BREAKING: Perjuring Priest Bob Malm’s Memo in Support of His Preliminary Objections by AnglicanWatch

IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA

Eric Bonetti,

: : : : : : : : : : : : : : : : : : : : : : : : : : :

Plaintiff, v. Robert Malm, Defendant.

NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days of service hereof or a default judgment may be entered against you.

CIVIL DIVISION Case No.: GD-20-006938 JURY TRIAL DEMANDED MEMORANDUM IN SUPPORT OF PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT Filed on Behalf of Defendant: Robert Malm Counsel of Record for this Party: Paul Steinman, Esquire PA ID No. 49730 psteinman@cozen.com Rachel Wenger, Esquire PA ID No. 325647 rwenger@cozen.com COZEN O’CONNOR One Oxford Centre 301 Grant Street 41st Floor Pittsburgh, PA 15219 Telephone: 412-620-6500

____________________________ Counsel for Defendant

IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA Eric Bonetti,

: CIVIL DIVISION : : Case No.: GD: : JURY TRIAL DEMANDED : : : :

Plaintiff, v. Robert Malm, Defendant.

DEFENDANT’S MEMORANDUM IN SUPPORT OF PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT Defendant, Robert Malm, by and through his attorneys, Cozen O’Connor, files the within Brief in Support of Preliminary Objections to Plaintiff’s Complaint. Dismissal of the Complaint is appropriate under Pennsylvania Rule of Civil Procedure 1028(a) and applicable Pennsylvania law because Plaintiff’s complaint is facially and fatally deficient in multiple respects. First, the Court lacks jurisdiction over the subject matter because this is an action that was initiated and transpired in the Court of Virginia. Second, Plaintiff fails to conform to the rule of law because Plaintiff has filed this lawsuit on behalf of someone else. Third, the Plaintiff fails to state a claim upon which relief can be granted because there was no Protection from Abuse or domestic case pending in Pennsylvania to warrant attorney’s fees pursuant to Rule 1930.5. Fourth, Plaintiff fails to state a claim upon which relief can be granted because there were no proceedings against Eric Bonetti or his mother Sigrid Yahner in which attorney’s fees would be warranted under 42 Pa. C.S. § 8351. I.

BACKGROUND This matter originates from the Circuit Court of the City of Alexandria in the

Commonwealth of Virginia in which the Court granted the Petition for Protective Order filed by 1

Robert Malm (hereinafter “Malm”) against Eric Bonetti (hereinafter “Bonetti”) on January 24, 2018. See Exhibit A, ¶ 1. Bonetti appealed the Court’s decision. Id. During the discovery phase of the appeal in Virginia, following the relevant Pennsylvania laws and Alexandria City Court rules, a subpoena was issued on behalf of Malm for Ms. Yahner, the Plaintiff’s mother, on June 29, 2018 in order to take her deposition on August 2, 2018.1 See Exhibit B. Due to her health, the Court quashed the subpoena and granted a protective order preventing any in-person testimony by Ms. Yahner. Complaint ¶ 7, See also Exhibit B. Malm’s attorney filed a motion for reconsideration. Complaint at ¶ 8. However, before presenting the motion, Malm’s attorney issued a notice and requested that the Venango Court hold his motion for reconsideration in abeyance, as the parties were “seeking a resolution to secure Ms. Yahner’s written testimony.” See Exhibit C. Before Ms. Yahner responded to the written questions, Bonetti withdrew his appeal of the Protective Order issued against him on August 28, 2018 terminating his appeal. See Exhibit D. Plaintiff, a pro se litigant in Pennsylvania, now alleges that he is entitled to recover his mother’s legal fees and related costs under 42 Pa.C.S. § 8351 and Rule 1930.5. See Generally Complaint. Philadelphia Contributionship Insurance Company v. Wright, 2020 WL 2394133, at *3 (Pa.Super., 2020) (stating that while it is generally true that trial courts may not take judicial notice in one case of records of another case, Dragonetti claims must be a limited exception because the elements of a Dragonetti claim include that “the proceedings have terminated in favor of the person against whom they are brought.”). Citations omitted.2

Plaintiff’s mother passed on January 28, 2020. https://www.newsbreak.com/pennsylvania/franklin/obituary/1499103100357/sigrid-b-yahner See Howard v Arconic Inc., 395 F.Supp.3d 516 (W.D. Pa. 2019) (court may take judicial notice of press release.) 2 The Court also cited two exceptions to when a Court can take judicial notice of records from other cases when sustaining a demurrer to a complaint. The first when then they involve the same parties and two “[i]t is appropriate for a court to take notice of a fact ... which is incorporated into the complaint by reference to a prior court action.” Philadelphia Contributionship Insurance Company v. Wright, 2020 WL 2394133, at *3 (Pa.Super., 2020) citing Hvizdak, 190 A.3d at 1218 n. 1.

II.

LEGAL STANDARD Pursuant to Rule 1028(a) of the Pennsylvania Rules of Civil Procedure, “preliminary

objections may be filed by any party to any pleading” and may be raised on grounds including: “(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; and (4) legal insufficiency of a pleading (demurrer) PA. R. C. P. 1028(a). In making its determination upon preliminary objections, the court must accept as true, all wellpleaded material facts alleged in the complaint, as well as all inferences deductible from them. Gordon v. Lancaster Osteopathic Hospital Association, Inc., 489 A.2d 1364, 1368 (Pa. Super. Ct. 1985). Preliminary objections will be sustained only if they are clear and free from doubt. Pennsylvania AFL-CIO ex rel. George v. Com., 757 A.2d 917, 920 (Pa. 2000). Pursuant to the Pennsylvania Rules of Civil Procedure, Defendant raises Preliminary Objections to Plaintiff’s Complaint as follows: III.

ARGUMENT A.

Venue is improper in Venango County as the cause of action arose in Alexandria City of Virginia.

Venango County, Pennsylvania is not the proper venue for this litigation. Pursuant to Pennsylvania Rules of Civil Procedure, improper venue shall be raised by preliminary objection and if not so raised, shall be waived. Pa. Rule. 1006 (e). Further, an action against an individual may be brought in and only in a county in which . . . the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law. Pa. Rule. 1006 (a) (1). Neither party to this lawsuit is a resident of Venango County. Complaint at ¶ 16 and 17. Bonetti is a resident of Virginia. Complaint at ¶ 16. During the time of the alleged facts of the Complaint, Malm was also a resident of Virginia, he is now a resident of Massachusetts. 3

Complaint at ¶ 17. The cause of action, based upon the procedural history, arose from a Protective Order from the Alexandria Court of Virginia.3 Therefore, venue is proper in Virginia. B.

Preliminary Objection in the Nature of a Motion to Dismiss Plaintiffs Complaint for Failure to Conform to Law or Rule of Court.

Pennsylvania Rule of Civil Procedure 1028(a)(2) permits a party to file preliminary objections for “failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter.” Under Pennsylvania Rule of Civil Procedure, “[e]very pleading, written motion, and other paper directed to the court shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.” Pa. R. Civ. 1023.1 (b). Plaintiff seeks to recover attorney’s fees and damages on behalf of his deceased mother. His Complaint fails to conform to the rule of law because he is not a practicing attorney in Pennsylvania, and now files this Complaint pro se on behalf of his mother. It is well settled that with a few exceptions, not applicable here, non-attorneys may not represent parties before the Pennsylvania courts and most administrative agencies. Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130 (Pa.Cmwlth.2001). Plaintiff alleges in his Complaint, that shortly before her death, Ms. Yahner executed a written assignment of rights to the Plaintiff and any and all legal claims against defendant. Complaint at ¶ 9. Thus, while Bonetti is nominally the Plaintiff, he claims to be bringing this suit on behalf of his mother’s estate. Even if this was proper and true, Pennsylvania is also clear that a pro se plaintiff may not represent a decedent's estate because it constitutes the unauthorized practice of law. See In re Estate of Rowley. 84 A.3d 337 (Pa. Commw. Ct. 2013) (prohibiting a non-attorney from representing the estate given the complex legal issues that may arise and the

Bonetti has also recently filed an additional lawsuit in which Malm is a party in the Court of Virginia.

existence of other beneficiaries and creditors); Norman v. Temple Univ. Health Sys., 2019 Pa. Super. 135 (Pa. Super. 2019) (applying In re Estate of Rowley to bar a non-attorney from representing the decedent's estate in a medical malpractice action). Therefore, Defendant respectfully requests this Honorable Court to dismiss the entirety of Plaintiff’s Complaint. C.

Demurrer: Plaintiff’s claim under Rule 1930.5 must fail because Plaintiff’s Complaint fails to establish that there was a Protection from Abuse Order in Pennsylvania or a domestic dispute that would warrant attorney’s fees on behalf of Ms. Yahner.

Pennsylvania Rule of Civil Procedure 1028(a)(5) permits a party to file preliminary objections for “legal insufficiency of a pleading (demurrer).” Rule 1930.5 states as follows: (a) There shall be no discovery in a simple support, custody, Protection from Abuse, or Protection of Victims of Sexual Violence or Intimidation proceedings unless authorized by order of court. (b) Discovery shall be available without leave of court in accordance with Pa.R.C.P. Nos. 4001—4025 in alimony, equitable distribution, counsel fees and expense, and complex support proceedings. The Complaint fails to plead any allegations or facts that a Protection from Abuse or domestic dispute existed in Pennsylvania. On the contrary, the Motion to Quash from Venango County references the appeal initiated by Bonetti in Virginia based on a protective order granted in the Alexandria Court.4 Further, as stated, Bonetti initiated the discovery through his appeal process. As such, Bonetti is not warranted attorney fees for Ms. Yahner under Rule 1930.5 and Defendant respectfully requests this Honorable Court to grant his Third Preliminary Objection to Plaintiff’s claim for attorney’s fees and damages against Malm pursuant to Pennsylvania Rule of Civil Procedure 1028(a).

Ms. Yahner’s counsel filed the Motion to Quash on her behalf.

Demurrer: Plaintiff’s claim under 42 Pa. C.S. § 8351 must fail because Plaintiff’s Complaint fails to adequately allege that Defendant acted in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, and proceedings have terminated in favor of Bonetti.

Wrongful use of civil proceedings (the Dragonetti Act) is codified at 42 Pa.C.S.A. § 8351. Section 8351 provides: (a) A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and (2) the proceedings have terminated in favor of the person against whom they are brought. 42 Pa. C.S.A. § 8351(a). Accordingly, a cause of action for wrongful use of civil proceedings requires a plaintiff to allege and prove three elements: (1)

the underlying proceeding was terminated in favor of the plaintiff,

(2)

the defendant caused these proceedings to be instituted without probable cause or with gross negligence, and

(3)

the proceedings were instituted primarily for an improper purpose.

The statute defines “the existence of probable cause” as follows: A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either: (1)

Reasonably believes that under those facts the claim may be valid under the existing or developing law;

(2)

Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or

(3)

Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

42 Pa. C.S.A. § 8352. The Court in Ludmer v. Nernberg stated, “[a]lthough the initiation of a lawsuit is one element of the cause of action, the cause of action does not accrue until all the requirements have been met, which includes obtaining a favorable outcome. 553 A.2d 924, 926, 520 Pa. 218, 222 (Pa.,1989). Bannar v. Miller, 701 A.2d 242, 247 (Pa.Super.1997) (quoting Restatement (Second) of Torts § 674 (comment j) (1977)) (holding under circumstances of case, voluntary dismissal constituted determination in favor of parties against whom proceedings were brought). The Complaint fails to plead any allegations or facts, nor can it be pled that Malm acted in a grossly negligent manner without probable cause and that the proceedings have terminated in favor of the Plaintiff. On the contrary, Bonetti appealed the decision of the Protective Order of Virginia initiating discovery in the underlying claim. The Complaint fails to plead any allegations or facts that Malm initiated a lawsuit at any time against Bonetti or Ms. Sigrid Yahner. Bonetti voluntarily dismissed the appeal of the Virginia case ending the litigation. Based upon case law, Bonetti’s voluntary dismissal is a determination in favor of Malm not Bonetti as the appeal was brought against Malm and was subsequently dismissed. As such, this Honorable Court should grant Malm’s Third Preliminary Objection because Plaintiff’s Complaint does not and cannot establish that the defendant initiated litigation in a grossly negligent manner and that the proceedings terminated in favor of the Plaintiff. Accordingly, Plaintiff cannot establish that Malm owes

attorney’s fees on behalf of Ms. Yahner and damages based on the facts alleged in Plaintiff’s Pro Se Complaint and prior proceedings. IV.

CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Honorable Court grant

the transfer of venue or sustain its Preliminary Objections thereby dismissing Plaintiff’s Complaint. Respectfully submitted,

By: Paul Steinman, Esquire (PA ID No. 49730) Rachel Wenger, Esquire (PA ID No. 325647) COZEN O’CONNOR One Oxford Centre 301 Grant Street 41st Floor Pittsburgh, PA 15219 Attorneys for Defendant

EXHIBIT A

PROTECTIVE ORDER Commonwealth of Virginia

[X] General District Court ] Circuit Court . [ ] Juvenile and Domestic Relations District Court

ALEXANDRIA GENERAL DISTRICT COURT [ ] Amended Protective Order

[ ] Extension of Protective Order

PETITIONER

[ ] Conviction for Violation of Protective Order

PETITIONER'S DATE OF BIRTH

MALM, ROBERT LAST

GV 1800013 8-00

Case No ...

VA. CODE§ 19.2-152.lO

09/17/1951

FIRST

lvlIDDLE

And on behalfof minor family or household member(s): (list each name and date of birth)

Other protected family or household members: (list each name and date of birth) 09/27/1957

.~~~Mi . ~.~.~~.~~··············

V. RESPONDENT

RESPONDENT IDENTIFIERS RACE

BONETTI, ERIC LAST

SEX

MO.

FIRST

MIDDLE

M SN

4094 MAJESTIC LN. #162 RESPONDENT'S ADDRESS

(IFKNOWN)

BORN DAY

WGT.

HT.

YR.

FT.

IN.

30 ti-\ 6 02 \ L\L\·- 53- 653

RIVER'S LICENSE NO.

210

STATE

EYES

.BR

HAIR

XP.

.................. X~.~~~~.,.Y..~.}.~.q~~·································

[ ] CAUTION: Weapon Involved

Distinguishing features: ...................... .

THE COURT FINDS that it has jurisdiction over the parties and subject matter, that the Respondent was given reasonable notice and an opportunity to be heard, and that [ ] A [ ] warrant [ ] petition has been issued charging the Respondent with a criminal offense resulting from the commission of an act of violence, force, or threat as defined in Va. Code§ 19.2-152.7: 1, OR [ ] The Respondent has been convicted of [ ] a criminal offense resulting from the commission of an act of violence, force, or threat as defined in Va. Code§ 19.2-152.7:1. .) ] a violation of a protective order pursuant to Va. Code§ 18.2-60.4, OR A full hearing on the petition for a protective order has been held pursuant to Va. Code§ 19.2-152.9(0), OR [ ] A hearing has been held pursuant to Va. Code§ 19.2-152.lO(B) on a motion to extend a protective order. THE COURT FURTHER FINDS that the Petitioner and the Respondent [ ] cohabited more than 12 months ago but not within the past 12 months [ ] have never cohabited. Accordingly, to protect the health and safety of the Petitioner and family or household members of the Petitioner, T~ COURT ORDERS that: [rThe Respondent shall not commit acts of violence, force, or threat or criminal offenses that may result in injury to person or property.

[,1

[ ] The Respondent shall have no contact of any kind with the Petitioner

[;;~e ~xe~;:n:e!:'~::::h~~~·~~· ~~~;~~; ~;~~; ~i~d·~;;~·;~~· ;~~;,;·~r ~~~~~~~\~.~~~~~~~~~·!~~· ~~;i;i~~~;,;~~~d~~~~~···· . . . . . . . . . . .. [ ] except as follows: [ ] The Petitioner is granted possession of the companion animal described as .......................... .

[ It is further ordered that@, //N.-, c£ ,,,.f.J.4.~/L>:::!. ~ .:-:,f.c, ,',,, {

°::

bf<> -:>} ~ Rf(poq

&~!~ &;a&,'.::~::;;.· 4:,.,;:' ~ NAM:ri

[ ] Supplemental Sheet to Protective Order, Form DC-653, attached and incorporated by reference. Number of supplemental pages: ...... . [ ] Final judgment having been rendered on appeal from the juvenile and domestic relations district court, this matter is remanded to the jurisdiction of the juvenile and domestic relations district court in accordance with Virginia Code § 16.1-297.

THIS ORDER SHALL REMAIN IN FULL FORCE A1j'3 E~~ECT UNTIL ... ../. ............... 7).. . l/..

......... .//.:}..L/!(</............. DAfri...

/V0f JUDGE

See warnings and notices to Respondent on page two. FORM DC-385 (MASTER, PAGE ONE OF TWO) 10/14

).e . ~. .9: .

at t t:59 p.m .

'--MO-NT-H_ _ oAr_·_ _ _ vE-AR_ ____.

Case No .............. ....... gY.\~.~~~.1}~~~~···········

......... .

RETURNS: Each erson was served accordin° to law, as indicated,.....b_e_l_ow--'-,_u_n_le_s_s_n_o_t_fo_u_n_d_._ _ _ _ _ _ _ _ _ _ _ _ _~ RESPONDENT: NAME

PETITIONER: .(See for~ DC~62 l, NoN-~SCLOSURE ADDENDUM)

~.Q.(\.0..k.t., . ,. . ~.r.J . G·.....................................

NAME ...

V\\\.M.,. . .14)\9.(c............................................ .

ADDRESS ................................................................................................ .

[ ] PERSONAL SERVICE

[ ] NOTFOUND

SERVrNG OFFICER

for-------------------~ DATE AND TTh.IE

RESPONDENT'S DESCRIPTION (for VCIN entry): RACE.........................

SEX ....................................................... .

DOB: ......................................................................................................... . HGT ............................ WGT .................................................................. .

EYES .......................... HAIR ................................................................. . SSN .......................................................................................................... .. Tel. No ....................................................................................................... .

Relationship to Petitioner/Plaintiff ........................................................... . Distinguishing features ............................................................................. .

WARNINGS TO RESPONDENT: Pursuant to Code of Virginia§ 18.2-308.l :4, Respondent shall not purchase or transport any firearm while this order is in effect. If Respondent has a concealed handgun permit, Respondent must immediately surrender that permit to the court issuing this order. If Respondent violates the conditions of this order, Respondent may be sentenced to jail and/or ordered to pay a fine. This order will be entered into the Virginia Criminal Information Network. Either party may at any time file a motion with the court requesting a hearing to dissolve or modify this order; however, this Order remains in full force and effect unless and until dissolved or modified by the court. Only the court can change this Order.

Federal Offenses: Crossing state, territorial, or tribal boundaries to violate this order may result in federal imprisonment (18 U.S.C. § 2262). Federal law provides penalties for possessing, transporting, shipping or receiving any firearm or ammunition while subject to a qualifying protective order and under the circumstances specified in 18 U.S.C. § 922(g)(8).

Full Faith and Credit: This order shall be enforced, even without registration, by the courts of any state, the District of Columbia, and any U.S. Territory, and may be enforced on Tribal Lands (18 U.S.C. § 2265). DEFINITIONS: "Family or household member'' means (i) the person's spouse, whether or not he or she resides in the same home with the person, (ii) the person's former spouse, whether or not he or she resides in the same home with the person, (iii) the person's parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren regardless of whether such persons reside in the same home with the person, (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, or (v) any individual who has a child in common with the defendant, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous twelve (12) months, cohabitated with the person, and any children of either of them residing in the same home with the person. "Act of violence, force, or threat" means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. Such act includes, bu't is not limited to, any forceful detention, stalking, criminal sexual assault in violation of Article 7 (§ 18.2-61 et. seq.) of Chapter 4 of Title 18.2, or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. FORM DC-3&5 (MASTER, PAGE TWO OF TWO) 10/12

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