Bonetti v. Malm: Plaintiff’s Memo In Opposition to Defendant’s Preliminary Objections

PENNSYLVANIA: IN THE COURT OF COMMON PLEAS FOR VENANGO COUNTY ERIC J. BONETTI, Plaintiff,

CIVIL ACTION NUMBER: 806-2020

vs.

ROBERT H. MALM, Defendant

PLAINTIFF’S MEMORANDUM IN RESPONSE TO PRELIMINARY OBJECTIONS Eric Bonetti, plaintiff in the above-captioned matter, respectfully submits this memorandum in response to the defendant’s preliminary objections.

VENUE Contrary to the defendant’s arguments regarding venue, Venango County is the proper venue for issues pertaining to the Venango County subpoena issued against Sigrid Yahner, who was a non-party to the relevant Virginia litigation.

Specifically, the relevant subpoena was domesticated pursuant to Pennsylvania’s enactment of the Uniform Interstate Deposition and Discovery Act (UIDDA), set forth at 42 Pa.C.S. §§ 5331-37. The Pennsylvania Rules of Civil Procedure and any statutes relating to service of subpoenas and compliance with subpoenas in Pennsylvania apply to all subpoenas issued under the UIDDA with the same force and effect as they would for a subpoena issued to a nonparty for litigation pending in the state.

Moreover, any applications for a protective order or requests to enforce, quash or modify a subpoena issued under the UIDDA must comply with Pennsylvania rules and statutes

and must be submitted to the county that ordered service of the subpoena upon the Pennsylvania resident.

In the instant case, Ms. Yahner applied to this court and the domesticated subpoena was quashed. Additionally, recognizing the perilous state of Ms. Yahner’s health, this court issued a protective order, preventing Mr. Malm from obtaining in-person testimony from Ms. Yahner. Legal counsel for Mr. Malm then entered an appearance before this court, arguing for reconsideration of the matter.

Thus, Virginia courts have no jurisdiction to review this court’s prior decisions in this case.

Alleged Failure to Comply With Rule of Law In her arguments that the present case fails to comply with the rule of law, defense counsel violates Disciplinary Rule 3.3(a)1 (“Candor to the Tribunal”), which states: “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” As Ms. Wenger well knows, and as was discussed previously during this matter, prior to her death Ms. Yahner executed a written assignment of rights to plaintiff for any and all claims she might have relating to the litigation involving Mr. Malm. Further, it is well established that such an assignment is an independent act, not subject to the hearsay rule.

Ms. Wenger offers no evidence to refute these facts, but instead tries to mislead the court as to the plaintiff’s role in the matter by claiming that he represents the estate. That is a Bonetti v. Malm Plaintiff’s Response to Defendant’s Preliminary Objections Page 2 of 7

fabrication, for at no point has plaintiff made any claim to represent the estate, nor is there any captioning or other indicia to support such a conclusion. Moreover, coming just months after Ms. Yahner’s death, plaintiff finds Ms. Wenger’s allegations regarding the unauthorized practice of law offensive and discourteous, to say the least. It is plaintiff’s hope that, at a minimum, defense counsel will promptly correct her false statements of law and fact regarding this issue.

That is particularly the case when, as here, defense counsel tellingly omits all reference to the written assignment of rights from her pleadings.

Recoverability of Legal Fees

Pursuant to 42 Pa.C.S.A. §2503(9), legal fees may be recovered when a plaintiff commences an action that is “arbitrary, vexatious, or in bad faith.”

In the instant case, 231 Pa. Code § 1930.5 makes clear that there is no discovery in Pennsylvania in protection from abuse cases absent prior leave of court. As discussed supra, the UIDDA states that all Pennsylvania rules of civil procedure apply when a subpoena is domesticated in Pennsylvania. Neither third parties nor other litigants lose their rights under Pennsylvania law merely because the matter giving rise to the Pennsylvania subpoena has its genesis in a foreign jurisdiction.

There is no dispute that Mr. Malm did not attempt to obtain leave of this court prior to trying to engage in discovery pertaining to a protection from abuse proceeding. Indeed, had he done so, this court might well have preempted Mr. Malm’s attempt to force an elderly, Bonetti v. Malm Plaintiff’s Response to Defendant’s Preliminary Objections Page 3 of 7

terminally ill woman, incontinent, dependent on oxygen, and suffering from a debilitating anxiety disorder relating to her final illness, to leave her home to participate in a deposition at the courthouse. Nor did Mr. Malm ever attempt to obtain the requisite leave of court.

Plaintiff submits that it is precisely situations such as this that led the Pennsylvania legislature to require leave of court prior to discovery in protection from abuse cases.

Moreover, it is axiomatic that having failed to obtain the requisite leave of court, defendant’s ultra vires subpoena of Ms. Yahner is the very definition of “arbitrary, vexatious, and in bad faith.” Indeed, it is indisputable that Mr. Malm was fully aware of the serious nature of Ms. Yahner’s illness. And the case terminated in Ms. Yahner’s favor, for this court quashed the Pennsylvania subpoena against her. Thus, an award of attorney’s fees is appropriate.

Conclusion

For the reasons set forth above, plaintiff respectfully requests that defendant’s preliminary objections be dismissed and an order compelling defendant to respond to plaintiff’s now overdue discovery requests. Plaintiff further requests appropriate sanctions against defense counsel for her violation of 231 Pa. Code § 1.99.

Respectfully submitted,

Eric J. Bonetti Pro se plaintiff 4129 Fountainside Lane 203 Bonetti v. Malm Plaintiff’s Response to Defendant’s Preliminary Objections Page 4 of 7

Fairfax VA 22030 eric.bonetti@me.com 703-973-4984

Respectfully submitted, ERIC BONETTI Pro Se Plaintiff 4129 Fountainside Lane 203 Fairfax VA 22030 Eric.bonetti@me.com

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was emailed and mailed, via USPS First Class mail, to Counsel for Defendant on Monday, September 20, 2020 per the following: Rachel Wenger, Esq. Cozen O’Connor One Oxford Centre 301 Grant St 41st floor Pittsburgh, PA 15219 Email: rwenger@cozen.com Phone: +1(412)620-6547

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ATTEST: COMMONWEATH/STATE OF _______________ COUNTY OF _______________________ I, ________________________, a Notary Public in and for the County and Commonwealth/State aforesaid, whose commission expires on the ___ day of _____________, 20___, do hereby certify that _______________________, whose name(s) is/are signed to the foregoing writing bearing date of the ___ day of ___________, 20___, has acknowledged the same before me in the County and Commonwealth/State aforesaid.

GIVEN UNDER MY HAND THIS ___ day of _______________, 20___. ________________________ NOTARY PUBLIC My commission expires: ____________________________ Notary Registration Number: ________________________ NOTARIAL SEAL REQUIRED

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