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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