Archive/File: people/b/bradbury.scott/Edeiken-v-Bradbury-A1.01 Last-Modified: 2001/02/07 PLAINTIFF'S MEMORANDUM OF LAW I. PROCEDURAL HISTORY The case now before this court is an action for personal injuries based upon a campaign of harassment and defamation conducted by the Defendant. Jurisdiction was predicated upon the direct communication of threats to Plaintiff in Pennsylvania by telephonic communication and the direct communication of defamatory material to a business inside Pennsylvania with the intent to interfere with a business relationship conducted entirely within the Commonwealth of Pennsylvania. It was commenced with a the issuance of Writ of Summons issued on November 3, 1999, and served on the Defendant on December 30, 1999. Subsequent to the service of original process in this matter Plaintiff attempted to conduct pre-complaint discovery as permitted by the Pennsylvania Rules of Civil Procedure. Additionally the Plaintiff sought, and on February 3, 2000, was granted a protective Order due to threats of physical violence made by the Defendant. On April 4, 2000, a further Order was entered by this Honorable Court imposing sanctions on the Defendant for failing to appear and be deposed after Defendant failed to appear and be deposed on the agreed upon date. The Order further required the Defendant to appear and be deposed on May 6, 2000. The Defendant has refused to comply with the sanctions imposed by this Court or appear and be deposed. A Motion for further sanctions was filed with this Court on June 23, 2000. The Motion has not been acted upon by this Court. Although Plaintiff attempted to complete discovery in this matter, the Defendant refused and returned all attempts to communicate with him by returning said communications with insults scrawled on the envelope. In addition to several Requests for the Production of Documents, Plaintiff filed Requests for Admissions and served them upon Defendant on July 31, 2000. There was no response to these Requests for Admission which must, therefore be deemed to have been admitted by the Defendant. On July 20, 2000, a Complaint was filed in this matter and served upon the Defendant by first class mail pursuant to the Pennsylvania Rules of Civil Procedure. After both the Complaint and the "Ten Day Notice" were returned by the Defendant a default judgement was filed against the Defendant on August 25, 2000. Pursuant to said default judgment an Assessment of damages hearing was scheduled. On September 22, 2000 - Twenty-eight days after the filing of the Judgment Defendant filed a Petition to Open Judgment pursuant to Rule 237.3, Pennsylvania Rules of Civil Procedure. In this Petition Defendant requested that the judgment entered in this matter be opened so that Preliminary Objections contesting jurisdiction could be filed. This Petition contained no Answer to the Complaint filed in this matter, alleging instead, instead that no Complaint had been filed in this matter. Further the Petition alleged no reasonable explanation for the failure to respond to the legal pleadings in this matter. Finally the Petition alleged that Defendant was confined to bed and was unable to appear. No supporting documentation for the Defendant's allegations about the record of this case or his physical condition were filed. Plaintiff duly filed and Answer to the Petition pointing out the factual dishonesty of Defendant's allegations and its failure to comply with the prerequisites set forth in Pennsylvania law for the granting of the relief sought. This Honorable Court thereafter entered an Order staying the Assessment of Damages hearing setting a date for oral argument and ordering discovery to be performed to determine the factual context of the legal dispute. Subsequent to said Order Plaintiff served upon Defendant, Interrogatories and Requests for Production of Documents relevant to the issues of this petition. Defendant refused to answer either the Interrogatories or Request for Production and failed to seek relief from this Honorable Court as required by the Pennsylvania Rules of Civil Procedure. Additionally Plaintiff served both Defendant and his counsel with a Notice to appear and be deposed regarding the issues raised in the instant Petition. Both Defendant and his counsel failed to appear and be deposed. As of the date of filing of this Memorandum of Law, Defendant has failed to provide Plaintiff with a copy of any Memorandum of Law relevant to this matter. II. FACTUAL CONTEXT The factual record in this case consists of the Complaint filed in this matter, the Admissions made by the Defendant, and the facts pleaded in several motions filed by the Plaintiff. Defendant has not filed any response to any of these documents for the record of this case or sought to make a factual record. The allegations made in the Complaint, as well as the Admissions made on the record by the Defendant, must be taken as true by this Honorable Court in its consideration of this Petition. Defendant is a sociopath with a pathological hatred of Jews who floods the Internet with long, demented screeds about both Jews and Judaism. Defendant claims, inter alia, that rabbis are pederasts and that Judaism advocates having sexual relations with three year old girls. Defendant is also a follower of William Pierce (the successor to George Lincoln Rockwell) who he describes as "doing God's work" and advocates an anti-Semitic program identical to that followed by Adolf Hitler after his rise to power in Germany. Defendant Bradbury refers to Jews as "vermin" and advocates a "final solution" to the "Jewish problem" in the United States. The tenor of Defendant Bradbury's diseased raving is evident in his paean of praise for the propaganda of Julius Streicher: "What I like is the Nazi stereotype which shows the Jew as having brushy eye brows, close set dark beady eyes and all accented by the bulbous proboscis (big hook nose). I've seen the cartoons which shows Jews looking like rats and I really think they are some of the most hilarious visual images around- after all look at the typical Hollywood comedians-- all Jews! Who can't laugh at those rat like faces with the wiggling bushy eye brows and those rat like snozzolas flapping in the breeze!" -Complaint, Paragraph 5 It is propaganda that measures its success in terms of synagogues vandalized and Jewish children gunned down in the streets. As well as being a purveyor of anti-Semitic propaganda, Defendant Bradbury is a member of a group of terrorists who harass and threaten others in an effort to, in their own words, "drive them off the Internet." The attacks on their victims, as with the attack on the Plaintiff herein, is a two pronged effort consisting of defamation in widely distributed publications and a campaign of criminal harassment directed against both their victims and their families. The campaign conducted against the Plaintiff is, by no means unique. He is just one of a number of people who has been subjected to the vicious and actionable attacks of Defendant Bradbury and his accomplices. Plaintiff herein is active in Holocaust remembrance activities on the Internet. He is a founding member and is, currently, corporate secretary of The Holocaust History Project, a not for profit corporation certified by the U.S. Government as a tax-exempt organization. The Holocaust History Project has the two-fold purpose of presenting historical material on the Holocaust on the Internet and combating the flood of propaganda spread on the Internet by those who deny that the Holocaust occurred. The site on the Internet maintained by The Holocaust History Project is internationally recognized for the quality of the information it presents having been listed as a resource for information about the Holocaust by, among others, the Public Broadcasting System, National Public Radio, the British Broadcasting Corporation, the Times of London, and many universities and libraries. The publications by its members include a book, Tell Ye the Children. This book has been adopted by the government of Sweden as the standard textbook for educating children about the Holocaust and has been translated into fifteen languages. The site that The Holocaust History Project maintains on the Internet http://www.holocaust-history.org) services an average of over 2,000,000 visitors a month. As a result, both The Holocaust History Project and its members and officers are the frequent targets of attack by anti-Semitic groups and individuals like Defendant Bradbury. Defendant Bradbury's attack on the Plaintiff began several years ago when Plaintiff published several articles exposing the activities and lies of Matthias Giwer (who Defendant Bradbury describes as his "cousin") a strident anti-Semite and denier of the Holocaust. The attack commenced with a series of abusive communications directly to the Plaintiff. Typical of this criminal harassment was one electronic communication which consisted of the word "kike" repeated several hundred times. Defendant Bradbury's campaign of harassment intensified after Plaintiff complained about the abuse to the company (Phoenix.net) providing Internet services to Defendant Bradbury who, as a result of that abuse of their service, terminated Defendant Bradbury's service. At that time Defendant Bradbury began the campaign of harassment, defamation and intimidation which is the subject of this action. As set forth in the Complaint, the campaign consisted of a variety of tactics used to harass and intimidate the Plaintiff. Significantly for the jurisdiction of this Court one phase consisted of communicated with Plaintiff by electronic mail (e-nail) which is sent through interstate telephone lines and received through a telephone connection maintained by Plaintiff and, as such, constitutes telephonic communication. A series of these direct abusive communications beginning on December 5 1998 is set forth in Paragraphs 24 through 39 of the Complaint and are reproduced as Exhibits A-1 through A-16. Many are signed by Defendant Bradbury using his alias of "Doc Tavish. For example, on December 6, 1998, Defendant sent Plaintiff an electronic communication stating in pertinent part: "What are you doing, Yale trolling for young boys again? We all know you have homosexual tendencies and you call all people homophobes who oppose "gay rights" We also know how you have slandered the most righteous Rev Fred Phelps in the past for his stands against the homosexual lifestyle. When are you militant homosexuals going to stop your perversions and seek to live a meaningful life with purpose? Why do you wish to portray yourself as a thirteen year old female -- what would your neighbors in Allentown Pennsylvania think of your current degradation -- have you no pride at all?" I guess all you want to do is suck some young boys cock -- typical homosexual sympathist from Nizkor you are -- why are Nizkorians so pro-homosexual -- is it because all of you or at least most of you are homosexual. If any group is comprised of liars it has to be your group because you all even stoop to trying to deceive nature -- now go play with your Barbie doll faggot child molester Doc Tavish: - Exhibit "A-10." On December 8, 1998, Defendant sent Plaintiff an electronic communication stating in pertinent part: All Nizkooks need to be apprehended, interrogated, and placed in protective custody until a final solution can be made. Your Pal, Doc Tavish" - Exhibit "A11." As a final example of the threatening and abusive direct communications made by the Defendant, on November 11, 1999, Defendant sent Plaintiff an electronic communication stating in pertinent part: "You are just as much of a filthy little cock sucker vermin as your butt buddy Jeff Brown. You have to rely on out of context quotes and character assassination. It would be a pleasure to see someone slowly work you over with an ice pick Yale!" --digsig Authentic Doc Tavish 191xllxyGtVQwy0mtCiBjivyX+knCUXYwdRtptdrtqbqfQbXQtisWlB/E1+yWkYkw1Wr7mGiA FcJ w6Wl/aU4GEbQtlQOHN/G3asOLBC9JmQXWuqXwjBnPCuOV9cd The intent of these violence, abusive, and obscene telephonic communications made directly to the Plaintiff in Pennsylvania are obvious. At the same time Defendant Bradbury began a series of publications on the Internet that were both defamatory in nature and specifically asked others to join in Defendant's campaign of criminal harassment. This began on April 28, 1998, when the Defendant published a statement that he had found the Plaintiff (Complaint, Paragraph 67, Exhibit "B-1"). At approximately the same time Defendant, referring to himself as "Gumshoe Tavish" made similar claims about the location of one Jeffrey G. Brown and threatened to reveal to the alleged neighbors of Jeffrey G. Brown that he was a pederast. (Paragraph 69). Shortly thereafter Defendant began to publish Plaintiff's name, address, and telephone number using a variety of services which disguised his location together with requests that others harass the Plaintiff. The first such message was published on June 1, 1998, with the phrase "Reach out and touch someone. (Complaint, Paragraph 71,"Exhibit "B-2.") Similar messages were published by Defendant on a regular and continual basis with the final form of the message being to following example published on December 7, 1999: Yale F. Edeiken, ZHID, of 1590 Alta Dr., Allentown, Pa, wants lots of late night callers, and will even welcome visitors, late nights, to discuss the Holohoax. He can be reached at 610 435-9820 He even likes discussing, and even meeting with faggots, and other pedophiles to discuss matters. His specialties are butt-fucking, cocksucking, and fondling tinky winkies. Yale likes to go to peep shows and likes group grope at the local gay bar in Allentown. -88- Horst Wessel - Complaint, Exhibit "B-3." At the same time Defendant Bradbury to create forgeries using the Plaintiff's name and electronic mail address (Complaint, Exhibit C-3) and make defamatory statements claiming that Plaintiff was making unwanted homosexual advances to him. Not only were these and other defamatory statements published over the Internet but several were forwarded directly to Enternet, a business located in Lehigh County with the announced in Lehigh County. (Complaint, Exhibits C-1, C-5, C-7, C-10, C-11) Defendant even went further than this by specifically announcing that his purpose was to interfere with the business relationship between Plaintiff and Enternet. (Complaint, Paragraph 92, Exhibit C-2.) Not only has Defendant refused to retract his defamatory allegations but when retractions were dough replied Defendant replied "Fuck off, Kike." and "Eat shit, Kike." (Complaint, Paragraph 112). Since the filing of the Complaint in this action Defendant has not ceased his outrageous conduct. Defendant has, if anything, increased to level of defamation and criminal harassment. A torrent of defamation flows from his diseased mind on an effort to intimidate Plaintiff into dropping this lawsuit. Not only has this been directed at Plaintiff but to his wife, family, and business associates as well. The most outrageous example of the terrorist activities in which Defendant Bradbury engages us his campaign against Plaintiff's family. Defendant Bradbury has participated in producing an Internet site which list the names, addresses and telephone numbers of Plaintiff's father, mother, sister and brother. Above the listing is an illustration of an automatic pistol and it is framed by dripping blood. The legend above the listing is "Call or visit them late at night." Defendant Bradbury has also attempted to intimidate prospective witnesses in this case with the tacit approval of his counsel. One such person is Sara Salzman, a computer professional. Ms. Salzman became one of the victims of the Defendant's criminal harassment after becoming a contributor to an Internet site dealing with the history of the Holocaust. As a result, Defendant began stalking her on the Internet, defaming her as a "dog fucker" and child-abuser and threatening her with violence. His attacks intensified. In recent weeks Defendant Bradbury and his accomplices (Complaint, Paragraphs 17-19) Ms. Salzman and her family have been threatened with retribution if she testifies in this matter. This harassment has included threats against her, her children, and her father, The campaign conducted by Defendant Bradbury and his accomplices has gone so far as the filing of fraudulent charges of child abuse with the child protective agency in the area in which Ms. Salzman resides (Affidavit of Sara Salzman, attached hereto as Exhibit A). The facts of this cases are that to activities Defendant Bradbury as set forth in this record demonstrate both direct contact with the Commonwealth of Pennsylvania causing actionable injuries and crimes within the Commonwealth. III. ISSUES PRESENTED 1. Is Defendant entitled to relief pursuant to Rule 237.3, Pennsylvania Rules of Civil Procedure where no proposed Answer to the Complaint has been filed, no reasonable explanation for Defendant's failure to respond to legal process has been alleged, and where no meritorious defense has been presented? Suggested Answer: NO 2. Do the courts of the Commonwealth of Pennsylvania have jurisdiction over a personal injury action seeking damages for injuries which occurred in Pennsylvania after the Defendant intentionally and directly harassed a resident of the Commonwealth of Pennsylvania and intentionally and directly distributed defamatory material within the Commonwealth with the express intention of interfering with a business relationship inside the Commonwealth. Suggested Answer: YES 3. Should sanctions be imposed in this matter? Suggested Answer: YES IV. ARGUMENT A. DEFENDANT IS NOT ENTITLED TO THE RELIEF SOUGHT AS HE HAS FAILED TO ESTABLISHED THE ELEMENTS NECESSARY FOR RELIEF ESTABLISHED BY RULE 237.3, PENNSYLVANIA RULES OF CIVIL PROCEDURE AND THE JURISPRUDENCE OF THE COMMONWEALTH OF PENNSYLVANIA The initial issue before this Court is whether the Defendant is entitled to the relief he has requested. The sole pleading filed by the Defendant in this matter is a Petition pursuant to Rule 237.3 to open a default judgment entered after Defendant failed to file an Answer to a Complaint filed with Court of Common Pleas of Lehigh County, Pennsylvania. Rule 237.3 modified the law of the Commonwealth as established by Schultz v. Erie Insurance Exchange 505 Pa. 90, 477 A.2d 471 (1984). As the Supreme Court noted in that case a petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. The court will only exercise this discretion when (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be excused. Schultz v. Erie Insurance Exchange 505 Pa. 90, 93, 477 A.2d 471, 472 (1984) citing Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130 (1971). The basic requirement got automatic relief pursuant to Rule 237.3 is the timely filing of the Petition. The Defendant filed the Petition now before this Court twenty-eight days after the entry of the default judgment and is, therefore, required to meet the three requirements. It is the position of the Plaintiff that the Defendant fails to meet the criteria set forth in law and, for that reason, this Court cannot grant the relief he seeks. The most important failure of the Defendant is that he does not even make an attempt to set forth an explanation for the failure to respond to the Complaint filed in this matter. While this Court has the power to open a default judgment it cannot do so unless reasonable excuse has been offered. In the absence of such an explanation the Petition must be rejected. Davis v. Burton, 365 Pa.Super. 160, 529 A.2d 22 (1987) moreover mere mistake or oversight is not sufficient to explain that failure. See also Romeo v. Looks, 369 Pa.Super. 608, 535 A.2d 1101 (1987) which was a case where service was made, as in this matter, pursuant to the Long Arm Statute, and the Defendant claimed that she had not seen the Complaint. The tenet that the presence of a reasonable explanation for the failure to respond to the original process is a mandatory requirement for the relief sought herein is further reinforced in to holding of McFarland v. Whitham 518 Pa. 496, 544 A.2d 929 (1988). In that case the Supreme Court refused to allow a default judgment to be opened where the conduct of the defendant had been dilatory. The Supreme Court noted that there was no explanation whatsoever for the failure to retain counsel or to respond to the Complaint. In the matter now before this court there is a similar situation. The reason that the Defendant did not respond in a timely fashion is clear. He did not want to respond. Rather that retaining counsel in the eight months between service of the Writ of Summons and the entry of a default judgment, Defendant Bradbury studiously avoided any legal response and returning all legal process, including the Complaint, the Ten Day Letter, and the Notice of Judgment unopened and with insults scrawled on them. His real response was to intensify the campaign of defamation for which he was sued. In his Petition the Defendant makes the fraudulent claim that no Complaint was ever filed or served. Even a cursory examination of the docket demonstrates that a Complaint was filed in this matter and Plaintiff has, in his Answer to this Petition unchallenged proof of service. The simple truth is that the Defendant to amend his Petition to contain some explanation for the delay and support that allegation with evidence. He chose, instead, to ignore this fundamental requirement of the law. Defendant has likewise failed to indicate to the Court either with allegations of specific fact and some supporting evidence that a "meritorious defense" exists. In presenting such a "meritorious defense" a moving party should be held to the same standards that are applied to factual claims made in a Motion for Summary Judgment. Mere allegations are not sufficient; factual support must be provided as well.
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