Amended Complaint Filed in Alexandria Circuit Court

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA ERIC J. BONETTI, Plaintiff, CIVIL ACTION NUMBER:

vs.

GRACE EPISCOPAL CHURCH THE RT. REV. SUSAN E. GOFF THE EPISCOPAL DIOCESE OF VIRGINIA Defendants

AMENDED COMPLAINT FROM GENERAL DISTRICT COURT COMES NOW the Plaintiff, Eric J. Bonetti, and files this amended complaint, transferred from the Alexandria General District Court.

NATURE OF ACTION 1. This is an action for abuse of process, defamation, negligence, respondeat superior, and the intentional infliction of emotional distress.

2. This action arises from the actions of Grace Episcopal Church in pursuing a protection from abuse order from the Alexandria courts in December 2017 and the related roles of the Episcopal Diocese of Virginia and Bishop Susan Goff.

3. Until June 2017, Plaintiff was a member of Grace Episcopal Church, and served on its vestry, or board of directors, until the summer of 2015.

4. Plaintiff resigned from the vestry due to repeated incidents of questionable governance on the part of the church’s rector, Robert H. Malm. These included unexplained discrepancies in the church’s bank deposits, violations of the Age Discrimination in

Employment Act, harassment among church staff (including possible gender-based harassment), false statements by the rector that the church was audited on an annual basis, repeated refusals by the rector by provide the letter of engagement from the church’s accountants (who were, in fact, only retained to conduct am agreed-upon procedures review, and even then were unable to complete the project due to incomplete accounting records), shoddy financial recordkeeping, and missing funds.

5. Plaintiff’s fears concerning church finances were realized when, following the departure of a parish administrator (a hoarder), thousands of dollars of stale checks and missing cash were found in the mountains of trash in her office. While no explanation as to how these funds went missing without detection was ever proferred, within days church rector Robert H. Malm assured concerned vestry members that no fraud had occurred.

To this day, Plaintiff fails to comprehend how such an assertion could be made without the benefit of accurate financial reports, let alone a forensic audit. Yet it took years for subsequent staff to correct myriad errors in the church’s financial records.

6. Grace Episcopal Church repeatedly refused to allow Plaintiff and others to fulfill their fiduciary obligation to exercise due diligence over parish finances. For example, it refused to provide vestry members with access to financials and board minutes relating to the quasi-independent church school, despite the fact that the latter is not a separate legal entity, but accounts for more than 2/3 of church revenue and expenses. Moreover, church governance documents expressly provide that vestry members are to receive these documents on a regular basis.

7. Throughout this matter, Plaintiff repeatedly asked the diocese to intervene. In every instance, it declined to do so, stating in writing that matters complained of “are not of weighty and material importance to the ministry of the church.� (Exhibit 1)

8. Plaintiff eventually concluded that ignoring the myriad governance issues in the church and breaches of fiduciary duty by employees and vestry members were the legal equivalent of playing with fire, and that the only appropriate response was to resign from the vestry. He did so on or about June 2015.

PARTIES 9. Plaintiff Eric J. Bonetti is an individual and a resident of Virginia.

10. The Episcopal Diocese of Virginia is an unincorporated non-profit entity established under the laws of Virginia and conducting business within the Commonwealth.

Hierarchical in polity, the diocese and its bishops have authority over the parishes and other entities that comprise the diocese, including disciplinary and supervisory responsibility clergy. Moreover, pursuant to church canons, the diocese holds a trust interest in all real and personal property belonging to parishes. Indeed, the bishop diocesan can, for example, order all churches within the diocese closed, as she has done during the current pandemic.

11. The Rt. Rev. Susan Goff is the bishop of the Episcopal Diocese of Virginia, and routinely conducts business on behalf of the diocese within the Commonwealth of Virginia.

12. Grace Episcopal Church is an unincorporated non-profit entity established under the laws of Virginia. The Church has its primary place of business in Alexandria Virginia.

13. While this court cannot inquire into internal ecclesiastical matters, church canon I.17.8 expressly provides that anyone who accepts any office within the church does so in a fiduciary capacity. This is in keeping with the special relationship, direct tort liability and respondeat superior analysis promulgated by the Virginia Supreme Court under A.H., a minor v. Church of God in Christ Inc. (180520) JURISDICTION 14. The tortious actions that form the basis of this complaint occurred within Virginia.

VENUE 15. Venue is appropriate, as the matter is being transferred from the Alexandria General District Court.

COUNT 1 — ABUSE OF PROCESS Acting with the knowledge, consent and support of the Episcopal Diocese of Virginia and Bishop Susan Goff, Grace Episcopal Church misused the protection from abuse statutes as a Strategic Lawsuit Against Public Participation (SLAPP).

16. Grace Episcopal Church pursued the relevant protection from abuse order against Plaintiff through its rector, Robert H. Malm, and via legal counsel.

17. In doing so, the church acted with the full support of its vestry, or board of directors.

This is evinced by the vestry’s own minutes, and further confirmed by Mr. Malm in his written correspondence with third parties. (Exhibit 2) 18. The Episcopal Diocese of Virginia and its bishops were fully apprised in writing of the church’s fraudulent efforts to obtain a protective order, both in advance and during the litigation.

19. In response, the Episcopal Diocese of Virginia and its bishops provided access to diocesan litigation counsel, Joe Reeder, Esq., of Greenberg Traurig. (Exhibit 3) 20. At no point has Plaintiff ever been charged with making terroristic threats or otherwise faced any criminal charges in conjunction with defendants’ fabrications.

21. The City of Alexandria police department declined the church’s repeated requests to get involved.

22. At the time the protective order was granted, Plaintiff had not spoken or had contact with any member of the church in approximately seven months.

23. At the time the protective order was granted, Plaintiff had neither had contact with any church staff member, nor encountered any church staff member in a public or private setting, in approximately seven months.

24. During the prior litigation, Grace Episcopal perpetrated a fraud upon the courts, deliberately proffering myriad fabricated allegations that it had been threatened. Indeed, in one instance, which involved a facially satirical posting on Plaintiff’s mother’s blog using the word “terrorism,” Grace Church initially referenced the post as “joking,” while wrongfully attributing post to Plaintiff. Subsequently, Grace Church made much of that post, claiming that was a threat. These shifting claims illustrate the defendants’ questionably veracity, efforts to perpetrate a fraud on the courts, and desire to use the protective order process as a SLAPP. (Exhibit 4)

25. While Plaintiff recognizes that such conclusions are endemic in the context of litigation, the church’s conduct during litigation far exceeded normal bounds of zealous advocacy and reflect multiple violations of professional legal ethics, including lack of candor to the tribunal, fairness to the opposing party, spoliation of evidence, use of inflammatory/prejudicial language, ad hominem attacks, dilatory conduct during

discovery, failure to correct false testimony proferred by a client, profanity/abusive language directed at opposing counsel, failure to comply with court orders, failure to adhere to rules of court and more. Plaintiff submits that such conduct not only undercuts the veracity of defendant’s arguments, but it should have no place in the legal advocacy, as it undercuts confidence in the judicial system. That is all the more the case when, as here, the client is a faith community.

26. Most importantly, Grace Episcopal Church repeatedly demonstrated an ulterior motive to its litigation, namely to prevent online and other criticism of its conduct and that of its rector, Mr. Malm. As such, Grace Episcopal Church demonstrated one of the two requirements for a showing of abuse of process. Indeed, on four different occasions, including via a written settlement proposal (Exhibit 5), Grace Episcopal Church offered to withdraw its fraudulently obtained protective order. Plaintiff believes and avers that no party actually threatened would offer to withdraw a protective order, particularly in exchange for an agreement to cease online criticism. Thus, such an offer is, on its face, evidence that the church was not, in fact, a victim of abuse or threats.

27. Grace Episcopal Church’s improper motive is further illustrated by emails sent by employee Robert H. Malm. In one, he makes a statement against interest, claiming that his wife and daughter take the matter far more seriously than they should. (Exhibit 6) In another, he urges the Alexandria police department to violate Plaintiff’s rights by imposing a prior restraint on his First Amendment rights. (Exhibit 7) 28. Grace Episcopal also repeatedly engaged in conduct during litigation not appropriate in the ordinary prosecution of proceedings, the other element of abuse of process. In

addition to the myriad issues cited supra, Grace Episcopal, acting through its agent/employee Mr. Malm, attempted to subpoena Plaintiff’s terminally ill mother, Sigrid Yahner, in flagrant violation of relevant local law. Indeed, Plaintiff submits that presenting a third party with an ultra vires subpoena, facially invalid under state law, is itself abuse of process, for it subverts the intended purpose of the discovery process in an effort to obtain an unwarranted advantage in litigation. Moreover, one cannot conclude that defendants were unaware of applicable statutory provisions, for they were represented by one of the area’s leading law firms. Indeed, defendants persisted in their efforts, even after being advised that Pennsylvania requires leave of court prior to conducting discovery in protection from abuse cases. Further: a. The church repeatedly refused to specify how it had been threatened, even after this Court granted a motion to compel against it. b. Grace Episcopal Church, acting through Mr. Malm, twice committed perjury during discovery, falsely claiming that Ms. Yahner or someone claiming to be her, repeatedly contacted him to set up appointments, only to cancel. Mr. Malm also falsely stated that only his wife, Leslie Malm, had blogged about the issue, despite knowing that his daughter had done so as well. Plaintiff is fully aware of the seriousness of this accusation and prepared to provide proof at trial. c. Grace Episcopal Church on at least two occasions fraudulently concealed evidence that would have called its ethics and its legal case into question. i. The first involved an email from a church employee to the Rev. Caroline Parkinson, a diocesan official, which the church redacted in order to

conceal the fact that Mr. Malm had discussed engaging in retaliation with diocesan officials. Plaintiff discovered this only due to an error on the part of the church’s attorney, for elsewhere in discovery Grace Episcopal Church produced the identical email, unredacted. (Exhibit 8) ii. The second involved the defamatory per se email referenced later in this action. Despite being expressly within the ambit of discovery, this email emerged only a few weeks ago. And while one can understand that a copy of the email might not have been found in Mr. Malm’s sent mail, simply asking vestry members or the diocese for discoverable messages would readily have elicited the email, as would a request to the church’s email provider, Gmail. Thus, Plaintiff believes and avers that Grace Episcopal Church engaged in fraudulent concealment of evidence, while its legal counsel violated Rule 3.4. (Exhibit 9) d. On multiple occasions during the litigation, Grace Church attempted to engage in witness tampering, contacting the publisher of a well-known church abuse blog, The Wartburg Watch, to urge her not to testify on my behalf. At the time the church did so, both it and its legal counsel knew that Ms. Parsons, the publisher, intended to testify on Plaintiff’s behalf at trial. Moreover, diocesan official Pat Wingo was copied on one of the relevant emails. (Exhibit 10) 29. On multiple occasions, Grace Episcopal Church has submitted demonstrably false statements of fact during litigation. For example, in a recent request for admission, the church claimed that Plaintiff and his spouse, Mike Smith, formally terminated their

membership in the church during the summer of 2015. As the church well knows, there are two ways under church canons to terminate one’s membership in a parish: To request a written letter of transfer, or to die. Neither occurred during the summer of 2015, nor did either occur prior to the church’s instruction to parish stuff to remove Plaintiff from the church member directory and engage in other retaliatory, bad faith conduct. Indeed, Plaintiff’s spouse withdrew from membership in The Episcopal Church and Grace Episcopal Church on or about June 2017–almost two years after the church’s fabricated date.

30. Plaintiff repeatedly notified the Diocese and its bishops of the church’s abuse of process. In every case, they refused to get involved, even stating in writing that Mr. Malm’s perjury was “not of weighty and material importance to the ministry of the church.” (supra) Count II — Defamation and Defamation Per Se Acting through vestry member Kelly Gable, Grace Episcopal Church made a defamatory per se statement that Plaintiff had embezzled from a previous employer. The church, acting through employee/agent Robert H. Malm, subsequently republished this defamatory statement by forwarding it to diocesan officials. Plaintiff believes and avers that the diocese then republished the defamatory statement, although he does not yet know specifics.

Additionally, Plaintiff avers that defendant Grace Episcopal Church made multiple defamatory statements to local law enforcement. While statements to the police, even if unfounded, enjoy a high level of privilege, when as here they are made with actual malice they lose their privileged status.

31. On Wednesday, November 22, 2017, Grace Episcopal church, acting through its agent/employee Robert H. Malm, sent an email to diocesan officials stating that Plaintiff had embezzled from a previous employer. (Exhibit 10) 32. Normally, a defamation claim dating from 2017 would be time-barred.

33. In this case, Grace Episcopal Church fraudulently concealed this email during discovery, as discussed previously. As a result, it is axiomatic that the church should not be permitted to benefit from its misconduct by invoking the statute of limitations.

Moreover, any suit prior to late January 2020 would have unavoidably violated the nocontact clause of the church’s fraudulently obtained protection from abuse order, and thus the statute of limitations was tolled by the provisions of Va. Code § 8.01-229 (C) and (D).

34. Mr. Malm’s fabrication around the timing of Plaintiff’s departure from RPJ Housing speaks to his underlying motives, for Mr. Malm and church counsel in the previous litigation well knew that Plaintiff was the executive director of RPJ Housing while a member of the parish. Indeed, Mr. Malm and Plaintiff discussed the matter multiple times. Plaintiff hired Ms. Gable on the basis that he knew her due to their membership at Grace Episcopal Church and did do in order to help her financially during a period of extended unemployment. Additionally, other members of Grace Episcopal Church worked at RPJ Housing during the time in question, including Amy Barron and a member of the Spanish-speaking sub-congregation. Thus, it is inconceivable that Mr. Malm was simply mistaken in his recollection of the timing of Plaintiff’s departure from RPJ Housing. It is this malicious intent that Plaintiff submits removes any arguable privilege that the church’s statement may have enjoyed.

35. RPJ Housing was fully audited on an annual basis by an external CPA, who was recommended and approved by the Virginia Housing Development Authority, which held almost the entire RPJ Housing loan portfolio.

36. At no point during Plaintiff’s tenure was there ever any suggestion or concern about embezzlement, and such a claim is categorically false.

37. While Ms. Gable purports to have “firsthand” knowledge of the matter, she does not explain how Plaintiff, who did not cut checks or handle cash, allegedly engaged in embezzlement, or how embezzlement would be accomplished in an organization subject to a complete annual audit, and that used an outside CPA to prepare monthly financial reports for board review.

38. As stated supra, Plaintiff believes and avers that the diocese has republished the original defamatory per se statement. Plaintiff makes this assertion because Bishop Shannon Johnston (Bishop Goff’s predecessor in her current role) resigned as Bishop Diocesan in November 2018. Since Bishop Johnston was the recipient of the initial email, Plaintiff questions how the instant email could suddenly resurface almost two years later absent republication. Moreover, the malicious nature of the email, and the fact that the diocese and its bishops have not in any way repudiated its contents, leads Plaintiff to submit that any related party privilege for the statement in question would likely be very limited in scope.

39. Defendant Grace Episcopal Church’s numerous statements to the police, in which it falsely claimed inter alia to have been threatened, to be the victim of “domestic terrorism,” and to have been threatened by virtue of protests outside the church and

more, are the very definition of malice under the law. Indeed, to use the church’s definition of threats as evinced in this litigation, any use of the words/phrases “suicide,” “psychological torture,” or “murder,” no matter how innocent the context, to engage in protests outside the church, or to otherwise engage in First Amendment protected activity, would render the speaker/protestor subject to the state’s protective order process. Such claims are, on their face, made with malice, and constitute an egregious effort to suppress First Amendment rights. Thus, Plaintiff avers that such statements lose any protection against claims of defamation. Moreover, the outlandish nature of defendant’s claims are themselves evidence of abuse of process, for courts rightly assume that those who appear before it use words according to their normal meaning.

When claims are made that are wholly outside the scope of even the most generous definition of the word “threat,” defendants have, as here, crossed into the realm of perpetrating a fraud upon the courts.

40. Plaintiff thus believes and avers that discovery will produce evidence of myriad defamatory and non-privileged statements on the part of the defendants, resulting in the ability to plead the exact language used, consistent with Virginia case law involving defamation.

Count III — Negligence and Respondeat Superior The Diocese and Bishop Goff had a legal obligation in conjunction with the fiduciary relationship that existed with Plaintiff to respond to concerns raised by Plaintiff that involved perjury and other illegal conduct on the part of Grace Episcopal Church and its agents and employees

41. As stated supra, throughout this conflict Plaintiff repeatedly asked the diocese and its officials to get involved and help mediate the conflict.

42. Not only did the diocese refuse to do so, the diocese responded by attacking Plaintiff and his family, accusing them of duplicitous conduct.

43. Even when Grace Episcopal church engaged in retaliatory conduct for Plaintiff surfacing his concerns involving possible gender-based harassment, missing funds, and other troubling governance issues, the diocese and Bishop Susan Goff knowingly turned a blind eye to these actions. (Exhibit 11) 44. Indeed, the diocese went further, with Bishop Shannon Johnston sending a letter to the parish stating that he supported the parish and its clergy.

45. Neither the church, nor the diocese, nor its bishops, can validly claim that there is not a fiduciary obligation on the part of vestry members to address allegations of genderbased harassment, or missing funds.

46. Indeed, the Episcopal diocese of Virginia and its bishops spent much of the last decade in the Virginia courts, asserting that vestry members have a fiduciary obligation under the so-called Dennis Canon to preserve the diocesan trust interest in parish real and personal assets.1 47. With all respect to the Episcopal Diocese of Virginia and its bishops, they cannot have it both ways. They cannot insist in court that vestry members serve as fiduciaries to both

1

This was the so-called property recovery litigation involving dissident groups that left the Episcopal Church and sought to take church assets with them in violation of church canons. Making its way through the Courts over a period of years, the ultimate outcome was that the courts upheld diocesan claims to hold an equitable interest in all parish real and personal property.

the diocese and its constituent parishes, yet wash their hands of the matter and claim that missing funds, allegations of possible gender-based harassment, and other serious matters implicating vestry members in their roles as fiduciaries are “not of weighty and material importance to the ministry of the church.” That includes the instant situation, in which Plaintiff alerted the diocese to the church’s courtroom perjury (committed through its agent/employee Robert H. Malm), only to be brushed off in writing via the specious argument that perjury is a crime, and since Mr. Malm has not been charged with the crime of perjury, it declined to conclude that he had engaged in perjury.

Applying such logic would, for example, immunize clergy who sexually abuse children from diocesan oversight absent a criminal conviction. Yet via correspondence from the Rev. Melissa Hollerith, the diocese continues fast in its refusal to hold its clergy accountable, instead expressing full written support for misconduct by clergy subject to its authority.

48. Similarly, Plaintiff promptly alerted the diocese when Grace Church attempted to subpoena his terminally ill mother in violation of applicable state law. In that case, the diocese refused to even respond, despite the irrefutable fact that the subpoena was ultra vires and forbidden by Pennsylvania law. (The latter forbids discovery in protection from abuse cases absent prior leave of court. 231 Pa. Code § 1930.5 (“discovery”).)

49. In light of the fiduciary relationship that existed between Plaintiff and the defendants, Plaintiff believes and avers that the defendants are directly liable for their negligence and under the doctrine of respondeat superior.

Count IV — Intentional Infliction of Emotional Distress 50. Throughout this conflict, Grace Episcopal Church has acted in concert with diocesan officials to cause the Plaintiff profound emotional distress.

51. These efforts include the church’s various smear campaigns, conducted primarily by its clergy, which included claims that the Plaintiff engaged in “suspicious activities” while serving on the vestry. The role of clergy in this matters is particularly noteworthy, because the imbalance of perceived power between clergy and laity means that clergy are always responsible for maintaining appropriate boundaries with laity. When these boundaries are deliberately violated, as here, the betrayal of trust often causes profound distress, both to the victim and to the larger faith community. (Exhibit 13) 52. Also included are the church’s claims that the Plaintiff embezzled money from a previous employer, its suggestions in its pleadings and out of court statements that the Plaintiff is mentally ill, that he may suffer from multiple personality disorder, and more.

53. While Plaintiff recognizes that court pleadings themselves enjoy absolute immunity from claims in tort, he submits that their tone, tenor and content may be evaluated in the context of defendants’ overall conduct.

54. At one point, Grace Episcopal Church called the Plaintiff’s employer and church.

Apropos the former, the parish attempted to elicit HIPAA protected information, asking Plaintiff’s supervisor if he was receiving mental health treatment. Further, the church attempted to engage in tortious interference with Plaintiff’s employment, allegedly telling Plaintiff’s supervisor that Plaintiff was a “domestic terrorist” — a phrase the church used in its Pennsylvania state pleadings.

55. Most acutely distressing and humiliating was the experience of Grace Church attempting to drag the Plaintiff’s terminally ill mother, suffering from COPD and an acute anxiety disorder in her final months of life, into court in violation of the express provisions of relevant state law (supra). Indeed, even had the law permitted discovery, Plaintiff cannot imagine how the defendants thought that his mother, by that time confined to her house for more than three years; incontinent; requiring oxygen around the clock; struggling with an acute anxiety order, depression and other mental health issues; and receiving palliative care; could possibly comply with a subpoena requiring her to appear in person at the Venango County courthouse.

56. Moreover, when the Pennsylvania courts quashed the ultra vires subpoena out of hand, Grace Episcopal responded with various statements of questionable veracity, including that it did not know she was terminally ill, and that her attorney had just visited her and she was doing fine.

57. As a result of the church’s intentional infliction of emotional distress, Plaintiff suffered from various physical and other ailments requiring medical treatment. These medical problems continue to this day and are expected to remain with Plaintiff for the duration of his life. Nor had Plaintiff ever suffered these issues prior to the defendant’s malicious and tortious conduct.

WHEREFORE, Plaintiff respectfully requests the Court to enter an award for Plaintiff, and against Defendant, as follows: 58. Awarding Mr. Bonetti compensatory damages of not less than $40,000, or in such additional amount as may be proven at trial; 59. Awarding Mr. Bonetti punitive damages to the maximum extent permitted by the laws of this Commonwealth, but not less than $350,000; 60. Awarding Mr. Bonetti all expenses and fees, including attorneys’ fees; 61. Vacating the fraudulently obtained protective order, which expired in January 2020.

62. Such further relief as the Court deems appropriate.

Respectfully submitted,

Eric J. Bonetti Pro se plaintiff

CERTIFICATE OF MAILING I hereby certify that, on the 21st day of July 2020, I emailed a true and accurate copy of the foregoing to:

Pro se plaintiff

Exhibit 1

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Exhibit 5

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Exhibit 9

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Exhibit 13