Senior Judge Robert J. Eby has yet to rule on the lawsuit filed by Doug Litwhiler against Sheriff Joseph Groody, Anthony Kodack and Ranae Warcola.

On Monday, the judge held a 30-minute hearing in courtroom 4 of the Schuylkill County Courthouse. Groody did not attend as he has not been served the legal documents yet.

Information on the Schuylkill County website for the prothonotary shows James Bohorad, attorney for the Sheriff’s office, has accepted service for the lawsuit. Bohorad was unavailable for comment.

Groody said Bohorad called him saying he has the paperwork. Groody said he will likely receive it Monday.

Litwhiler, his attorney Joseph Orso II, Warcola’s attorney J.T. Herber III and Kodack’s attorney Jessalyn Cool, were in attendance.

Eby heard the preliminary objections filed by attorneys on behalf of Warcola and Kodack and the amended complaint filed by Orso, which was apparently filed outside of the prescribed time frame.

“The only valid complaint is the original complaint,” Cool argued because it was filed in a timely manner.

The filing, for defamation and civil conspiracy, alleges Groody threatened Litwhiler in a phone call and said that “it was going to be Groody’s last term and requested Litwhiler wait four years.”

According to the suit, Groody also told Litwhiler that he entered the sheriff’s race that he “would ruin plaintiff’s reputation, his jobs and his family.”

It also alleges the posts were made at Groody’s direction and that the statements were made with “reckless disregard as to the truth or falsity of the statements.”

Groody has denied having involvement with the accusations made against Litwhiler. He said he has not sent emails or text messages against Litwhiler.

Litwhiler said previously he was dropping out of the race because of allegations he made inappropriate remarks to women as alleged on the Facebook page titled “Schuylkill County Sheriff Candidate Doug Litwhiler likes young girls.”

Kodack is the creator of the page, which he said he started to give women an outlet to speak. Creating the page had nothing to do with politics, he said.

Judge questions

At times Eby intently questioned Orso about the deficiencies in his amended complaint, which is similar to the original one filed.

“Errors are tough in complaints,” he said.

Orso agreed he should have filed for a continuance in the case. He said in the interest of “judicial economy” he waited to file the amended complaint, which was filed earlier this month.

“We could refile tomorrow because the defamation is continuing every day,” Orso said, referring to the Facebook page.

However, if the judge dismisses the case with prejudice, Orso cannot refile the same claim.

The preliminary objections filed by Herber say the complaint fails to plead basic facts necessary to establish a cause of action for defamation.

Litwhiler’s status as a public official/public figure requires him to plead additional facts, which were not in the contained complaint.

Herber writes that the complaint is deficient, among other reasons, because it does not identify the actual statements which the plaintiff alleges are defamatory, does not establish any statements are by Warcola and fails to identify “a single person who received any communication” from Warcola who understood it to be defamatory.

Objections

Cool writes in the preliminary objections that Litwhiler’s complaint must be dismissed because he failed to plead and prove “actual malice” as part of his defamation claim, the content on the website is a matter of public concern.

Cool says Kodack’s posts that repost and report multiple victims’ unwanted and inappropriate communication from and interactions with Litwhiler when they were teenagers is fair reporting and comment on a public issue which is protected by the First Amendment. Furthermore, “the victims’ statements on the website detailing Litwhiler’s sexual harassment of them go directly to his suitability as a candidate for public office in Schuylkill County.”

After the hearing, Litwhiler said in a text message he pledged to run a clean campaign.

“My Democratic opponent from the beginning has vowed to trying destroy me and run my name through the mud which he has continued to try and do.”