m THE COURT OF COMMON PLEAS OF LUZERNE COUNTY SUNDANCE VACATIONS, INC. Plaintiff, v. ALBERT WHITEHEAD, Defendant. NO. 12-CIV-8006 PLAINTIFF SUNDANCE VACATIONS, INC.'S PETITION TO ENFORCE CONTEMPT ORDER AND FOR ADDITIONAL SANCTIONS t~vJ C- ^ C o -o •¦1 : J •x -.v ro Plaintiff Sundance Vacations, Inc. ("Sundance Vacations"), by and through its undersigned counsel, hereby seeks an Order enforcing the Court's January 18, 2013 Order finding Plaintiff Albert Whitehead in contempt and imposing additional sanctions against Mr. Whitehead for his continuing violation of that Order and, in support thereof, states the following: 1. This action arises out of the flagrant, contemptuous and continuing breach, by Mr. Whitehead of his contractual obligation to refrain from
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m THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
SUNDANCE VACATIONS, INC.
Plaintiff,
v.
ALBERT WHITEHEAD,
Defendant.
NO. 12-CIV-8006
PLAINTIFF SUNDANCE VACATIONS, INC.'S
PETITION TO ENFORCE CONTEMPT ORDER
AND FOR ADDITIONAL SANCTIONS
t~vJ C-^C
o
-o•¦1 : J
•x -.v
ro
Plaintiff Sundance Vacations, Inc. ("Sundance Vacations"), by and
through its undersigned counsel, hereby seeks an Order enforcing the Court's
January 18, 2013 Order finding PlaintiffAlbert Whitehead in contempt and
imposing additional sanctions against Mr. Whitehead for his continuing violation
of that Order and, in support thereof, states the following:
1 . This action arises out of the flagrant, contemptuous and
continuing breach, by Mr. Whitehead ofhis contractual obligation to refrain from
in any way disparaging Sundance Vacations.
2. By Amended Order dated October 23 , 20 1 2, this Court
preliminarily enjoined Mr. Whitehead from further breaches of the contractual
obligations owed to Sundance Vacations under the parties' Settlement Agreement
and directed Mr. Whitehead to remove the "Boycott Sundance Vacations" page
(referred to hereinafter as "the Boycott page") that he admittedly administered on
Facebook using the false name "John Flannagan." (A true and correct copy of the
October 23, 2012 Amended Order is attached hereto as Exhibit "A.")
3. Notwithstanding his concession to entry of the preliminary
injunction, Mr. Whitehead flagrantly and willfully continued to violate the terms
of the Settlement Agreement as well as the October 23, 2012 Amended Order.
Specifically, Mr. Whitehead administered the "Boycott" page using another false
name, "Mary Smith 4158," beginning on October 17, 2012 and continuing through
at least November 16, 2012 (the date that Facebook produced records identifying
the "Boycott" page administrators). (See Tr. ofProceedings on January 18, 2013
at 20, 1.9 to 2 1 , 1. 1 1 .) (A true and correct copy of the transcript of the January 1 8,
2013 hearing is attached hereto as Exhibit "B.")
4. Upon receipt of records from Facebook confirming Mr.
2
Whitehead's continued involvement in administering the "Boycott" page under the
name "Mary Smith 4158," Sundance Vacations filed an Emergency Petition for
Contempt Sanctions and for Order Compelling Compliance With October 23,
20 1 2 Amended Order on December 21,2012. A hearing on the motion was held
on January 18, 2013.
5. At the hearing, Sundance Vacations offered unrebutted proof
that Mr. Whitehead continued to administer the "Boycott" page after October 23,
2012 using his Verizon internet account and the false name "Mary Smith 4158"
and that he had the ability to but did not discontinue the "Boycott" page despite
the October 23, 2012 Amended Order compelling him to do so.
6. Following the hearing, this Court entered the Order dated
January 18, 2013 finding Mr. Whitehead in contempt of the October 23, 2012
Amended Order. The January 18, 2013 Order directed Mr. Whitehead to send a
letter to Facebook within five (5) days of the date of the Order requesting that the
"Boycott" page be removed and also that Mr. Whitehead "undertake efforts to
personally remove" the "Boycott" page from Facebook within three (3) days of the
date of the Order. The Order further directed that failure by Mr. Whitehead to
comply with the Order "will result in a sanction of $250 per day thereafter" and
that Mr. Whitehead "shall reimburse [Sundance Vacations] for counsel fees and
filing costs associated with [its] emergency petition and hearing" on January 18,
2013. (A true and correct copy of the January 18, 2013 Order is attached hereto as
Exhibit "C.")1
7. In a half-hearted and belated effort to comply with the Court's
Order, Mr. Whitehead sent a letter to Facebook on or about January 30, 2013. Mr.
Whitehead made no reference in his letter to the finding of contempt or his use of
the false name "Mary Smith 4158," but rather stated that he was "reluctantly
compelled" to request removal of the page based on a purported "oversight"
(rather than a knowing breach of his contractual obligations). While Mr.
Whitehead acknowledged his use of the name "John Flannagan" in the letter, he
did not make clear that he used the false name to administer and post messages on
the "Boycott" page or that he continued to do so using a second false name, "Mary
Smith 4158," after the Court preliminarily enjoined him from doing so. Moreover,
Mr. Whitehead sabotaged any effort to have the "Boycott" page removed by
claiming that he lacked "standing and/or authority to personally remove" the page
and by characterizing his request that Facebook remove the page as an "ineligible
1 Sundance Vacations is filing under separate cover an itemization of the counsel feesand expenses required to be reimbursed by Mr. Whitehead.
4
request." (A true and correct copy of the January 30, 2013 letter is attached hereto
as Exhibit "D.")2 Given the equivocal nature of Mr. Whitehead's letter and his
refusal to take down the page himself, Facebook has refused to remove the
"Boycott" page. (A true and correct copy of the March 15, 2013 letter to
Facebook' s counsel confirming this position is attached as Exhibit "E.")
8. Although Mr. Whitehead had the ability to remove the
"Boycott" page himself, (see Tr. ofProceedings on January 18, 2013 at 27, 1.21 to
29, 1.9), he has willfully failed and refused to do so. Importantly, counsel for
Sundance Vacations arranged for a video conference on Friday, February 22, 2013
with Mr. Whitehead and his counsel to assist Mr. Whitehead in performing the few
keystrokes necessary to remove the "Boycott" page. (A true and correct copy of
the letter dated February 20, 2013 arranging for the video conference is attached
hereto as Exhibit "F.") Mr. Whitehead, however, refused to participate in the
video conference and has made no effort to remove the page himself.
9. In addition, Mr. Whitehead has failed and refused to remove
disparaging posts that he made concerning Sundance Vacations on internet blog
2 Mr. Whitehead also copied Facebook' s counsel on a letter which he sent to this Court
on or about January 23, 2013. That letter conveys no request to remove the "Boycott" page but
rather suggests (without justification) that there is no basis for the Court's January 18, 2013
Order and that he is unable to comply with the Order.
5
spots, including posts made using the false name "Dolores" on
http://sundancevacationsccp.blogspot.com. http://naskiewicz.blogspot.com. and
http://sundancevacationsmanipulation.blogspot.com using an AOL email address
[email protected]. (See Tr. ofProceedings on January 18, 2013 at 29,
1.14 to 35, 1.3.) Those posts remain viewable by the public on the internet as of the
date of the filing of this petition.
10. Mr. Whitehead's continuing refusal to remove the "Boycott"
page and other disparaging posts is willful, flagrant and contemptuous and
warrants imposition of the most severe sanction both to coerce compliance with
the Court's Orders and to protect and preserve the authority of this Court.
1 1 . Mr. Whitehead has demonstrated the utmost contempt for the
Orders issued by this Court as well as his contractual obligations and therefore
additional, more severe sanctions are necessary and appropriate.
12. Accordingly, Sundance Vacations hereby moves for an Order
enforcing the January 18, 2013 Order of Court by imposing additional sanctions
both to punish Mr. Whitehead for his intransigence and to coerce compliance with
the Court's Orders.
WHEREFORE, Sundance Vacations, Inc. respectfully requests that
the Court impose additional sanctions to enforce the October 23, 2012 Amended
Order and the January 18, 2013 Order of Court by, inter alia:
(a) Compelling Mr. Whitehead to pay to Sundance
Vacations the amount of $14,000.00, which represents the $250.00 fine for each
day from January 1 8, 2013 to the present that Mr. Whitehead was in violation of
the Court's January 18, 2013 Order (with the assessment of the daily fine
continuing due to Mr. Whitehead's ongoing contempt);
(b) Increasing the daily fine to $500.00 for each day forward
that Mr. Whitehead continues to refuse to comply with the terms of the January 18,
2013 Order;
(c) Imposing a conditional order of imprisonment confining
Mr. Whitehead to the Luzerne County Jail unless and until he removes the
"Boycott" page and all posts that he made on other online platforms concerning
Sundance Vacations; and
(d) Such other and further relief as the Court deems
appropriate under the circumstances.
Respectfully submitted,
Daniel T. Brier
Donna A. Walsh
Attorneys for Plaintiff,
Sundance Vacations, Inc.
MYERS, BRIER & KELLY, L.L.P.
Suite 200, 425 Spruce Street
Scranton, PA 18503
(570)342-6100
Date: March 20, 2013
VERmCATIQlS
I, John Dowd, President and CEO of Sundance Vacations, Inc.,
hereby certify that the facts contained in the foregoing Petition To Enforce
Contempt Order and for Additional Sanctions are true and correct and are made
subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to
authorities.
John Dowd
Date: 3 ' ( ^ ^ 3
Exhibit A
SUNDANCE VACATIONS, INC., r IN THE COURT OF COMMON PLEAS OF
Plaintiff LUZERNE COUNTY
V8
ALBERT WHITEHEAD, CIVIL ACTION - LAW
Defendant :NO. 1I-CIV-8006
feai—
fw* (•".-T.,
p r-iso
AMENDED ORDER £ fea'/-'
§jr
AND NOW, tbls 23rd d»y of October, 2012, at /J:zd Btm„ upon
consideration of Plaintiff Sundance Vacations, Inc.'s Petition for Preliminary
Injunction and supporting memorandum as well as testimony/argument introduced
at the hearing this date,
IT IS HEREBY ORDERED that Defendant Albert Whitehead is enjoined
from existing and future breaches uf the Settlement Agreement dated February 6,
2007 pending further Order of Court. Further, all posts and activity concerning
Sundance Vacations, Inc. in any manner made by Defendant Albert Whitehead
posing as "John Fionnagan" or using any other pseudonym on Facehook or any
other platform shall be removed immediately.
Further, Defendant Albert Whitehead shall not interfere with the efforts of
Sundance Vacations Inc. to remove the posts and shall cooperate with Sundance
Vacations Inc. in directing Facchookto remove the ''Boycott Sundance Vacations"
page.
Security shall be entered in the amount of $100.00 (one hundred dollars) in
accordance with Pa.R-Civ. P. 1531(b)
The Prothonotary is directed to forward a copy of this order to all parties
pursuant to Pa. ItC.P. 236,
BY THE Q
DERANTONI
Exhibit B
IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
PENNSYLVANIA
SUNANCE VACATIONS, INC.,
Plaintiff,
ALBERT WHITEHEAD,
Defendant
CIVIL ACTION
NO. 8006 of
TRANSCRIPT OF PROCEEDINGS
BEFORE:
The Honorable Fred W. Pierantoni, III, J.Courtroom No. 5
Luzerne County Court House
200 North River Street
Wilkes-Barre, Pennsylvania 18711-1001
Commencing Friday, January 18th, 2012
APPEARANCES:
DONNA WALSH, Esq.
For The Plaintiff
MATTHEW J. CARMODY, Esq.
For The Defendant
2012
COPY
INDEX TO WITNESSES
PLAINTIFF'S
WITNESSES DIRECT CROSS REDIRECT RECROSS
Dennis Dean Cheng 11
John M. Downs 38 — — —
John Dowd 42 44 _ —
1 THE COURT: We have Plaintiffs petition,
2 emergency petition for contempt sanctions and for
3 order compelling compliance with October 23rd, 2012
4 amended order. Correct?
5 MS. WALSH: Thafs right, Your Honor.
6 THE COURT: Let me just have the introduction
7 of counsel for the record.
8 MS. WALSH: Donna Walsh for Sundance
9 Vacations, Your Honor.
10 MR. CARMODY: Mat Carmody for the Defendant,
11 Albert Whitehead.
12 THE COURT: Attorney Walsh.
13 MS. WALSH: Your Honor, we moved for sanctions
14 as a result of Mr. Whitehead's wiiiflii failure to
16 comply with Your Honor's October 23rd preliminary
16 Injunction which barred him from in any way posting
17 messages in any online forums relating to Sundance
18 Vacations, and also compelled him to cooperate with
19 Sundance Vacations In removing a page on Facebook
20 called Boycott Sundance Vacations.
21 By way of background. Judge, there was an
22 employment discrimination case that began in 2004
23 that resulted in a settlement agreement in February
24 of 2007. Pursuant to that agreement Mr. Whitehead
26 promised he would never again post In any fashion
1 We sent a draft letter to Mr. Whitehead's
2 counsel asking that he send that letter to Facebook
3 asking them to take down the page and they have
4 blatantly refused to do that.
5 THE COURT: Was that the November 1st letter
6 attached to your petition?
7 MS. WALSH: There were two letters, Your
8 Honor, October 24th and November 1st.
9 THE COURT: They were prepared by your office
10 and not sent as far as you know?
11 MS. WALSH: Correct, Your Honor.
12 THE COURT: You may continue.
13 MS. WALSH; So that's the first area in which
14 there's been a violation of Your Honor's order. In
15 addition to that, Judge, Mr. Whitehead has refused
16 to take any action to remove posts that he made on
17 other Internet sites. For example, we've confirmed
18 that he's posted on three blog spots using false
19 names. We've confirmed that through discovery and
20 Mr. Whitehead refuses to remove those posts.
21 But the real kicker, Your Honor, is we've
22 learned through discovery that Mr. Whitehead, after
23 Your Honor ordered him to stop posting, he began
24 another false name. He began to administer the
25 same Boycott Sundance Vacations page using the
1 in any forum any messages in any way referencing
2 Sundance Vacations.
3 We filed this lawsuit in April of 2012
4 contending that he breached his obligations by
5 administering a page on Facebook called Boycott
6 Sundance Vacation, and we also brought a claim for
7 tortious interference. Through the course of
8 discovery we were able to confirm that Mr.
9 Whitehead had administered the page using the false
10 name John Flannagan, and that prompted us to move
11 for a preliminary Injunction before Your Honor, and
12 Your Honor entered, with the consent of Mr.
13 Whitehead, the injunction on October 23rd again
14 preventing him from posting -- prohibiting him from
15 posting in any online forum and also requiring him
16 to cooperate with us in removing the Boycott
17 Sundance Vacations page that he actively
18 administered under the false name John Flannagan.
19 Subsequent to that date, Your Honor, we
20 discovered three things. First, Mr. Whitehead
21 refuses and continues to refuse to cooperate with
22 Sundance in removing the page. Your Honor clearly
23 directed him on October 23rd that he is required to
24 cooperate with Sundance to get the page down and he
25 has refused.
1 false name Mary Smith. He did that from October
2 17th, 2012 continuing thereafter.
3 We have witnesses here today that I would like
4 to present that will verify and confirm that Mr.
5 Whitehead is, in feet, Mary Smith; that he
8 administered the Facebook page Boycott Sundance
7 Vacations after October 23rd, and that he continued
8 to post messages on that page after that date in
9 willful violation of the Court's order. So we have
10 three witnesses, Your Honor, we would like to
11 present testimony from concerning these matters.
12 THE COURT: Mr. Carmody.
13 MR. CARMODY; Thank you. Your Honor. Just to
14 try to address each issue that Plaintiffs counsel
15 addressed. She mentioned In paragraph seven of her
16 motion there were three blogs that they found after
17 the Court's order. These are the printouts of
18 those blogs. As you could see, those blogs are
19 March of '09, August of '09, and March of 2010, two
20 years after your October 2012 order. Those blogs
21 on the last page will show that they were drafted
22 or written by Dolores, who's been proven through
23 discovery -
24 THE COURT; Your position is these were
25 before?
1 of 13 sheets COPY Page 2 to 5 of 53
1 MR. CARMODY: Correct. And those were by
2 Dolores who, discovery has shown, has been a
3 display name that my client has used In the past.
4 Exhibit F of Plaintiff's motion shows that Dolores
Luzerne County, Pennsylvania - Civil Action No. 2012-08006
Dear Mr, Ullyot:
Under court order in the above captioned matter, I am reluctantly compelled to request that Facebook
remove the "Boycott Sundance Vacations" page from its' platform.
During the spring of 2012, 1 was one of many administrators solicited as a "Content Creator" using the
pen name of "John Flannagan" and, consequently, put in a position of inadvertently disregarding a 6
year old settlement agreement that I believed was revoked, only to find out that it was not.
Nonetheless, that Facebook account (John Flannagan) has been permanently deleted as a means of
making an effort to rectify the aforementioned oversight.
Obviously, I completely understand that I have no standing and/or authority to personally remove the
"Boycott Sundance Vacations" Facebook page, now totaling 1,125 members, but I am reluctantly
compelled by Court Order to submit this ineligible request that the "Boycott" page be removed.
Sincerely yours,
Albert Whitehead
AW/aw
cc: Prothonotary Of Luzerne County, Pennsylvania
File
Exhibit E
m b k myers brier& kelly.' ATTOSMeys AT UAW 7
March 15, 2013
VIA ELECTRONIC AND FIRST-CLASS MAIL
Ryan Spear, Esquire
Perkins Coie LLP
1201 Third Avenue, Suite 4900Seattle, WA 98101-3099
Re; Sundance Vacations. Inc. v. Albert Whitehead - No.2012-8006
Dear Ryan:
This will confirm our discussion yesterday. Specifically, you advised that
Facebook is unwilling to remove the "Boycott Sundance Vacations" page from its platform. You
offered two reasons for your client's refusal: (1) it is not clear from Albert Whitehead's January30, 2013 letter that he admits administering the "Boycott" page; and (2) it is not clear why Mr.
Whitehead refuses to take down the page himself. You also noted that Facebook is not the
subject of any court order directing the removal of the page.
If this is incorrect in any way, please advise me in writing immediately.
Sincerely,
Donna A. Walsh
DAW:rcs
425 Spruce Street 1 Suite 200 | P.O. Box 551 j Scranton, PA 18501-0551 | p (570) 342-6)00 | f (570) 342-6147 | www.mbklaw.com
Exhibit F
m b k my®/,so»b/6i,®r&kelly-
February 20, 2013
VIA FACSIMILE & FIRST CLASS MAIL
Matthew J. Carmody, Esquire
Elliott Greenleaf & Dean
39 Public Square, Suite 1000Wilkes-Barre, Pennsylvania 18701
Re: Sundance Vacations. Inc. v. Albert Whitehead - 12-CV-8006
Dear Matt:
Albert Whitehead continues to disregard the Court Orders dated October 23, 2012
and January 18, 2013. On January 18, Judge Pierantoni questioned why you had notcommunicated with Facebook personally after entry of the October 23 Order. (See Transcript of
Hearing (January 18, 2013) pp. 6:24 to 8:13). Judge Pierantoni then directed you - and you
agreed - to write Facebook on behalfofyour client to ensure the Boycott Sundance Vacations
page was taken down, (See Transcript of Hearing (January 18, 2013) pp. 8:5 to 8:12, and 10:20
to lO^S).1 Yesterday you advised that you had not taken this critical step. This is particularlytroubling because Albert Whitehead's contempt is irreparably harmful to Sundance Vacations
and his communications with the Court and Facebook are disingenuous and misleading.
Albert Whitehead's January 23 letter to Judge Pierantoni (copy to Facebook)
states "contrary to [Sundance Vacation's] arguments, there are no comments of any nature
posted [on the Boycott Sundance Vacations page] by Mary Smith and I challenge the Plaintiff to
produce any such comments." A true and correct copy of the January 23 letter is attached asExhibit "A."
Albert Whitehead's letter is disingenuous. He does not tell Judge Pierantoni that
1 Later in the hearing you stipulated that Albert Whitehead authored three Google Blogspots thatremain accessible to the public at httD://sundancevacationsccD.blogspot.coin/. httD://naskiewicz2.blogspot.com/.
http://siindancevacationsmanipulation.blogspot.com/. (See Transcript ofHearing (January 18, 2013) p. 31:10 to31:13).
425 Spruce Street | Suite 200 : P.O. Box 551 [ Scranton, PA 18S0 1-0551 i p (570) 342-6100 [ f (570) 342-6147 ] www.mbklow.com
Matthew Carmody, EsquireFebruary 20, 2013
he is "Marysmith4158," that "Marysmith4158" is an administrator2 ofBoycott SundanceVacations, or that "Marysmith4158" posted disparaging comments about Sundance Vacations as
the page administrator. The unrebutted expert testimony and documentary evidence on January18 proved all of these things. (See Transcript ofHearing (January 1 8, 2013) pp. 22: 15 to 27:22).
Albert Whitehead is "Marysmith4158." Id. "Marysmith4158" is one of five administrators forBoycott Sundance Vacations. Id "Marysmith4158" first logged in two days before the October
19, 2012 hearing, and "Marysmith4158" posted on Boycott Sundance Vacations as anadministrator on October 19, 2012, October 30, 2012, November 9, 2012, and other days. Id.
On behalfof Sundance Vacations, I request that you please clarify these issues with the Court.
Albert Whitehead's January 30 letter to Facebook's General Counsel (copy to the
Prothonotary) is also misleading. A true and correct copy of this letter is attached hereto as
Exhibit "B." In this letter, Albert Whitehead states that Facebook solicited him in the spring of
2012 as a "Content Creator using the pen name of John Flanagan." Purporting to have"rectified]" his "inadvertent disregard[ ] ofa 6 year old settlement," Albert Whitehead told
Facebook that he "permanently deleted" the "John Flanagan" Facebook account. Albert
Whitehead then told Facebook he has "no standing and/or authority to personally remove theBoycott Sundance Vacations Facebook page," but that he is "reluctantly compelled by CourtOrder to submit this ineligible request that the Boycott page be removed."
The unrebutted expert testimony and documentary evidence confirms that Albert
Whitehead administers Boycott Sundance Vacations as "Marysmith4 1 58," that he posted as anadministrator after October 23, and that he has authority to take down this site. (See Transcript
ofHearing (January 1 8, 2013) pp. 22:15 to 27:22). By omitting reference to "Mary Smith,"Albert Whitehead suggests falsely to Facebook and the Court that he no longer has anyinvolvement with Boycott Sundance Vacations. This must also be clarified with Facebook andthe Court.
To move toward compliance with Judge Pierantoni's Orders in a manner that
accounts for Albert Whitehead's purported health limitations, I have made arrangements for a
WebEx Conference Call on Friday February 22, 2013 at 1 p.m. I will participate in the call with
Mr. Dennis Cheng on behalf of Sundance Vacations, and I request that you and Albert
Whitehead also participate. The object of the conference call will be to lend Mr. Cheng's
expertise to Albert Whitehead in taking down the Google Blogspots and Boycott Sundance
Vacations. At the time of the meeting, Mr. Whitehead will need to have access to a telephone
and a computer with internet connection. He will need his Facebook administrator's credentials
for Boycott Sundance Vacations and the password for the Google Blogspot accounts.
2 Citing an unattached verification and pledging oaths on family members, Albert Whitehead'sletter to Judge Pierantoni denies having conceived, designed, composed, or published Boycott Sundance Vacations.Conspicuously absent is any mention whether Albert Whitehead is an administrator ofBoycott Sundance Vacations.
Matthew Carmody, Esquire
February 20, 2013
If the preceding arrangements do not result in the sites being taken down onFriday February 22, 2013, Sundance Vacations expects you will act in accordance with JudgePierantoni's direction and make a personal request - on behalfof your client - that the offendingsites be taken down. Judge Pierantoni clearly assumes that our offices will cooperate to achievecompliance with the Court's Orders. Ifwe have not achieved compliance by WednesdayFebruary 27, Sundance Vacations will seek an emergency conference with Judge Pierantoni to
discuss again the enforcement of his Orders.
Sincerely,
(s John B. Dempsey
JBDxak
Enclosures
cc: Donna A. Walsh, EsquireCatherine M. del Fierro Anderson, Esquire
EXHIBIT A
January 23rd, 2013 VIA FArsiMTT p. and ppbttptt^d mah, no. lopg 1410 QQQi 4770 21 ««
The Honorable Fred A. Pierantoni, in
Court of Conunon Pleas of Luzerne County
Luzerne County Courthouse
200 North River StreetWilkes-Barre, PA. 18711
TEL 570-830-5144; FAX 570-825-1518
Albert Whitehead842 No. 27a StreetPhiladelphia, PA. 19130-1832
In Re: Sundance Vacations v. Albert Whitehead - Civil Action No. 2012-08006
Dear Judge Pierantoni:
I submit this correspondence, wjth ai t. due respect, as I am the defendant in the above
captioned case and a 72 year old a cancer survivor with various other health problems consequently,
I am virtually homebound. I do not seek sympathy, I merely wish to inform the Court as to why I
could not attend the last "Show Cause" hearing (1/18/13) to offer my personal testimony, which
now seems to put me in the unfortunate position of having to prove a negative, but I will try!
Although to date represented by highly ethical and competent counsel, albeit financially restrained,
I am now rnMPPT i.F.n to write the Court directly for two reasons:
(1) I can no longer afford extended representation, beyond this instant issue, because my
children used part of their inheritance to defend me, but those limited funds are exhausted.
(2) I am literally stunned because the Court has issued an extensive order, to perform a task that
is virtually impossible for me to accomplish and I will elaborate as briefly as is possible,while attempting to offer the Court a clear picture of this litigation without all the legalgobbledygook. I'm an articulate, but indigent old man appealing to the essence of American
justice - this Court. And, in this case, this unbiased jurist (Hie Honorable Fred A.
Pierantoni, m) who represents justice for all, even die indigent insignificant old man being
persecuted hv the youthful and powerful millionaire!
The foundation of this litigation is based on a "settlement agreement" signed on February 6th, 2007and, as was my sincere belief, revoked on February 7th, 2007. Be that as it may, the plaintiff is nowsuing me for inadvertently violating that agreement by virtue of the fact that I posted comments
about the plaintiff, Sundance Vacations, in violation of that agreement. The plaintiff further avers
that those comments were made on a Facebook page entitled "Boycott Sundance Vacations."The essence of the litigation against me is that I, under the pen name of "John Flannagan" andothers, have caused economic damage to Sundance Vacations, and to their reputation, in violationof that settlement agreement of February 6th, 2007. Fair enough, so let's first look at the"reputation" of Sundance Vacations, considering the following irrefutable facts.
(1) July, 2005, "Sundance Vacations was investigated by the state of New Jersey for failure to
comply with Federal and state minimum wage laws. The investigation resulted in 32 employees
being paid a total of $19,762.62 in back wages. The company also paid administrative fees of$1,976.26 and penalties of $3,000." (Quoted from the New Jersey Department of Labor andWorkforce Development, as publicly posted on the Internet.)
(2) November 6, 2006, a consumer fraud civil law suit was filed against Sundance Vacations, Inc.and Sundance Vacations Network, Inc. The fraudulent misrepresentation claim was filed in theSuperior Court of New Jersey, Bra-gen County, docket number L-8256-06. The civil suit detailed
numerous violations of NJ.S.A. 56:8 et seq. of the New Jersey Consumer Fraud Act, by utilizing
"false pretenses through the use of unconscionable commercial practices." (As pubhshed on theInternet)
(3) August 9th, 2009, in the Sunday Philadelphia Inquirer, consumer reporter Jeff Gelles exposedSundance Vacations' questionable marketing and sales practices, in conjunction with the fact thatSundance Vacations' ignores The Pennsylvania Unfair Trade Practices And Consumer ProtectionLaw (§201-7. Contracts: Effect Of Rescission)
(4) May 20th, 2010, the state of New Jersey published, on the internet, the results of aninvestigation into Sundance Vacations' questionable marketing and sales practices. Incidentally,many civil law suits have been filed against Sundance Vacations, in Bergen County, New Jersey{Thomas vs. Sundance Vacations, Inc.) and there are approximately three other plaintiffs, allalleging the same "unconscionable commercial practices."
(5) July 6th, 2010, Ohio consumer reporter, Mike Bowersock, (NBC 4) aired a TV expose ofSundance Vacations* questionable marketing and sales practices. The two Ohio two sales officeshave subsequently closed.
(6) November 1st, 2010, that "Boycott" page was first published. (That information is publiclyavailable on that "Boycott" page, that now numbers 1,120 members.)
(7) May 17th, 2012, "Boycott" page member Kara Kenney, who also happened to be an IndianaConsumer Reporter (RTV6), reads all the horror stories on the "Boycott" page. She also conducteda 3-month undercover investigation of Sundance Vacations' affiliates in Indiana (DowdMarketing/SmarTravel/TAN) and then, on 5/17/2012, she airs 7 minutes of the undercover video
exposing the questionable marketing and sales practices from A to Z. That particular sales officesubsequently closed.
(8) January 3rd, 2013. As of that date there were approximately 7 civil law suits filed againstSundance Vacations for "unconscionable" marketing and sales practices, in New Jersey andWisconsin. The Wisconsin attorney, DeVonna Joy, publicly commented on that "Boycott" page and
2
was subsequently threatened in writine. personally, by the Sundance Vacations' CEO, John Dowd,Imagine threatening an attorney for doing their job! That type of thinking is insane, literally! Ms.Joy publicly responded and also notified her associates. Consequently, over 100 members of thelegal community rallied around Ms, Joy, became members of that "Boycott" page, and someattorneys publicly commented on that "Boycott" page while offering pro bono legal advice.
The point being Your Honor, the plaintiff is not as innocent as portrayed to this Court during thetestimony offered on January IS0*, 2013. Moreover, their "reputation" preceded that "Boycott"page. All that "Boycott" page did was offer the consumers a public platform and support network.A public platform and support network that Sundance Vacations is attempting to shut-down bydevious means. It is frightening when private enterprise attempts to suppress the I81 Amendment!
I am also aware of the fact that the plaintiff has retained "Keystone Intelligence Network, Inc." inPhiladelphia, PA. (Private Investigators) The individual PI (Joseph M. Downs) has picked-up mytrash, (which is admittedly legal) followed me and others while also showing up at their homesunannounced, repeatedly called and harassed innocent people, some of whom I have not seen inliterally 50 years and have absolutely nothing to do with this litigation, absolutely nothing!
I now address the issue of that "Boycott" page, which this Court has ordered ME to facilitate itsremoval and that is the essence of my dismay! In addition to the "Verification" attached, I take anoath on the souls of my deceased mother and deceased sister that I did not conceive of that"Boycott" page, I did not design that "Boycott" page, I did not compose that "Boycott" page and,most importantly, I did not publish that "Boycott" page, period! So what does the plaintiff want ofme? I cannot perform impossibilities*. And, again, WITH ALL DUE RESPECT, it is unfair for thisCourt to order me to accomplish those impossibilitiesl I may be old and sick, but I'm not senile orstupid! I'll comply with gnx Court Order, but it must be appropriate and within my humancapabilities! I ask you, is that so unreasonable Your Honor? . .
Let me offer the Court a profound and accurate analogy. I write and publish a tell-all book, inviolation of a non-disclosure "settlement agreement." That book is then placed on the book storeshelves for sale. Now comes the plaintiff demanding not only that the published book be removedfrom the shelves, but that the entire book store be closed down! That is, in effect, what the plaintiffis demanding. A demand that is beyond the purview of this litigation, and a demand that Ipersonally cannot accomplish! What abilities, power or authority do / possess to shut-down theentire book store? Notwithstanding the obvious question as to why should I?
My attorney submitted a Motion For Judgment On Liability and the Court granted that motion. Sohow does a Facebook "Boycott" page suddenly become the issue, as opposed to damages andinjunctive relief? It's painfully obvious that the plaintiff is using this litigation as a means ofattempting to remove a public forum that the Facebook authorities have declined to remove becausethere was no slander, libel or defamatory comments that would violate their Terms Of Service(TOS), so the "Boycott" page survived despite the plaintiff's constant attacks. I chose my wordscarefully Your Honor and when I say "attack" that's precisely what I mean. The plaintiff hasattacked anyone and everyone who has dared to exercise their protected speech and share theirexperiences on a public forum. A public forum the plaintiff seems obsessed with shutting down byany means necessary! Why do they fear a public discussion forum while attempting to use me as afall-guy to accomplish that which they have failed to accomplish by every legal means, including
appeals to Facebook authorities! I simply do not have the ability to do anvthins to that "Boycott"page!
The plaintiff argues that I logged-on to Facebook using the name of "Mary Smith" and maijedisparaging comments. Nevertheless, contrary to the plaintiffs arguments, there are no commentsof any nature posted by Mary Smith and I challenge the plaintiff to produce any such comments. Ireiterate, there are no disparaging, or any other type of comments, posted on that "Boycott" page by"Mary Smith" at any time since its inception, and I again challenge the plaintiff to produce thosealleged comments!
Hie plaintiff has submitted pounds of Exhibits that they allege support their allegations. ThoseExhibits are esoteric, but / fully understand their significance, or lack thereof. Those Exhibits, inconjunction with specious, albeit somewhat persuasive testimony, was not disputed because it wasdetrimental to my physical well-being to travel to Wilkes-Barre, from Philadelphia, a trip that takes
about 2V2 hours one-way, requiring the use of seat belts. Since I have a prosthetic mesh screenstapled inside my abdomen, to repair an incisional hernia resulting from cancer surgery, theextended use of seat belts is painful, (driver or passenger). But now I have no other choice because Idid not expect the plaintiff to offer mendacious testimony with distorted Exhibits, that / clearlyunderstand and emphatically dispute the plaintiffs' offered interpretation of those "Exhibits."
In conclusion, I beseech the Court to reconsider the orders dated October 23Td, 2012 and January18th, 2013 simply because it is notpossible for me to honestly comply. In the alternative I ask theCourt to stay the orders with an opportunity to appear before this Court and offer my own sworntestimony in rebuttal of all the unchallenged allegations, despite the inevitable physical pain andburden of traveling to Wilkes-Barre, from Philadelphia. I assure Your Honor, the Court's time willnot be wasted and my rebuttal testimony will be irrefutably documented and persuasive. This Courthas heardfrom everyone but me, and I implore the Court to grant me that opportunity consideringthe extensive sanctions imposed!
In the final analysis, I submit this litigation is tantamount to the abuse of process, plain and simple!
Thanking you, in advance, for your time and consideration, while anxiously awaiting your reply.
Respectfully submitted,
ALBERT WHITEHEAD
AW/aw
Attachment (1): Signed Verification
Cc: Matthew Carmody, Esquire - Elliot Greenleaf & DeanTheodore W. Ullyot, Esquire - VP, General Counsel - Facebook, Inc.file
EXHIBIT B
January 30th, 201 3 Certified Mail No. 7009 1410 0001 4770 21 95
Theodore W. Ullyot, Esquire
VP, General Counsel and Secretary
Facebook, Inc. Legal Department
1601 Willow RoadMenlo Park, CA 94025
Albert Whitehead842 No. 27,h StreetPhiladelphia, PA. 19130-1832
Luzerne County, Pennsylvania - Civil Action No. 2012-08006
Dear Mr. Ullyot:
Under court order in the above captioned matter, I am reluctantly compelled to request that Facebook
remove the "Boycott Sundance Vacations" page from its' platform.
During the spring of 2012, 1 was one of many administrators solicited as a "Content Creator" using the
pen name of "John Fiannagan" and, consequently, put in a position of inadvertently disregarding a 6year old settlement agreement that I believed was revoked, only to find out that it was not.
Nonetheless, that Facebook account (John Fiannagan) has been permanently deleted as a means ofmaking an effort to rectify the aforementioned oversight.
Obviously, I completely understand that I have no standing and/or authority to personally remove the
"Boycott Sundance Vacations" Facebook page, now totaling 1,125 members, but I am reluctantlycompelled by Court Order to submit this ineligible request that the "Boycott" page be removed.
Sincerely yours,
Albert Whitehead
AW/aw
cc: Prothonotary Of Luzerne County, PennsylvaniaFile
IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY, PENNSYLVANIA
SUNDANCE VACATIONS, INC.,
Plaintiff,
v.
ALBERT WHITEHEAD,
Defendant.
CASE NO. 12-CV-8006C-CJ->
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CERTIFICATE OF SERVICE
I, Donna A. Walsh, hereby certify that a true and correct copy of the
foregoing Petition to Enforce Contempt Order and for Additional Sanctions was
served upon the following counsel of record via first class mail, postage prepaid,