complaint with the information available to him at this time, including referencing "John Doe" Defendants and setting out the conduct of those Defendants and then waiting until the discovery phase of the litigation to serve written discovery and take depositions of individuals to identify the officers. Instead, Plaintiff served four Interrogatories and five Requests for Production of Documents, some of which are narrowly crafted and others of which could best be described as a shotgun approach to gathering information whose relevance is not apparent at this time. Plaintiff failed throughout the discovery to C( ...state with pa1'ticula1°ity probable cause for believing 'the information will materially advance his pleading." Id at 1278 . Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page40 40ofof71 71 \ 1 Defendants 1'esponded 'to the written discovery requests by providing the identities of the officers that it is aware of at this time who were in close proximity to Plaintiff at the moment that the encounter with the polic8 took place. In addition, the City provided policies that were requested by Plaintiff counsel even before he served the Writ O1` his discovery requests. Defendants object to being required to provide infol'mation regarding the conduct of an Internal Aflflail's investigation as well as producing all of the documentation pertaining to that investigation and providing "complete personnel file[s]", p1'oviding...copies of any and all correspondence, emails OT other written Of digital communications between the City of Erie and any non-attorney thi1°d-party... 7>9 producing "..,three copies of any and all videos, documents, photographs, or social media posts which were reviewed, vs and finally the greatest shotgun request "...pl'oduce the entire investigation file pertaining to the incident of May 30.. >> These discovery requests are not made in good faith as part of pre-complaint discovery but 1'athe1' are a fishing expedition and clearly are not na1'1'owly drafted to afford Plaintiff the ability to draft a legally sufficient Complaint. In addition, before engaging in in-depth discovery Defendants should be afforded "...the opportunity to test the Complaint before submitting to discovez'y....in order that discovery requests follow pleadings to facilitate the narrowing of issues and concomitant narrowing of discovery", Id at 1272. Contemporaneously with the filing of the Motion for Protective Order and Brief in Support, Defendants have filed a Rule to File Complaint, giving Plaintiff 20 days to file her Complaint. Under the circumstances presented it is appropriate for the Court to grant Defendants' Motion and hold Plaintiff to the time period within which he is' required to file a Complaint pursuant to the Rule issued by the Frothonotary. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page41 41ofof71 71 I \ HI. CONCLUSION For all of the above reasons, Defendants respectfully request that the Court enter an Order recognizing that Defendants have responded to Inte17'ogato1'y Nos. 1 through 3 and taking into account that Plaintiffs counsel has already been provided with applicable policies and recognizing the amount of evidence that Plaintiffs counsel 1'efe1'e11ced in his June 2, 2020 Citizen Complaint and compelling the filing of a Complaint. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGCIN /Z /). / - BY: PAUL D. KREPPS, ESQUIRE PA LD. #73038 G. Michael Garcia II, Esquire PA ID No. 311594 Counsel for Defendants, DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE, only LEGA L/13 1202040.v I v Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page42 42ofof71 71 \ Case Not I 1247 - 2020 ) IN T1118 COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff, Case No: 11247 - 2020 v. JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN D018 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v, SCHEMBER, and CITY OF ERIE, Defendant. CERTIFICATE OF COMPLIANCE I certify that this filing complies with the provisions of the Public Access Policy Qf the Untied Judicial System of Pennsylvania.' Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than Alon-colafidential information and documents. Submitted by: Paul D. Krepps, Esquire />. / Signature: Name: Paul D. Krepps, Esquil'(=; Attorney No. (if applicable): #73038 - Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page43 43ofof71 71 1 Case No: 3 1247 .. 2020 II IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff, Case No: 11247 - 2020 v. JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOI-IN D018 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendant. CERTIQICATE ..OF SERVICE I hereby ce1"tifly that a true and correct copy of the foregoing has been forwarded to all parties listed below by: . Hand Delivery X _ U.S. First Class Mail, Postage Prepaid ii" ©'1l 1@l8o90 Electronic Mail ONLY Certified Mail, Return Receipt Requested I Facsimile Transmittal at the following address: Timothy D, McNair, Esquire McNAIR LAW OFFICES, PLLC 821 State Street Erie,PA 16501 (Counsel for Plat/uw) MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN ), BY: - PAUL D. KREPPS, ESQUIRE PA I.D. #73038 Counsel for Defendants DANIEL SPIZARNY, JOSEPH v. SCHEMBER and CITY OF ERIE, only Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page44 44ofof71 71 HANNAH SILBAUGH, Plaintiff, IN THE COURT OF COMMON PLEAS OF ERNE COUNTY, PENNSYLVANIA v. CIVIL DIVISION .JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOHN v. SCHEMBER, and CITY OF ERIE Defendants. ., » i..» NO- 11247-2020 oRDER i"9 AND NOW, this 20"' day of July 2020, it is hereby ORDERED that Plaintiff 5 11 file a response to Defendants' Motion for Protective Order within ten (10) days. BY THE COURT: » J dge Mead Timothy McNair, Esq. McNair Law Offices 821 State Street Erie, PA 16501-1316 Paul D. Krepps, Esq. G. Michael Garcia, Esq. Marshall Dennehey Warner Coleman & Goggin 717 State Street . Suite 701 Erie, PA 16501 .f- ,, > 1 ) EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page45 45ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA ~7~ 1~».: us CJ l¢ 0 HANNAH SILBAUGH, Plaintiff CIVIL ACTION -. LAW v. Case N0.I11247~2020 MARC NELSON, DAVID SMITH, ANTHQNY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants ~»-4Z#::: ctr CO *"¢'I 2 9,54 _-4{r1r1 p c"> so w '-(:LJ w aa- cx: Cr: 3 a nzz '9 m m <13 rvz zz: .ask "0 r'n/"* 11 i n " ac : * Q- 1:» Q, c u u p c.: 8 3 -1-es JURY TRIAL OF 12 DEMANDED • a NQTIQE TO DEFEND TO: MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE c/o G. Michael Garcia, II, Esquire Marshall Deunehey Warner Coleman & Goggin 717 State Street, Suite 701 Erie, PA 16501 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 TH IS COMPLAINT AND NOTICE ARE SERVED. BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WTTH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS 1MI>0R'['ANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR IAWYER A'1` ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD on18, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IAWYERS REFERRAL SERVi[CE 429 West 6"' Street Erie, Pennsylvania 16507 (814) 459-4411 *\ '1`itnothy D Nair, Esquire 821 State Street Erie, PA 16501 814-452-0700 814-454-5216 tmcnair@mcnairlaw.com EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page46 46ofof71 71 r IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH $1 LBAUGH, .U II * CIVIL ACTION .. LAW Plaintiff v, Case N0.:11247-2020 MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants Q. -in!"" :is in &1=~»= Ina 359 '83 (JZ) V13 ;:I=r -'13 133 to Q or; t" 4. 1 (T1 j1£1?;;== JJ* pa .4. "'¢u'=J. m 9 .UD JURY TRIAL OF 12 DEMANDED COMRLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, AND FOR DAMAGES NOW COMES the Plaintiff, Hannah Silbaugh, by counsel and claims damages of Defendants abovemamed upon a cause or causes of action whereof the following is a statem ent : 1. Plaintiff is Hannah Silbaugh, an adult resident of Erie, Erie County, Pennsylvania. 2. Defendant Marc Nelson ("Nelson") is an adult individual believed to reside at Erie, Pennsylvania and who is employed by the Defendant, City of Erie Bureau of Police. On May 30, 2020, Nelson, without reason or provocation as set forth below, kicked Plaintiff on her left shoulder, knocking her down and causing injury. 3. Defendant David Smith ("Smith") is an adult individual believed to reside in Erie County, Pennsylvania and who is employed by the City of Erie Bureau of Police. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page47 47ofof71 71 On May 30, 2020, Smith, without provocation or reason, and in violation of established procedures attacked Plaintiff with mace or pepper spray. 4. Defendant Anthony Attalla ("Attalla") is an adult individual believed to reside at Erie County, Pennsylvania and is employed by the City of Erie Bureau of Police. On May 30, 2020, Attalla, with no reason or provocation, sprayed Plaintiff with mace or pepper spray in violation of the established procedures of the City of Erie Bureau of Police and in violation of my civil rights. 5, John Doe 4 is an adult individual believed to reside at Erie County, Pennsylvania and is employed by the City of Erie Bureau of Police. Upon information and belief, John Doe 4 conspired with OI' participated in the assault on me by Nelson, Smith, Attalla and John Doe 5. 6. John Doe 5 is an adult individual believed to reside in Erie County, Pennsylvania whose identity remains unknown to me. Upon information and belief, John Doe 5 conspired with OI' participated in the assault on me by Nelson, Smith, Attalla, and John Doe 4. 7. Defendant Daniel Spizarny is an adult individual residing at Erie County, Pennsylvania. Defendant Spizarny is employed by Defendant City of Erie as Chief of Defendant City of Erie's Bureau of Police. As such, Defendant Spizarny is responsible for the establishment of policy, training of officers in established policies, supervision of officers engaged in the execution of those policies and has an affirmative duty to train officers to avoid the violation of the civil rights of person present within the City of Erie. 2 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page48 48ofof71 71 8. Defendant Joseph V. Schember is an adult individual residing at Erie County, Pennsylvania. Defendant Schember is the elected Mayor of Defendant City of Erie. As Mayor, Defendant Sehember has ultimate responsibility for the establishment of procedures and supervision of the officers employed by Defendant City of Erie's Bureau of Police. 9. Defendant City of Erie is a body corporate and politic which governs the City of Erie. City of Erie maintains a Bureau of Police, charging it with the responsibility of law enforcement and maintenance of civil order. To do so, the City of Erie establishes and maintains procedures to which police officers are required to conform their behavior. 10. All of the events giving rise to this Complaint occurred on or after May 30, 2020 in the City of Erie, Erie County, Pennsylvania. 11. On May 25, 2020, a white police officer in Minneapolis murdered an individual named George Floyd by kneeling on his neck for over eight minutes. This murder, born of excessive force used by the Minneapolis, Minnesota police department, resulted in protests against police violence throughout the county and internationally. The death of George Floyd became a cause celebre leading to a strong public outcry against the excessive use of force by police and the pervasive institutional racism and unnecessary killing of persons of color by police. 12. On May 30, 2020, a demonstration in protest of unnecessary and excessive police violence took place in downtown Erie, Pennsylvania. This 3 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page49 49ofof71 71 demonstration was predominately peaceful although certain individuals acted in violation of the law after the events complained of herein. 13. Plaintiff, Hannah Silbaugh, participated in the demonstration. She participated in the demonstration because she is opposed to the use of excessive force by police and she was offended and outraged by the murder of George Floyd. Prior to May 30, 2020, Ms. Silbaugh had not participated in a public demonstration. 14. It has been alleged that while Ms. Silbaugh was present at the demonstration, certain individuals also padicipating in the demonstration committed various violations, including property damage. Ms. Silbaugh did not participate in any violations of law nor was she aware of any instances of property damage. 15. At approximately 11 o'clock p.m., Ms. Silbaugh was with a group of people near the intersection State Street and North Park Row. The group was confronted by a large number of Bureau of Police officers garbed in riot gear and carrying shields and clubs as well as chemical weapons and other less lethal weapons, in addition to their lethal firearms. 16. It appeared that the police wanted to advance into the crowd of people. 17. In an act of resistance against police authority, Ms. Silbaugh sat on the pavement near the intersection of State Street and North Park Row. 18. While Plaintiff was seated, she was approached by several Erie police officers, including Nelson, Smith and Attalla, and possibly John Does 4 and 5 who without saying anything and without warning, began to spray her with mace or pepper 4 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page50 50ofof71 71 spray, In response to this unjustified attack, Ms. Silbaugh covered her face, but remained sitting, continuing her resistance to what she determined to be unnecessary force. 19 . At no time did Plaintiff pose any threat or danger to any officer of the City of Erie Bureau of Police. In fact, her resistance was completely passive. 20. Upon realizing that Plaintiff was not going to be cowed into submission by the inappropriate use of chemical weapons, Nelson approached Plaintiff and, with the intent to injure her as punishment for her perceived disobedience and her demonstration against police brutality, viciously kicked her on her left shoulder, knocking her to the street, 21. Nelson was reckless in the action of kicking Plaintiff since Plaintiff could easily have sustained serious injury either to her shoulder or head by hitting the street. Further, upon being knocked down, Plaintiff used her hands to regain a sitting position. When she removed her hands from her face, Nelson, Smith, and Attalla and possibly others, took the opportunity to recklessly spray her in the face at close range directly with chemical weapons in violation of the policies of the City of Erie Bureau of Police. 22. As they continued to mace and/or pepper spray the Plaintiff, one of the defendants, deliberately and with the intent to deprive Plaintiff of necessary first aid, kicked away a bottle of water adjacent to Plaintiff which prevented Plaintiff from rinsing her eyes once the assault had ended. 23. Ultimately, Plaintiff, upon being threatened with the potentially lethal force of a laser, stood up and left the area. 5 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page51 51ofof71 71 24. Defendants made no effort to detain the Plaintiff and did not arrest her or file any criminal charges against her for any violation. 25. A video of Nelson's vicious attack on the Plaintiff was posted on social media and "went viral," drawing hundreds of thousands of views and creating national outrage at the unjustified and excessive use of force by Nelson against Plaintiff. 26. As the result of the publicity resulting from the video (which Plaintiff did not post), Plaintiff became known and quickly became the subject of public comment, some of which was sympathetic and supportive, and some of which was vitriolic and hateful. Plaintiff did not choose to publicize the attack or be the subject of public comment. Plaintiff continues to be the subject of vitriolic threatening, and hateful comments on social media. 27. Shortly after the attack, Plaintiff filed a complaint with the City of Erie Bureau of Police. The attack on Plaintiff was supposedly investigated by the Bureau of Police's own internal affairs division which found that Nelson, Smith, and Attalla had acted in accordance with the established policies of the Bureau. 28. No established policy of the City of Erie Bureau of Police authorizes the use of force, let alone a vicious kick, against an individual who is not presenting a threat of harm or who is not subject to arrest for a violation. 29 . Defendants Spizarny and Schember authorized and ordered an investigation of the event. What resulted was a mischaracterization of the events, characterizing the vicious kick to Plaintiffs left shoulder as a "push," and finding that the officer in question, Nelson, acted in accordance with established policy. To the 6 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page52 52ofof71 71 extent that Nelson, Smith, and Attalla were, as found by Defendants City of Erie, Spizarny and Schember, acting in accordance with the established procedures of the City of Erie Bureau of Police, said procedures are constitutionally defective and render Spizarny, Schember and the City of Erie liable for the violations of Plaintiffs civil rights pursuant to Monell u. Department of Social Services, 436 U.S. 658 (1978). 30. If Nelson's actions were in accord with the policies of the City of Erie, said policies are in violation of the Constitution of the United States, including the Fourth and Fourteenth Amendments, which have long been interpreted as prohibiting the use of excessive force by police. COUNT I -» HANNAH SILBAUGH v. MARC NELSON ASSAULT AND B A TTE RY 31. Plaintiff incorporates herein by reference the averments of Paragraphs 1 through 30 of this Complaint as though fully set forth at length . 32. At no time did Plaintiff consent to physical contact or touching by Defendant Nelson. 33- Plaintiff took no action to threaten Nelson nor did she do anything to justify the use of force in self-defense. 34- Plaintiff was at no time subject to arrest, nor did any defendant use force against her to effect a lawful arrest. 35. Defendant Nelson, without consent or privilege, illegally touched and injured the Plaintiff by viciously kicking her in the left shoulder with his foot, causing 7 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page53 53ofof71 71 her to fall to the street. He further assaulted the Plaintiff by spraying her, at close range, in the eyes and face with a chemical weapon, mace or pepper spray. 36. ?plaintiff sustained injuiy to her left shoulder, right side and her eyes as the result of the attack by Defendant Nelson. 37. Nelson caused bodily injury to the Plaintiff in that the unconsented physical contact resulted in pain and bruising, as well as eye irritation that persisted for approximately one week; Defendant Nelson's threat of more significant physical assault in the application of potentially lethal force in the form of a laser placed her in apprehension of imminent physical harm from another unconsented assault. 38. As the result of the assault committed by Nelson and the resulting injuries, and the attendant publicity and notoriety, Plaintiff suffered pain, shock, embarrassment and mental anguish, all of which are compensable. 39, The actions of Defendant Nelson were in violation of 18 Pa.C.S. §§ 2701 and 2702 in that the actions of Nelson constituted an attempt to cause serious bodily injury and/or were undertaken intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; and constituted an attempt to cause bodily injury to another. 40. Given that Defendant Nelson knowingly committed an illegal act, he is not entitled to any defense of official immunity pursuant to 42 Pa.C.S. § 8546. See Kuzel U. Krause 658 A2.d 856 (Pa.Cmwlth 1995). 8 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page54 54ofof71 71 41. Nelson was aware that the use of excessive force against an individual not subject to arrest was unconstitutional. His use of force was not objectively reasonable since there was no reason for it and it was not justified by self-defense or the need to prevent flight. WHEREFORE, Plaintiff demands judgment in her favor and against Defendant Nelson in an amount in excess of the applicable limits for mandatory arbitration in Erie County, together with punitive and exemplary damages, prejudgment interest, costs of suit and such other and further relief as the Court deems just. TRIAL BY JURY OF 12 IS HEREBY DEMANDED COUNT II u. HANNAH SILBAUGH v. NELSON, SMITH, AND ATTALLA -.- ASSAULT AND BATTERY 42. Plaintiff incorporates herein by reference the averments of Paragraphs 1 through 30 as though fully set forth at length herein. 43. Nelson, Smith and Attalla acted in concert pursuant to an agreement and entered into a conspiracy, the object of which was to punish the Plaintiff for the exercise of her rights under the First and Fourteenth Amendments to the United States Constitution to petition for redress of grievances and because they were personally offended by her conduct and perceived lack of respect for the authority of the police, 44~ In the course of the conspiracy, Defendants Nelson, Smith and Attalla jointly assaulted the Plaintiff with noxious chemical weapons, either mace or pepper spray, with the intent to deprive her of sight and with the intent to inflict great pain 9 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page55 55ofof71 71 upon her. Further, in the course of said conspiracy, Nelson viciously kicked the Plaintiff in her left shoulder, causing pain and physical injury. 45- As the result of the aforesaid civil conspiracy, Plaintiff suffered the damages set forth above. 46. The actions of the Defendants, undertaken jointly, constitute willful misconduct, constitute a crime, and were motivated by actual malice on the part of the conspirators, were done in the disregard of the right of the Plaintiff and were intended to inflict injury and damage upon Plaintiff. The actions of the conspirators were outrageous, illegal and intentional, and beyond the scope of their employment and/or authority, thereby depriving Defendants of the defense of official immunity pursuant to 42 Pa.C.S. § 8546 or any other doctrine or statute. WHEREFORE, Plaintiff demands judgment in her favor and against Defendants Nelson, Smith and Attalla in an amount in excess of the applicable limits for mandatory arbitration in Erie County, together with punitive and exemplary damages, prejudgment interest, costs of suit and such other and further relief as the Court deems just. TRIAL BY JURY OF 12 IS HEREBY DEMANDED COUNT III _ HANNAH SILBAUGH V. MARC NELSON, DAVID SMITH, AND ANTHONY ATTALLA - DEPRIVATION OF RIGHTS UNDER THE FIRST, FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION IN VIOLATION OF 42 U.S.C. § 1983 47- Plaintiff incorporates herein by reference the averments of the preceding Paragraphs as though fully set forth at length herein. 10 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page56 56ofof71 71 48. The actions of Defendants Nelson, Smith and Attalla constituted an unreasonable seizure in violation of the Fourth and Fourteenth Amendments to the United States Constitution. 49- The actions of Defendants Nelson, Smith and Attalla constituted a violation of the substantive Due Process rights guaranteed to Plaintiff by the Fourteenth Amendment. 50. The amount of force used by the Defendants was unnecessary and excessive, risking serious bodily injury to the Plaintiff. 51. At the time the Defendant conspirators physically attacked the Plaintiff with chemical weapons and a foot strike, they had no intention of arresting the Plaintiff or charging her with any criminal offense, as evidenced by the fact that they told her to leave the area after completing their assault and threatening Plaintiff with serious bodily injury or death through the use of a laser. 52. Defendants, at all times, were aware that the Plaintiff had a constitutional right to bodily integrity and that the use of excessive and unnecessary force violated Plaintiffs rights under the constitutional provisions aforesaid. 53. The actions of the Defendants were intentional and outrageous, were undertaken in retaliation for Plaintiffs exercise of her rights under the First Amendment to the United States Constitution, and justify an award of punitive damages. WHEREFORE, Plaintiff demands judgment in her favor and against Defendants, jointly, severally and individually, in an amount in excess of the applicable limits for 11 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page57 57ofof71 71 mandatory arbitration in Erie County, together with punitive and exemplary damages, attorney's fees and expenses of litigation and such other and further relief as the Court deems just. TRIAL BY JURY OF 12 IS HEREBY DEMANDED COUNT IV HANNAH SILBAUGH v. DANIEL SPIZARNY, JOSEPH SCHEMBER AND CITY OF ERIE VIOLATION OF RIGHTS GUARANTEED BY THE FIRST, FOURTH AND FOURTEENTH AMENDMENTS TO THE \ UNITED STATES CONSTITUTION 42 U.S.C. § 1983 INADEQUATE TRAINING, CONTROL AND SUPERVISION 54~ Plaintiff incorporates herein by reference the preceding averments of this Complaint as though fully set forth at length. 55. In a news conference on June 15, 2020, the City of Erie, through its Mayor Joseph V. Schember and Chief of the Erie Bureau of Police, Defendant Daniel Spizarny, gave a press conference. 56. During that press conference, Defendant Schember stated that the actions of Defendant Nelson were undertaken in compliance with "approved police procedure." To date, however, despite requests, Defendants have failed and refused to identify the particular procedure justifying physical assault on a seated individual posing no threat to the police officer in question. 57. To the extent that "approved police procedure" of the City of Erie permits a police officer to viciously attack an individual exercising her constitutional right to protest police violence who is not being arrested and who poses no threat with mace, 12 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page58 58ofof71 71 pepper spray and foot strikes, said procedure is violative of the First, Fourth and Fourteenth Amendments to the United States Constitution. + 58. Further, the City of Erie Bureau of Police, with the knowledge of Defendants Spizarny and Schember, who have the power to control the actions of the Bureau, engages in a pattern and practice of excessive force as evidenced by the significant number of lawsuits filed against the City and its police officers for the use of excessive force and the large number of notorious instances where Erie bureau of Police officers have been video recorded physically abusing arrestees and other persons. The use of excessive force occurs with sufficient frequency to constitute an official policy or custom. 59. The official police policies of the City of Erie should not authorize, permit or justify the use of excessive force to control individuals who are not in the process of being arrested or who are not threatening to commit crimes of violence. Despite this, the City has interpreted its policies to permit such actions. 60. The City has failed to train its officers, including Nelson, Smith, and Attalla, in the appropriate use of force in non-arrest situations. 61. Given the lack of appropriate training of its police officers, it is highly predictable that officers will engage in the unconstitutional use of excessive force in non-arrest situations. 62. In fact, in the June 15th press conference, the City admitted that its training was inadequate in that it self-imposed a remedy of "sensitivity training" for all 13 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page59 59ofof71 71 Bureau of Police officers, including Nelson, Smith and Attalla intended to reduce or eliminate further instances of excessive force. 63. As a direct and proximate result of the failures of the Defendants, City of Erie, Schember and Spizarny to adequately train the members of the Bureau of Police, and to permit, and permit to continue, a pattern or practice of excessive force by those officers, Plaintiff suffered the injuries and damages set forth above. WHEREFORE, Plaintiff demands judgment in her favor and against Defendants, jointly, severally and individually, in an amount in excess of the applicable limits for mandatory arbitration in Erie County, together with punitive and exemplary damages, attorney's fees and expenses of litigation and such other and further relief as the Court deems just. TRIAL BY JURY OF 12 IS HEREBY DEMANDED COUNT v HANNAH SILBAUGH vs. CITY OF ERIE ._.. DECLARATORY AND INJUNCTIVE RELIEF 64. Plaintiff incorporates by reference the preceding paragraphs of this Complaint as though fully set forth at length. 65. Plaintiff is entitled to a declaration that the City of Erie Bureau of Police engages in a pattern or practice of excessive force police violence in violation of the First, Fourth and Foumeenth amendments to the United States Constitution . 66. Plaintiff is entitled to an injunction against the City of Erie mandating that it reform its police practices, remedy the deficient training of its police force, enforce policies for the protection of the residents and others who may be in the City, and 14 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page60 60ofof71 71 enforce policies regarding the use of force that exclude violence against persons not subject to arrest and who do not pose a threat. WHEREFORE, Plaintiff respectfully demands that this Court make such declaration and issue a permanent injunction as set forth above. Respectfully submitted, I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and d0cgrment3. l ._ K ~@. '\ \ MCNAIR LAW OFFICES, PLLC '1. Timothy D CN air Esquire 821 State Street Erie, PA 16501 (814) 452-0700 (814)454-2371 (fax) tmcnair@mcnairlaw.com 1 Timothy D, McNair, Esquire 15 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page61 61ofof71 71 I IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH v Plaintiff CWIL ACTION - LAW v. Case No. 11247-2020 MARC NELSON, DAVID SMITH s ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants JURY TRIAL DEMANDED I VERIFICATION I, HANNAH SILBAUGH, verify that the facts set forth 'm the within the Complaint are true and correct to the best of my knowledge, information and belief. I .understand that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Hannah Date: W augh -I 041l2»1/207.0 Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page62 62ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff CIVIL ACTION .. LAW v. Case N0.:11247-2020 MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants JURY TRIAL OF 12 DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Complaint was see/ed via electronic mail on this 12th day of August, 2020: G. Michael Garcia, II, Esquire via email g_mgarcia@mdwcg.com Paul D. Krepps, Esquire via email pgkrepps @mdwcg.com . Marshall Dennehey Warner Coleman & Goggin Marshall Dennehey Warner Coleman & Goggin 717 State Street, Suite 701 717 State Street, Suite 701 Erie, PA 16501 Erie, PA 16501 Respectfully submitted, MCNAIR LAW OFFICES, PLLC ByF *D Timothy D. McNair, Esquire Pa. ID#343o4 821 State Street Erie, PA 16501 (874) 452-0700 (814) 454-2371 tmcnair@mcnairlaw.com Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page63 63ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION .. LAW Plaintiff V. 9 Case No.: 11247-2020 I 5 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, , Defendants I l I 8 I 4 1 I 0 I 'of'<8 8:>**?% 8 mu 3 8 Incn . J! --»> QL? r. "='1u CJ.""n'; no r~1'\r"" I"*"I »1'i=.-1 c:"i..,.., ' ; "E?.}:» ** ac:J! :AZ") \."°7 -3 • 1 l'£31**°' 89 *Irv 07 (88 Q ::58»~ MOTION TO AMEND QAPTION NOW COMES the Plaintiff, Hannah Silbaugh, by counsel and, pursuant to Pa.R.C.P. 2005(c), moves for amendment of the caption in this action, respectfully representing : 1. This was commenced via Writ of Summons naming John Doe 1, John Doe 2, John Doe 3, John Doe 4 and John Doe 5 as Defendants. 2. After pre-Complaint discovery, Plaintiff has learned the following: a. John Doe 1 is Marc Nelson, b. John Doe 2 is David Smith; and c. John Doe 3 is Anthony Attalla. d. The identities of John Does 4 and 5 remain unknown at this time. 3. Defendants, through counsel, do not object to this motion. WHEREFORE, Plaintiff respectfully moves the Honorable Court to amend the caption in the above-captioned matter to read as follows: EXHIBIT Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page64 64ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff CIVIL ACTION - LAW v. Case N0.~11247-2020 MARC NELSON, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JQHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants JURY TRIAL OF 12 DEMANDED Respectfully submitted, I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and documents. \-.s (Q Timothy D. McNair, Esquire MCNAIR LAW OFFICES, PLLC By:€ *\ LL - /\ Timothy D. McNair, Esquire 821 State Street Erie, PA 16501 (814) 452-0700 (814)454-2371 (fax) tmcnair@mcnairlaw.com Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page65 65ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION - LAW Plaintiff v. Case No.' 11247-2020 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants ORDER AND NOW to wit, this day of August, 2020, upon consideration of foregoing Stipulation to Amend Caption, it is ORDERED that said Motion shall be, and is hereby GRANTED. The Prothonotary is directed to amend the caption in this matter to read as follows: Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page66 66ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, CIVIL ACTION .. LAW Plaintiff v. Case No.: 11247-2020 JURY TRIAL OF 12 DEMANDED MARC NELSON, DAVID SMITH, ANTHONY ATFALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ER1E, Defendants BY THE COURT John J. Mead, J. Cc: Timothy D. McNair, Esquire G. Michael Garcia, Esquire Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page67 67ofof71 71 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA HANNAH SILBAUGH, Plaintiff CIVIL ACTION - LAW v. Case N0.:11247-2020 JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH V. SCHEMBER, and CITY OF ERIE, Defendants JURY TRIAL OF 12 DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Motion to Amend Caption was served via electronic mail on this 12th day of August, 2020 : G. Michael Garcia, II, Esquire via email gmgarcia@mdwcg.com Paul D. Krepps, Esquire via email pdkrepps@mdwca.com _ Marshall Dennehey Warner Coleman 8: Goggin Marshall Dennehey Warner Coleman & Goggin 717 State Street, Suite 701 717 State Street, Suite 701 Erie, PA 16501 Erie, PA 16501 Respectfully submitted, MCNAIR LAW OFFICES, PLLC By: 4 ®W*~f Timothy D. McNair, Esquire Pa. ID#34304 821 State Street Erie, PA 16501 (814)452-0700 (814) 454-2371 tmcnair@mcnairlaw.com Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page68 68ofof71 71 °l * !?'é*'1§': m IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA r » \ HANNAH SILBAUGH, CIVIL ACTION - LAW I Il Case No.: 11247-2020 •0 Il Plaintiff v \ •9 .9 D .\ I• • l 0 o I0 Ic o MARC NELSOKK, DAVID SMITH, ANTHONY ATTALLA, JOHN DOE 4, JOHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants JURY TRIAL OF 12 DEMANDED .: In] .' ~n s 23 h ) D*-dh re -" " u. r T* ' BY T \ v-» C URT » lID in 4 John J. Mead, J. Cc: Timothy D. McNair, Esquire gfmichael Garcia, Esquire e \ € s '\ EXHIBIT » 98 2 4. Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page69 69ofof71 71 1" \ 9 \ 1 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA .l o • •a 4 HANNAH SILBAUGH, Plaintiff CIVILACTION -. LAW 0 \ 9 • I• v. JOHN DOE 1: JOHN D018 2) JOHN DOE 3, JOHN DOE 4;JUHN DOE 5, DANIEL SPIZARNY, JOSEPH v. SCHEMBER, and CITY OF ERIE, Defendants 1 1 II I4 Case No.: 11247-2020 I\ IQ I9 .. •I C: s \ *y'a **\l-0 l\J C: .3 .I AND NOW to wir, this l8 ORDER . a ;: 1 04"vm. day of August, 2020, upon consi21le1'jati(v11u of foregoing Stipullation to Amend Caption, it is ORDERED that said Motion shall be, and is hereby GRANTED. The Prothgnotary is directed to amend the caption in this matter to read as follows ' K \ \ 1 'u Q* I Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page70 70ofof71 71 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and collect copy of the foregoing Petition for Removal from a Civil Action has been served upon the following party of record this 27111 day of August, 2020, via U.S. First Class Mail, postage prepaid: Timothy D. McNair, Esquire McNAIR LAW OFFICES, PLLC 821 State Street Erie, PA 16501 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: 8' /), //7'f'- PAUL D. KREPPS, ESQUIRE PA ID #73038 pkrepps@mdwcg,com Counsel for above-named Defendants Union Trust Building, Suite 700 501 Grant Street Pittsburgh, PA 15219 (412) 803-1140 // (412) 803-1188 fax Case Case1:20-cv-00252-SPB 1:05-mc-02025 Document Document 150-13 1-12 Filed Filed08/27/20 08/27/20 Page Page71 71ofof71 71 Case No: H 247 - 2020 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded to all parties listed below by: Hand Delivery X U.S. First Class Mail, Postage Prepaid Electronic Mail ONLY Certified Mail, Return Receipt Requested Facsimile Transmittal at the following address: Timothy D. McNair, Esquire McNAIR LAW OFFICES, PLLC 821 State Street Erie, PA 16501 (Counsel for Plaint 9 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Date: August 27, 2020 B Y: g,1/, /4444 I PAUL D. KREPPS, ESQUIRE PA I.D. #73038 Counsel for above-named Defendants LEGAL/132300775.vl Case 1:20-cv-00252-SPB Document 1-13 Filed 08/27/20 Page 1 of 3 CIVIL COVER SHEET JS 44 (Rev. 02/19) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS Marc Nelson, David Smith, Anthony Attalla, Daniel Hanna Silbaugh Spizarny, Joseph V. Schember and CIty of Erie Erie County (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) NOTE: (c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) Paul D. Krepps, Esquire (Phone: 412-803-1140) Union Trust Building, Suite 700, 501 Grant Street Pittsburgh, PA 15219 Timothy D. McNair, Esquire (Phone: 814-452-0700) 821 State Street, Erie, PA 16501 II. BASIS OF JURISDICTION (Place an “X” in One Box Only) ’ 1 U.S. Government Plaintiff ’ 3 Federal Question (U.S. Government Not a Party) ’ 2 U.S. Government Defendant ’ 4 Diversity (Indicate Citizenship of Parties in Item III) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State ’ 1 ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property ’ ’ ’ ’ ’ ’ ’ PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education and One Box for Defendant) PTF DEF Incorporated or Principal Place ’ 4 ’ 4 of Business In This State ’ 2 ’ 2 Incorporated and Principal Place of Business In Another State ’ 5 ’ 5 Citizen or Subject of a Foreign Country ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Click here for: Nature of Suit Code Descriptions. TORTS 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise DEF ’ 1 Citizen of Another State IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT Erie County (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. FORFEITURE/PENALTY PERSONAL INJURY ’ 365 Personal Injury Product Liability ’ 367 Health Care/ Pharmaceutical Personal Injury Product Liability ’ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: ’ 463 Alien Detainee ’ 510 Motions to Vacate Sentence ’ 530 General ’ 535 Death Penalty Other: ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition ’ 560 Civil Detainee Conditions of Confinement ’ 625 Drug Related Seizure of Property 21 USC 881 ’ 690 Other LABOR ’ 710 Fair Labor Standards Act ’ 720 Labor/Management Relations ’ 740 Railway Labor Act ’ 751 Family and Medical Leave Act ’ 790 Other Labor Litigation ’ 791 Employee Retirement Income Security Act BANKRUPTCY ’ 422 Appeal 28 USC 158 ’ 423 Withdrawal 28 USC 157 PROPERTY RIGHTS ’ 820 Copyrights ’ 830 Patent ’ 835 Patent - Abbreviated New Drug Application ’ 840 Trademark SOCIAL SECURITY ’ 861 HIA (1395ff) ’ 862 Black Lung (923) ’ 863 DIWC/DIWW (405(g)) ’ 864 SSID Title XVI ’ 865 RSI (405(g)) FEDERAL TAX SUITS ’ 870 Taxes (U.S. Plaintiff or Defendant) ’ 871 IRS—Third Party 26 USC 7609 IMMIGRATION ’ 462 Naturalization Application ’ 465 Other Immigration Actions OTHER STATUTES ’ 375 False Claims Act ’ 376 Qui Tam (31 USC 3729(a)) ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and Corrupt Organizations ’ 480 Consumer Credit ’ 485 Telephone Consumer Protection Act ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/ Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information Act ’ 896 Arbitration ’ 899 Administrative Procedure Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes V. ORIGIN (Place an “X” in One Box Only) ’ 1 Original Proceeding ’ 2 Removed from State Court ’ 3 ’ 6 Multidistrict Litigation Transfer (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Remanded from Appellate Court ’ 4 Reinstated or Reopened ’ 5 Transferred from Another District ’ 8 Multidistrict Litigation Direct File 28 USC Section 1331 and 28 USC Section 1343 VI. CAUSE OF ACTION Brief description of cause: First, Fourth and Fourteenth Amendments ’ CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE CHECK YES only if demanded in complaint: ’ Yes ’ No JURY DEMAND: DEMAND $ DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD s/ Paul D. Krepps, Esquire August 27, 2020 FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE Case 1:20-cv-00252-SPB Document 1-13 Filed 08/27/20 Page 2 of 3 JS 44A REVISED June, 2009 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA THIS CASE DESIGNATION SHEET MUST BE COMPLETED PART A This case belongs on the ( 1. ERIE CALENDAR Erie Johnstown Pittsburgh) calendar. - If cause of action arose in the counties of Crawford, Elk, Erie, Forest, McKean. Venang or Warren, OR any plaintiff or defendant resides in one of said counties. - If cause of action arose in the counties of Bedford, Blair, Cambria, Clearfield or Somerset OR any plaintiff or defendant resides in one of said counties. 2. JOHNSTOWN CALENDAR 3. Complete if on ERIE CALENDAR: I certify that the cause of action arose in resides in County. County and that the 4. Complete if on JOHNSTOWN CALENDAR: I certify that the cause of action arose in County and that the resides in County. PART B (You are to check ONE of the following) 1. 2. . Short Caption This case is related to Number This case is not related to a pending or terminated case. . DEFINlTIONS OF RELATED CASES: CIVIL: Civil cases are deemed related when a case filed relates to property included in another suit or involves the same issues of fact or it grows out of the same transactions as another suit or involves the validity or infringement of a patent involved in another suit EMINENT DOMAIN: Cases in contiguous closely located groups and in common ownership groups which will lend themselves to consolidation for trial shall be deemed related. HABEAS CORPUS & CIVIL RIGHTS: All habeas corpus petitions filed by the same individual shall be deemed related. All pro se Civil Rights actions by the same individual shall be deemed related. PARTC I. CIVIL CATEGORY (Select the applicable category). 1. Antitrust and Securities Act Cases 2. Labor-Management Relations 3. Habeas corpus 4. Civil Rights 5. Patent, Copyright, and Trademark 6. Eminent Domain 7. All other federal question cases 8. All personal and property damage tort cases, including maritime, FELA, Jones Act, Motor vehicle, products liability, assault, defamation, malicious prosecution, and false arrest 9. Insurance indemnity, contract and other diversity cases. 10. Government Collection Cases (shall include HEW Student Loans (Education), V A 0verpayment, Overpayment of Social Security, Enlistment Overpayment (Army, Navy, etc.), HUD Loans, GAO Loans (Misc. Types), Mortgage Foreclosures, SBA Loans, Civil Penalties and Coal Mine Penalty and Reclamation Fees.) I certify that to the best of my knowledge the entries on this Case Designation Sheet are true and correct s/ Paul D. Krepps, Esquire Date: August 27, 2020 ATTORNEY AT LAW NOTE: ALL SECTIONS OF BOTH )2506 MUST BE COMPLETED BEFORE CASE CAN BE PROCESSED. JS 44 Reverse (Rev. 02/19) Case 1:20-cv-00252-SPB Document 1-13 Filed 08/27/20 Page 3 of 3 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) (b) (c) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.