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.
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CIVIL DIVISION Case No.: GD-20-006938 JURY TRIAL DEMANDED 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
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IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA ERIC BONETTI,
: CIVIL DIVISION : : : Case No.: GD-20: : : : JURY TRIAL DEMANDED :
Plaintiff, v. ROBERT MALM, Defendants.
DEFENDANT ROBERT MALM’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT AND NOW, comes Defendant, Robert Malm (herein after referred to as “Malm”), by and through his attorneys, Cozen O’Connor, and files the within Preliminary Objections to Plaintiff’s Complaint as follows: STATEMENT OF THE CASE 1.
Plaintiff, a pro se litigant in Pennsylvania, alleges that he is entitled to recover his
deceased mother’s legal fees and related costs under 42 Pa.C.S. § 8351 and Rule 1930.5. 2.
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 Robert Malm in which Eric Bonetti appealed the Court’s decision. 3.
During the discovery phase of the appeal in Virginia, 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
1
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.)
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4.
Due to Ms. Yahner’s declining health, the Court of Venango County granted a
motion presented by Ms. Yahner’s attorney to quash the subpoena and grant a protective order preventing any in-person testimony by Ms. Yahner. 5.
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.
A.
Venue is improper in Venango County as the cause of action arose in Alexandria City of Virginia.
6.
Venango County, Pennsylvania is not the proper venue as 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. 7.
The cause of action alleged in the Complaint arose from a Protective Order in
Alexandria, Court of Virginia. 8.
Neither party to this lawsuit are residents of Venango County, Pennsylvania, or
even Pennsylvania. 9.
Therefore, venue is proper in Virginia.
Wherefore, Defendant respectfully requests this Honorable Court grant his preliminary objection and transfer this matter to Alexandria, Court of Virginia. B.
Preliminary Objection in the Nature of a Motion to Dismiss Plaintiffs Complaint for Failure to Conform to Law or Rule of Court.
10.
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). 3 LEGAL\48609069\1
11.
Plaintiff seeks to recover attorney’s fees and damages on behalf of his deceased
mother. 12.
Plaintiff alleges in his Complaint, that shortly before her death, Ms. Yahner
executed a written assignment of rights to the Plaintiff any and all legal claims against defendant. Complaint at ¶ 9. 13.
Thus, while Bonetti is nominally the Plaintiff, he claims to be bringing this suit on
behalf of his mother’s estate. 14.
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) Wherefore, Defendant respectfully requests this Honorable Court grant his preliminary objection and 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.
16.
The Complaint fails to plead any allegations or facts that a Protection from Abuse
or domestic dispute existed in Pennsylvania 17.
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.2 18.
As such, Bonetti is not warranted attorney fees for Ms. Yahner under Rule 1930.5.
WHEREFORE, Defendant requests that this Honorable Court grant his Preliminary Objections and dismiss Plaintiff’s Complaint with prejudice.
2
Ms. Yahner’s counsel filed the Motion to Quash on her behalf.
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D.
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.
19.
Plaintiff also brings a claim for wrongful use of civil proceedings (the
Dragonetti Act) which is codified at 42 Pa.C.S.A. § 8351. 20.
A cause of action for wrongful use of civil proceedings requires Plaintiff
prove 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 Plaintiff. 21.
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. 22.
Defendant, Bonetti, voluntarily dismissed the appeal of the Virginia case
ending the litigation. 23.
As such, this Honorable Court should grant Malm’s Preliminary Objections
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. WHEREFORE, Defendant requests that this Honorable Court grant his Preliminary Objections and dismiss Plaintiff’s Complaint with prejudice. Respectfully submitted,
By: Paul Steinman, Esquire (PA ID No. 49730) Rachel Wenger, Esquire (PA ID No. 325647) 5 LEGAL\48609069\1
COZEN O’CONNOR One Oxford Centre 301 Grant Street 41st Floor Pittsburgh, PA 15219 Attorneys for Defendant
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CERTIFICATE OF SERVICE
I hereby certify that true and correct copy of the within Preliminary Objections to Plaintiff’s Complaint was served upon the following counsel of record by Fedex and email, this 2nd day of October, 2020: Eric Bonetti 4129 Fountainside Lane #203 Fairfax, VA 22030 Pro Se
Rachel J. Wenger, Esquire
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