Edeiken v. Bradbury: Plaintiff's Memorandum of Law

[Kenneth McVay, OBC]

The only question remaining is what damages will be awarded in this
case, against Texan Scott "Doc Tavish" Bradbury, a notorious racist.

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.

Archive/File: people/b/bradbury.scott/Edeiken-v-Bradbury-A1.02
Last-Modified: 2001/02/07

Melvin v. Melvin, 398 Pa.Super. 1, 580 A.2d 811 (1990)

Rule 237.3 which the Defendant invokes in his Petition, requires that
this be embodied in a proposed Answer to be filed if the requested
relief is granted. While the Defendant pays lip service to this
critical requirement by claiming tat Preliminary Objections asserting
lack of jurisdiction would be presented. This is a contention that
this Court cannot accept.

Neither Preliminary Objections or a determination of jurisdiction can be
litigated in a vacuum. Any such defense must be based on the facts set
forth in the Complaint. Defendant Bradbury failed to even attempt to
present this Court with some reason to find that a meritorious defense
exists. Indeed, the contrary is the case.

In his Petition Defendant Bradbury states that no Complaint exists on
the record. Implicit in this is the admission that he is unaware of the
specific allegations which Plaintiff relies upon in bringing this case in
this jurisdiction. Any claim that the Complaint fails to assert
jurisdiction, the basic proposition of any set of Preliminary Objections,
is, therefore, pure speculation. This Court should not deal in
speculation. Moreover, as will be shown in a later section of this
Memorandum, it cannot be asserted that jurisdiction does not exist as a
matter of law.

The Defendant has had ample opportunity to revise his Petition in
conformity with the record and present this Court with some justification
for his claim. As with the requirement that he present some reasonable
explanation for his failure to act, he chose to do nothing. He chose
instead to refuse to participate in any discovery refusing to answer
interrogatories, refused to produce documents relevant to the claims in
his Petition, and refused to appear for a deposition.

The law is clear that this Court cannot, as Defendant requests, opening
the default judgment taken against him so that he may file Preliminary
Objections, unless he demonstrates that there was a reasonable
explanation for his failure to act and that his proposed defense has
legal merit. These are mandatory requirements that cannot be waived or
excused. The Defendant has failed to meet either requirement and,
therefore, his Petition must be denied.

B. THE COURTS OF PENNSYLVANIA HAVE JURISDICTION OVER THE DEFENDANT IN
THE INSTANT MATTER

Implied in the Petition filed by the Defendant is the assertion that
jurisdiction cannot be asserted without some physical presence in the
Commonwealth. It is impossible to determine what facts or law form the
basis for this assertion as it is not specifically set forth in the
Petition and the Plaintiff has never received a Memorandum of Law that
would explain the reasoning upon which Defendant relies. It is the
position of the Plaintiff that the facts set forth in the Complaint and
in other portions of the record clearly demonstrate that jurisdiction
exists in this case. The Defendant and his accomplices conceived and
executed a plan to harass and defame the Plaintiff and took specific
actions inside the Commonwealth to put that plan into effect. Since the
injuries for which compensation is sought occurred within Pennsylvania
the question of whether his presence was physical or electronic is
irrelevant.

The standard for evaluating Preliminary Objections claiming that the
court does not have jurisdiction is well established. Such objections
should be sustained only in cases which are clear and free from doubt.
Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-03, 464 A.2d
323, 332 (1983), cert. denied 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d
346 (1984), citing Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213
A.2d 349 (1965).

"Moreover, when deciding a motion to dismiss for lack of personal
jurisdiction the court must consider the evidence in the light most
favorable to the non-moving party." Barber v. Pittsburgh Corning Corp.,
supra. See also Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103,
568 A.2d 215, (1989)

There is an important distinction that understood at the beginning of
any analysis of this issue. Jurisdiction over a nonresident defendant
may be based either upon the specific acts of the defendant which gave
rise to the cause of action - known as specific jurisdiction --, or upon
the defendant's general activity within the forum state - known as
general jurisdiction.

There is no claim of general jurisdiction in the Complaint filed in this
matter. The Plaintiff claims, rather, that the acts of the Defendant
inside Pennsylvania are such that specific jurisdiction exists.

In order for a Pennsylvania court to exercise specific jurisdiction,
the cause of action must arise out of the defendant's activities and
their effect within the Commonwealth. Skinner v. Flymo, Inc. 351
Pa.Super. 234, 505 A.2d 616 (1986) General jurisdiction, on the other
hand, exists regardless of whether the cause of action is related to the
defendant's activities in Pennsylvania, as long as the defendant's
activities in this Commonwealth are "continuous and substantial." Bork
v. Mills 458 Pa. 228, 329 A.2d 247 (1974); Slota v. Morrings 343
Pa.Super. 96, 494 A.2d 1 (1985); Whalen v. Walt Disney World Co. 274
Pa.Super. 246, 251, 418 A.2d 389, 391 (1980). Pennsylvania has long
evidenced an interest in extending in personal jurisdiction over foreign
defendants acting or doing business within its boundaries for acts
occurring outside the state. This interest must be balanced against a
foreign defendant's constitutional right due to process. However, as
noted in the landmark case of International Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945):

"Due process requires only that in order to subject a defendant to a
judgement in person and, if he be not present with in the territory of the
forum, he have certain minimum contacts with it such that maintenance of
the suit does not offend 'traditional notions of fair play and
substantial justice."

Pennsylvania's Long Arm Statutes go back to the Act of June 13, 1896 P.L.
586 but successive restrictive judicial constructions of the long-arm
statute by Pennsylvania courts led to legislative amendments which
produced the current act which, effectively, broadened the scope of that
jurisdiction. Garfield v. Homowack Lodge, Inc., 249 Pa.Super 392, 396,
378 A.2d 351, 354 (1977). Today under the Pennsylvania Long Arm Statute
in personal jurisdiction over a foreign individual or corporation is
co-extensive with the permissible limits of jurisdiction under the due
process clause of the federal constitution. Crompton v. Park Ward
Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982).

The current long arm statute can be found at 42 Pa.C.S.A. Sec. 5322 which
states:

(a) General rule.-A tribunal of this Commonwealth may exercise personal
jurisdiction over a person (or the personal representative of a deceased
individual who would be subject to jurisdiction under this subsection if
not deceased) who acts directly or by an agent, as to a cause of action
or other matter arising from such a person:

(1) Transacting any business in this Commonwealth. Without excluding
other acts which may constitute transacting business in this
Commonwealth, any of the following shall constitute transacting business
for the purpose of this paragraph:

(i) The doing by any person in this Commonwealth of the series of similar
acts for the purpose of thereby realizing pecuniary benefit or otherwise
accomplishing an object.

(ii) The doing of a single act in this Commonwealth for the purpose of
thereby realizing pecuniary benefit or otherwise accomplishing an object
with the intention of initiating a series of such acts.

(iii) The shipping of merchandise directly or indirectly into or through
this Commonwealth

(iv) The engaging in any business or profession within this Commonwealth,
whether or not such business requires license or approval by any
government
unit of this Commonwealth.

(v) The ownership, use or possession of any real property situate within
this Commonwealth.

(1) Contracting to supply services or things in this Commonwealth.

(2) Causing harm or tortuous injury by an act or omission in this
Commonwealth

(3) Causing harm or tortuous injury in this Commonwealth by an act or
omission outside this Commonwealth.

(4) Having an interest in, using, or possessing real property in this
Commonwealth.

It should be clear that this Statute does not require physical presence
in the Commonwealth. The statute specifies that acts performed outside
the Commonwealth may be the basis for jurisdiction as long as they are
directed at the Commonwealth and cause injuries within the borders of
Pennsylvania.

Further the statute specifically provides that Pennsylvania courts may
exercise specific jurisdiction over nonresident defendants "to the
fullest extent allowed under the Constitution of the United States and
[it] may be based on the most minimum contact with this Commonwealth
allowed under the Constitution of the United States." 42 Pa.C.S. Sec.
5322(b) The leading case of Proctor & Schwartz, Inc. v. Cleveland Lumber
Co., 228 Pa.Super. 12, 323 A.2d 11 (1974) dealt with the 1972 amendment
to the Long Arm Statute and provided that in order for the minimum
contacts to be present; (1) the defendant must have purposely availed
itself of the privilege of acting within the forum state thus invoking
the benefits and protection of its laws, (2) the cause of action must
arise from defendant's activities within the forum state and (3) the
acts of the defendant must have a substantial enough connection with the
forum state to make the exercise of jurisdiction over it reasonable.
See also Gallants v. Fosdick 320 Pa.super. 38, 466 A.2d 1049 (1983)
Purdon's Penn.

Other cases specify that when forum state seeks to assert specific
jurisdiction over and out-of-state defendant, who has not consented to be
sued there, the Due Process Clause of the Fourteenth Amendment to the
United States Constitution is satisfied if the defendant has
purposefully directed his activities at residents of the forum and the
litigation results from alleged injuries that 'arise out of or relate
to those activities. The critical question in determining whether the
defendant has purposefully directed his activities at residents of the
forum is not whether it was foreseeable that defendant's activities
would have an injurious effect in the forum state, but whether that
defendant's conduct and his connection with the forum state were such
that he could reasonably anticipate being "haled" into court there.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct.
559, 565-566, 62 L.Ed.2d 490, 501 (1980); Skinner v. Flymo, Inc. 505
A.2d 616, 351 Pa.Super 234 (1986). The application of these
decisions in the present case is obvious. The Defendant and his
accomplices is obvious and fatal to any claim that jurisdiction does not
exist in this case. The acts of the Defendant both in sending obscene
and harassing communications to a resident of Pennsylvania and in
sending defamatory communications directly to a Pennsylvania business in
order to induce it to break off a business relationship conducted within
Pennsylvania with a Pennsylvania citizen is exactly the type of
activities that for which the Pennsylvania courts should be able to
redress.

A clear example of how this has been applied by Pennsylvania courts can
be found in case of Fulper v. Ravanno, et al. Court of Common Pleas of
Northampton County 1994-C-5204 (attached hereto and made part hereof as
Exhibit "A"). In that case an action in wrongful death and survival was
filed against a New Jersey hospital and several physicians practicing in
New Jersey sounding in medical malpractice. The underlying incident was
an operation performed at the New Jersey facilities on a citizen and
resident of New Jersey. When the operation went awry a call was placed
to a Pennsylvania hospital who arranged for a Pennsylvania ambulance
company to pick up the patient. Judge Hogan found that since the
patient died in Pennsylvania (the defining injury in an action for
wrongful death) specific jurisdiction was proper in Pennsylvania even
though the only contact with the Commonwealth was a telephone call to a
Pennsylvania hospital. In fact, Judge Hogan found that this doctrine
even applied to a physician who was not involved in the telephone call
and did not know about it until after it happened. This is an even more
expansive view of jurisdiction than would be required to find that this
Court has specific jurisdiction over this Defendant.

The crucial factor in making a determination of jurisdiction is, as
always, the facts of the case. In making this determination, the courts
have found that the minimum contacts analysis required is not
susceptible of any talismanic jurisdictional formula; the facts of each
case must be weighed in determining whether jurisdiction is proper.
Nevertheless, the Supreme Court has provided some broad guidelines which
may be applied on a case by case basis to determine the sufficiency of a
defendant's contacts with the forum state. Skinner v. Flymo, Inc. 505
A.2d 616, 351 Pa.Super 234 (1986) As long as those standards are met
jurisdiction is proper even if the contact consists of a single
telephone call made from outside the state. Action Industries, Inc. v.
Wiedman 236 Pa.Super 447, 346 A.2d 798 (1975) The instant matter is an
action commenced because of the Defendant's campaign of harassment and
defamation designed to intimidate the Plaintiff from presenting the
historic reality of the Holocaust and exposing the fraudulent and
anti-Semitic rationale of the crackpots who. As part of that
campaign the Defendant, as set forth in the Complaint, continually
bombarded the Plaintiff with obscene communications, many threatening
violence. Ironically Pennsylvania's criminal law (18 Pa.C.S.A. Sec.
5504, Harassment by communication or address) explicitly provides that:

"Any offense committed under paragraph (a)(1) of this section may be
deemed to have been committed at either the place at which the telephone
call or calls were made or at the place where the telephone call or
calls were received." If this Court were to accept the position of the
Defendant in his Petition (and no Memorandum of Law has been received by
the Plaintiff that would explain it further) this Court would be in the
position of declaring that there would be valid jurisdiction to hold the
Defendant criminally liable but that there would not be sufficient
contact with this Commonwealth to establish jurisdiction in a civil
court.

Further, as part of Defendant's campaign, he forged communications and
sent those forgeries and other defamatory material to a business in
Pennsylvania for the stated purpose of interfering with the business
relationship between the Plaintiff and the recipient. It is simply
ludicrous to assert that there are no contacts with a forum state with
such repeated behavior. Ultimately the Complaint sets forth facts which
clearly establish that the Defendant entered Pennsylvania by means of
electronic communication with the stated purpose of harassing and
defaming the Plaintiff. He cannot now complain that he is being forced
to account for his behavior in the place where that behavior occurred
and where he inflicted an injury. To allow him to do so would be a
denial of the basic rights of the Plaintiff to seek redress in the
courts.

C. THIS COURT SHOULD IMPOSE SANCTIONS UPON DEFENDANT AS THIS PETITION IS
FRIVOLOUS AND DISHONEST BROUGHT ONLY FOR THE PURPOSE OF DELAY.

In his reply to the Petition, the Plaintiff asks that sanctions be
imposed on the Defendant for his conduct in filing this Petition. In
deciding this issue this Court should look to what was done, how it was
done, and what the effect filing it has been.

The Defendant in this matter was served with a Writ of Summons at the
end of December,1999. Rather than retaining counsel and fighting this
in a civilized manner, the Defendant returned all process and
intensified his campaign of harassment extending it to direct and
violent harassment of Plaintiff's parents, siblings and spouse. No
counsel entered an appearance for Defendant until after the dire reality
that a judgment had been taken against him was pressed home by the
scheduling of a hearing for the assessment of damages in this case.

At that time Defendant filed his first and only pleading in this case:
this Petition. While there were several acceptable modes whereby
challenging this judgment, Defendant chose the sole mode that would
allow for a stay of proceedings. Pursuant to that end, he filed a
Petition claiming relief pursuant to Rule 236.3, Pennsylvania Rules of
Civil Procedure. There were two stark realities about that Petition.
First it did not even minimally meet the mandatory standards for such
relief and, second,, it was dishonest.

It claimed, inter alia, that no Complaint had been filed in this matter
even though a Complaint is clearly shown on the docket. By this shabby
ruse Defendant sought to evade the requirements of the Rule establishing
the relief he sought. Although four months have passed since that
initial Petition was filed Defendant has failed to amend that dishonest
pleading or notify this Court or his opposing counsel of a change in the
allegations that he is making. By this course of action Defendant and
his counsel have failed to correct a material misrepresentation which
has a substantial impact on the manner in which this issue must be
briefed and argued.

Moreover Defendant has, during the pendency of this Petition, failed to
complete the discovery required to establish a record in this case.
Defendant has refused to answer interrogatories. Defendant has failed to
provide documents relating to his claim even after promising to do so.
Defendant and his counsel have refuse to appear and be deposed on the
factual issues relevant their Petition. Defendant has even refused to
enter into stipulations regarding the uncontested facts. Finally this
Court must consider the fact that there are already sanctions
outstanding against the Defendant. There has been an open defiance of
Orders entered by this Court. Defendant has made no attempt whatsoever
to comply with the sanctions or curb his contempt.

The only use Defendant has made of the period of grace provided by the
misleading Petition he filed with this Court. Defendant Bradbury had,
during this period, intensified and enlarged his campaign of criminal
harassment. It now includes violent threats against Plaintiff's parents
and family and a deliberate effort to destroy a business operated by
Plaintiff's wife by sending his usual lies and smears to her superiors.
Moreover, Defendant has extended his campaign in a manner which
substantially threatens to integrity of these judicial proceedings. One
of the prime targets of his inchoate rage has been Sara Salzman. After
witnessing and being a victim of his treats of violence and witnessed
criminal harassment of others, Ms. Salzman agreed to testify in this
matter.

As a result, Defendant Bradbury and his accomplices have attempted to
intimidate her as means of dissuading her from testifying. Not only has
she been a target of defamatory publications and outrageous invasions of
her privacy but Ms. Salzman, her children and her father have been
threatened with physical violence. As a final outrage against human
decency and as a conclusive demonstration of the contempt in which
Defendant Bradbury holds our laws and our society, he and his
accomplices have false reports of child abuse to child protective
agencies in the city where Ms. Salzman lives. They even boast openly of
having done so and encourage others to do the same. (An Affidavit from
Ms. Salzman setting forth the attempts to intimidate this witness and
the reaction of her attorney to this criminal campaign are attached
hereto and made part hereof as Exhibit "B").

The Court should be aware that the Defendant herein is a mentally
unbalanced sociopath. He takes any course that even hints at approbation
as encouragement to accelerate and intensify the hate crimes that he
commits without a single qualm. It is the position of the Plaintiff
that given his behavior during this action and before this Court that
severe sanctions should be imposed.

V. CONCLUSIONS

This Honorable Court has before it a Petition to Open a Default Judgment
pursuant to Rule 237.3, Pennsylvania Rules of Civil Procedure. Such
Petitions are equitable in nature and fall within the discretion of the
Court. Before such discretion is exercised, however, it is mandatory
that the petitioner plead and prove that there is a reasonable
explanation for the failure to respond promptly to the Complaint and
that a meritorious defense exists. Both of these prerequisites require
the pleading and proof of facts. In this case the Petitioner has
fulfilled neither of these mandatory requirements. On these grounds
alone the Petition should be denied.

In addition to failing to meet the mandatory requirements for the
relief he seeks Petitioner ask this Court to adopt a theory of law
contrary to the accepted case law, statutes, and practice accepted as
law in this Commonwealth. It is an approach that would reverse the
clearly stated policy of the law and, in this case, lead to the absurd
result of declaring that the courts of the Commonwealth do not have the
jurisdiction to redress a valid cause of action for injuries inflicted
and sustained within the Commonwealth. It should be summarily rejected.

Finally this Court should recognize that this was a dilatory and
frivolous Petition the only effect of which was to give the Defendant
additional time to attempt to criminally harass the Plaintiff into
dropping this valid action and attempt to compromise the integrity of
the legal process by criminally intimidating prospective witnesses.

For the reasons stated above this Court should reject the Petition now
before it with prejudice, reschedule the assessment of damages hearing at
the earliest time possible, and impose appropriate sanctions upon the
Defendant.

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"Denial of Science & The Science of Denial"
The Techniques of Holocaust Denial
http://www.nizkor.org/features/techniques-of-denial