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Home My WebLink About00-04155z I c s IN THE COURT OF COMMON PLEAS MAJORIE R. KUTZ Plaintiff VERSUS RONALD E. KUTZ Defendant AND NOW, DECREED THAT DECREE IN DIVORCE oc? IT IS ORDERED AND MAJORIE R. KUTZ AND RONALD E. KUTZ ARE DIVORCED FROM THE BONDS OF MATRIMONY. PLAINTIFF, DEFENDANT, THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; The parties' Separation and Property Settlement Agreement dated July 7, 2000 is incorporated herein and the court has jurisdict over no other claim. BY ATTEST: J. NO. 2000 - 4155 I HONOTARY jl • /a? ?. 67co CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: MARJORIE R. KUTZ VS RONALD E. KUTZ NO. 00-4155 CIVIL TERM 544 MDA 2006 The documents comprising the record have been numbered from No. 1 to 140, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6/1/06. 647M??L Curti . L r thonotar JANE H SPARLING, Dpt . An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND Y in the Commonwealth of Pennsylvania 544 MDA 20U6 to No. 00-4155 CIVIL Term, 19 is contained the following: COPY OF COMPLETE DOCKET ENTRY MARJORIE R. MCMULLEN V. RONALD E. KUTZ SEE ATTACHED CERTIFIED DOCKET ENTRIES. _ 11294406012006 Cumberland County Prothonotary's Office PYS510 Civil Case Print 2000-04155 MCMULLEN MARGORIE R (vs) KUTZ RONALD E Reference No..: Filed........: Case Type.....: COMPLAINT - DIVORCE Time.........: Judgment...... 00 Execution Date Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: GRANTED Disposed Date. ------------ Case Comments -------=----- Higher Crt 1.: Higher Crt 2.: Page 6/23/2000 2:42 0/00/0000 10/11/2000 544 MDA 2006 General Index Attorney Info MCMULLEN MARJORIE R PLAINTIFF KAYER JAMES J 10 HEIGHTS ROAD NEWVILLE PA 17241 KUTZ RONALD E DEFENDANT 10 EHIGHTS ROAD NEWVILLE PA 17241 * Date Entries 6/23/2000 b 'r0 6/27/2000 jj -12 6/29/2000 /3' ?-`- 7/12/2000 y5 - 4 10/05/2000 2--f- 24 10/05/2000 Z7- 2 10/05/2000 1 y 2-T 10/05/2000 -3° 10/09/2000 10/11/2000 9/08/2005 52- 9/13/2005 q7 -4f 9/16/2005 LH(-' 9/16/2005 6-D - 9-1 9/20/2005 3-Sb 10/03/2005 10/07/2005 ??-ro(0 10/14/2005 FIRST ENTRY COMPLAINT - DIVORCE ------------------------------------------------------------------- AMENDED COMPLAINT IN DIVORCE UNDER SECITON 3301 C AND 3301 D OF THE DIVORCE CODE ------------------------------------------------------------------- ACCEPTANCE OF SERVICE ------------------------------------------------------------------- PRAECIPE TO INCORPORATE THE SEPARATION AND PROPERTY SETTLEMENT AGREEMENT BY JAMES J KAYER ESQ ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - DEFENDANT ------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------------------------------------------------------------- AFFIDAVIT OF CONSENT - PLAINTIFF -------------------------------------------------------------------- WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF -------------------------------------------------------------------- PRAECIPE TO TRANSMIT RECORD ------------------------------------------------------------------- DIVORCE DECREE ENTERED BY EDWARD E GUIDO J NOTICE MAILED ------------------------------------------------------------------- PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT BY LISA MARIE COYNE ESQ ------------------------------------------------------------------- RULE - DATED 9/13/05 - IN RE PLFF'S PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT IT IS HEREBY ORDERED AND DIRECTED THAT DEFT SHALL WITHIN 20 DAYS OF SERVICE OF THIS RULE TO SHOW CUASE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED TO PETITIONER - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- PRAECIPE TO ENTER APPEARANCE FOR DEFT - MARK F BAYLEY ESQ FOR DEFT ------------------------------------------------------------------- CERTIFICATE OF SERVICE FOR RULE TO SHOW CAUSE - BY LISA MARIE COYNE ESQ ------------------------------------------------------------------- CERTIFICATE OF SERVICE OF THE PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT - BY LISA MARIE COYNE ATTY FOR PLFF ------------------------------------------------------------------- RESPONDNET'S ANSWER TO PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT - BY MARK F BAYLEY ESO FOR DEFT ------------------------------------------------------------------- ORDER - DATED 10/7/05 - IN RE PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT IS SCHEDULED FOR 11/8/05 AT 8;30 AM- BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- MOTION TO CONTINUE HEARING - BY MARK F BAYLEY ESQ FOR DEFT ------------------------------------------------------- ----------- 11294406012006 Cumberland County Prothonotary's Office Page PYS510 Civil Case Print 2000-04155 MCMULLEN MARGORIE R (vs) KUTZ RONALD E Reference No..: Filed........ 6/23/2000 Case Type. ....: COMPLAINT - DIVORCE Time.........: 2:42 Judgment.; .... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: GRANTED Disposed Date. 10/11/2000 ------------ Case C mments ------- o ------ Ri g her Crt l.: 544 MDA 2006 r 67 10/20/2005 q g ORDER OF COURT - DATED 10/19/05 - THE DEFT' MOTION TO CONTINUE IS HEREBY GRANTED - DEFTS HEARING IS CONTINUED UNTIL 11/10/05 AT 1:00 PM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BYTHE COURT EDWARD E GUIDO J COPIES MAILED 11/14/2005 ------------------------------------------------------------------- ORDER - DATED 11/10/05 - THE HEARING SCHEDULED FOR 11/10/05 CONCERNING PLFF'S PETITION TO ENFORCE MARRIAGE SETTLEMENT AGREEMENT IS HEREBY CONTINUED UPON CONSENT OF COUNSEL AND IS CONTINUED TO 12/22/05 IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 4 3 12/27/2005 ------------------------------------------------------------------- ORDER OF COURT - DATED 12/22/05 - AFTER HEARING THE DEFT IS DIRECTED TO PAY THE SUME WITHIN 30 DAYS OF TODAY'S DATE - BY THE COURT EDWARD E GUIDO J COPIES MAILED 2/22/2006 ------------------------------------------------------------------- ORDER OF COURT - DATED 2/21/06 - UPON REVIEW OF THE BRIEFS FILED BY THE PARTIES DEFT IS DIRECTED TO PAYPLFF $1,200.00 COUNSEL FEES WITHIN 30 DAYS OF TODAY'S DATE - BY THE COURT EDWARD E GUIDO J COPIES MAILED -70--71 3/29/2006 ------------------------------------------------------------------- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 544 MDA 2006 '7 2 3/29/2006 ------------------------------------------------------------------- ORDER OF COURT -DATED 03-29-06 - IN RE: COUNSEL FOR THE PETITIONER IS HEREBY DIRECTED TO FILE A CONCISE STATEMENT OF MATTERS COMPLAINED OF AN APPEAL WITHIN 14 DAYS OF TODAY'S DATE IN ACCORDANCE WITH RULE OF APPELLATE PROCEDURE 1925 B - BY EDWARD E GUIDO J - COPIED AND MAILED 03-31-06 3/23/2006 ------------------------------------------------------------------- NOTICE OF APPEAL - DATED 03-23-06 - BY LISA MARIE COYNE ATTY ---------------'---------------------------------------------------- 13 3/29/2006 ORDER - DATED 03-29-06 - IN RE: A NOTICE OF APPEAL HAVING BEEN FILED IN THIS MATTER THE OFFICIAL COURT RREPORTER IS HEREBY ORDERED TO PRODUCE-CERTIFY AND FILE THE TRANSCRIPT IN THIS MATTER IN CONFORMITY WITH RULE 1922 OF THE PA RULES OF APPELLATE PROCEDURE BY EDWARD E GUIDO J - COPIED AND MAILED 03-31-06 - ??-7 7 4/10/2006 ---------- -------------------------------------------------------- PLAINTIFF'S MOTION TO AMEND CAPTION OF CASE BY LISA MARIE COYNE A Z 4/10/2006 ------------------------------------------------------------------- PLAINTIFF'S STATEMENT OF MATTERS COMPLAINED OF PURSUANT TO PA RAP 1925 BY LISA MARIE COYNE ATTY 7? 4/11/2006 ------------------------------------------------------------------- ORDER -DATED 04-11-06 - IN RE: PLFF'S MOTION TO AMEND CAPTION OF CASE -ORDERED TO AMEND - BY EDWARD E GUIDO J - COPIED AND MAILED 04-11-06 55=?u ?L 4/24/2006 ------------------------------------------------ - ----------------- CAPTION OF CASE - TO MARGORIE R MCMULLEN - BY AMEEND AC O R 3 i LI MARIE C A S ?3 -?3 4/28/2006 ------------------------------------------------------------------- TRANSCRIPT OF PROCEEDINGS - EDWARD E GUIDO, J l37 l3?f 5/30/2006 ------------------------------------------------------------------- OPINION PURSUANT TO PA RAP 1925 - DATED 05-30-06 - IN RE: DIVORCE - BY EDWARD E GUIDO J - COPIES MAILED 05-30-06 6/O1/2006 ------------------------------------------------------------------- CASE TRANSFERRED TO SUPERIOR COURT BY CURTIS R LONG - PROTHONOTARY 6/01/2006 ------------------------------------------------------------------- SERVICE OF THE LIST OF RECORD DOCUMENTS TO ALL COUNSEL/PARTIES /Silk hNT1.SY - - - - - - - - - - - - - - * Escrow Information * Fees & De bits Beq Bal Py*mts/Adj End Bat DIVORCE 35.00 35.00 .00 TAX ON CMPLT 50 .50 .00 SETTLEMENT 5.00 5.00 .00 F K 11294406012006 Cumberland County Prothonotary's Office Page 3 PYS510 Civil Case Print 2000-04155 MCMULLEN MARGORIE R (vs) KU TZ RONALD E Reference No.... Filed........: 6/23/2000 Case Type.....: COMPLAINT - DIVORCE Time.........: 2:42 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: GRANTED Disposed Date. '10/11/2000 ------------ Case Comments ----------- -- Higher Crt 1.: 544 MDA 2006 Highe t 2.: MASTER'S FEE 125.00 125.00 .00 DIV PA SURCHG 10.00 10.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 - - - 30.00 .00 -- - -- ------ 210.50 ---------- -- 210.50 ---------- .00 kkk*Xkk#.k kXkk**k Xk*kkk*kkXkkk*k*kk*kk*k *Xk*Xk*k*kXk**k*XkkXk*kkkk*kX*kXk*Xk**kkk * End of Case Information kkkkkkkkkkkkkX*k kkXkkkkkXXkkk*kX**kkX*k XX*kkkkkkXXkkXkkX*kXk*XX**k**XkkkkXkkXkk* Commonwealth of Pennsylvania County of Cumberland ss: I CURTIS R. LONG , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein MARJORIE R. MCMULLEN Plaintiff, and RONALD E. KUTZ Defendant , as the same remains of record before the said Court at No. 00-415 5 of CIVIL Term, A.D. 19_. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 1st day of A. D., 19 9006 Prothonotary EDGAR B. BAYLEY NINTH I, President Judge of the Judicial District, composed of the County of Cumberland, do certify that CURTIS R. LONG , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of CUMBERLAND in the Commonwealth of Pennsylvania, duly commissioned and quali ' all of whose acts as such full faith and credit are and ought to be given as well in Courts of judi ure as el t the said record, certificate and attestation are in due form of law and ma e y the pr er o t r. _ President . udge Commonwealth of Pennsylvania County of Cumberland ss: I CURTIS R. LONG Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable EDGAR B. BAYLEY by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 1st of MAY A.D. 19 2006 Prothonotary MARJORIE R. McMULLEN, IN THE COURT OF COMMON PLEAS OF f/k/a MARJORIE R. KUTZ, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Petitioner V. NO. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent CIVIL ACTION - CUSTODY TRANSCRIPT OF PROCEEDINGS IN RE: PLAINTIFF'S PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Thursday, December 22, 2005, in Courtroom No. 5 APPEARANCES: LISA MARIE COYNE, Esquire For Plaintiff/Petitioner MARK F. BAYLEY, Esquire For Defendant/Respondent 1 INDEX TO WITNESSES FOR THE PETITIONER Marjorie McMullen FOR THE RESPONDENT Ronald E. Kutz DIRECT CROSS REDIRECT 4 21 27 32 40 52 -- 2 I INDEX TO EXHIBITS FOR THE PETITIONER IDENTIFIED 1 - Separation and property 6 6 settlement agreement 2 - Decree in Divorce 6 6 3 - Acceptance letter to 8 9 Penn State dated 12/2/04 4 - Signature Student Loan 10 10 5 - Retirement statement 15 15 6 - Form from military regarding 16 16 direct deposit of $510.30 7 - Petitioner McMullen's Accounting 16 17 for 2005 8 - Letter dated 10/14/04 regarding 19 19 fee agreement with Coyne & Coyne 9 - Attorney fees for Petitioner 19 20 McMullen 10 - Penn State Semester Bill & 27 27 Registration Confirmation 11 - Photocopies of checks 28 53 12 - Letter dated 9/10/05 to 47 53 Defendant from Coyne & Coyne 3 I 1 THE COURT: This is the Petition to Enforce 2 the Marital Settlement Agreement. 3 MS. COYNE: Yes, Your Honor. The Petitioner 4 is ready. 5 THE COURT: Call your first witness. 6 MARJORIE McMULLEN 7 having been duly sworn, testified as follows: 8 DIRECT EXAMINATION 9 BY MS. COYNE: 10 Q State your name, please. 11 A Marjorie McMullen. 12 Q Where do you live, Mrs. McMullen? 13 A 100 Shed Road, Newville, Pennsylvania. 14 Q Who resides with you at that address? 15 A My husband, Ralph McMullen, and my six 16 children; Daniel Kutz, Andrew Kutz, Tyler Kutz, Brielie 17 Kutz, Jaedanne Kutz, and Riley McMullen. 18 Q The oldest of your children is who? 19 A Daniel Kutz. 20 Q And how old is he? 21 A Nineteen. 22 Q How old is your youngest Kutz child? 23 A Eight.. 24 Q What grade is that? 25 A She's in third. 4 D 4 1 Q There's five Kutz children, then, residing 2 with you? 3 A Yes. 4 Q The father of the children is Ronald Kutz, is 5 that correct? 6 A Yes. 7 Q At o ne point in time, were you and Mr. Kutz 8 married? 9 A Yes, we were. 10 Q Are you now divorced? 11 A Yes. 12 Q Prio r to the divorce, did you and Mr. Kutz 13 negotiate terms of your marriage settlement or the divorce 14 action? 15 A Yes, we did. 16 Q Were those terms and agreements reduced to 17 writing? 18 A Yes. 19 Q What were the terms with regard to child 20 support? 21 THE COURT: That's not -- is that before me? 22 MS. COYNE: Yes, it is, Your Honor. 23 THE COURT: Okay. 24 THE WITNESS: That he would pay me $1,250.00 25 a month. 5 4 I BY MS. COYNE: 2 Q Was there any agreement concerning a pension 3 from Mr. Kutz? 4 A Yes, there was. He's retired from the 5 military. 6 Q And what was that agreement? 7 A That when he retired I was entitled to 35 8 percent of it. 9 MS. COYNE: If I may, Your Honor, approach 10 the witness? 11 THE COURT: You may. 12 MS. COYNE: These exhibits have been 13 previously prov ided to opposing counsel. 14 BY MS. COYNE: 15 Q Will you please identify Petitioner's Exhibit 16 No. 1, please? 17 A It's the separation and property agreement 18 that we had agr eed upon prior to the divorce. 19 Q I'm going to hand you Petitioner's Exhibit 20 No. 2. It says Div orce Decree. Is that yours? 21 A Yes, it is. 22 MS. COYNE: I move for admission. 23 THE COURT: Any objection, Mr. Bayley? 24 MR. BAYLEY: No. 25 THE COURT: They are admitted. 6 1 BY MS. COYNE: 2 Q You indicated the child support amount he 3 paid to you w as $125.00 a month, is that correct? 4 A It's $1,250.00. 5 Q I'm sorry. Was there any terms contained in 6 the agreement where that amount would be terminated or 7 reduced? 8 THE COURT: What provision in the agreement 9 are we talkin g about? 10 MS. COYNE: I'm looking at -- I'm sorry, Your 11 Honor. It's not a numbered page, but it would be on 12 Paragraph No. 12. 13 THE COURT: All right. 14 MS. COYNE: If I may approach the witness, 15 I'll give her a copy. 16 THE COURT: You may. 17 BY MS. COYNE: 18 Q Paragraph 12 says, Allowance to Wife and 19 Children. Is that the paragraph that addresses child 20 support? 21 A Yes, it is. 22 Q Turning to the next page, which is 23 Subparagraph C, is there an adjustment there to support when 24 an emancipati on event occurs? 25 A When the child reaches the age of 18, except 7 f3 D I if he is pursuing college education. 2 Q Daniel is your oldest, is that correct? 3 A Yes, he is. 4 Q Has Daniel graduated from high school? 5 A Yes, he did, June of 2005. 6 Q Just this past June? 7 A Um-hum. 8 Q And how old was he when he graduated? 9 A Eighteen. 10 Q Prior to graduation, how were his grades? 11 A He graduated with honors. They were very 12 high. 13 Q Based on his academic performance, did you 14 and Daniel pu rsue applications to colleges? 15 A Yes, we did. 16 Q And was he accepted anyplace? 17 A Yes, he was. 18 MS. COYNE: Permission to approach the 19 witness, Your Honor. 20 THE COURT: You may. 21 BY MS. COYNE: 22 Q I hand you what has been marked as 23 Petitioner's Exhibit No. 3. Can you identify that document? 24 A It's Daniel's acceptance letter to Penn 25 State. 8 i 1 Q In particular, which campus in Penn State was 2 he accepted to ? 3 A The Main Campus. 4 Q What's the date of that? 5 A December 2nd, 2004. 6 Q Was that letter dated while he was still in 7 high school? 8 A Yes, it was. 9 Q So he got that in his senior year? 10 A Yes, during his senior year. 11 MS. COYNE: Move for admission. 12 THE COURT: Any objection, Mr. Bayley? 13 MR. BAYLEY: No. 14 THE COURT: It is admitted. Is he currently 15 attending Penn State? 16 THE WITNESS: Yes, he is. 17 BY MS. COYNE: 18 Q Is he at the Main Campus? 19 A He's not at the Main Campus. He transferred 20 to Penn State Harrisburg Campus. 21 Q And why was that? 22 A So that he could live at home and save some 23 money so that when he! graduates from college he wouldn't be 24 so far in debt . 25 Q When did he start at Penn State Harrisburg 9 1 Campus? 2 A I believe the last week of August. It was 3 the fall semest er. 4 Q Prior to actually attending classes, were 5 there any appli cations made for student loans or financial 6 assistance? 7 A Yes, there were. He filled out an 8 application for a Stafford loan. 9 Q As a Stafford loan applicant, did you sign as 10 a co-signer for that? 11 A No. I didn't have to sign for that one. 12 Q Were you identified as a co-signer? 13 A Yes. 14 Q I hand you Petitioner's Exhibit 4. Would you 15 identify that? 16 A This is the loan that we applied for. 17 Q Is anyone identified as a co-signer? 18 A I am. 19 MS. COYNE: Move for admission. 20 THE COURT: Any objection, Mr. Bayley? 21 MR. BAYLEY: No. 22 THE COURT: It is admitted. 23 BY MS. COYNE: 24 Q When you were applying for these loans, was 25 this prior to Daniel actually physically attending the 10 1 Harrisburg Campus? 2 A Yes, it was. 3 Q What period of time were you applying for 4 these loans? 5 THE COURT: How is this relevant to what I'm 6 doing? 7 MS. COYNE: Your Honor, it's relevant because 8 a position has been taken b y the Respondent that he was not 9 a full-time student , and, t herefore, he reduced unilaterally 10 support concerning Daniel f or July and for -- 11 THE COURT: Did he go to school full-time 12 this past semester? 13 THE WITNESS: Yes. 14 THE COURT: How many courses did he have? 15 THE WITNESS: He had a full course load. 16 THE COURT: He had a full course load? 17 THE WITNESS: Yes. 18 THE COURT: Good enough. Next question. Did 19 he pass? 20 THE WITNESS: Yes. 21 THE COURT: And he is going on to the next 22 semester? 23 THE WITNESS: Yes, he is. 24 THE COURT: All right. 25 MS. COYNE: Your Honor, if I may address the 11 1 Court. The relevance of these documents, if I may proceed 2 with that, is whether or not he was actively enrolled in 3 college. The father terminated support for Daniel for July 4 and August saying that he was out of high school and he 5 wasn't in college, and, therefore -- 6 THE COURT: Show her the acceptance letter. 7 Do you have the acceptance letter? 8 MS. COYNE: That was one of the exhibits. 9 THE COURT: Good enough. 10 MR. BAYLEY: We'll stipulate that he was in 11 college. Our position is that Mr. Kutz didn't realize he 12 was going in the summer. 13 THE COURT: Good enough. 14 BY MS. COYNE: 15 Q As a follow-up to that, Ms. McMullen, 16 apparently your ex-husband didn't realize your son was 17 attending college. Is that an accurate statement? 18 A I told him that Daniel would be attending 19 Penn State when we got the acceptance letter. 20 Q You got that acceptance letter in December, 21 is that correct? 22 A Yes. 23 Q At what point in time did Mr. Kutz reduce the 24 amount of support that he was paying? 25 A When he handed me the July support check. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What amount of support was that? A The check was in the amount of $1,000.00. Q What was the amount of shortfall? A $250.00. Q Where does Daniel live? A He resides with me. Q Does he live on campus? A No. Q Does he own his own car? A No. Q Does he commute to school? A Yes, he does. Q Does he work outside of going to school full-time? A Yes, he does. Q Where does he work? A Sayloi's IGA Market. Q And what does he do there? A He's a. stock clerk. Q As far as Daniel's books, is there something that -- THE COURT: Where are we going with this? He's either a full-time student or he's not. Are you stipulating that he's a full-time student? MR. BAYLEY: Yes. 13 I THE COURT: All right. Next line of 2 questioning. 3 BY MS. COYNE: 4 Q As far as the retirement for Mr. Kutz, 5 there's a per iod of time you indicate that he was on active 6 duty, correct ? 7 A Yes. 8 Q Did you learn at some point that he had 9 retired from activity duty? 10 A He asked if the children could attend his 11 retirement ce remony last December. 12 Q So December of 2004? 13 A Yes. 14 Q And dial the children attend that? 15 A Yes. 16 Q Did you later learn when his actual 17 retirement or termination of service occurred? 18 A When we saw his LES statements on Tuesday. 19 Q What did those statements disclose when his 20 ETS date was? 21 A The retirement date was February of 2005. 22 Q Upon retirement, what is the amount of -- are 23 you entitled to receive any portion of his retirement pay? 24 A Thirty-five percent. 25 Q I hand you what is marked as Exhibit No. 5. 14 1 Can you identify that? 2 A It's the accounting statement from the 3 military giving how much retirement he would be receiving 4 and how it's broken down. 5 Q What is his gross amount of retirement pay? 6 A $1,458.00. 7 MS. COYNE: Move for admission. 8 THE COURT: Objection? 9 MR. BA.YLEY: No. 10 THE COURT: Admitted. 11 BY MS. COYNE: 12 Q The $1,458.00 of gross pay, did you receive 13 any payment from Mr. Kutz which he identified as his 14 retirement pay? 15 A He gave me checks starting in April that he 16 said was for his military retirement. 17 Q Did he at any time give you an accounting as 18 to how he calculated that? 19 A He told me that it was 35 percent of what he 20 received. 21 Q Since he has been retired, have you at any 22 point started receiving direct deposit from DFAS, a portion 23 of his military retirement pay? 24 A Yes, I did. 25 Q I hand you what is Petitioner's Exhibit 6. 15 1 Can you identify that.? 2 A It's the form that I received from the 3 military saying when I would start getting a direct deposit 4 from them. 5 Q And what is the amount that you would start 6 receiving? 7 A $510.30. 8 Q There's also handwriting on the bottom 9 indicating -- what does that indicate? 10 A It gives the gross retirement pay of 11 $1,458.00, multiplied. by 35, with a result of $510.30. 12 MS. COYNE: Move for admission. 13 MR. BAYLEY: No objection. 14 THE COURT: It's admitted. So you began 15 getting these payments in April from him and then direct 16 deposit later on? 17 THE WITNESS: Correct. 18 THE COURT: What are you asking me to do? 19 MS. COYNE: Your Honor, if I may follow-up 20 with this exhibit. This is the spreadsheet. 21 BY MS. COYNE: 22 Q I hand you what's marked as Petitioner's 23 No. 7. What does this spreadsheet depict? 24 A It's a breakdown of the amount of retirement 25 that I received starting with a payment in April and the 16 1 amount of child support that I received starting with March. 2 Q There's also a column that is indicated 3 deficit. What does that represent? 4 A That's the amount that I did not receive. 5 Q From the $510.30 which you indicated was the 6 35 percent? 7 A Correct. 8 Q There's an indication under the child support 9 of also a deficit there for two months. That is July and 10 August, is that correct? 11 A Correct. 12 THE COURT: So we're here for July and August 13 for the child'support, so that's $500.00, and we're here for 14 February and March of the retirement? 15 MS. COYNE: March through September. If I 16 may move for admission. 17 THE COURT: She said in April he started 18 paying her. 19 MS. COYNE: April is when he actually paid, 20 but our position is he retired in March. She received 21 nothing in March from him from his retirement. 22 THE COURT: You said March through September. 23 MS. COYNE: If I may move for admission, Your 24 Honor, at this point. 25 THE COURT: It's admitted. You're looking 17 1 for one month's retirement? 2 MS. COYNE: I'm looking for one month's 3 retirement in March. We're looking for the total deficit 4 here, which is the difference between what he actually paid 5 her -- 6 THE COURT: He didn't pay her in March is 7 what you're telling me? 8 MS. COYNE: Correct. 9 THE COURT: So you're looking at $510.30 for 10 March and $250.00 for support? 11 MS. COYNE: Child support. And then the 12 shortfall that he actually paid, which is represented in the 13 column that says retirement, if you subtract that amount, 14 the $431.66 minus the $510.30, which she should have been 15 actually receiving. 16 THE COURT: Okay. So you're saying that -- 17 MS. COYNE: So the total deficit that we're 18 looking for, Your Honor, is $1,292.12. 19 THE COURT: All right. 20 BY MS. COYNE: 21 Q Were you able to resolve these deficiencies 22 with Mr. Kutz concerning his lack of payment to you? 23 A No. 24 Q Did he explain to you why he reduced his 25 child support in July and August? 18 r 1 A He said that Daniel wasn't attending school, 2 so he didn't ha ve to pay for the summer months. 3 Q As a result of those actions, did you have to 4 retain counsel? 5 A Yes, I did. 6 Q I hand you what is Petitioner's Exhibit 8. 7 Can you identif y that document? 8 A It's the agreement with your firm for you to 9 represent me. 10 Q Now, indicated at the in re is custody. Was 11 there a custody matter with Mr. Kutz prior to this support 12 and retirement pay? 13 A Yes, there was, last fall. 14 Q What is the hourly rate that was agreed to? 15 A $175.00. 16 MS. COYNE: Move for admission. 17 THE COURT: Any objection? 18 MR. BAYLEY: No problem. 19 THE COURT: It's admitted. 20 BY MS. COYNE: 21 Q As a result of the fee agreement, did you 22 make any paymen ts with regard to those invoices? 23 A Yes, I did. 24 Q I hand you what is Petitioner's Exhibit 9. 25 Can you identif y this document, please. 19 i 1 A It's a spreadsheet and invoices that I 2 received regarding the charges. 3 Q It shows that the total amount of attorney's 4 fees representative on those invoices are a little over 5 $3,900.00, is that correct? 6 A Yes. 7 Q And it looks like there's a deduction there 8 for work that's attributed to the custody work, is that 9 correct? 10 A Correct. 11 Q You are not seeking reimbursement for the 12 attorney's fees related to the custody invoice, is that 13 correct? 14 A Correct. 15 Q And the total amount of attorney's fees for 16 Petition to Enforce, is that reflected there? 17 A Yes, it is. 18 Q And you had an opportunity to review these 19 invoices, and these accurately reflect the work that was 20 undertaken by this firm? 21 A Yes. 22 THE COURT: How much are you claiming? 23 MS. COYNE: $2,931.99, Your Honor. Move for 24 admission. 25 MR. BAYLEY: No objection. 20 1 THE COURT: It's admitted. 2 MS. COYNE: I have no further questions, Your 3 Honor. 4 THE COURT: Mr. Bayley. 5 CROSS-EXAMINATION 6 BY MR. BAYLEY: 7 Q At the time that this separation contract was 8 negotiated and executed, was Mr. Kutz represented? 9 A No. 10 Q Were you represented? 11 A Yes. 12 Q Who were you represented by? 13 A James Kayer. 14 Q Is that who drafted this contract? 15 A Yes, it was. 16 Q Now, all of these college documents that were 17 shown, were any of those signed or provided to Mr. Kutz at 18 any time? 19 A No. 20 Q Are you saying today that Mr. Kutz knew in 21 July into Augus t that his son was going to college? 22 A Yes. 23 Q How would he have known? 24 A Because I was excited that he was accepted, 25 and I told him. 21 1 Q When did you tell him? 2 A Right after Daniel was accepted in December. 3 Q Were you on the telephone? Were you 4 face-to-face? 5 A It would probably have been face-to-face. We 6 don't speak on the phone much. 7 Q Where would the conversation have taken 8 place? 9 A It would have had to have been at my 10 residence. 11 Q So you told Mr. Kutz that Daniel was 12 accepted, correct? 13 A Yes. 14 Q Did you tell him Daniel had decided to go? 15 A I don't remember. 16 Q When did Daniel actually decide to attend 17 Penn State? 18 A When he got the acceptance letter. 19 THE COURT: Well, when did he determine that 20 he was going to Harrisburg as opposed to Main Campus? 21 THE WITNESS: Over the summer. 22 THE COURT: Okay. 23 BY MR. BAYLEY: 24 Q Now, I'm looking at the document that was 25 admitted entitled Petitioner McMullen's accounting. It's 22 1 your accounting chart of the payments you received. There's 2 no payment indicated -- it lists March 2005, and it says, 3 payment none. Are you aware that Mr. Kutz didn't receive a 4 retirement check in March? 5 A No, I was not. 6 Q You didn't realize that his first one came in 7 April? 8 A No. 9 Q And to add to this list, you have received 10 your payment for December, correct? 11 A For retirement, yes. 12 Q Which is not indicated on here. Now, this 13 separation agreement was entered into on July 7, 2000, am I 14 correct? 15 A Correct. 16 Q Now, at the time you entered into this 17 agreement, am I correct in saying that you and Mr. Kutz 18 believed that he was retiring after that year? 19 A In 2000, no. 20 Q I'm sorry. Was it your understanding that he 21 would be retiring in 2003? 22 A I had no understanding. I did not know when 23 he would be retiring. 24 Q So you had never discussed with him that he 25 was going to retire after 20 years of service? 23 d156?? 1 A We had discussed it very early in our 2 marriage, but when he was changing his job titles, we hadn't 3 discussed it after that. 4 Q Now, when you were divorced, at that time you 5 had been married for 14 years, correct? 6 A Correct. 7 Q Now, are you saying today that you are 8 seeking the portion of his retirement that increased due to 9 his work after your separation and divorce? 10 A No. 11 Q Are you saying that you're after the portion 12 of retirement that was there after he worked 14 years? 13 A I'm not sure I understand. 14 Q Well, every year that Mr. Kutz works he gets 15 more of a percentage of an annuity. It increases. So after 16 you separated -- 17 MS. COYNE: I'm going to object to the form 18 of the question, Your Honor. 19 THE COURT: I don't understand where you're 20 going, Mr. Bayley. The agreement says husband agrees that 21 35 percent of his military pension shall be her property. 22 MR. BAYLEY: Before that the agreement 23 states, the husband recognizes that his military pension is 24 a property asset divisible as part of property settlement 25 agreement. Any portion that accrues after separation isn't 24 1 marital property. 2 Then it says, since the parties have been 3 married and lived as husband and wife for 14 years of the 4 husband's military service prior to this agreement, the 5 husband agrees -- my position is it's ambiguous. It says 14 6 years. It could be construed that she's entitled to the 7 portion that's there after 14 years, not how much he works 8 after 14 years, after they're separated and this agreement 9 is signed. It doesn't say what date -- 10 THE COURT: I understand your position. Go 11 ahead. 12 MS. COYNE: I would just renew my objection 13 to that. 14 THE COURT: On what basis? 15 MS. COYNE: The form of the question, Your 16 Honor. It would appear that counsel is testifying. 17 THE COURT: It's cross-examination. He's 18 allowed to lead. Go ahead, Mr. Bayley. 19 BY MR. BAYLEY: 20 Q Do you understand that the amount of pension 21 payoff increased with every year Mr. Kutz worked? 22 A That the amount of the payoff -- it was my 23 understanding that if someone is in the military, they put 24 in their 20 years, they're entitled to 50 percent of their 25 base pay when they retire. 25 0 0 1 Q And you understand that he worked 22 years? 2 A Yes. 3 Q And that now he's entitled to 55 percent? 4 A Okay. 5 Q Is it your position that you are after that 6 extra 5 percent that accrued after the contract was signed? 7 A It's my position that I feel I am entitled to 8 the 35 percent of his disposable military pension. 9 Q Now that we're on that sentence, what is your 10 understanding o f what the word disposable means? Is it 11 before taxes or after taxes? 12 A Before taxes. 13 Q One more question on the child support issue. 14 Mr. Kutz resume d his payments in August, the full payment, 15 am I correct? 16 A No. 17 Q I'm sorry, September. 18 A Yes. 19 Q He didn't pay you for July and August? 20 A He did not pay me the full amount for those 21 two months. 22 Q Did he resume that payment before or after 23 you filed this petition? 24 A It was after I had spoken with my attorney. 25 I don't know th e exact date of the petition. 26 I Q After you spoke with your attorney. Your 2 petition was f iled September 8th, so did you receive that 3 payment before or after September 8th? 4 A I don't know the exact date that I received 5 his payment th at month. 6 MR. BAYLEY: Okay. That's all. 7 THE COURT: Ms. Coyne. 8 MS. COYNE: Briefly, Your Honor. May I 9 approach the w itness, Your Honor? 10 THE COURT: You may. 11 REDIRECT EXAMINATION 12 BY MS. COYNE: 13 Q Ms. McMullen, I hand you Petitioner's Exhibit 14 No. 10, which is a registration for semester bill. Do you 15 recognize that document? 16 A Yes. 17 Q Up at the top it indicates that there were 18 certain paymen ts made. It says payment acceptance, is that 19 correct? 20 A Yes. 21 Q When was $100.00 paid? 22 A April 25th, 2005. 23 MS. COYNE: Move for admission. 24 THE COURT: Admitted. 25 BY MS. COYNE: 27 I Q There was a question by counsel, Ms. McMullen, 2 concerning whet her or not Mr. Kutz had paid you the proper 3 amount, the $1, 250.00, in September. Do you recall that 4 question from c ounsel? 5 A Yes. 6 Q I hand you Petitioner's Exhibit No. 11. 7 These are photo copies of money orders? 8 A They're checks. 9 Q Excuse me, checks. What's the date of those 10 checks? 11 A September 13, 2005. 12 Q If the Petition for Enforcement was filed on 13 the 8th of Sept ember, was that before or after the 8th of 14 September? 15 A After. 16 Q Now, with regard to December's payment, there 17 was question by counsel saying that you have received a 18 direct deposit from the retirement system of $510.80, is 19 that correct? 20 A Yes. 21 Q Has Mr. Kutz paid you child support for 22 December? 23 A No. 24 Q So, if we're looking at that spreadsheet that 25 was identified here, we're looking at an additional deficit 28 i t I here of child support of $1,250.00, is that correct? 2 A Yes, for December. 3 Q Mr. Bayley had questioned you concerning the 4 35 percent amount that is reflected in this agreement, is 5 that correct? 6 A Yes. 7 Q Did your husband have an opportunity to 8 review this agreement prior to signing it? 9 A Yes, he did. 10 Q How long had the two of you been separated 11 prior to resolving it by the written agreement? 12 A We had not actually lived in the same house 13 for approximately three years. 14 Q Where had Mr. Kutz resided? 15 A He was in different schools, his flight 16 engineer school, and then he was stationed in Whidbey 17 Island, Washington. 18 Q So you've had custody of the five minor 19 children at that time, and now it's the four minors as well 20 as Daniel, is that correct? 21 A Correct. 22 Q Now, 35 percent, did you seek to receive more 23 than 35 percent of the retirement pay? 24 A No. 25 Q As far as the amount Mr. Bayley had 29 J 1 questioned concerning whether or not you are satisfied with 2 receiving 35 percent of some adjusted amount for the amount 3 of gross reti rement pay that Mr. Kutz is now receiving, are 4 you agreeing to a different amount? 5 A Other than the $510.00? 6 Q Right. 7 A No. 8 Q When you submitted the documents for that, 9 for the direc t payment, what documents did you have to 10 submit to the military for this payment to be received? 11 A A copy of our Divorce Decree and this 12 property agre ement. 13 Q Has there been any objection raised by Mr. 14 Kutz that you 're aware of concerning the amount you are 15 receiving by direct deposit? 16 A No. 17 Q Have there been any stop orders as far as 1$ your receipt of those $510.80? 19 A No. 20 Q Is it your position that you are to receive 21 35 percent of his gross disposable retirement pay? 22 A Yes. 23 Q Prior to the signing of the agreement, was 24 Mr. Kutz give n an opportunity to not only review this but 25 have an oppor tunity to consult with an attorney? 30 1 A Yes. My attorney advised him to do that. 2 Q Is Mr. Kutz a high school graduate? 3 A Yes, he is. 4 Q Has he had any sort of advanced training or 5 college educati on? 6 A He's had advanced training with his military 7 positions. 8 Q Do you know his rank when he retired? 9 A I believe he was an E-6. 10 Q When he signed the agreement, what was he? 11 A An E-6. 12 Q So, an E-6, that would be a noncommissioned 13 officer rank, i s that correct? 14 A Correct. 15 MS. COYNE: No further questions, Your Honor. 16 MR. BAYLEY: No questions. 17 THE COURT: Thank you, ma'am. You may step 18 down. Anything else, Ms. Coyne? 19 MS. COYNE: If I may just confer with counsel 20 for a moment. 21 (Brief pause.) 22 MS. COYNE: Your Honor, I have no further 23 questions, and we would rest. 24 THE COURT: Okay. Mr. Bayley. 25 MR. BAYLEY: I'll called Ronald Kutz. 31 I RONALD E. KUTZ 2 having been duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. BAYLEY: 5 Q What is your full name? 6 A Ronald Edward Kutz. 7 Q Now, at the time the separation agreement was 8 negotiated and executed, were you represented by counsel? 9 A No, I was not. 10 Q Have you been attempting to comply with this 11 order? 12 A Yes, I have. 13 Q Did you pay $1,000.00 towards the child 14 support in July and August rather than $1,250.00? 15 A That is correct. 16 Q Why did you decrease the amount $250.00 for 17 those two month s? 18 A Because my oldest son, Daniel, was 18 at the 19 time. He gradu ated high school in June. I paid June. He 20 was working ove r the summer. Until he started college, that 21 is per the cont ract, it says to the age of 18, so I 22 didn't -- that' s why I deducted his share of $250.00. 23 Q Did you believe he had reached an 24 emancipation ev ent under this contract? 25 A Yes, I did. 32 mss. i I ?¦¦?¦®¦? I Q So, you're saying he reached age 18, and 2 he -- 3 A He was 18, and he was working, and was not 4 attending any schools at that particular time. That's why I 5 thought he reached that, and that's why I deducted his 6 portion of the $250.00. 7 Q What was your understanding of the school 8 situation? He got accepted in December of 2004. What did 9 you know and when did you know it? 10 A I don't remember exactly when I was told that 11 he was accepted. As far as when he was going or where he 12 was going, when I talked to him that summer, he said, hey, I 13 was accepted, I'm still looking at where I'm going at. I'm 14 not sure if I'm going to go up to the Main Campus or if I'm 15 going to Harrisburg. He wasn't quite sure yet. Then 16 basically the end of August is when he said he'd be going to 17 the -- me and Daniel talked, and he said he'd be going to 18 the Harrisburg Campus. 19 THE COURT: When did your ex-wife demand that 20 you pay the $250.00 for those two months? 21 THE WITNESS: When I gave her the check in 2? July, I told her it was minus Daniel. He was out of school. 23 He was 18. I deducted Daniel. That was the only time we 24 talked about it, until I received paperwork on this. 25 THE COURT: Ms. Coyne never wrote you a 33 I I letter demanding any type of payment? 2 THE WITNESS: No. 3 THE COURT: Did you ever offer to pay that 4 $500.00 for those two months? 5 THE WITNESS: No, I did not. Once Daniel 6 started -- he said he had orientation the 30th or the 31st 7 of September, and his first day was August 1st. That's when 8 I started making my support payments again for him, the $250.00. 10 THE COURT: September 1st? 11 THE WITNESS: Yes, September, that is 12 correct. I'm sorry. August 30th he had an orientation. 13 Then he said he was starting in September. I said, okay, 14 then, since he was going to school, I'd continue. And since 15 he was still living at home, I gave -- included the 250 16 there. If he was going to Penn State, we would have tried 17 to discuss about sending him the 250 since the money is for 18 him. 19 BY MR. BAYLEY: 20 Q You had drafted a check out for the full 21 amount of child support in September, and it was dated 9/13. 22 Do you recall whether you had been served with this petition 23 that was filed on September 8th before you wrote that check 24 or after? 25 A No. No, I do not recall receiving it. I 34 i 0 0 1 believe I got it afterwards, but -- 2 Q But you can't say for sure? 3 A That is correct. 4 Q Did you get a look at the exhibit, Petitioner 5 McMullen's acc ounting, the amounts? 6 A I got a glance at it. I did not really -- 7 but it looks l ike what we had. 8 MR. BAYLEY: May I approach, Your Honor? 9 THE COURT: You may. 10 BY MR. BAYLEY: 11 Q This is a copy, the same thing. Do you agree 12 with the amoun ts that you paid that are on there? 13 A Yes, I agree with that amount. 14 Q So, you actually were writing out the 15 payments for a time? 16 A Yes, that is correct. 17 Q When did the Defense Finance and Accounting 18 Service start sending her checks directly? 19 A That was in October. 20 Q So, you were figuring out how much you 21 thought you ow ed her up to October? 22 A Yes, that is correct. 23 Q I see for the first three months -- 24 THE COURT: Excuse me. Was there ever any 25 demand for pay ment of the $792.12 difference? 35 i 1 THE WITNESS: No. Initially -- no. The 2 answer is no, Your Honor. I know initially, I believe it 3 was in January when we sat down, we were at -- me and my 4 ex-wife and her husband sat down at her house and said, 5 okay, I'll give my first retirement check. It will be 6 April. I'm going to start paying you out of my net until we 7 find out how the Defense Financing is doing it. Once I get 8 the net, that's what I'll give you the 35 percent of. That 9 is what I was paying her, 35 percent of my net. So until 10 October, I was writing it out from when I received the 11 check. 12 THE COURT: Okay. 13 BY MR. BAYLEY: 14 Q This chart says for the first three months 15 there were -- well, April through June, there were payments 16 of $481.66 each one of those months. 17 A Yes. 18 THE COURT: When did you get your first 19 check? 20 THE WITNESS: April lst. 21 THE COURT: Why did she think it was March? 22 THE WITNESS: Maybe it was -- I had my 23 retirement ceremony in December, but I didn't actually 24 retire until February 28th. 25 THE COURT: Okay. So why didn't you get a 36 I 0 0 1 retirement check March 1st? 2 THE WITNESS: Because they -- you don't get 3 one check after the month you retire, it's two months after, 4 because they have to do the accounting and everything. The 5 Defense Finance wouldn't -- I got my last active duty check 6 the 28th. 7 THE COURT: Of February? 8 THE WITNESS: February. 9 THE COURT: Was that for the month of 10 February or for the month of -- 11 THE WITNESS: That was for the month of 12 February. 13 THE COURT: So you got no pay in the month of 14 March? 15 THE WITNESS: That is correct. 16 BY MR. BAYLEY: 17 Q You, on your own, made three payments of 18 $481.66. What was that based on? 19 A That was based on my net pay after taxes, 20 which it came out to $481.66. I had the state and federal 21 tax coming out of my gross. 22 Q What was your understanding of the word 23 disposable income at the time you signed the agreement? 24 A The amount that I had in hand. 25 THE COURT: Why did you decrease it to 37 i 1 $445.00 in July? 2 THE WITNESS: In June I got talking with -- 3 well, discussing things at work with friends of mine. It 4 came out that I stayed in service for 22 years, which I 5 ended up receiving 55 percent of my retirement instead of 6 50. When we initially did our -- when we sat down with the 7 lawyer and -- how it came out 35 percent for 14 years was we 8 figured out 14 years of 20 years, which was 50 percent. I 9 stayed in for an additional two years, which gave me another 10 5 percent of my retirement, my base pay. So, I was to give 11 her, as I was looking at it, 35 percent of my 50 that we 12 initially -- I reduced it 5 percent from my net pay, which 13 ended up being like 30 or $4 0.00, and that's what I gave 14 her. 15 I was giving her 35 percent of 50 percent, 16 not 55 percent, and I continued that until the paperwork -- 17 that meeting that I had with her in January, I said, all 18 right, this is how you have to contact DFAS, because she had 19 to be the one that did it, not me. I couldn' t do it. She 20 finally sent the paperwork in, I believe, in June, to get it 21 direct deposited to her. So until October, I was writing it 22 out. Once I received the check, I paid her. 23 BY MR. BAYLEY: 24 Q Why did you stay two extra years? 25 A World situations, the war. I got an 38 i 6R, I extension to stay in longer, to go 22 years. 2 Q For each year, the percentage amount crawled 3 up 2 1/2 percent? 4 A That is correct. 5 Q Pursuant to this contract, you're not asking 6 this to be looked at at 18 years when this was signed? 7 A No. 8 THE COURT: Are you okay with the $510.30 9 figure now? 10 THE WITNESS: Excuse me? 11 THE COURT: Are you okay with the $510.30 12 figure now? 13 THE WITNESS: No, I'm not. 14 THE COURT: Okay. 15 BY MR. BAYLEY: 16 Q Why aren't you okay with paying the $510.30? 17 What is that calculation based on? 18 A That is the gross pay of 55 percent of my 19 retirement. 20 THE COURT: But when you signed this 21 agreement, both of you intended that you would retire after 22 20 years, is that right? 23 THE WITNESS: That is correct, yes. 24 THE COURT: So she would have been getting 25 $445.00 a month for 24 months under your intention under the 39 i 1 agreement? If you retired two years earlier, you would have 2 started paying her $445.00 a month two years earlier, isn't 3 that correct? 4 THE WITNESS: Yes. I would have been 5 receiving 50 percent of my base pay. 6 THE COURT: And if you'd stayed until 30 7 years, then that would have been 10 years less you were 8 paying her $445.00? 9 THE WITNESS: Yes. But then at that time I 10 would be receiving 75 percent of my base pay. 11 THE COURT: All right. 12 MR. BAYLEY: That's all. 13 CROSS-EXAMINATION 14 BY MS. COYNE: 15 Q Mr. Kutz, you're a high school graduate? 16 A Yes, I am. 17 Q And you achieved the rank of E-6 in the Navy, 18 is that correct? 19 A That is correct. 20 Q And what is that? I'm an Army person. 21 A Pay officer, first class. 22 Q In addition to high school, you went to some 23 professional schooling through the Navy, is that correct? 24 A Yes. 25 Q When you were going through the divorce with 40 I • • 1 your wife and five children, she was living up here in 2 Newville, is that correct? 3 A Yes. 4 Q You had indicated that you had no idea that 5 your son was -- let me back up. Did you have any idea that 6 Daniel was applying for colleges? 7 A I knew he was looking. He had the grades for 8 it. He was looking at going to different places. 9 Q Isn't it fair to say he discussed the fact 10 that he was applying to these colleges? 11 A He didn't discuss it to me a lot. He did -- 12 okay, he said that he's looking at going, whatever. But 13 where to, I didn't know. 14 Q Are you saying that you did not know that 15 your son was going to college, going to Penn State, until 16 August? Is that what you're saying? 17 A Until August, he was not sure if he was going 18 or not, from the discussion with-Daniel. 19 Q You also indicated that it was your position 20 that you unilaterally reduced the amount of support to 21 $1,250.00, is that correct -- or, excuse me, you reduced it 22 $250.00 per month for July and for August, is that correct? 23 A That is correct. 24 Q And you have been advised prior to the filing 25 of the complaint here for the Petition For Enforcement that, 41 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Daniel was attending school, isn't that correct? A He was not at school at that time. He was accepted, but he was not going. Q When did he attend Penn State? A His first class, I believe, was the 1st of September. - Q You also indicated you had no idea that there was a dispute that Mrs. McMullen had with your unilateral accounting for the pension, as well as for the support for Daniel, is that correct? A When I gave it to her, I told her how I figured it out, but she did not say anything afterwards. She just said, fine. I don't exactly remember her exact words. But after I gave her the check, I told her in -- it was July -- I said, all right, this is minus Daniel, and this is how I figured this out, because I gave her both checks at the same time. Nothing was said after that. She never contacted me or -- Q It's you telling her what you did, is that correct? A Yes. Q That is you telling her? A Yes. Q Where does it say in that agreement that there's supposed to be any reduction in support in the 42 1 amount of $250.00? 2 A Under Section 12-C. 3 Q Can you please find that where it says that, 4 where $250.00 is supposed to be reduced? 5 A It does not say $250.00. How I came to the 6 $250.00 was $250.00 per child, which would equal $1,250.00. 7 Q Mr. McMullen, where does it say in that 8 agreement that that's how it was arrived at? 9 A It does not say each. 10 Q Doesn't it also -- in exchange for her 11 receiving $1,250.00 she is not going to seek child support 12 under the child support guideline, isn't that correct? 13 A Excuse me. What was the question again? 14 Q Isn't it correct that in exchange for Mrs. 15 McMullen receiving $1,250.00 for child support she agreed to 16 forgo and forbear in seeking child support from you under 17 the child support guidelines at that time and prospectively? 18 Isn't that correct? 19 A Exactly where is that on here? I'm not sure 20 exactly where it is. 21 Q Well, you're saying that there was an 22 agreement of $250.00 per child. I want you to point out in 23 that agreement where it says that. 24 A It does not say that in here. It's when we 25 sat down with her lawyer and talked to him about that. 43 1 2 3 4 8 A 11 12 13 14 15 16 17 18 19 20 2i 22 23 24 25 Q When you signed that agreement, did you have an opportunity to review that before you signed it? A Yes. Q Did you have an opportunity to make changes or modifications to it before you signed it? A I guess I could have. I don't know. I was in the lawyer's office for 30 minutes. Q Did you have an opportunity to review that before you signed it? A Yes, I did review it. Yes. Q Did you have an opportunity to say, hey, I'm confused, I don't understand what I'm signing, I want to go see a JAG attorney? A Actually, I did try to see the military beforehand to see about counsel, and they said they would not -- they wouldn't handle a domestic thing, so I went in by myself. I could not afford an attorney. Q You couldn't afford an attorney? A No, I could not. Q You're a native of Cumberland County, is that correct? A Yes, I am. Q Graduate of what high school? A Big Spring High School. Q So you're familiar with attorneys here in the 44 1 Carlisle area? 2 A At the time I wasn't, because I was in the 3 service. I was out in Washington state and Florida. I 4 hadn't been aro und. 5 Q You're working now, is that correct? 6 A Yes, I am. 7 Q What do you do for a living now? 8 A I'm an aircraft mechanic. 9 Q Who do you work for? 10 A Starting yesterday, I work for Northrup 11 Grumman. 12 Q So, you are working full-time for them? 13 A Yes. 14 Q Is that 40 hours a week? 15 A Yes, it is. 16 Q In addition to that pay, you're receiving 17 your retirement pay, is that correct? 18 A That is correct. 19 Q You knew back in October, on your retirement 20 statement, that the amount of retirement pay that Mrs. 21 McMullen was re ceiving was $510.80, is that correct? 24 A Yes. 23 Q You haven't filed any objections with DFAS to 24 i indicate to the m that you dispute that, is that correct? 2? A I didn't file anything, because at that time 45 i I we were already in the midst of this, and I was hoping we 2 could get this straightened out through here. 3 Q If you would answer the question. Did you 4 file anything to tell them to stop, that you dispute that 5 amount to go to Mrs. McMullen? 6 A No, I did not. 7 Q You have been in communication with DFAS, 8 isn't that correct, since this matter has-been pending? 9 A Yes. 10 Q We requested copies of your LESS, at cetera, 11 so you have been in communication with DFAS. 12 A Okay. 13 Q You would also agree that you have not paid 14 child support for December, is that correct? 15 A No, I have not paid that yet, that is 16 correct. 17 Q Today is what, the 22nd? 18 A The 22nd, yes. 19 Q You indicate that you had no idea that there 20 was any dispute that Mrs. McMullen had with regard to your 21 unilateral reduction of $250.00 and the amount that you 22 submitted to her for retirement pay, is that correct? 23 A What was that? 24 Q You said you had no idea that Mrs. McMullen 25 disputed your figures? 46 • • 1 A No, I didn't. I knew she was unhappy about 2 it, but she didn't pursue or call me, how did you come up 3 with these numbers, anything like that. I told her how I 4 did it when I gave her the checks, and that was the last 5 thing I heard about it. 6 Q So it was your calculations, take it or leave 7 it, to her, is that correct? 8 A Yes. 9 Q You also indicated in a question, I believe, 10 from the Court, from Judge Guido, that you had no -- that 11 there was no inquiry from me to try to resolve or address 12 the issue of your noncompliance with this agreement. Do you 13 recall the question from the bench, whether -- 14 A Did I receive anything at that time? No. I 15 did not receive anything until later on. 16 (Petitioner's Exhibit No. 12 was marked for 17 identification.) 18 BY MS. COYNE: 19 Q Do you recall receiving this letter dated 20 September 8th from my firm addressed to you? 21 A This was dated the 8th, but I did not receive 22 it until after -- - 23 Q When did you receive it? 24 A I do not recall the date. Do you have when I 25 signed it or_something? 47 1 Q So, you did receive that letter. You don't 2 know when you received it? 3 A I remember it was on a Friday, and then I got 4 in contact wit h Mr. Bayley on Monday. 5 Q I hand you -- I ask you to look at that. 6 Does that look like your signature? 7 A Yes, that is my signature there. 8 Q That's your signature, or did someone else 9 sign that? 10 A No, that's my signature. 11 Q What is the date that you signed that? 12 A That is the 10th. 13 MS. COYNE: I believe the Court has a green 14 fax that shows a copy of the check dated the 13th. 15 BY MS. COYNE: 16 Q When did you actually give that check dated 17 the 13th to Mr s. McMullen? 18 A I don't recall what day I gave it to her. I 19 don't remember if that's the one I mailed her or if I 20 actually hande d it to her. 21 Q But in any event, that was after you had 22 received my le tter to you, is that correct? 23 A According to that, yes, it would have been 24 then. 25 Q Would you read what's contained in Paragraph 48 I 0 0 1 2 there? 2 A The problems concern your nonpayment of full 3 child support obligation and your nonpayment/accounting for 4 35 percent of military pension. Mrs. McMullen has attempted 5 to discuss and resolve these matters with you directly. 6 I disagree with that. 7 Q But would you please read that. 8 A However, you contend that you are not 9 obligated to pay Mrs. McMullen monies other than those 10 monies which you have paid to date. 11 Q But you also said that you were only supposed 12 to pay your net, what you take home, is that correct? 13 A Yes. Actually, when we sat down in 14 January -- 15 Q I just asked you a question. It's just your 16 net, is that correct? 17 A It says disposable income. That's money in 18 hand, disposable, yes. 19 Q As previously admitted, your copy of your 20 retirement statement, you have deductions for federal income 21 tax, is that correct? 22 A That is correct. 23 Q State income tax, is that correct? 24 A Yes. 25 Q And state income tax, let's talk about that. 49 1 You're a resident of Pennsylvania, is that correct? 2 A I am now. I was living in Maryland at the 3 time. And since my family and my address was in Maryland, I 4 had to pay the state of Maryland. 5 Q So, you would agree there's no state income 6 tax on military pensions in Pennsylvania? 7 A There's no state tax in Pennsylvania. 8 Q So, the other deduction to arrive at your net 9 is there's also something that's called allotment, isn't 10 that correct? 11 A Allotments and -- what do I have? 12 Q You have allotment of 1,250. 13 A Excuse me? 14 Q I'm just trying to see what your allotment is 15 there for 1,250. You're saying that -- 16 A Where is 1,250? 17 Q It's been identified as -- 18 A Oh, okay. That was -- okay. The 1,250, 19 you're looking at April's. That first allotment was before 20 I had the child support removed from DFAS. I didn't have it 21 removed in time from my active duty to my retirement. That 22 was -- the 1,250 went directly to her in April. Then in May 23 that was taken off, and then I paid her child support 24 directly from that. 25 Q Isn't it true that your retirement pay, you 50 1 went from active duty pay, and you will be paid for the 2 month of Mar ch even though you haven't received that yet? 3 A No, I was not. 4 Q I'm not asking were you. I'm asking will you 5 be paid for the 12 months? 6 A You are wrong. You do not. 7 Q The indication you had for net pay, you deduct 8 everything o ut of -- that she's only entitled to 35 percent 9 of your reti rement pay, is that correct, after all of these 10 deductions, to use your argument? 11 A Okay. For April, she gets the 1,250 out of that. 12 Q I'm just asking -- are you just saying that 13 it's your ne t pay? 14 A After state and federal, yes, that was my net pay. 15 Q What about the child support? 16 A I was paying that out of my check from working. 17 Q You have that as an allotment for -- 18 THE COURT: One month. I got the point. 19 Move on. It is what it is. 20 MS. COYNE: Okay. 21 THE COURT: So your gross pay, military 22 pension, is $1,458.00 a month, is that correct? 23 THE WITNESS: That is correct, sir. 24 THE COURT: And 35 percent of that is 25 $510.30, is that correct? 51 1 THE WITNESS: Out of the gross pay, yes, that 2 is correct. 3 THE COURT: Okay. I got it. 4 MS. COYNE: I have no further questions, Your 5 Honor. 6 REDIRECT EXAMINATION 7 BY MR. BAYLEY: 8 Q How long does this pension pay out? 9 A It' s my lifetime. 10 THE COURT: And the 55 percent annuity 11 amount, that's payable to your ex-wife on your death, t he 12 $801.90? 13 THE WITNESS: Yes. That annuity amount is 14 actually saying that I'm getting 55 percent of my base pay 15 as a -- the base pay of an E-6 in the military. That's what 16 that's saying. 17 THE COURT: What is that annuity for, or does 18 that have nothing -- 19 THE WITNESS: That has nothing to -- it' s 20 just saying what I would receive. 21 THE COURT: That's fine. Anything else, 22 Ms. Coyne? 23 MS. COYNE: Nothing, Your Honor. 24 THE COURT: Anything else, Mr. Bayley? 25 MR. BAYLEY: No. 52 1 THE COURT: Thank you, sir. You may step 2 down. Any other evidence, Mr. Bayley? 3 MR. BAYLEY: No. 4 THE COURT: Argument. 5 (The parties argued their respective 6 positions, after which the following Order was entered by 7 the Court:) 8 "AND NOW, this 22nd day of December, 2005, 9 after hearing, the Defendant is directed to pay the sum of 10 $781.82 within 30 days of today's date. This represents the 11 $500.00 in child support that was due for July and August 12 and the deficit of $281.82 on the payment of 35 percent of 13 his pension amount. We note that wife is entitled to 14 $510.30 per month, and she shall be responsible for payment 15 of all taxes on said sum, and husband shall be entitled to 16 deduct said sum from his income for tax purposes. 17 "We defer our decision on the award of legal 18 fees at this point in time. The parties are given 10 days 19 to file briefs in support of their respective positions. We 20 note that the legal fees claimed are $2,931.99." 21 THE COURT: Petitioner's Exhibit Nos. 11 and 22 12 are admitted. Court is adjourned. 23 (Court was adjourned.) 24 25 53 ,MMOMMONEEMEM9 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. -,0(N?f+i?? /t Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Da Edward E. Guido, J. 54 010P T MARJORIE R. MCMULLEN, f/k/a Marjorie R. Kutz Plaintiff/Petitioner vs. RONALD E. KUTZ, Defendant/Respondent AND NOW THIS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-4155 CIVIL TERM CIVIL ACTION - Divorce/Custody ORDER /D0 day of 2005, the hearing scheduled for November 10, 2005 concerning Plaintiff s Petition to Enforce Marriage Settlement Agreement is hereby continued upon consent of counsel and is continued to the AP-4 day of t , 2005 at / *4 o'clock P.m. in Courtroom No. of the Cumberland County Courthouse, Carlisle, Pennsylvania. Cf. Lisa Marie Coyne, Esq. For Plaintiff/Petitioner Mark Bayley, Esq. For Defendant/Respondent 1 Edward E. Guido, Judge COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Petitioner MARJORIE R. KUTZ Plaintiff VS. RONALD E. KUTZ, Defendant. TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4155 CIVIL TERM CIVIL ACTION-- Law PREACH'E Pursuant to Judge Guido's Order, dated April 11, 2006, please take appropriate steps to amend the caption of the case and docket to reflect MARJORIE R. MCMULLEN as the Plaintiff in this matter. Respectfully submitted: COYNE & COYNE, P.C. Dated: Al -I 0-'U 6 By: K Marie Coyne, Es e Pa. Supreme Ct. No. 5 788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney For Plaintiff ,4 COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 MARJORIE R. KUTZ Plaintiff VS. RONALD E. KUTZ, Defendant. -L,, V APR i 0 2006 Hv; Attorney for Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4155 CIVIL TERM CIVIL ACTION- Law ORDER AND NOW THIS ? f day of 2006, the upon *Awl_ I consideration of Plaintiff's Motion to Amend the Caption of this case to reflect the current sumame of the Plaintiff, it is hereby ORDERED that the Prothonotary shall amend to caption of this case to read: "MARJORIE R. MCMULLEN, Plaintiff' CF: Lisa Marie Coyne, Esq. Attorney for Plaintiff Mark F. Bayley, Esq. Attorney for Defendant Prothonotary Edward E. Guido, Judge ., 4t PROOF OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the Preacipe was served upon the persons by first class mail: Mark F. Bayley, Esq. 155 South Hanover Street Carlisle, PA 17013 Dated: ?G 4anme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 Attorney for Plaintiff oats "'1 c y _Y LL C> ?J tV c= j Iit ii r3 MARJORIE R. MCMULLEN f/k/a/ Marjorie R. Kurz, Plaintiff/Petitioner V. RONALD E. KUTZ, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 00-4155 CIVIL TERM CIVIL ACTION - CUSTODY RESPONDENT'S ANSWER TO PETITION TO ENFORCE MARRIAGEAND PROPERTYSETTLEMENTAGREEMENT AND NOW, comes Ronald E. Kutz, by and through his attorney, Mark F. Bayley, Esquire, and in compliance with the Rule to Show Cause Order dated October 29, 2005, Answers the Petitioner's Petition to Enforce Marriage and Property Settlement Agreement as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. This paragraph refers to a writing which speaks for itself. No response is necessary. 6. This paragraph refers to a writing which speaks for itself. No response is necessary. 7. This paragraph refers to a writing which speaks for itself. No response is necessary. 8. Denied. Respondent is and has been paying Petitioner required sums under the Agreement. 9. This paragraph refers to a writing which speaks for itself. No response is necessary. 10. Denied. Respondent has not breached the Marital Settlement Agreement. Wherefore, Respondent respectfully requests that the Petitioner's Petition to Enforce Marriage and Property Settlement Agreement be denied in its entirety. Respectfully submitted, Date: ?vJ?J05, Mark F. Bayley, Esquire Rominger, Bayley &; Whare 155 S. Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court I.D. ;4 87663 Attorney for Defendant VERIFICATION I verify that the statements made in this Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. §4904 relating to unworn falsification to authorities. 7 Ronald Kutz, Plaintiff MARJORIE R. MCMULLEN : IN THE COURT OF COMMON PLEAS OF f/k/a/ Marjorie R. Kutz, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Petitioner No. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent :CIVIL ACTION -CUSTODY CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for Defendant do hereby certify that I this day served a copy of the within Respondent's Answer to Petitioner's Petition to Enforce Marriage and Property Settlement Agreement upon the following by depositing; same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Lisa Marie Coyne, Esquire 3901 Market St. Camp Hill, PA 17011 Dated: l/ v ` Mark F. Bayley, Esq re Attorney for Defendant n N [? e1 -sM1 C?..? CCU c!` --j T. 'f 1'.?= ? ? w ? }. '=__,?: y, Jet ? i :< ? . r.? REMYED 715 MARJORIE R. MCMULLEN : IN THE COURT OF COMMON PLEAS f/k/a/ Marjorie R. Kutz, : OF CUMBERLAND COUNTY, Plaintiff/Petitioner :PENNSYLVANIA V. No. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent : CIVIL ACTION - CUSTODY Fes" ?sN` a ?1 ? AND NOW, this 7Jday of 6 2005, Petitioner's Petition tto, Enforce Marriage and Property Settlement Agreement is doWN& pve-vv-)^, kI ?oS cl- 30A•M, J. Distribution: Lisa Marie Coyne, Esquire Mark F. Bayley, Esquire a ?, ?r 6z ?s ,?.? ?.- tso ??az MARJORIE R. MCMULLEN f/k/a/ Marjorie R. Kutz, Plaintiff/Petitioner RONALD E. KUTZ, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 00-4155 CIVIL TERM CIVIL ACTION- CUSTODY MOTION TO CONTINUE HEARING AND NOW, comes Ronald E. Kutz, by and through his attorney, Mark F. Bayley, Esquire, and in support of the within Motion avers as follows: 1. On October 3, 2005, Respondent's Answer to Petition to Enforce Marriage and Property Settlement Agreement was filed with the Cumberland County Prothonotary's Office. 2. A hearing on this matter was scheduled for November 8, 2005 at 8:30 AM. 3. Undersigned counsel has a Felony Sentencing in Fulton County on that day. 4. Defendant is requesting this hearing be continued to November 10, 2005 at 8:30 AM as both the opposing counsel and undersigned counsel have this date and time available. 3. Attorney Lisa Marie Coyne was contacted and she has no objection to this request for continuance. WHEREFORE, Defendant respectfully requests that the Court continue this hearing to November 10, 2005 at 8:30 AM. i Date: Respectfully submitted, J ?r Mark F. Bayley, uire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 87663 Attorney for.Defendant/Respondent MARJORIE R. MCMULLEN : IN THE COURT OF COMMON PLEAS OF f/k/a/ Marjorie R. Kutz, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Petitioner No. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent : CIVIL ACTION - CUSTODY VERIFICATION MARK F. BAYLEY, ESQUIRE, states that he is the attorney for DefendantlRespondent, Ronald E. Kutz, in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unworn falsification to authorities. Date: Mark F. Bayley, Esqui Attorney for Defendant/Respondent MARJORIE R. MCMULLEN : IN THE COURT OF COMMON PLEAS OF f/k/a/ Marjorie R. Kutz, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Petitioner No. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent : CIVIL ACTION - CUSTODY CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for Defendant/Respondent, do hereby certify that I this day served a copy of the Motion to Continue Hearing upon the following by fax and depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Lisa Marie Coyne, Esquire 3901 Market St. Camp Hill, PA 17011 Dated: Mark F. Bayley, Esquire Attorney for Defendant/ Respondent fi ? OO c ? a c"- m-? .? ' -r?'. . -?:??, _ ,`7 ?rtt ? a i _ ys < W ,_ : IF.RRI' R DUPI'fl- RI('11ARD A1'. S'rl ( ROY Ik'(i(ONi K, f@ . LUAII M) G A11 6:R5 D kIOW DIIC(Cf IOI IA 4. ST.AI I I R II I I I RSOS I SInPStd N I1AIPIf IL WI l(lIT.IIY. MARK C. DUI I IF IOIh K. NIAO?KI' VIIC I1:Ali 1. I.C, Slm MHASSA PIT I GRIIIIVI' ROBIHI Ni W,AI.KLR WVI)I D. A7!AN1.61 OF COUNSEL HORAcIi A. JOHNSON E. 1,E.E. SHIPMAN RECEIVED BRUCE IGwSSN1AN" L A W O F F 1 C E 5 ..U05'adtm nd qi U only JOHNSON FFIE l4 i I 1 n; I:xT V0 118 1!:-x1.1 Lm d%++j•lem.ami October 11. 2005 Ms, Taryn N. Dixon, Cumberland County Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Tammy Sue Miller v. Todd Loren Miller Docket No. 96-5080, In Custody Dear Ms. Dixon: Enclosed please find a fully executed Custody Stipulation and Order for the aforementioned matter along with five (5) copies. The matter was scheduled initially for conciliation before Dawn S. Sunday, Esquire on October 5, 2005 at 10:00 a.m. The parties, by agreement, continued the matter generally in anticipation of said agreement. Concurrently herewith, the undersigned has notified Dawn S. Sunday, Esquire to relinquish jurisdiction of the matter. Please forward the Custody Stipulation and Order to the appropriate Judge for signature. Please return the time stamped copies in the stamped, self-addressed envelope I have provided. I have also provided pre-posted, addressed envelopes to return the signed Orders. Thank you for your assistance in this matter As always, if you have any questions or comments, please do not hesitate to call. If I am unavailable, please feel free to speak with my legal assistant, Cassandra Rosenbaum. If you call other than during our normal business hours, which are 8:30 a.m. to 5:00 p.m. on weekdays, my Voice Mail extension is #116 and Cassandra's is #155. Please feel free to leave a message with either one of us, and we will return your call. If you would prefer, you may contact me through my direct e-mail address, mcdCcDidsw.com. Very truly yours, JOHNSON, FI , ST RT WEIDNER li . MCD:ctr.260511 Mar Duffie Enclosures cc: Kent H. Patterson (via fax 223-6280 and U.S. Mail) Tammy S. Miller (w/encl.) 301 ;MARKET STREET P.O. BOX 109 LBMOYNE. PENNSYLVANIA 17043-0109 WWW.JDSW.COM 717.761.4540 FAX:717.761.3015 MAIL@JDSW.COM JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. RECEIVED OCT 13 2005 4P I TAMMY SUE MILLER, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 96-5080 CIVIL TERM TODD LOREN MILLER, Defendant CIVIL ACTION - CUSTODY STIPULATION FOR CUSTODY ORDER AND NOW THIS 6E- day of 6zr? s-?, 2005, it is stipulated between Plaintiff Tanmry Sue Miller, (hereinafter referred to as "Mother") and Defendant Todd L. Miller, (hereinafter referred to as "Father") that custody of the parties' minor Child, Emily Lynn Miller (hereinafter referred to as "Emily"), shall be as follows: 1. Mother and Father shall have shared legal custody of the their minor child, Emily Lynn Miller (born January 3, 1991). Shared legal custody includes and requires consultation between the parties in making all major decisions affecting Emily's best interests, including major health and medical, educational and religious decisions. Each parent shall provide the other parent with information concerning these matters. 2. Mother shall be the primary physical custodian of Emily. 3. Father shall have partial physical custody of Emily as follows: A. On alternating weekends from Friday at 6:00 p.m. through Sunday at 6:00 p.m. If a holiday falls on the Friday when Father's weekend begins, then, at Father's option, Father's weekend shall begin at 9:00 a.m. on that Friday. If a holiday falls on the Monday after Father's weekend, then, at Father's option, Father's weekend shall be extended through 6:00 p.m. on that Monday. B. Every Easter Sunday from 9:00 a.m. through 3:00 p.m. C. A total of 2 weeks uninterrupted custody each summer which, at the option of rather, shall be either consecutive or non-consecutive weeks. Father shall give Mother at least 3 weeks notice of the week or weeks of summer custody which he has selected. D. At such other times as the parties shall agree. 4. The Christmas holiday shall be :rotated as follows: Segment A: December 24 at noon through December 25 at noon. Segment B: December 25 at noon through December 26 at noon. During even numbered years, Father shall have Emily for Segment A and Mother shall have Emily for Segment B. During odd - 2 - numbered years, Mother shall have Emily for Segment A and Father shall have Emily for Segment B. 5. The Thanksgiving holiday shall be rotated as follows: Segment A: Thanksgiving Eve from !5:30 p.m. to Thanksgiving Day at 4:00 p.m. Segment B: Thanksgiving Day at 4:00 p.m. through the day after Thanksgiving at 5:30 p.m. During odd numbered years, Father shall have Emily for Segment A and Mother shall have Emily for Segment B. During even numbered years, Mother shall have Emily for Segment A and Father shall have Emily for Segment B. 6. Transportation to and from the parties' houses shall be shared. When Mother has partial custody of Emily, she shall transport Emily to her house and Father shall retrieve Emily at the end of the period of partial custody and transport Emily back to his house. 7. Each party shall provide reasonable prior notice to the other party of any intention to relocate his or her residence. 8. During such time as Emily resides with the other parent, that parent shall be responsible for all aspects of Emily's care, including medical needs and shall have the duty to immediately advise the other parent of any unusual occurrences or illness. Each of the parties hereby acknowledge that it is important that Emily continue to have a relationship with both - 3 - the Father and Mother, and each hereby agrees to assert his or her best efforts to insure that that relationship continues and is not in any way adversely affected. The parties agree that these provisions pertaining to custody, may upon the application of either party, be entered as a court order. 9. Father and Mother shall each have the following rights with regard to Emily: reasonable telephone calling privileges; access to report cards and other relevant information concerning Emily's progress in school; approval of extraordinary medical and/or dental treatment except in the case of an emergency and provided that such approval shall not be unreasonably withheld; and approval of summer camp and schools provided that such approval shall not be unreasonably withheld. IN WITNESS WHEREOF and intending to be legally bound hereby, the parties have executed this stipulation the day and year first above written. ATTEST: Tammy Sue Miller Todd Loren Miller - 4 - [ Pi cl? T o 'T'- 1 .?_ vG RECEIVED OCT 1 8 MARJORIE R. MCMULLEN : IN THE COURT OF COMMON PLEAS OF f/k/a/ Marjorie R. Kutz, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Petitioner No. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent : CIVIL ACTION - CUSTODY ORDER OF COURT AND NOW, this /9zay of O C-hA L , 2005, the Defendant/Respondent's //A^a MG Motion to Continue is hereby GRANTED. Defendant's *umkwe*is continued until the 10`j' day of November, 2005 atduftmWin Courtroom #5, of the Cumberland County Courthouse, Irao *OM. Carlisle, Pennsylvania. Byt J. cc: Mark F. Bayley, Esquire ,isa Marie Coyne, Esquire \0 60 MARJORIE R. MCMULLEN, f/k/a Marjorie R. Kutz Plaintiff/Petitioner VS. RONALD E. KUTZ, Defendant/Respondent AND NOW THIS /044., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-4155 CIVIL TERM CIVIL ACTION - Divorce(Custody ORDER day of 2005, the hearing scheduled for November 10, 2005 concerning Plaintiff's Petition to Enforce Marriage Settlement Agreement is hereby continued upon consent of counsel and is continued to the day of S- 1 Dx'f- '" ' , 2005 at / 6 y o'clock /'? m. in Courtroom No. of the Cumberland County Courthouse, Carlisle, Pennsylvania. Cf. Lisa Marie Coyne, Esq. For Plaintiff/Petitioner /Mark Bayley, Esq. For Defendant/Respondent A Edward E. Guido, Judge E h :1 l ! ;1 '`l 1 1,0N S331 COYNE & COYNE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW Henry F. Coyne Lisa Marie Coyne Austin F. Grogan 3901 Market Street Camp Hill, Pennsylvania 17011-4227 717-737-0464 Fax: 717-737-5161 November 9, 2005 VIA FACSIMILE No. 240-6460 and First Class Mail: Hon. Edward E. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Dear Judge Guido: Re: McMullen v. Kutz No. 00-4155 Civil Action I represent Mrs. McMullen in her Petition for enforcement of a marriage settlement agreement with the defendant, Mr. Kurz. A hearing on this Petition is scheduled with your Honorable Court for November 10, 2005 at 1:30 p.m. I received a call this date from Attorney Bayley advising that despite his client's best efforts to timely secure and obtain proof/statements of his active duty pay and benefits, i.e., LESS, he does not have those documents at this time. Those documents are necessary to order to present Mrs. McMullen's petition for enforcement in a succinct and direct manner for the Court's consideration. In that Attorney Bayley has represented his client's efforts to timely obtain the documents I requested, and my personal knowledge concerning the time-challenges of obtaining documents from DFAS, I respectfully request a brief continuance of the tomorrow's hearing to a date and time in December. This brief continuance will afford the documents to be produced without added expense to my client and overall conservation of this Court's time and expertise. I have attached a proposed Order of Court of your consideration and will prepare a formal Motion for Continuance if so directed by the Court. Respectfully submitted, COYNE & COYNE, P.C. lsa arie Coyne LMC/cmc ;, Encl. Cc: Mark Bayley, Esq., via Fax only MARJORIE R. McMULLEN, IN THE COURT OF COMMON PLEAS OF f/k/a MARJORIE R. KUTZ, CUMBERLAND COUNTY,. PENNSYLVANIA Plaintiff/Petitioner : V. NO. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent ORDER OF COURT AND NOW, this 22nd day of December, 2005, after hearing, the Defendant is directed to pay the sum of $781.82 within 30 days of today's date. This represents the $500.00 in child support that was due for July and August and the deficit of $281.82 on the payment of 35 percent of his pension amount. We note that wife is entitled to $510.30 per month, and she shall be responsible for payment of all taxes on said sum, and husband shall be entitled to deduct said sum from his income for tax purposes. We defer our decision on the award of legal fees at this point in time. The parties are given 10 days to file briefs in support of their respective positions. We note that the legal fees claimed are $2,931.99. By the Court, Edward E. Guido, J. Lisa Marie Coyne, Esquire For Plaintiff/Petitioner Mark F. Bayley, Esquire For Defendant/Respondent srs / Fv 4 ??S f I =?i 4 L- 3?0 ,OOZ MARJORIE R. MCMULLEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. RONALD E. KUTZ : NO. 2000-4155 CIVIL TERM CIVIL ACTION-LAW ORDER OF COURT AND NOW, this 21 ST day of FEBRUARY, 2006, upon review of the briefs filed by the parties, Defendant/Respondent is directed to pay Plaintiff/Petitioner $1,200.00 counsel fees within thirty (30) days of today's date. Edward E. Guido, J. Lisa Marie Coyne, Esquire For the Plaintiff Mark F, Bayley, Esquire For the Defendant :sld ?, ? '"'` ,, ?.: 10:28 AN. a Appeal Docket Sheet Docket Number: Page 1 of 2 March 28, 2006 544 MDA 2006 Z%sa Marjorie R. McMullen, Appellant V. Ronald E Kutz Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: March 27, 2006 Journal Number: Case Category: Civil Awaiting Original Record CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Next Event Due Date: April 11, 2006 Next Event Due Date: May 8, 2006 COUNSEL INFORMATION Appellant McMullen, Marjorie R. Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Coyne, Lisa Marie Bar No.: 53788 Law Firm: Coyne & Coyne, P.C. Address: 3901 Market Street Camp Hill, PA 17011-4227 Phone No.: (717)737-0464 Fax No.: Receive Mail: Yes E-Mail Address: lisa@coyneandcoyne.com Receive E-Mail: No Appellee Kutz, Ronald E Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information Attorney: Bayley, Mark F. Bar No.: 87663 Address: 155 S Hanover Street Carlisle, PA 17013 Phone No.: (717)241-6070 Receive Mail: Yes E-Mail Add ress: Receive E-Mail: No Law Firm: Fax No.: (717)241-6878 c1&-- y/<5 cr-,I I-c:a Superior Court of Pennsylvania 3/2812006 3023 10:28 AYM. + Appeal Docket Sheet Docket Number: 544 MDA 2006 Page 2 of 2 March 28, 2006 Superior Court of Pennsylvania Ath FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 3/28106 Notice of Appeal 60.00 60.00 2006SPRMD000297 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: February 21, 2006 Judicial District: 9 Date Documents Received: March 27, 2006 Date Notice of Appeal Filed: March 23, 2006 Order Type: Order Entered OTN: Judge: Guido, Edward E. Lower Court Docket No.: 2000-4155 Judge ORIGINAL RECORD CONTENTS Original Record Item Date of Remand of Record: Filed Date Docket Entry/Document Name March 27, 2006 Notice of Appeal Filed Content/Description Filed Appellant McMullen, Marjorie R. March 28, 2006 Docketing Statement Exited (Civil) Middle District Filing Office Filed Date BRIEFS DOCKET ENTRIES Party Type 3/2812006 3023 (7 ?? ?: ?- .._i .O' ' ter, ( ?? ; _ j 1:J ?; .,? _ G. COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Petitioner MARJORIE R. MCMULLEN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Vs. : NO. 2000-4155 CIVIL TERM RONALD E. KUTZ, Defendant. : CIVIL ACTION-- Law NOTICE OF APPEAL Notice is hereby given that Marjorie R. McMullen, Plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the Order of Judge Edward E. Guido entered in this matter on February 21, 2006. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully Submitted, COYNE AND COYNE, P.C. Dated: By: \ / isa arie Coyne, Esquir Pa upreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney For Petitioner MARJORIE R. MCMULLEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. RONALD E. KUTZ NO. 2000-4155 CIVIL TERM CIVIL ACTION-LAW FEB 2 4 2006 ORDER OF COURT AND NOW, this 21sT day of FEBRUARY, 2006, upon review of the briefs filed by the parties, Defendant/Respondent is directed to pay Plaintiff/Petitioner $1,200.00 counsel fees within thirty (30) days of today's date. Edward E. Guido, J. Lisa Marie Coyne, Esquire For the Plaintiff Mark F. Bayley, Esquire For the Defendant sld TFRUS COPY n6' 'VIA PISCORD a" t rv, seal of says cmn A ur sw, 15565503232006 Cumberland County Prothonotary' s Cffice Page 1 PYS510 Civil Case Print L000-04155 KUTZ MARJORIE R (vs) KUTZ RONALD E Reference No..: Filed........: 6/23/2000 Case Type.....: COMPLAINT - DIVORCE Time.........: 2:42 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: GRANTED Disposed Date. t 1 C i 10/11/2000 ------------ Case Comments ------------- .: gher r H Higher Crt 2.: **************************************************** **************** ************ General Index Attorney Info KUTZ MARJORIE R PLAINTIFF KAYER JAMES J 10 HEIGHTS ROAD NEWVILLE PA 17241 KUTZ RONALD E DEFENDANT 10 EHIGHTS ROAD NEWVILLE PA 17241 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 6/23/2000 COMPLAINT - DIVORCE ------------------------------------------------------------------- 6/27/2000 AMENDED COMPLAINT IN DIVORCE UNDER SECITON 3301 C AND 3301 D OF THE DIVORCE CODE ------------------------- - ---------------- 6/29/2000 ACCEPTANCE OF SERVICE ------------------------------------------------------------------- 7/12/2000 PRAECIPE TO INCORPORATE THE SEPARATION AND PROPERTY SETTLEMENT AGREEMENT BY JAMES J KAYER ESQ ------------------------------------------------------------------- 10/05/2000 AFFIDAVIT OF CONSENT - DEFENDANT 10/05/2000 WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------------------------------------------------------------- ------------------------------------------------------------------- 10/05/2000 AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- 10/05/2000 WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- 10/09/2000 PRAECIPE TO TRANSMIT RECORD --------------------------- 10/11/2000 DIVORCE DECREE ENTERED BY EDWARD E GUIDO J NOTICE MAILED ------------------------------------------------------------------- 9/08/2005 PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT BY LISA MARIE COYNE ESQ ------------------------------------------------------------------- 9/13/2005 RULE - DATED 9/13/05 - IN RE PLFF'S PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT IT IS HEREBY ORDERED AND DIRECTED THAT DEFT SHALL WITHIN 20 DAYS OF SERVICE OF THIS RULE TO SHOW CUASE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED TO PETITIONER - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------- 9/16/2005 PRAECIPE TO ENTER APPEARANCE FOR DEFT - MARK F BAYLEY ESQ FOR DEFT ----------------------------------------- 9/16/2005 CERTIFICATE OF SERVICE FOR RULE TO SHOW CAUSE - BY LISA MARIE COYNE ESQ ------------------------------------------------------------------- 9/20/2005 CERTIFICATE OF SERVICE OF THE PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT - BY LISA MARIE COYNE ATTY FOR PLFF ------------------------------------------------------------------- 10/03/2005 RESPONDNET'S ANSWER TO PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT - BY MARK F BAYLEY ESQ FOR DEFT ------------------------------------------------------------------- 10/07/2005 ORDER - DATED 10/7/05 - IN RE PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT IS SCHEDULED FOR 11/8/05 AT 8;30 AM- BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- 10/14/2005 MOTION TO CONTINUE HEARING - BY MARK F BAYLEY ESQ FOR DEFT ------------------------------------------------------------------- '15565503232006 Cumberland County Prothonotary's Office Page 2 PYS510 Civil Case Print 12000-04155 KUTZ MARJORIE R (vs) KUTZ RONALD E Reference No..: Filed........: 6/23/2000 Case Type.....: COMPLAINT - DIVORCE Time.........: 2:42 Judgment.;.... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: GRANTED Disposed Date. 10/11/2000 ------------ Case Comments ------------- Higher Crt 1.: Higgher Crt 2.: 10/20/2005 ORDER OF COURT - DATED 10/19/05 - THE DEFT' S MOTION TO CONTINUE IS HEREBY GRANTED - DEFTS HEARING IS CONTINUED UNTIL 11/10/05 AT 1:00 PM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BYTHE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- 11/14/2005 ORDER - DATED 11/10/05 - THE HEARING SCHEDULED FOR 11/10/05 CONCERNING PLFF'S PETITION TO ENFORCE MARRIAGE SETTLEMENT AGREEMENT IS HEREBY CONTINUED UPON CONSENT OF COUNSEL AND IS CONTINUED TO 12/22/05 IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- 12/27/2005 ORDER OF COURT - DATED 12/22/05 - AFTER HEARING THE DEFT IS DIRECTED TO PAY THE SUME WITHIN 30 DAYS OF TODAY'S DATE - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- 2/22/2006 ORDER OF COURT - DATED 2/21/06 - UPON REVIEW OF THE BRIEFS FILED BY THE PARTIES DEFT IS DIRECTED TO PAYPLFF $1,200.00 COUNSEL FEES WITHIN 30 DAYS OF TODAY'S DATE - BY THE COURT EDWARD E GUIDO J COPIES MAILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be Bal Py*mts/Adj End Bal ******************************** ******** ****** ******************************* DIVORCE 35. 00 35.00 .00 TAX ON CMPLT . 50 .50 .00 SETTLEMENT 5. 00 5.00 .00 MASTER'S FEE 125. 00 125.00 .00 DIV PA SURCHG 10. 00 10.00 .00 JCP FEE 5. 00 5.00 .00 -- ------------ --------- 180. ----- 50 -------- 180.50 .00 *************************************** ***************************************** * End of Case Information *************************************** ***************************************** gird COPY FROM RECORD n Te ywnered. I here unto set"r'w' an set of said Court 14 CarbM, A. rr,e? E_s e,y n1l? a eel ?'? .. ?r'Q?tN911C1r1!(•I COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Petitioner MARJORIE R. MCMULLEN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 2000-4155 CIVIL TERM RONALD E. KUTZ, Defendant. : CIVIL ACTION-- Law PROOF OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the Notice of Appeal and Proof of Service was served upon the persons in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 906: By First Class Mail: Hon. Edward E. Guido Judge, Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Mark F. Bayley, Esq. 155 South Hanover Street Carlisle, PA 17013 Court Stenographer Cumberland County Courthouse Carlisle, PA 17013 Dated: Z 3 !} 6 Lis arie Coyne, Es ire Supreme Ct. No. 53788 3901 Market Street Cam Hill, PA 17011 (717) 737-0464 Attorne for Petitioner ?. ?.! l ?. ?? 0 V`} W ?q `?. Cl n,? r r a _? - (7 - ;N 7_ T :} {i7 , r,.? t'_ ? `?` - .. C.) ._i i.+i lt; ? ? MARJORIE R. MCMULLEN IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA V. RONALD E. KUTZ NO. 2000-4155 CIVIL TERM ORDER OF COURT AND NOW, this 29T" day of MARCH, 2006, counsel for the Petitioner, is hereby directed to file a concise statement of matters complained of on appeal within fourteen (14) days of today's date in accordance with Rule of Appellate Procedure 1925(b). ,,Elsa Marie Coyne, Esquire Attorney for Petitioner sld (1 v? Edward E. Guido, J. F' ?.1 ? ??. ? ? ? \n .????u J?. _..i COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Petitioner MARJORIE R. MCMULLEN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Vs. NO. 2000-4155 CIVIL TERM RONALD E. KUTZ, Defendant. : CIVIL ACTION-- Law 2C? ORDER ?/? AND NOW THIS a 1 Avk day of 2006, a Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Cf. , Lisa Marie Coyne, Esq. For the Plaintiff A L/IVIark Bayley, Esq. For the Defendant Vj Court Reporter . 17A A a L,0-/'V" - G1 -- 3 `oZ 9'4 6 !A Iii r???1 Q ? ? ? E ?-I ?!1+?,.,? ? ''?7 _ .. ... 4 c, .. ..? F.? ? ? COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Petitioner MARJORIE R. Kutz : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2000-4155 CIVIL TERM RONALD E. KUTZ, Defendant. : CIVIL ACTION-- Law PLAINTIFF'S MOTION TO AMEND CAPTION OF CASE AND NOW comes the Plaintiff, Marjorie R. McMullen, flkla Marjorie R. Kutz, by and through her attorney, Lisa Marie Coyne, and avers the following in support of this Motion: 1. On October 11, 2000, the above-named parties were issued a Decree in Divorce by this Honorable Court at the above-referenced docket. 2. Subsequent to the final Decree in Divorce being issued, the Plaintiff Marjorie R. Kutz remarried and is now known as Marjorie R. McMullen. 3. On September 8, 2005, Plaintiff was forced to file a Petition to Enforce Marriage and Property Settlement Agreement. 4. The Petition to Enforce Marriage and Property Settlement Agreement was docketed to the underlying divorce action, however, the caption of the Petition referenced the Plaintiff as "Marjorie R. McMullen, f/k/a Marjorie R. Kutz." 5. The Orders issued pursuant to the Petition to Enforce have referenced the Plaintiff as Marjorie R. McMullen; however, there has been some confusion with the Prothonotary concerning the docketing of official filings in this matter because the original caption references the Plaintiffs former marriage surname of Kutz. WHEREFORE, the Plaintiff respectfully requests that the Prothonotary amend the Caption of this case to reflect the Plaintiff as "Marjorie R. McMullen flkla Marjorie R. Kutz." Respectfully Submitted, Dated: lT 4 COYNE AND COYNE, P.C. By: Gc -? isa arie Coyne, Esquir Pa uprern Ct. No. 537 8 901 Market Street Camp Hill, PA 170114227 (717) 737-0464 Attorney For Plaintiff PROOF OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the Motion to Amend the Caption was served upon the persons by first class mail: Mark F. Bayley, Esq. 155 South Hanover Street Carlisle, PA 17013 Dated: (Lisa arie Coyne, Esq re Pa-Supreme Ct. No. 5 788 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 Attorney for Plaintiff t=. ;, 4 i COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 MARJORIE R. McMullen, Plaintiff vs. RONALD E. KUTZ, Defendant. Attorney for Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4155 CIVIL TERM : CIVIL ACTION-- Law PLAINITFF'S STATEMENT OF MATTERS COMPLAINED OF PURSUANT TO Pa. R.A.P. 1925 TO THE HONORABLE, JUDGE EDWARD E. GUIDO: NOW COMES the Plaintiff, by and through her counsel, who files the within Statement of Matters Complained of Concerning Plaintiff s/Petitioner's Notice of Appeal to Superior Court: The Trial Court erred in not awarding the Plaintiff her entire attorney fees incurred as a result of Plaintiff successfully pursuing enforcement of her rights under the Separation and Property Settlement Agreement which resulted in this Honorable Court finding that Defendant's actions amounted to a breach of the Agreement and granting of Plaintiffs Petition to Enforce. 2. The Trial Court erred in, after finding the Defendant in breach of the Separation and Property Settlement Agreement and the Defendant not appealing said finding of breach, to not then award Plaintiff her entire attorney fees incurred in enforcing the Agreement due to Defendant's breach as required by the said Settlement Agreement. 3. The Trial court erred in arbitrarily adjusting the amount of attorney fees awarded to Plaintiff due to Defendant's breach of the Separation and Property Settlement Agreement. Respectfully Submitted, Dated ?Jtlr I COYNE AND COYNE, P.C. By: W G. Lis arie Coyne, Esquir `P . Supreme Ct. No. 537 $ 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney For Plaintiff/Petitioner PROOF OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the Notice of Appeal and Proof of Service was served upon the persons in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 906: Hand-Delivered: Hon. Edward E. Guido Judge, Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 By First Class Mail: Mark F. Bayley, Esq. 155 South Hanover Street Carlisle, PA 17013 Dated: ttv- ?. Lis arie Coyne, Esqui e Supreme Ct. No. 537S8 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 Attorney for Petitioner :;, T_' , COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 APR 1 0 2006 Attorney for Petitioner MARJORIE R. KUTZ Plaintiff VS. RONALD E. KUTZ, Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4155 CIVIL TERM CIVIL ACTION-- Law ORDER AND NOW THIS day of 2006, the upon consideration of Plaintiff's Motion to Amend the Caption of this case to reflect the current surname of the Plaintiff, it is hereby ORDERED that the Prothonotary shall amend to caption of this case to read: "MARJORIE R. MCMULLEN, Plaintiff" COURT: Edward E. Guido, Judge CF: d.isa Marie Coyne, Esq. Attomey for Plaintiff ark F. Bayley, Esq. Attorney for Defendant Prothonotary a? O 1{ i ?1 .C }i'.j ? ? kl i!1 i` _. -. . J??l' it .., . .,. ,. ', ...... _I,.1 THOMAS, THOMAS & HAFER LLP James K. Thomas, H., Esquire Identification Number: 15613 Hugh P. O'Neill, III, Esquire Identification Number: 69986 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7100 Attorneys for Defendant Thomas Dixon Diamond JAMES SMITH and CRYSTAL SMITH, Plaintiffs v IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4861 RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., and THOMAS CIVIL ACTION -LAW DIXON DIAMOND, Defendants JURY TRIAL DEMANDED PRAECIPE FOR ARGUMENT TO THE PROTHONOTARY: (1) Argument date requested is next tern of Argument Court (in accordance with Local Court Rule 211-A) (2) The matter to be argued is Defendants' Motion for Summary Judgment. (3) The party who has the burden is Defendant Thomas Dixon Diamond (4) The following named judge ( ) should ( ) should not hear the case for the following (5) Caws on the argument and equity list must be submitted upon oral arguments and briefs unless the Court agrees to consider the case on briefs only without oral argument. See Local Rule of Court NCV211E. The Court (is) X (is not) _ requested to consider case en briefs only. (El Case will be argued by: Joel H. Merow. Esquire Representing Plaintiffs 552 Court Sneet. P.O. Box 136, Reading, PA 19603 (Address) Charles J Haddick Jr Esquire Representing Defendant 1200 Cam Hill Bypass Suite 205, Richard Diamond, et al. Camp Hill PA 17011 (Address) Hugh P O'Neill III Esquire Representing Defendant Diamond P .O. Box 999, Harrisburg. PA 17108-0999 (Address) Date 7 A to y for Defendant 292784.1 hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Joel H. Merow, Esquire 552 Court Street P.O. Box 136 Reading, PA 19603-0136 Attorney for Plaintiffs Charles J. Haddick, Jr, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 Attorney for Defendants Richard Diamond, Walter Theodore Troth, Four Mile Run Diamond Lodge, Inc. THOMAS, THOMAS & HAFER, LLP By: Betty . Sheaffer Date: y??7???= I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do ? ?? ; ? _f :! i.::: THOMAS, THOMAS & HAFER LLP James K. Thomas, II., Esquire Identification Number: 15613 Hugh P. O'Neill, 111, Esquire Identification Number: 69986 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7100 Attorneys for Defendant Thomas Dixon Diamond JAMES SMITH and CRYSTAL SMITH, Plaintiffs v IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4861 RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., and THOMAS DIXON DIAMOND, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW, comes Defendant, Thomas Dixon Diamond, by and through his attorneys, Thomas, Thomas and Hafer, LLP, and hereby moves for Summary Judgment and avers as follows: 1. Plaintiff initiated this premises liability action against moving Defendant on or about July 10, 2000. A copy of Plaintiffs' Complaint is attached hereto as Exhibit A. Plaintiff alleges that he sustained certain personal injuries as a result of a cannon explosion which occurred on or about July 25, 1998. 3. Plaintiff alleges that he was an invitee on July 25, 1998. 4. Plaintiff, James Smith, alleges that as a result of the cannon explosion, he sustained injuries to his arm, hand, and fingers. See, Exhibit A. 5. On or about November 7, 2005, Defendants served on Plaintiff, James Smith, Request for Admissions. 6. On or about December 7, 2005, Plaintiff's, James Smith, responses were due to Defendant's Request for Admissions. As of the time of the filing of this Motion for Summary Judgment, Plaintiff, James Smith, has yet to file any response to the Request for Admissions. 8. Pursuant to Pa.R.C.P. 4014, the matters contained in the Request for Admissions are admitted unless responded to within thirty (30) days. Accordingly, Plaintiff is deemed to have admitted the allegations contained in Moving Defendant's Request for Admissions. A copy of the Request for Admissions is attached hereto as Exhibit B. 9. Accordingly, based on Plaintiff's failure to respond to the Request for Admissions, James Smith is deemed to have admitted for the purposes of this litigation that he had been present for firework displays at Four Mile Run Diamond Lodge prior to July 25, 1998. See, Request for Admissions No. 2. 10. Moreover, Plaintiff is deemed to admit that on July 25, 1998, he knew the fireworks display was dangerous. See, Request for Admission Number 9. 11. Plaintiff is further deemed to have admitted that on July 25, 1998, he knew the ignition of the cannon was dangerous and that the ignition of the cannon posted a hazard of personal injury to those in the area of the cannon. See, Request for Admission Numbers 10 and 11. 12. Plaintiff, James Smith, is deemed to have admitted that he was aware that gun powder was present inside the cannon. See, Request for Admission Number 12. 13. Plaintiff, James Smith, is deemed to have admitted that he purchased some of the fireworks that were used in the display at Four Mile Run Diamond Lodge on July 25, 1998. See, Request for Admission Number 13 14. Plaintiff, James Smith, is further deemed to have admitted that he participated in bringing the cannon to the Lodge property for use on July 25, 1998. See, Request for Admission Number 14. 15. Plaintiff, James Smith, is deemed to have admitted that he participated in igniting the fireworks used on July 25, 1998. See, Request for Admission Number 15. 16. Plaintiff, James Smith, is further deemed to have admitted that he had conversations about the cannon prior to its ignition and that he inspected the cannon prior to its ignition. See, Request for Admission Numbers 18 and 19. 17. Plaintiff, James Smith, is deemed to have admitted that he voluntarily chose to be present for the fireworks display and the ignition of the cannon. 18. Plaintiff, James Smith, is further deemed to have admitted that on July 25, 1998, he knew gun powder was dangerous, that gun powder could explode and that gun powder inside the cannon could explode. See, Request for Admission Numbers 20 and 24. 19. Plaintiff, James Smith, is deemed to have admitted that he knew that he should not stand directly near the cannon immediately after it was ignited. See, Request for Admission Numbers 26 and 27. 20. The Pennsylvania Supreme Court held in Howell v. Clyde, 620 A.2d 1107 (1993) that voluntarily participating in a dangerous activity, namely the ignition of gun powder in a fireworks cannon constituted voluntary assumption of the risk and that the defendant owed no duty to plaintiff. 21. The defense of assumption of the risk remains a viable defense in the Commonwealth of Pennsylvania. See, Loughran v. The Phillies, 888 A.2d 872 (Pa. Super. 2005); Hadar v. Avco COLD., 886 A.2d 225 (Pa. Super. 2005); Bullman v. Giumoli, 761 A.2d 566 (Pa. Super. 2000). 22. In the instant case, through Plaintiff James Smith's failure to respond to Defendant's Request for Admissions, he is deemed to have voluntarily and knowingly proceeded to be present in the immediate vicinity when the cannon filled with gun powder was ignited knowing that the gun powder contained in the cannon could explode. He knew the ignition of the cannon was dangerous and that the ignition of the cannon posed a hazard of personal injury to those in the area. 23. Plaintiff, James Smith, has made no attempt to respond in any fashion to the Request for Admissions. WHEREFORE, for the reasons set forth above, it is respectfully requested that this Honorable Court grant Defendant's Motion for Summary Judgment against Plaintiff James Smith and enter an Order in the form proposed as Plaintiff James Smith assume the risk of injury posed by the ignition of the cannon on July 25, 1998. Respectfully submitted, THOMAS, THOMAS- FIAFER, LLP By: James KrTI"omas, II, Esquire Attorney I.D. No. 15613 Hugh P. O'Neill, III, Esquire Attorney I.D. No. 69986 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7100 DATE: qj) Ob rx?e ?? JAMES SMITH AND CRYSTAL SMITH Plaintiffs, v. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., and THOMAS DIXON DIAMOND Defendants, NOTICE NO. Z2O- t%g(pl Civil CIVIL ACTION-LAW Jury Trial Demanded ?ft (33 Play YOU HAVE BEEN SUED IN COURT. If you wish to defend against claims set forth in the following pages, you must take action within twenty (20) days of after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are wamed that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LOCAL HELP. - ' / Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 ?SY9U WµLuvT S- Qoo Oa l 4 (o z IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUTiTY -J 1 JAMES SMITH AND CRy AL SMITH fN THE COUP )F COMMON PLEAS Plaintiffs, :OF CUMBERLaiv`D COUNTY v. NO. Civil RICHARD DIAMOND, WALTER THEODORE TROTH, CIVIL ACTION-LAW FOUR MILE RUN DIAMOND LODGE, INC., and THOMAS DIXON DIAMOND Jury Trial Demanded Defendants, COMPLAINT And now comes the Plaintiffs, James Smith and Crystal Smith, by and through their attorney, Jack McMahon, Esquire, and respectfully aver as follows: PARTIES Plaintiff James Smith is an adult individual currently residing at 7665 Logging Lane, Indian Head, Maryland, 20640. 2. Plaintiff Crystal Smith is an adult individual currently residing at 7665 Logging Lane;gndian Head, Maryland, 20640. 3. Defendant Richard Diamond is an adult individual currently residing at 1 I Fifeshire Court, Gaithersburg, Maryland. 4. Defendant Four Mile Run Lodge Inc., is a Pennsylvania corporation with a business address of 529 Springhouse Road, Camp Hill, Cumberland County, Pennsylvania, and is the owner of the property comprising Four Mile Run Diamond Lodge and Hunting Camp located in Shippen Township, Cameron County, Pennsylvania which property was the location of the events that give raise to Plaintiffs' causes-of-action. 5. Defendant Thomas Dixon Diamond is an individual currently residing at 1607 Pine Street, Philadelphia County, Philadelphia, Pennsylvania, and is an officer of Four Mile Run Diamond Lodge, Inc. 2 6. Defendant Walter Theodore Troth is an adult individual currently residing at Box 295A, Emporium, Cameron County, Pennsylvania. FACTS 7. James Smith and Crystal Smith suffered injuries at the Four-Mile-Run Diamond Lodge, a hunting camp owned by Four-Mile-Run Diamond Lodge, Inc., located in Shippen Township, Cameron County, Pennsylvania; hereinafter referred to as "Diamond Lodge". 8. Diamond Lodge is owned by Defendant Four Mile Run Diamond Lodge, Inc. and is controlled and operated by Defendant Thomas Dixon Diamond and others. 9. Defendant Walter Troth lives near or adjacent to the Diamond Lodge hunting camp/cabin. 10. On or about July 25, 1998, a group of about 28 people, including James Smith, Crystal Smith, and Richard Diamond, gathered at Diamond Lodge. 11. James Smith and Crystal Smith were guests/invitees of Richard Diamond on July 25, 1998. 12. The Defendants knew that James Smith and Crystal Smith were present at Four-Mile-Run Diamond Lodge on July 25, 1998. 13. On or about July 25, 1998, Defendant Walter Troth approached Richard Diamond and showed Defendant Diamond a cannon. 14. Defendant Walter Troth indicated that the cannon could be packed with "black" gunpowder and ignited as part of a fireworks display at Diamond Lodge. 15. Defendant Walter Troth had previously set off the cannon using black powder and/or blasting powder utilized normally in mining or demolition. 16. On or about July 25, 1998, Defendant Walter Troth sent a friend, Greg Signor, to Emporium to purchase black powder for the cannon. 3 17, On or about July 25, 1998, Greg Signor was unable to purchase black powder and bought smokeless gunpowder, designed for use in modem ammunition reloading, and transported the smokeless gunpowder to Walter Troth's residence. 18. On or about July 25, 1998, Defendant Walter Troth opened the can of smokeless gun powder and looked at it. 19. On or about July 25, 1998, Defendant Walter Troth informed Greg Signor that the gunpowder did not look the same as the black powder he had used in the past. 20. On or about July 25, 1998, Defendant Walter Troth inserted in excess of one-half pound of smokeless gunpowder into the cannon. 21. On or about July 25, 1998, Defendant Walter Troth packed newspaper and then dirt on top of the smokeless gunpowder in the cannon and tamped the dirt with a wooden dowel or stick. 22. On or about July 25, 1998, Defendant Richard Diamond arrived at the home of Walter Troth to pick up the cannon. 23. On or about July 25, 1998, Greg Signor informed Defendant Richard Diamond that Defendant Walter Troth had put "a lot" of gunpowder with a firework's fuse or wick. 24. On or about July 25, 1998, the cannon supplied by Defendant Walter Troth exploded, causing debris and shrapnel to be propelled in various directions. 25. As a result of the explosion, pieces of debris and/or shrapnel struck James Smith in the right arm, hand, and fingers causing severe injury including nerve damage. 26. As a result of the explosion, pieces of debris and/or shrapnel struck Crystal Smith in the right knee and leg causing severe injury including abroken fibula and nerve damage. 4 COUNT I- Crystal Smith and Jim Smith v. Walter Trothl 27. Paragraphs 1 through 26 of the foregoing complaint are herein incorporated by reference as though the same were here set forth at length. 28. At all relevant times, on July 25, 1998, Defendant Walter Troth had a duty not to injure James Smith or Crystal Smith. 29. Defendant Walter Troth breached this duty of care and was negligent as follows: a. Defendant Troth constructed and/or supplied a dangerous and deadly device, a cannon, which used gunpowder with explosive force; b. Defendant Troth provided the cannon to Defendant Richard Diamond and assisted in loading the cannon with smokeless gunpowder instead of the black powder he utilized earlier, without reading or following any warnings that came with the smokeless gunpowder; C. Defendant Troth participated in the detonation of the smokeless gunpowder on July 25, 1998 by loading and tamping or by supervising the loading and tamping of the smokeless gunpowder into the cannon; d. Defendant Troth constructed or made available to Defendant Richard Diamond a cannon made of insufficient materials to contain the force and pressure of the resulting explosion; e. Defendant Troth's actions, omissions, conduct, and negligence set forth above displayed a wanton and reckless indifference to the health, safety, rights, and interests of others; and, f Otherwise violated the laws/ordinances/statutes of the Commonwealth of Pennsylvania, the United States, and Cameron County. 30. Defendant Walter Troth was aware that one-half to three-quarters of a pound of gunpowder could apply deadly force, severe injury, and could endanger anyone near the explosion. 31. Defendant Walter Troth's egregious behavior and outrageous conduct was a direct and proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal 5 Smith. WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of compensatory and punitive damages against Defendant William Troth in an amount in excess required for compulsory arbitration together with interest, attorneys fees, and costs. COUNT II- Crvstal Smith and Jim Smith v Richard Diamond) 32. Paragraphs I through 31 of the foregoing complaint are herein incorporated by reference as though the same were here set forth at length. 33. At all relevant times on July 25, 1998, Defendant Richard Diamond had a duty not to injure James Smith and Crystal Smith. 34. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter Troth was designed to be fired with black powder or blasting powder. 35. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder. 36. Defendant Richard Diamond was told by a witness, Greg Signor, that the cannon had been loaded with "a lot" of smokeless gunpowder when Diamond received the cannon. 37. Defendant Richard Diamond knew that gunpowder, whether black or smokeless gunpowder, was an abnormally dangerous product and knew that any gunpowder could detonate or explode 3 " causing injuries to others. 38. The smokeless gunpowder product which was packed or loaded into the cannon was sold in an original container which was labeled with integral warnings and the packing contained language indicating the proper use of the gunpowder product. 39. Defendant Richard Diamond had sufficient time and opportunity to read and understand and 6 follow the warnings supplied with the gunpowder and follow the warnings supplied with the gunpowder used in the fireworks cannon. 40. Defendant Richard Diamond had a duty to read the warning information on the gunpowder container and packing information before using or igniting the gunpowder. 41. Defendant Richard Diamond did not read the warning information contained on the gunpowder container or within the packaging materials. 42. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that the gunpowder was to be used for the purpose of reloading ammunition only. 43. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that smokeless gunpowder never should be substituted for black powder. 44. Defendant Richard Diamond had no specialized knowledge about black powder, smokeless gunpowder, or ammunition reloading and was aware of his lack of knowledge. 45. Defendant Richard Diamond had sufficient time to see and inspect the cannon prior to its use and knew that he had no specialized knowledge of cannon or gunpowder safety. 46. Defendant Richard Diamond helped to hand-carry the cannon to the location where it was ignited. 47. Defendant Richard Diamond placed the cannon within a hundred feet of where James Smith and Crystal Smith were located. 48. Defendant Richard Diamond had knowledge of where James Smith and Crystal Smith were located. 49. Defendant Richard Diamond took no special precautions before igniting the cannon such as checking the area for people, warning spectators, evacuating spectators, removing the cannon to a 7 safe location in case of malfunction, test-firing the cannon at a safe distance, or any other reasonable and feasible safety precautions. 50. Defendant Richard Diamond knew and comprehended the risk of explosion or detonation of the cannon before he ignited the cannon. 51. Defendant Richard Diamond knew and comprehended the risk that an explosion or detonation of the cannon could propel shrapnel or other debris. 52. Defendant Richard Diamond ignited the fuse and gunpowder contained in the cannon. 53. Defendant Richard Diamond attempted to flee from the ignited cannon within about ninety to one hundred feet of invited spectators or guests, including Plaintiffs James Smith and Crystal Smith who where watching the fireworks show outside a cabin at the Four-Mile Run Lodge. 54. Defendant Richard Diamond breached this duty of care and was negligent as follows: a. Defendant Richard Diamond ignited a dangerous and deadly device utilizing approximately one-half to three-quarters of a pound of gunpowder within one hundred (100) feet of James Smith and Crystal Smith; b. Defendant Richard Diamond set up and ignited the cannon that he knew was loaded with smokeless gunpowder instead of black powder; C. Defendant Richard Diamond ignited and otherwise participated in the detonation of the smokeless gunpowder packed within the cannon of July 25, 1998; d. Defendant Richard Diamond failed to take safety precautions to contain the force and pressure of the intended explosion so as not to injure bystanders; e. Defendant Richard Diamond failed to take safety precautions such as reading the warning labels on the original container supplied with the gunpowder used in the cannon; f Defendant Richard Diamond failed to take safety precautions such as warning the surrounding spectators or bystanders such as James and Crystal Smith that had no specialized knowledge of gunpowder, that the gunpowder was about to be ignited, or warn of possible malfunction of the cannon; g. Defendant Richard Diamond failed to evacuate the spectators and bystanders such as James Smith and Crystal Smith before igniting the cannon; h. Defendant Richard Diamond failed to position the cannon in a place or positions as to eliminate or to minimize the risk of harm to others in the event of an explosion or other malfunction; I . Defendant Richard Diamond's actions, omissions, conduct, and negligence set forth above displayed a wanton and reckless indifference to the health, safety, rights, and interests of others; and, j. Otherwise violated the laws/ordinances/statutes of the Commonwealth of Pennsylvania, the United States, and Cameron County. 55. Defendant Richard Diamond was aware that explosion fireworks like the cannon were extremely dangerous. 56. Defendant Richard Diamond was aware that approximately one-half to three-quarters of a pound of gun powder could apply deadly force and could endanger anyone near the explosion. 57. Defendant Richard Diamond's egregious behavior and outrageous conduct was a direct and proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal Smith. WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of compensatory and punitive damages against Defendant Richard Diamond in an amount in excess required for compulsory arbitration together with interest, attorneys fees, and costs. COUNT III- Crystal Smith and Jim Smith v. Four Mile Run Diamond Lodge Inc.) 58. Paragraphs 1 through 57 of the foregoing complaint are herein incorporated by reference as though the same were here set forth at length. 59. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., owned, controlled, and operated the Four Mile Run Diamond Loge comprised of a hunting cabin and 9 surrounding real property. 60. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of the land, had a duty to control the actions of permissive users of the corporation's property so that other individuals would not be injured by the negligent, reckless, and dangerous activities of permissive users of the property. 61. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., as the owner of the land, had a duty to control the actions of Richard Diamond as a permissive user of the corporation's property. 62. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had the ability, as the owner of the land, to control the actions of permissive users of the corporation's property, such as Defendant Richard Diamond. y 63. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., had an officer of the corporation president, Thomas Dixon Diamond, who had the power and authority, as well as a duty, to control the actions of permissive users of the corporation's property. 64. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its officer, Thomas Dixon Diamond, knew that the cannon was to be set off as a finale to the fireworks display. 65. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its officer, Thomas Dixon Diamond, knew the home-made fireworks like the cannon could be extremely dangerous and hazardous to bystanders. 66. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its officer, Thomas Dixon Diamond, knew that the cannon was about to be set off in close proximity 10 to the bystanders and guests including Crystal Smith and James Smith. 67. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its officer, Thomas Dixon Diamond, knew of the location of James Smith and Crystal Smith directly before the cannon was ignited; 68. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its officer, Thomas Dixon Diamond, knew that the fireworks cannon would contain gunpowder which could cause an explosion if used improperly. 69. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. breached its duty of care and was negligent as a corporation as follows: a. Defendant failed to control the actions of permissive users of its property, Defendant Richard Diamond which actions resulted in the injuries to James Smith and Crystal Smith; b. Defendant failed to ascertain the type and amount of gunpowder used in the cannon; C. Defendant failed to take any safety precautions such as warning the guests at Diamond Lodge or evacuating the guests to a safe location before the cannon was ignited; and, d. Defendant failed to prevent Defendant Richard Diamond from igniting the cannon. 70. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc. was responsible and liable for the actions of permissive user of its property, Defendant Richard Diamond. 71. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., was responsible for the actions, negligence and reckless conduct of its officer, Thomas Dixon Diamond. 72. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its officer, Thomas Dixon Diamond, knew that explosive fireworks such as the explosives in the cannon 11 were extremely dangerous. 73. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge Inc., through its officer, Thomas Dixon Diamond, knew that approximately one half to three-quarters of a pound of gunpowder could endanger anyone near the explosion. 74. The actions, omissions, conduct, and negligence set forth above of Defendant Four Mile Run Diamond Lodge displayed a wanton and reckless indifference to the health, safety, rights, and interests of others. 75. The egregious behavior and outrageous conduct of Defendant Four Mile Run Diamond Lodge was a direct and proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal Smith. WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of compensatory and punitive damages against Defendant Four Mile Run Diamond Lodge in an amount in excess required for compulsory arbitration together with interest, attorneys fees, and costs. COUNT IV- (Crystal Smith and Jim Smith v. Thomas Dixon Diamond) 76. Paragraphs 1 through 75 of the foregoing complaint are herein incorporated by reference as though the same were here set forth at length. 77. At all relevant times on July 25, 1998, Defendant Thomas Dixon Diamond had a duty not to injure James and Crystal Smith through his actions or omissions. 78. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by Walter Troth was designed to be fired with black powder or blasting powder. 79. Defendant Thomas Dixon Diamond knew on July 25, 1998 that the cannon provided by Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder. 12 80. Defendant Thomas Dixon Diamond knew that gunpowder, whether black powder or smokeless gunpowder, was an abnormally dangerous product and knew that any gunpowder could detonate or explode, causing injuries to others. 81. The smokeless gunpowder product which was packed or loaded into the cannon was sold in an original container which had integral warnings and the packing contained language indicating the proper use of the gunpowder product. 82. Defendant Thomas Dixon Diamond had sufficient time and opportunity to read and understand and to cause Richard Diamond to follow the warnings supplied with the gunpowder used in the fireworks cannon. 83. Defendant Thomas Dixon Diamond had a duty to read the warning information on the gunpowder container and packaging information before allowing Richard Diamond to use or ignite the gunpowder. 84. Defendant Thomas Dixon Diamond did not read the warning information contained on the gunpowder container or within the packaging materials. 85. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that the gunpowder was to be used for the purpose of reloading ammunition only. 86. The warnings on the gunpowder product used in the cannon on July 25, 1998 indicated that smokeless gunpowder never should be substituted for black gunpowder. 87. Defendant Thomas Dixon Diamond had no specialized knowledge about black powder, smokeless gunpowder, or ammunition reloading and was aware of his lack of knowledge. 88. Defendant Thomas Dixon Diamond had sufficient time and opportunity to see and inspect the cannon prior to its use at Diamond Lodge and knew that neither he nor Richard Diamond had 13 any specialized knowledge of the safety of the cannon or gunpowder. 89. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond hand-carry the cannon to the location where it was ignited. 90. Defendant Thomas Dixon Diamond did not require Defendant Richard Diamond to take special precautions before igniting the cannon such as familiarizing themselves with the use of gunpowder, evacuating the spectators, removing the cannon to a safe location in case of malfunction, reading the warnings on the can of gunpowder, test-firing the cannon at a safer location farther away from people, or other reasonable and feasible safety precautions. 91. Defendant Thomas Dixon Diamond knew and comprehended the risk of explosion or detonation of the cannon before the cannon was ignited. 92. Defendant Thomas Dixon Diamond knew and comprehended the risk that an explosion could } propel shrapnel or other debris at least one hundred (100) feet and that debris or shrapnel could reach James Smith and Crystal Smith from the cannon's location. 93. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite the cannon within approximately ninety (90) to one hundred (100) feet of invited spectators who were watching Diamond's fireworks show outside the cabin at the Four-Mile-Run Diamond Lodge 94. Defendant Thomas Dixon Diamond knew the location of the spectators in relation to the cannon before the cannon was ignited. 95. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond position and ignite the cannon within about 118.3 feet of the cabin. 96. Defendant Thomas Dixon Diamond watched Defendant Richard Diamond position and ignite the cannon within one hundred (100) feet of James Smith and Crystal Smith who were watching the 14 fireworks. 97. Defendant Thomas Dixon Diamond took no precautions to wam any potential spectators. 98. Defendant Thomas Dixon Diamond breached his duty of care and was negligent as follows: a. Defendant allowed a permissive user of the property owned by Four Mile Run Diamond Lodge, Inc., to ignite a dangerous and deadly device utilizing approximately one-half to three-quarters of a pound of gunpowder within one hundred (100) feet of James Smith and Crystal Smith during a fireworks display; b. Defendant allowed permissive users of the property at Four Mile Run Diamond Lodge to set up and ignite the cannon, knowing that it was loaded with smokeless gunpowder instead of black powder; C. Defendant failed to stop the ignition of the smokeless gunpowder packed within the cannon on July 25, 1998; d. Defendant failed to take reasonable safety precautions and failed to cause the permissive users of the property to take reasonable safety precautions to contain the force and pressure of the intended explosion so as not to injure bystanders; e. Defendant failed to take safety precautions such as reading the warning labels on the original container supplied with the gunpowder used in the cannon; f Defendant failed to take safety precautions such as warning the surrounding spectators or bystanders such as James Smith and Crystal Smith that the permissive users of the property had no specialized knowledge of gunpowder, that gunpowder was about to be ignited, or to warn of possible malfunction of the cannon; g. Defendant failed to evacuate or to cause the permissive users of the property to evacuate the spectators and bystanders such as James Smith and Crystal Smith before allowing the ignition of the cannon; and h. Defendant failed to cause the permissive users of the property to position the cannon in a place or position as to eliminate or to minimize the risk of harm to others in the event of an explosion or other malfunction. 99. Defendant Thomas Dixon Diamond was aware that explosive fireworks like the cannon were extremely dangerous. 15 100. Defendant Thomas Dixon Diamond was aware that approximately one-half to three-quarters of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion. 101. Defendant Thomas Dixon Diamond's egregious behavior and outrageous conduct was a direct and proximate cause of aforementioned explosion and the injuries caused to James Smith and Crystal Smith. WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of compensatory and punitive damages against Defendant Thomas Dixon Diamond in an amount in excess required for compulsory arbitration together with interest, attorneys fees, and costs. COUNT V - (James Smith and Crvstal Smith v Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge Inc and Thomas Dixon Diamond) 102. Paragraphs 1 through 101 are herein incorporated. 103. As a direct and proximate cause of all Defendants negligence and Plaintiffs James Smith's and Crystal Smith's observation of the results of the explosion, Plaintiffs James and Crystal Smith were caused to suffer emotional distress and extreme mental pain and suffering. WHEREFORE, Plaintiffs, James and Crystal Smith, demandjudgment of compensatory and punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for compulsory arbitration together with interest, attorneys fees, and costs. COUNT VI - (James Smith and Crystal Smith v Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge Inc and Thomas Dixon Diamond - Loss of Consortium) 104. Paragraphs I through 103 are herein incorporated. 105. As a result of the aforementioned incident and Defendants' negligence, Plaintiff James Smith 16 has been deprived of society, companionship, services, comfort and consortium of his wife, Crystal Smith, and may be deprived of the same for an indefinite time into the future. 106. As a result of the aforementioned incident and Defendants' negligence, Plaintiff Crystal Smith has been deprived of society, companionship, services, comfort and consortium of her husband, James Smith, and may be deprived of the same for an indefinite time into the future. WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of compensatory and punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for compulsory arbitration together with interest, attorneys fees, and costs. COUNT VII - (James Smith and Costal Smith v Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lode Inc and Thomas Dixon Diamond - Punitive Damages) 107. Paragraphs 1 through 106 are herein incorporated. 108. The conduct of Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond was so wanton, willful and grossly negligent such as to warrant punitive damages against them on behalf of the Plaintiffs, James Smith and Crystal Smith. WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excess required for compulsory arbitration together with interest, attorneys fees, and costs. COUNT VIII - (James Smith and Crystal Smith v Defendants Walter Troth, Richard Diamond Five Mile Run Diamond Lodge Inc and Thomas Dixon Diamond - Injuries) 109. Paragraphs 1 through 108 are herein incorporated. 17 110. As a result of the negligence of Defendants, Plaintiff James Smith was caused to suffer injuries including but not limited to right arm, hand and fingers; permanent scarring to arm; injuries to nerves, tendon, and invertabral discs of arms, legs and hands; he was further caused to suffer motor and sensory deficits to right arm and hand, and extreme anxiety and shock to nervous system. 111. As a result of the negligence of Defendants, Plaintiff Crystal Smith was caused to suffer injuries including but not limited to wounds to right leg; open fracture of right fibula; permanent scarring; motor sensory deficits to various parts of her body; and extreme anxiety and shock to nervous system. WHEREFORE, Plaintiffs, James Smith and Crystal Smith, demand judgment of compensatory damages and punitive damages against Defendants Walter Troth, Richard Diamond, Five Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond in an amount in excesg required 4 for compulsory arbitration together with interest, attorneys fees, and costs. Respectfully submitted, J ck McMahon, Esquire Attomey for Plaintiffs, James Smith and Crystal Smith Attorney I.D. #26798 1500 Walnut Street Suite 900 Philadelphia, PA 19102 (215) 985-4443 18 VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL I, JAMES SMITH, verify that I am the Plaintiff in the foregoing action and that the attached COMPLAINT, is based upon the information which has been gathered by my counsel in preparation of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine. I have read the COMPLAINT and to the extent that it is based upon the information which I have given to my counsel, it is true and correct to the best ofmy knowledge, information and belief. To the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this Verification. I understand that intentional false statements herein are made subject to the penalties of 19 Pa.C.S. §4904 relating to unswom falsification made to authorities. SMITH Dated: C- // 0 000 VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL I, CRYSTAL SMITH, verify that I am the Plaintiff in the foregoing action and that the attached COMPLAINT, is based upon the information which has been gathered by my counsel in preparation of this lawsuit. The language of the COMPLAINT is that of counsel and is not mine. I have read the COMPLAINT and to the extent that it is based upon the information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this Verification. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification made to authorities. CRYSTAL SMITH Dated: 4/1 / //14a Y/ THOMAS, THOMAS & HAFER LLP James K. Thomas, H., Esquire Identification Number: 15613 Hugh P. O'Neill, 111, Esquire Identification Number: 69986 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7100 JAMES SMITH and CRYSTAL SMITH, Plaintiffs Attorneys for Defendant Thomas Dixon Diamond IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4861 RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., and THOMAS CIVIL ACTION -LAW DIXON DIAMOND, Defendants JURY TRIAL DEMANDED REQUESTS FOR ADMISSIONS OF DEFENDANT THOMAS DIXON DIAMOND ADDRESSED TO PLAINTIFF JAMES SMITH Defendant, Thomas Dixon Diamond, request that Plaintiff, James Smith, admit, pursuant to the provisions of Pennsylvania Rules of Civil Procedure, the matters set forth below: The facts set forth below shall be deemed admitted unless Plaintiff James Smith serve upon Defendant Thomas Dixon Diamond a sworn answer or objection within thirty (30) days after service of these Request for Admissions. If objection is made to any fact whose admission is requested, the reason for that objection shall be stated. Each answer shall admit or deny the matter or set forth in detail the reason(s) why an admission or denial cannot truthfully be made. A denial of any matter shall fairly meet the substance of the requested admission. When good faith requires Plaintiff James Smith to qualify his answer or deny only a part of the matter of which an admission is requested, Plaintiff James Smith shall specify so much of the requested admission as is true and qualify or deny the remainder. Plaintiff James Smith may not give lack of knowledge or information as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable to him is insufficient to enable to admit or deny the requested admission. Plaintiff James Smith may not object to a requested admission on grounds that the request presents a genuine issue for trial. Defendant Thomas Dixon Diamond, by his attorneys, James K. Thomas, II, Esquire, Michele J. Thorp, Esquire and Thomas, Thomas & Hafer, LLP, hereby request that Plaintiff James Smith admit the following facts pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP James K. Thomas, II, Esquire Attorney I.D. No. 15613 Hugh P. O'Neill, III, Esquire Attorney I.D. No. 69986 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7100 DATE: 2 DEFINITIONS AND INSTRUCTIONS Unless negated by the context of the Request or Interrogatory, the following definitions are applicable to all Requests and Interrogatories contained herein: (A) The term "you", "Plaintiff" and "Plaintiff James Smith" shall mean and be deemed to refer to the Plaintiff James Smith and shall also be deemed to refer to, but shall not be limited to, its employees, units, divisions, attorneys, consultants, sureties, indemnitors, insurers, investigators and any other agents insofar as the material requested herein is not privileged. (B) "Incident" and/or "incident in question" shall mean and be deemed to refer to the incident that occurred on July 25, 1998, at Four Mile Run Diamond Lodge and which is the subject of the above-captioned civil action in the Court of Common Pleas of Cumberland County, Pennsylvania. (C) "Documents" is an all-inclusive term referring to any writing and/or recorded or graphic matter, however produced or reproduced. This term also includes electronic documents of every type and kind. The term "documents" includes, without limitation, correspondence, memoranda, interoffice communications, e-mails, minutes, reports, notes, schedules, analyses, drawings, diagrams, graphs, charts, maps, surveys, books of account, ledgers, invoices, purchase orders, pleadings, questionnaires, contracts, bills, checks, drafts, diaries, logs, proposals, print-outs, recordings, telegrams, films, and all other such documents tangible or retrievable of any kind. Documents also include any preliminary notes and drafts of all the foregoing, in whatever form, for example: printed, typed, longhand, or shorthand on paper, paper tape, tabulating cards, ribbon blue-prints, magnetic tape, microfilm, films, motion films, phonograph records, or other form. 3 (D) With respect to documents, the term "identify" means to give the date, title, author and addressee. Identify with respect to documents further means: (i) to describe a document sufficiently to enable the interrogator to know what such document is and to retrieve it from a file or wherever it may be located; (ii) to describe it in a manner suitable for use as a description in a subpoena; (iii) to give the name, address, position or title of the person(s) who has custody of the document and/or copies thereof; (iv) you need not identify the document in accordance with the foregoing if you attach to your answer a true, correct, and complete copy of the document. (E) "Identify" when used in reference to an individual means; (i) to state his/her full name; (ii) present residence address or last known address; (iii) present or last known business address; and (iv) whether ever employed by any party to this action, and, if so, the dates he/she was employed by such party, the name of the party, and the last position held as an employee of such party. (F) Whenever the expression "and/or" is used in these requests and interrogatories, the information called for should be set out both in the conjunctive and disjunctive, and wherever the information is set out in the disjunctive, it should be given separately for each and every element sought. 4 (G) Whenever a date, amount, or other computation or figure is requested, the exact date, amount or other computation or figure is to be given unless it is not known; and then the approximate date, amount or other computation or figure should be given or the best estimate thereof; and the answer shall state that the date, amount or other computation or figure is an estimate or approximation. (H) No answer is to be left blank. If the answer to a request or interrogatory or any subparagraph of a request or interrogatory is "none" or "unknown", such statement must be written in the answer. If the question is inapplicable, "n/a" must be written in the answer. If an answer is omitted because of the claim of privilege, the basis of the privilege is to be stated. If the request or interrogatory is objected to, set forth the grounds and reason for the objection. If the basis for the objection is a privilege, set forth the factual basis and legal reason for the privilege. (I) These requests and interrogatories are continuing and any information secured subsequent to the filing of your answers which would have been included in the answers had it been known or available, are to be supplied by supplemental answers. Request for Admissions 1. Admit that James Smith had visited Four Mile Run Diamond Lodge before July 25, 1998. Interrogatory No. 1. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 5 Request for Admissions 2. Admit that James Smith had been present for fireworks displays at Four Mile Run Diamond Lodge prior to July 25, 1998. Interrogatory No. 2. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. Request for Admission 3. Admit that a fireworks display was held on July 25, 1998 at Four Mile Run Diamond Lodge. Interrogatory No. 3. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 7 Request for Admission 4. Admit that the cannon used at Four Mile Run Diamond Lodge on July 25, 1998 was homemade Interrogatory No. 4. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 8 Request for Admission 5. Admit that the cannon used at Four Mile Run Diamond Lodge was not professionally made. Interrogatory No. 5. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 9 Request for Admission 6. Admit that a cannon was ignited following the fireworks display at Four Mile Run Diamond Lodge on July 25, 1998. Interrogatory No. 6. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 10 Request for Admission 7. Admit that James Smith was present for the fireworks display. Interrogatory No. 7. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and the specific factual basis for your denial. 1i Request for Admission 8. Admit that James Smith was present for the ignition of the cannon. Interrogatory No. 8. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 12 Request for Admission 9. Admit that on July 25, 1998, James Smith knew the fireworks display was dangerous. Interrogatory No. 9. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 13 Request for Admission 10. Admit that on July 25, 1998, James Smith knew the ignition of the cannon was dangerous. Interrogatory No.10. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 14 Request for Admission 11. Admit that the ignition of the cannon posed a hazard of personal injury to those in the area of the cannon. Interrogatory No. 11. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and the specific factual basis for your denial. 15 Request for Admission 12. Admit that on July 25, 1998, James Smith was aware that gun powder was present inside the cannon. Interrogatory No. 12. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 16 Request for Admission 13. Admit that James Smith brought some of the fireworks that were used in the display to the Four Mile Run Diamond Lodge on July 25, 1998. Interrogatory No. 13. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and the specific factual basis for your denial. 17 Request for Admission 14. Admit that James Smith participated in bringing the cannon to the Four Mile Run Diamond Lodge property for use on July 25, 1998. Interrogatory No. 14. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 18 Request for Admission 15. Admit that James Smith participated in igniting the fireworks used on July 25, 1998. Interrogatory No. 15. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 19 Request for Admission 16. Admit that James Smith participated in positioning the cannon for use on July 25, 1998. Interrogatory No. 16. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 20 Request for Admission 17. Admit that James Smith assisted in igniting the cannon on July 25, 1998. Interrogatory No. 17. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 21 Request for Admission 18. Admit that James Smith had conversations about the cannon prior to its ignition. Interrogatory No. 18 If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 22 Request for Admission 19. Admit that James Smith inspected the cannon prior to its ignition. Interrogatory No. 19. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 23 Request for Admission 20. Admit that James Smith voluntarily chose to be present for the fireworks display. Interrogatory No. 20. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and the specific factual basis for your denial. 24 Request for Admission 21. Admit that James Smith voluntarily chose to be present for the ignition of the cannon. Interrogatory No. 21. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 25 Request for Admission 22. Admit that James Smith knew the cannon had been made by Walter Troth. Interrogatory No. 22. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 26 Request for Admission 23. Admit that on July 25, 1998, James Smith knew gun powder was dangerous. Interrogatory No. 23. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 27 Request for Admission 24. Admit that on July 25, 1998, James Smith knew gun powder could explode. Interrogatory No. 24. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 28 Request for Admission 25. Admit that on July 25, 1998, James Smith knew that gun powder inside the cannon could explode. Interrogatory No. 25. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and the specific factual basis for your denial. 29 Request for Admission 26. Admit James Smith knew that he should not stand in front of the cannon immediately after it was ignited. Interrogatory No. 26. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 30 Request for Admission 27. Admit that James Smith knew that he should not stand directly near to the cannon immediately after it was ignited. Interrogatory No. 27. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 31 Request for Admission 28. Admit that James Smith voluntarily assisted in the placement of the cannon. Interrogatory No. 28. If your response to the foregoing Request for Admission is anything other than an unqualified admission, state with specificity the following: 1. each and every reason why you cannot provide an unqualified admission to the foregoing; and 2. the specific factual basis for your denial. 32 hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Joel H. Merow, Esq. 552 Court Street P.O. Box 136 Reading, PA 19603-0136 Charles J. Haddick, Jr, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP By: Susan Rosario Date: 320240.1 33 I. Susan Rosario, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Joel H. Merow, Esquire 552 Court Street P.O. Box 136 Reading, PA 19603-0136 Attorney for Plaintiffs Charles J. Haddick, Jr, Esquire DICKIE, MCCAMEY & CHILCOTE, P.C. 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 Attorney for Defendants Richard Diamond, Walter Theodore Troth, Four Mile Run Diamond Lodge, Inc. THOMAS, THOMAS & HAFER, LLP By: Be k. Sheaffer Date: -Y/1,J6' 320240.1 r•? ?=? A' 4:.. 0 0 MARJORIE R. McMULLEN, IN THE COURT OF COMMON PLEAS OF f/k/a MARJORIE R. KUTZ, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Petitioner V. NO. 00-4155 CIVIL TERM RONALD E. KUTZ, Defendant/Respondent CIVIL ACTION - CUSTODY TRANSCRIPT OF PROCEEDINGS IN RE: PLAINTIFF'S PETITION TO ENFORCE MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Thursday, December 22, 2005, in Courtroom No. 5 APPEARANCES: LISA MARIE COYNE, Esquire For Plaintiff/Petitioner MARK F. BAYLEY, Esquire For Defendant/Respondent ORIGINAL 1 0 INDEX TO WITNESSES FOR THE PETITIONER Marjorie McMullen FOR THE RESPONDENT Ronald E. Kutz DIRECT CROSS REDIRECT RECROSS 4 21 27 -- 32 40 52 -- 2 0 INDEX TO EXHIBITS • FOR THE PETITIONER IDENTIFIED ADMITTED 1 - Separation and property 6 6 settlement agreement 2 - Decree in Divorce 6 6 3 - Acceptance letter to 8 9 Penn State dated 12/2/04 4 - Signature Student Loan 10 10 5 - Retirement statement 15 15 6 - Form from military regarding 16 16 direct deposit of $510.30 7 - Petitioner McMullen's Accounting 16 17 for 2005 8 - Letter dated 10/14/04 regarding 19 19 fee agreement with Coyne & Coyne 9 - Attorney fees for Petitioner 19 20 McMullen 10 - Penn State Semester Bill & 27 27 Registration Confirmation 11 - Photocopies of checks 28 53 12 - Letter dated 9/10/05 to 47 53 Defendant from Coyne & Coyne 3 • 1 THE COURT: This is the Petition to Enforce 2 the Marital Set tlement Agreement. 3 MS. COYNE: Yes, Your Honor. The Petitioner 4 is ready. 5 THE COURT: Call your first witness. 6 MARJORIE McMULLEN 7 having been duly sworn, testified as follows: 8 DIRECT EXAMINATION 9 BY MS. COYNE: 10 Q State your name, please. 11 A Marjorie McMullen. 12 Q Where do you live, Mrs. McMullen? 13 A 100 Shed Road, Newville, Pennsylvania. 14 Q Who resides with you at that address? 15 A My husband, Ralph McMullen, and my six 16 children; Daniel Kutz, Andrew Rutz, Tyler Kutz, Brielle 17 Rutz, Jaedanne Kutz, and Riley McMullen. 18 Q The oldest of your children is who? 19 A Daniel Kutz. 20 Q And how old is he? 21 A Nineteen. 22 Q How old is your youngest Kutz child? 23 A Eight. 24 Q What grade is that? 25 A She's in third. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • Q with you? A Q that correct? A Q married? There's five Kutz children, then, residing Yes. The father of the children is Ronald Kutz, is Yes. At one point in time, were you and Mr. Kutz A Yes, we were. Q Are you now divorced? A Yes. Q Prior to the divorce, did you and Mr. Kutz negotiate terms of your marriage settlement or the divorce action? A Yes, we did. Q Were those terms and agreements reduced to writing? A Yes. Q What were the terms with regard to child support? a month. THE COURT: That's not -- is that before me? MS. COYNE: Yes, it is, Your Honor. THE COURT: Okay. THE WITNESS: That he would pay me $1,250.00 5 • 0 1 BY MS. COYNE: 2 Q Was there any agreement concerning a pension 3 from Mr. Kutz? 4 A Yes, there was. He's retired from the 5 military. 6 Q And what was that agreement? 7 A That when he retired I was entitled to 35 8 percent of it. 9 MS. COYNE: If I may, Your Honor, approach 10 the witness? 11 THE COURT: You may. 12 MS. COYNE: These exhibits have been 13 previously provided to opposing counsel. 19 BY MS. COYNE: 15 Q Will you please identify Petitioner's Exhibit 16 No. 1, please? 17 A It's the separation and property agreement 18 that we had ag reed upon prior to the divorce. 19 Q I'm going to hand you Petitioner's Exhibit 20 No. 2. It say s Div orce Decree. Is that yours? 21 A Yes, it is. 22 MS. COYNE: I move for admission. 23 THE COURT: Any objection, Mr. Bayley? 24 MR. BAYLEY: No. 25 THE COURT: They are admitted. 6 • 1 BY MS. COYNE: 2 Q You indicated the child support amount he 3 paid to you w as $125.00 a month, is that correct? 4 A It's $1,250.00. 5 Q I'm sorry. Was there any terms contained in 6 the agreement where that amount would be terminated or 7 reduced? 8 THE COURT: What provision in the agreement 9 are we talkin g about? 10 MS. COYNE: I'm looking at -- I'm sorry, Your 11 Honor. It's not a numbered page, but it would be on 12 Paragraph No. 12. 13 THE COURT: All right. 14 MS. COYNE: If I may approach the witness, 15 I'll give her a copy. 16 THE COURT: You may. 17 BY MS. COYNE: 18 Q Paragraph 12 says, Allowance to Wife and 19 Children. Is that the paragraph that addresses child 20 support? 21 A Yes, it is. 22 Q Turning to the next page, which is 23 Subparagraph C, is there an adjustment there to support when 24 an emancipati on event occurs? 25 A When the child reaches the age of 18, except 7 • 0 1 if he is pursuing college education. 2 Q Daniel is your oldest, is that correct? 3 A Yes, he is. 4 Q Has Daniel graduated from high school? 5 A Yes, he did, June of 2005. 6 Q Just this past June? 7 A Um-hum. 8 Q And how old was he when he graduated? 9 A Eighteen. 10 Q Prior to graduation, how were his grades? 11 A He graduated with honors. They were very 12 high. 13 Q Based on his academic performance, did you 14 and Daniel pu rsue applications to colleges? 15 A Yes, we did. 16 Q And was he accepted anyplace? 17 A Yes, he was. 18 MS. COYNE: Permission to approach the 19 witness, Your Honor. 20 THE COURT: You may. 21 BY MS. COYNE: 22 Q I hand you what has been marked as 23 Petitioner's Exhibit No. 3. Can you identify that document? 24 A It's Daniel's acceptance letter to Penn 25 State. 8 • 0 1 Q In particular, which campus in Penn State was 2 he accepted to ? 3 A The Main Campus. 4 Q What's the date of that? 5 A December 2nd, 2004. 6 Q Was that letter dated while he was still in 7 high school? 8 A Yes, it was. 9 Q So he got that in his senior year? 10 A Yes, during his senior year. 11 MS. COYNE: Move for admission. 12 THE COURT: Any objection, Mr. Bayley? 13 MR. BAYLEY: No. 14 THE COURT: It is admitted. Is he currently 15 attending Penn State? 16 THE WITNESS: Yes, he is. 17 BY MS. COYNE: 18 Q Is he at the Main Campus? 19 A He's not at the Main Campus. He transferred 20 to Penn State Harrisburg Campus. 21 Q And why was that? 22 A So that he could live at home and save some 23 money so that when he graduates from college he wouldn't be 24 so far in debt . 25 Q When did he start at Penn State Harrisburg 9 0 0 1 Campus? 2 A I believe the last week of August. It was 3 the fall semes ter. 4 Q Prior to actually attending classes, were 5 there any appl ications made for student loans or financial 6 assistance? 7 A Yes, there were. He filled out an 8 application fo r a Stafford loan. 9 Q As a Stafford loan applicant, did you sign as 10 a co-signer fo r that? 11 A No. I didn't have to sign for that one. 12 Q Were you identified as a co-signer? 13 A Yes. 14 Q I hand you Petitioner's Exhibit 4. Would you 15 identify that? 16 A This is the loan that we applied for. 17 Q Is anyone identified as a co-signer? 18 A I am. 19 MS. COYNE: Move for admission. 20 THE COURT: Any objection, Mr. Bayley? 21 MR. BAYLEY: No. 22 THE COURT: It is admitted. 23 BY MS. COYNE: 24 Q When you were applying for these loans, was 25 this prior to Daniel actually physically attending the 10 0 1 Harrisburg Campus? 2 A Yes, it was. 3 Q What period of time were you applying for 4 these loans? 5 THE COURT: How is this relevant to what I'm 6 doing? 7 MS. COYNE: Your Honor, it's relevant because 8 a position has been taken by the Respondent that he was not 9 a full-time student , and, therefore, he reduced unilaterally 10 support concerning Daniel for July and for -- 11 THE COURT: Did he go to school full-time 12 this past semester? 13 THE WITNESS: Yes. 14 THE COURT: How many courses did he have? 15 THE WITNESS: He had a full course load. 16 THE COURT: He had a full course load? 17 THE WITNESS: Yes. 18 THE COURT: Good enough. Next question. Did 19 he pass? 20 THE WITNESS: Yes. 21 THE COURT: And he is going on to the next 22 semester? 23 THE WITNESS: Yes, he is. 24 THE COURT: All right. 25 MS. COYNE: Your Honor, if I may address the 11 • 0 1 Court. The relevance of these documents, if I may proceed 2 with that, is whether or not he was actively enrolled in 3 college. The father terminated support for Daniel for July 4 and August saying that he was out of high school and he 5 wasn't in college, and, therefore -- 6 THE COURT: Show her the acceptance letter. 7 Do you have the acceptance letter? 8 MS. COYNE: That was one of the exhibits. 9 THE COURT: Good enough. 10 MR. BAYLEY: We'll stipulate that he was in 11 college. Our position is that Mr. Kutz didn't realize he 12 was going in the summer. 13 THE COURT: Good enough. 14 BY MS. COYNE: 15 Q As a follow-up to that, Ms. McMullen, 16 apparently your ex-husband didn't realize your son was 17 attending college. Is that an accurate statement? 18 A I told him that Daniel would be attending 19 Penn State when we got the acceptance letter. 20 Q You got that acceptance letter in December, 21 is that correct? 22 A Yes. 23 Q At what point in time did Mr. Kutz reduce the 24 amount of support that he was paying? 25 A When he handed me the July support check. 12 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What amount of support was that? A The check was in the amount of $1,000.00. Q What was the amount of shortfall? A $250.00. Q Where does Daniel live? A He resides with me. Q Does he live on campus? A No. Q Does he own his own car? A No. Q Does he commute to school? A Yes, he does. Q Does he work outside of going to school full-time? A Yes, he does. Q Where does he work? A Saylor's IGA Market. Q And what does he do there? A He's a stock clerk. Q As far as Daniel's books, is there something that -- THE COURT: Where are we going with this? He's either a full-time student or he's not. Are you stipulating that he's a full-time student? MR. BAYLEY: Yes. 13 • 0 1 THE COURT: All right. Next line of 2 questioning. 3 BY MS. COYNE: 4 Q As far as the retirement for Mr. Kutz, 5 there's a period of time you indicate that he was on active 6 duty, correct? 7 A Yes. 8 Q Did you learn at some point that he had 9 retired from activity duty? 10 A He asked if the children could attend his 11 retirement ceremony last December. 12 Q So December of 2004? 13 A Yes. 14 Q And did the children attend that? 15 A Yes. 16 Q Did you later learn when his actual 17 retirement or termination of service occurred? 18 A When we saw his LES statements on Tuesday. 19 Q What did those statements disclose when his 20 ETS date was? 21 A The retirement date was February of 2005. 22 Q Upon retirement, what is the amount of -- are 23 you entitled to receive any portion of his retirement pay? 24 A Thirty-five percent. 25 Q I hand you what is marked as Exhibit No. 5. 14 • 1 Can you identify that? 2 A It's the accounting statement from the 3 military giving how much retirement he would be receiving 4 and how it's broken down. 5 Q What is his gross amount of retirement pay? 6 A $1,458.00. 7 MS. COYNE: Move for admission. 8 THE COURT: Objection? 9 MR. BAYLEY: No. 10 THE COURT: Admitted. 11 BY MS. COYNE: 12 Q The $1,458.00 of gross pay, did you receive 13 any payment from Mr. Kutz which he identified as his 14 retirement pay? 15 A He gave me checks starting in April that he 16 said was for his military retirement. 17 Q Did he at any time give you an accounting as 18 to how he calculated that? 19 A He told me that it was 35 percent of what he 20 received. 21 Q Since he has been retired, have you at any 22 point started receiving direct deposit from DFAS, a portion 23 of his military retirement pay? 24 A Yes, I did. 25 Q I hand you what is Petitioner's Exhibit 6. 15 • 0 1 Can you identify that? 2 A It's the form that I received from the 3 military saying when I would start getting a direct deposit 4 from them. 5 Q And what is the amount that you would start 6 receiving? 7 A $510.30. 8 Q There's also handwriting on the bottom 9 indicating -- what does that indicate? 10 A It gives the gross retirement pay of 11 $1,458.00, multiplied by 35, with a result of $510.30. 12 MS. COYNE: Move for admission. 13 MR. BAYLEY: No objection. 14 THE COURT: It's admitted. So you began 15 getting these payments in April from him and then direct 16 deposit later on? 17 THE WITNESS: Correct. 18 THE COURT: What are you asking me to do? 19 MS. COYNE: Your Honor, if I may follow-up 20 with this exhibit. This is the spreadsheet. 21 BY MS. COYNE: 22 Q I hand you what's marked as Petitioner's 23 No. 7. What does this spreadsheet depict? 24 A It's a breakdown of the amount of retirement 25 that I received starting with a payment in April and the 16 • 0 1 amount of child support that I received starting with March. 2 Q There's also a column that is indicated 3 deficit. What does that represent? 4 A That's the amount that I did not receive. 5 Q From the $510.30 which you indicated was the 6 35 percent? 7 A Correct. 8 Q There's an indication under the child support 9 of also a deficit there for two months. That is July and 10 August, is that correct? 11 A Correct. 12 THE COURT: So we're here for July and August 13 for the child support, so that's $500.00, and we're here for 14 February and March of the retirement? 15 MS. COYNE: March through September. If I 16 may move for admission. 17 THE COURT: She said in April he started 18 paying her. 19 MS. COYNE: April is when he actually paid, 20 but our position is he retired in March. She received 21 nothing in March from him from his retirement. 22 THE COURT: You said March through September. 23 MS. COYNE: If I may move for admission, Your 24 Honor, at this point. 25 THE COURT: It's admitted. You're looking 17 • 0 1 for one month's retirement? 2 MS. COYNE: I'm looking for one month's 3 retirement in March. We're looking for the total deficit 4 here, which is the difference between what he actually paid 5 her -- 6 THE COURT: He didn't pay her in March is 7 what you're telling me? 8 MS. COYNE: Correct. 9 THE COURT: So you're looking at $510.30 for 10 March and $250.00 for support? 11 MS. COYNE: Child support. And then the 12 shortfall that he actually paid, which is represented in the 13 column that says retirement, if you subtract that amount, 14 the $431.66 minus the $510.30, which she should have been 15 actually receiving. 16 THE COURT: Okay. So you're saying that -- 17 MS. COYNE: So the total deficit that we're 18 looking for, Your Honor, is $1,292.12. 19 THE COURT: All right. 20 BY MS. COYNE: 21 Q Were you able to resolve these deficiencies 22 with Mr. Kutz concerning his lack of payment to you? 23 A No. 24 Q Did he explain to you why he reduced his 25 child support in July and August? 18 • 0 1 A He said that Daniel wasn't attending school, 2 so he didn't ha ve to pay for the summer months. 3 Q As a result of those actions, did you have to 4 retain counsel? 5 A Yes, I did. 6 Q I hand you what is Petitioner's Exhibit 8. 7 Can you identif y that document? 8 A It's the agreement with your firm for you to 9 represent me. 10 Q Now, indicated at the in re is custody. Was 11 there a custody matter with Mr. Kutz prior to this support 12 and retirement pay? 13 A Yes, there was, last fall. 14 Q What is the hourly rate that was agreed to? 15 A $175.00. 16 MS. COYNE: Move for admission. 17 THE COURT: Any objection? 18 MR. BAYLEY: No problem. 19 THE COURT: It's admitted. 20 BY MS. COYNE: 21 Q As a result of the fee agreement, did you 22 make any paymen ts with regard to those invoices? 23 A Yes, I did. 24 Q I hand you what is Petitioner's Exhibit 9. 25 Can you identify this document, please. 19 0 1 A It's a spreadsheet and invoices that I 2 received regar ding the charges. 3 Q It shows that the total amount of attorney's 4 fees represent ative on those invoices are a little over 5 $3,900.00, is that correct? 6 A Yes. 7 Q And it looks like there's a deduction there 8 for work that' s attributed to the custody work, is that 9 correct? 10 A Correct. 11 Q You are not seeking reimbursement for the 12 attorney's fees related to the custody invoice, is that 13 correct? 14 A Correct. 15 Q And the total amount of attorney's fees for 16 Petition to E nforce, is that reflected there? 17 A Yes, it is. 18 Q And you had an opportunity to review these 19 invoices, and these accurately reflect the work that was 20 undertaken by this firm? 21 A Yes. 22 THE COURT: How much are you claiming? 23 MS. COYNE: $2,931.99, Your Honor. Move for 24 admission. 25 MR. BAYLEY: No objection. 20 • 0 1 THE COURT: It's admitted. 2 MS. COYNE: I have no further questions, Your 3 Honor. 4 THE COURT: Mr. Bayley. 5 CROSS-EXAMINATION 6 BY MR. BAYLEY: 7 Q At the time that this separation contract was 8 negotiated and executed, was Mr. Kutz represented? 9 A No. 10 Q Were you represented? 11 A Yes. 12 Q Who were you represented by? 13 A James Kayer. 14 Q Is that who drafted this contract? 15 A Yes, it was. 16 Q Now, all of these college documents that were 17 shown, were any of those signed or provided to Mr. Kutz at 18 any time? 19 A No. 20 Q Are you saying today that Mr. Kutz knew in 21 July into August that his son was going to college? 22 A Yes. 23 Q How would he have known? 24 A Because I was excited that he was accepted, 25 and I told him. 21 I Q When did you tell him? 2 A Right after Daniel was accepted in December. 3 Q Were you on the telephone? Were you 4 face-to-face? 5 A It would probably have been face-to-face. We 6 don't speak on the phone much. 7 Q Where would the conversation have taken 8 place? 9 A It would have had to have been at my 10 residence. 11 Q So you told Mr. Kutz that Daniel was 12 accepted, correct? 13 A Yes. 14 Q Did you tell him Daniel had decided to go? 15 A I don't remember. 16 Q When did Daniel actually decide to attend 17 Penn State? 18 A When he got the acceptance letter. 19 THE COURT: Well, when did he determine that 20 he was going to Harrisburg as opposed to Main Campus? 21 THE WITNESS: Over the summer. 22 THE COURT: Okay. 23 BY MR. BAYLEY: 24 Q Now, I'm looking at the document that was 25 admitted entitled Petitioner McMullen's accounting. It's 22 • 0 1 your accounting chart of the payments you received. There's 2 no payment indicated -- it lists March 2005, and it says, 3 payment none. Are you aware that Mr. Kutz didn't receive a 4 retirement check in March? 5 A No, I was not. 6 Q You didn't realize that his first one came in 7 April? 8 A No. 9 Q And to add to this list, you have received 10 your payment for December, correct? 11 A For retirement, yes. 12 Q Which is not indicated on here. Now, this 13 separation agreement was entered into on July 7, 2000, am I 14 correct? 15 A Correct. 16 Q Now, at the time you entered into this 17 agreement, am I correct in saying that you and Mr. Kutz 18 believed that he was retiring after that year? 19 A In 2000, no. 20 Q I'm sorry. Was it your understanding that he 21 would be retiring in 2003? 22 A I had no understanding. I did not know when 23 he would be retiring. 24 Q So you had never discussed with him that he 25 was going to retire after 20 years of service? 23 • 0 1 A We had discussed it very early in our 2 marriage, but when he was changing his job titles, we hadn't 3 discussed it after that. 4 Q Now, when you were divorced, at that time you 5 had been married for 14 years, correct? 6 A Correct. 7 Q Now, are you saying today that you are 8 seeking the portion of his retirement that increased due to 9 his work after your separation and divorce? 10 A No. 11 Q Are you saying that you're after the portion 12 of retirement that was there after he worked 14 years? 13 A I'm not sure I understand. 14 Q Well, every year that Mr. Kutz works he gets 15 more of a percentage of an annuity. It increases. So after 16 you separated -- 17 MS. COYNE: I'm going to object to the form 18 of the question, Your Honor. 19 THE COURT: I don't understand where you're 20 going, Mr. Bayley. The agreement says husband agrees that 21 35 percent of his military pension shall be her property. 22 MR. BAYLEY: Before that the agreement 23 states, the husband recognizes that his military pension is 24 a property asset divisible as part of property settlement 25 agreement. Any portion that accrues after separation isn't 24 • 0 1 marital property. 2 Then it says, since the parties have been 3 married and lived as husband and wife for 14 years of the 4 husband's military service prior to this agreement, the 5 husband agrees -- my position is it's ambiguous. It says 14 6 years. It could be construed that she's entitled to the 7 portion that's there after 14 years, not how much he works 8 after 14 years, after they're separated and this agreement 9 is signed. It doesn't say what date -- 10 THE COURT: I understand your position. Go 11 ahead. 12 MS. COYNE: I would just renew my objection 13 to that. 14 THE COURT: On what basis? 15 MS. COYNE: The form of the question, Your 16 Honor. It would appear that counsel is testifying. 17 THE COURT: It's cross-examination. He's 18 allowed to lead. Go ahead, Mr. Bayley. 19 BY MR. BAYLEY: 20 Q Do you understand that the amount of pension 21 payoff increased with every year Mr. Kutz worked? 22 A That the amount of the payoff -- it was my 23 understanding that if someone is in the military, they put 24 in their 20 years, they're entitled to 50 percent of their 25 base pay when they retire. 25 • 0 1 Q And you understand that he worked 22 years? 2 A Yes. 3 Q And that now he's entitled to 55 percent? 4 A Okay. 5 Q Is it your position that you are after that 6 extra 5 percent that accrued after the contract was signed? 7 A It's my position that I feel I am entitled to 8 the 35 percent of his disposable military pension. 9 Q Now that we're on that sentence, what is your 10 understanding of what the word disposable means? Is it 11 before taxes or after taxes? 12 A Before taxes. 13 Q One more question on the child support issue. 14 Mr. Kutz resumed his payments in August, the full payment, 15 am I correct? 16 A No. 17 Q I'm sorry, September. 18 A Yes. 19 Q He didn't pay you for July and August? 20 A He did not pay me the full amount for those 21 two months. 22 Q Did he resume that payment before or after 23 you filed this petition? 24 A It was after I had spoken with my attorney. 25 I don't know t he exact date of the petition. 26 • • 1 Q After you spoke with your attorney. Your 2 petition was f iled September 8th, so did you receive that 3 payment before or after September 8th? 4 A I don't know the exact date that I re ceived 5 his payment th at month. 6 MR. BAYLEY: Okay. That's all. 7 THE COURT: Ms. Coyne. 8 MS. COYNE: Briefly, Your Honor. May I 9 approach the w itness, Your Honor? 10 THE COURT: You may. 11 REDIRECT EXAMINATION 12 BY MS. COYNE: 13 Q Ms. McMullen, I hand you Petitioner's Exhibit 14 No. 10, which is a registration for semester bill. Do you 15 recognize that document? 16 A Yes. 17 Q Up at the top it indicates that there were 18 certain paymen ts made. It says payment acceptance, is that 19 correct? 20 A Yes. 21 Q When was $100.00 paid? 22 A April 25th, 2005. 23 MS. COYNE: Move for admission. 24 THE COURT: Admitted. 25 BY MS. COYNE: 27 • 0 1 Q There was a question by counsel, Ms. McMullen, 2 concerning whether or not Mr. Kutz had paid you the proper 3 amount, the $1,250.00, in September. Do you recall that 4 question from counsel? 5 A Yes. 6 Q I hand you Petitioner's Exhibit No. 11. 7 These are photocopies of money orders? 8 A They're checks. 9 Q Excuse me, checks. What's the date of those 10 checks? 11 A September 13, 2005. 12 Q If the Petition for Enforcement was filed on 13 the 8th of September, was that before or after the 8th of 14 September? 15 A After. 16 Q Now, with regard to December's payment, there 17 was question by counsel saying that you have received a 18 direct deposit from the retirement system of $510.80, is 19 that correct? 20 A Yes. 21 Q Has Mr. Kutz paid you child support for 22 December? 23 A No. 24 Q So, if we're looking at that spreadsheet that 25 was identified here, we're looking at an additional deficit 28 i • 1 here of child support of $1,250.00, is that correct? 2 A Yes, for December. 3 Q Mr. Bayley had questioned you concerning the 4 35 percent amount that is reflected in this agreement, is 5 that correct? 6 A Yes. 7 Q Did your husband have an opportunity to 8 review this agreement prior to signing it? 9 A Yes, he did. 10 Q How long had the two of you been separated 11 prior to resolving it by the written agreement? 12 A We had not actually lived in the same house 13 for approximately three years. 14 Q Where had Mr. Kutz resided? 15 A He was in different schools, his flight 16 engineer school, and then he was stationed in Whidbey 17 Island, Washington. 18 Q So you've had custody of the five minor 19 children at that time, and now it's the four minors as well 20 as Daniel, is that correct? 21 A Correct. 22 Q Now, 35 percent, did you seek to receive more 23 than 35 percent of the retirement pay? 24 A No. 25 Q As far as the amount Mr. Bayley had 29 # • 1 questioned concerning whether or not you are satisfied with 2 receiving 35 percent of some adjusted amount for the amount 3 of gross retirement pay that Mr. Kutz is now receiving, are 4 you agreeing to a different amount? 5 A Other than the $510.00? 6 Q Right. 7 A No. 8 Q When you submitted the documents for that, 9 for the direct payment, what documents did you have to 10 submit to the military for this payment to be received? 11 A A copy of our Divorce Decree and this 12 property agreement. 13 Q Has there been any objection raised by Mr. 14 Kutz that you're aware of concerning the amount you are 15 receiving by direct deposit? 16 A No. 17 Q Have there been any stop orders as far as 18 your receipt of those $510.60? 19 A No. 20 Q Is it your position that you are to receive 21 35 percent of his gross disposable retirement pay? 22 A Yes. 23 Q Prior to the signing of the agreement, was 24 Mr. Kutz given an opportunity to not only review this but 25 have an opportunity to consult with an attorney? 30 • • 1 A Yes. My attorney advised him to do that. 2 Q Is Mr. Kutz a high school graduate? 3 A Yes, he is. 4 Q Has he had any sort of advanced training or 5 college educati on? 6 A He's had advanced training with his military 7 positions. 8 Q Do you know his rank when he retired? 9 A I believe he was an E-6. 10 Q When he signed the agreement, what was he? 11 A An E-6. 12 Q So, an E-6, that would be a noncommissioned 13 officer rank, i s that correct? 14 A Correct. 15 MS. COYNE: No further questions, Your Honor. 16 MR. BAYLEY: No questions. 17 THE COURT: Thank you, ma'am. You may step 18 down. Anything else, Ms. Coyne? 19 MS. COYNE: If I may just confer with counsel 20 for a moment. 21 (Brief pause.) 22 MS. COYNE: Your Honor, I have no further 23 questions, and we would rest. 24 THE COURT: Okay. Mr. Bayley. 25 MR. BAYLEY: I'll called Ronald Kutz. 31 • • 1 RONALD E. KUTZ 2 having been duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. BAYLEY: 5 Q What is your full name? 6 A Ronald Edward Kutz. 7 Q Now, at the time the separation agreement was 8 negotiated and executed, were you represented by counsel? 9 A No, I was not. 10 Q Have you been attempting to comply with this 11 order? 12 A Yes, I have. 13 Q Did you pay $1,000.00 towards the child 14 support in July and August rather than $1,250.00? 15 A That is correct. 16 Q Why did you decrease the amount $250.00 for 17 those two months? 18 A Because my oldest son, Daniel, was 18 at the 19 time. He graduated high school in June. I paid June. He 20 was working over the summer. Until he started college, that 21 is per the contract, it says to the age of 18, so I 22 didn't -- that's why I deducted his share of $250.00. 23 Q Did you believe he had reached an 24 emancipation event under this contract? 25 A Yes, I did. 32 0 1 Q So, you're saying he reached age 18, and 2 he -- 3 A He was 18, and he was working, and was not 4 attending any schools at that particular time. That's why I 5 thought he reached that, and that's why I deducted his 6 portion of the $250.00. 7 Q What was your understanding of the school 8 situation? He got accepted in December of 2004. What did 9 you know and when did you know it? 10 A I don't remember exactly when I was told that 11 he was accepted. As far as when he was going or where he 12 was going, when I talked to him that summer, he said, hey, I 13 was accepted, I'm still looking at where I'm going at. I'm 14 not sure if I'm going to go up to the Main Campus or if I'm 15 going to Harrisburg. He wasn't quite sure yet. Then 16 basically the end of August is when he said he'd be going to 17 the -- me and Daniel talked, and he said he'd be going to 18 the Harrisburg Campus. 19 THE COURT: When did your ex-wife demand that 20 you pay the $250.00 for those two months? 21 THE WITNESS: When I gave her the check in 22 July, I told her it was minus Daniel. He was out of school. 23 He was 18. I deducted Daniel. That was the only time we 24 talked about it, until I received paperwork on this. 25 THE COURT: Ms. Coyne never wrote you a 33 • • 1 letter demanding any type of payment? 2 THE WITNESS: No. 3 THE COURT: Did you ever offer to pay that 4 $500.00 for those two months? 5 THE WITNESS: No, I did not. Once Daniel 6 started -- he said he had orientation the 30th or the 31st 7 of September, and his first day was August 1st. That's when 8 I started making my support payments again for him, the 9 $250.00. 10 THE COURT: September 1st? 11 THE WITNESS: Yes, September, that is 12 correct. I'm sorry. August 30th he had an orientation. 13 Then he said he was starting in September. I said, okay, 14 then, since he was going to school, I'd continue. And since 15 he was still living at home, I gave -- included the 250 16 there. If he was going to Penn State, we would have tried 17 to discuss about sending him the 250 since the money is for 18 him. 19 BY MR. BAYLEY: 20 Q You had drafted a check out for the full 21 amount of child support in September, and it was dated 9/13. 22 Do you recall whether you had been served with this petition 23 that was filed on September 8th before you wrote that check 24 or after? 25 A No. No, I do not recall receiving it. I 34 ! • 1 believe I got it afterwards, but -- 2 Q But you can't say for sure? 3 A That is correct. 4 Q Did you get a look at the exhibit, Petitioner 5 McMullen's ac counting, the amounts? 6 A I got a glance at it. I did not really -- 7 but it looks like what we had. 8 MR. BAYLEY: May I approach, Your Honor? 9 THE COURT: You may. 10 BY MR. BAYLEY : 11 Q This is a copy, the same thing. Do you agree 12 with the amou nts that you paid that are on there? 13 A Yes, I agree with that amount. 14 Q So, you actually were writing out the 15 payments for a time? 16 A Yes, that is correct. 17 Q When did the Defense Finance and Accounting 18 Service start sending her checks directly? 19 A That was in October. 20 Q So, you were figuring out how much you 21 thought you owed her up to October? 22 A Yes, that is correct. 23 Q I see for the first three months -- 24 THE COURT: Excuse me. Was there ever any 25 demand for payment of the $792.12 difference? 35 • 0 1 THE WITNESS: No. Initially -- no. The 2 answer is no, Your Honor. I know initially, I believe it 3 was in January when we sat down, we were at -- me and my 4 ex-wife and her husband sat down at her house and said, 5 okay, I'll give my first retirement check. It will be 6 April. I'm going to start paying you out of my net until we 7 find out how the Defense Financing is doing it. Once I get 8 the net, that's what I'll give you the 35 percent of. That 9 is what I was paying her, 35 percent of my net. So until 10 October, I was writing it out from when I received the 11 check. 12 THE COURT: Okay. 13 BY MR. BAYLEY: 14 Q This chart says for the first three months 15 there were -- well, April through June, there were payments 16 of $481.66 each one of those months. 17 A Yes. 18 THE COURT: When did you get your first 19 check? 20 THE WITNESS: April 1st. 21 THE COURT: Why did she think it was March? 22 THE WITNESS: Maybe it was -- I had my 23 retirement ceremony in December, but I didn't actually 24 retire until February 28th. 25 THE COURT: Okay. So why didn't you get a 36 • • 1 retirement check March 1st? 2 THE WITNESS: Because they -- you don't get 3 one check after the month you retire, it's two months after, 4 because they have to do the accounting and everything. The 5 Defense Finance wouldn't -- I got my last active duty check 6 the 28th. 7 THE COURT: Of February? 8 THE WITNESS: February. 9 THE COURT: Was that for the month of 10 February or for the month of -- 11 THE WITNESS: That was for the month of 12 February. 13 THE COURT: So you got no pay in the month of 14 March? 15 THE WITNESS: That is correct. 16 BY MR. BAYLEY: 17 Q You, on your own, made three payments of 18 $481.66. What was that based on? 19 A That was based on my net pay after taxes, 20 which it came out to $481.66. I had the state and federal 21 tax coming out of my gross. 22 Q What was your understanding of the word 23 disposable income at the time you signed the agreement? 24 A The amount that I had in hand. 25 THE COURT: Why did you decrease it to 37 1 $445.00 in July? 2 THE WITNESS: In June I got talking with -- 3 well, discussing things at work with friends of mine. It 4 came out that I stayed in service for 22 years, which I 5 ended up receiving 55 percent of my retirement instead of 6 50. When we initially did our -- when we sat down with the 7 lawyer and -- how it came out 35 percent for 14 years was we 8 figured out 14 years of 20 years, which was 50 percent. I 9 stayed in for an additional two years, which gave me another 10 5 percent of my retirement, my base pay. So, I was to give 11 her, as I was looking at it, 35 percent of my 50 that we 12 initially -- I reduced it 5 percent from my net pay, which 13 ended up being like 30 or $40.00, and that's what I gave 14 her. 15 I was giving her 35 percent of 50 percent, 16 not 55 percent, and I continued that until the paperwork -- 17 that meeting that I had with her in January, I said, all 18 right, this is how you have to contact DFAS, because she had 19 to be the one that did it, not me. I couldn't do it. She 20 finally sent the paperwork in, I believe, in June, to get it 21 direct deposited to her. So until October, I was writing it 22 out. Once I received the check, I paid her. 23 BY MR. BAYLEY: 24 Q Why did you stay two extra years? 25 A World situations, the war. I got an 38 • 0 1 extension to stay in longer, to go 22 years. 2 Q For each year, the percentage amount crawled 3 up 2 112 percent? 4 A That is correct. 5 Q Pursuant to this contract, you're not asking 6 this to be looked at at 18 years when this was signed? 7 A No. 8 THE COURT: Are you okay with the $510.30 9 figure now? 10 THE WITNESS: Excuse me? 11 THE COURT: Are you okay with the $510.30 12 figure now? 13 THE WITNESS: No, I'm not. 14 THE COURT: Okay. 15 BY MR. BAYLEY: 16 Q Why aren't you okay with paying the $510.30? 17 What is that calculation based on? 18 A That is the gross pay of 55 percent of my 19 retirement. 20 THE COURT: But when you signed this 21 agreement, both of you intended that you would retire after 22 20 years, is that right? 23 THE WITNESS: That is correct, yes. 24 THE COURT: So she would have been getting 25 $445.00 a month for 24 months under your intention under the 39 a • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreement? If you retired two years earlier, you would have started paying her $445.00 a month two years earlier, isn't that correct? THE WITNESS: Yes. I would have been receiving 50 percent of my base pay. THE COURT: And if you'd stayed until 30 years, then that would have been 10 years less you were paying her $445.00? THE WITNESS: Yes. But then at that time I would be receiving 75 percent of my base pay. THE COURT: All right. MR. BAYLEY: That's all. CROSS-EXAMINATION BY MS. COYNE: Q Mr. Kutz, you're a high school graduate? A Yes, I am. Q And you achieved the rank of E-6 in the Navy, is that correct? A That is correct. Q And what is that? I'm an Army person. A Pay officer, first class. Q In addition to high school, you went to some professional schooling through the Navy, is that correct? A Yes. Q When you were going through the divorce with 40 1 your wife and five children, she was living up here in 2 Newville, is that correct? 3 A Yes. 4 Q You had indicated that you had no idea that 5 your son was -- let me back up. Did you have any idea that 6 Daniel was a pplying for colleges? 7 A I knew he was looking. He had the grades for 8 it. He was looking at going to different places. 9 Q Isn't it fair to say he discussed the fact 10 that he was applying to these colleges? 11 A He didn't discuss it to me a lot. He did -- 12 okay, he sai d that he's looking at going, whatever. But 13 where to, I didn't know. 14 Q Are you saying that you did not know that 15 your son was going to college, going to Penn State, until 16 August? Is that what you're saying? 17 A Until August, he was not sure if he was going 18 or not, from the discussion with Daniel. 19 Q You also indicated that it was your position 20 that you uni laterally reduced the amount of support to 21 $1,250.00, i s that correct -- or, excuse me, you reduced it 22 $250.00 per month for July and for August, is that correct? 23 A That is correct. 24 Q And you have been advised prior to the filing 25 of the compl aint here for the Petition For Enforcement that 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 0 Daniel was attending school, isn't that correct? A He was not at school at that time. He was accepted, but he was not going. Q When did he attend Penn State? A His first class, I believe, was the lst of September. Q You also indicated you had no idea that there was a dispute that Mrs. McMullen had with your unilateral accounting for the pension, as well as for the support for Daniel, is that correct? A When I gave it to her, I told her how I figured it out, but she did not say anything afterwards. She just said, fine. I don't exactly remember her exact words. But after I gave her the check, I told her in -- it was July -- I said, all right, this is minus Daniel, and this is how I figured this out, because I gave her both checks at the same time. Nothing was said after that. She never contacted me or -- Q It's you telling her what you did, is that correct? A Yes. Q That is you telling her? A Yes. Q Where does it say in that agreement that there's supposed to be any reduction in support in the 42 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 amount of $250.00? A Under Section 12-C. Q Can you please find that where it says that, where $250.00 is supposed to be reduced? A It does not say $250.00. How I came to the $250.00 was $250.00 per child, which would equal $1,250.00. Q Mr. McMullen, where does it say in that agreement that that's how it was arrived at? A It does not say each. Q Doesn't it also -- in exchange for her receiving $1,250.00 she is not going to seek child support under the child support guideline, isn't that correct? A Excuse me. What was the question again? Q Isn't it correct that in exchange for Mrs. McMullen receiving $1,250.00 for child support she agreed to forgo and forbear in seeking child support from you under the child support guidelines at that time and prospectively? Isn't that correct? A Exactly where is that on here? I'm not sure exactly where it is. Q Well, you're saying that there was an agreement of $250.00 per child. I want you to point out in that agreement where it says that. A It does not say that in here. It's when we sat down with her lawyer and talked to him about that. 43 1 Q When you signed that agreement, did you have 2 an opportunity to review that before you signed it? 3 A Yes. 4 Q Did you have an opportunity to make changes 5 or modificatio ns to it before you signed it? 6 A I guess I could have. I don't know. I was 7 in the lawyer' s office for 30 minutes. 8 Q Did you have an opportunity to review that 9 before you sig ned it? 10 A Yes, I did review it. Yes. 11 Q Did you have an opportunity to say, hey, I'm 12 confused, I do n't understand what I'm signing, I want to go 13 see a JAG atto rney? 14 A Actually, I did try to see the military 15 beforehand to see about counsel, and they said they would 16 not -- they wo uldn't handle a domestic thing, so I went in 17 by myself. I could not afford an attorney. 18 Q You couldn't afford an attorney? 19 A No, I could not. 20 Q You're a native of Cumberland County, is that 21 correct? 22 A Yes, I am. 23 Q Graduate of what high school? 24 A Big Spring High School. 25 Q So you're familiar with attorneys here in the 44 • • 1 Carlisle area? 2 A At the time I wasn't, because I was in the 3 service. I was out in Washington state and Florida. I 4 hadn't been around. 5 Q You're working now, is that correct? 6 A Yes, I am. 7 Q What do you do for a living now? 8 A I'm an aircraft mechanic. 9 Q Who do you work for? 10 A Starting yesterday, I work for Northrup 11 Grumman. 12 Q So, you are working full-time for them? 13 A Yes. 14 Q Is that 40 hours a week? 15 A Yes, it is. 16 Q In addition to that pay, you're receiving 17 your retirem ent pay, is that correct? 18 A That is correct. 19 Q You knew back in October, on your retirement 20 statement, that the amount of retirement pay that Mrs. 21 McMullen was receiving was $510.80, is that correct? 22 A Yes. 23 Q You haven't filed any objections with DFAS to 24 indicate to them that you dispute that, is that correct? 25 A I didn't file anything, because at that time 45 • 0 1 we were already in the midst of this, and I was hoping we 2 could get this straightened out through here. 3 Q If you would answer the question. Did you 4 file anything to tell them to stop, that you dispute that 5 amount to go to Mrs. McMullen? 6 A No, I did not. 7 Q You have been in communication with DFAS, 8 isn't that correct, since this matter has been pending? 9 A Yes. 10 Q We requested copies of your LESs, et cetera, 11 so you have been in communication with DFAS. 12 A Okay. 13 Q You would also agree that you have not paid 14 child support for December, is that correct? 15 A No, I have not paid that yet, that is 16 correct. 17 Q Today is what, the 22nd? 18 A The 22nd, yes. 19 Q You indicate that you had no idea that there 20 was any dispute that Mrs. McMullen had with regard to your 21 unilateral reduction of $250.00 and the amount that you 22 submitted to her for retirement pay, is that correct? 23 A What was that? 24 Q You said you had no idea that Mrs. McMullen 25 disputed your figures? 46 1 A No, I didn't. I knew she was unhappy about 2 it, but she didn't pursue or call me, how did you come up 3 with these numbers, anything like that. I told her how I 4 did it when I gave her the checks, and that was the last 5 thing I heard about it. 6 Q So it was your calculations, take it or leave 7 it, to her, is that correct? 8 A Yes. 9 Q You also indicated in a question, I believe, 10 from the Court, from Judge Guido, that you had no -- that 11 there was no inquiry from me to try to resolve or address 12 the issue of your noncompliance with this agreement. Do you 13 recall the question from the bench, whether -- 14 A Did I receive anything at that time? No. I 15 did not receive anything until later on. 16 (Petitioner's Exhibit No. 12 was marked for 17 identification.) 18 BY MS. COYNE: 19 Q Do you recall receiving this letter dated 20 September 8th from my firm addressed to you? 21 A This was dated the 8th, but I did not receive 22 it until after -- 23 Q When did you receive it? 24 A I do not recall the date. Do you have when I 25 signed it or something? 47 0 • 1 Q So, you did receive that letter. You don't 2 know when you received it? 3 A I remember it was on a Fri day, and then I got 4 in contact with Mr. Bayley on Monday. 5 Q I hand you -- I ask you to look at that. 6 Does that look like your signature? 7 A Yes, that is my signature there. 8 Q That's your signature, or did someone else 9 sign that? 10 A No, that's my signature. 11 Q What is the date that you signed that? 12 A That is the 10th. 13 MS. COYNE: I believe the Court has a green 14 fax that shows a copy of the check dated the 13th. 15 BY MS. COYNE: 16 Q When did you actually give that check dated 17 the 13th to Mr s. McMullen? 18 A I don't recall what day I gave it to her. I 19 don't remember if that's the one I mailed her or if I 20 actually handed it to her. 21 Q But in any event, that was after you had 22 received my le tter to you, is that correc t? 23 A According to that, yes, it would have been 24 then. 25 Q Would you read what's cont ained in Paragraph 48 1 2 there? 2 A The problems concern your nonpayment of full 3 child support obligation and your nonpayment/accounting for 4 35 percent of military pension. Mrs. McMullen has attempted 5 to discuss an d resolve these matters with you directly. 6 I disagree with that. 7 Q But would you please read that. 8 A However, you contend that you are not 9 obligated to pay Mrs. McMullen monies other than those 10 monies which you have paid to date. 11 Q But you also said that you were only supposed 12 to pay your n et, what you take home, is that correct? 13 A Yes. Actually, when we sat down in 14 January -- 15 Q I just asked you a question. It's just your 16 net, is that correct? 17 A It says disposable income. That's money in 18 hand, disposa ble, yes. 19 Q As previously admitted, your copy of your 20 retirement st atement, you have deductions for federal income 21 tax, is that correct? 22 A That is correct. 23 Q State income tax, is that correct? 24 A Yes. 25 Q And state income tax, let's talk about that. 49 • • 1 You're a resident of Pennsylvania, is that correct? 2 A I am now. I was living in Maryland at the 3 time. And since my family and my address was in Maryland, I 4 had to pay the state of Maryland. 5 Q So, you would agree there's no state income 6 tax on military pensions in Pennsylvania? 7 A There's no state tax in Pennsylvania. 8 Q So, the other deduction to arrive at your net 9 is there's also something that's called allotment, isn't 10 that correct? 11 A Allotments and -- what do I have? 12 Q You have allotment of 1,250. 13 A Excuse me? 14 Q I'm just trying to see what your allotment is 15 there for 1,250. You're saying that -- 16 A Where is 1,250? 17 Q It's been identified as -- 18 A Oh, okay. That was -- okay. The 1,250, 19 you're looking at April's. That first allotment was before 20 I had the child support removed from DFAS. I didn't have it 21 removed in time from my active duty to my retirement. That 22 was -- the 1,250 went directly to her in April. Then in May 23 that was taken off, and then I paid her child support 24 directly from that. 25 Q Isn't it true that your retirement pay, you 50 • 0 1 went from active duty pay, and you will be paid for the 2 month of March even though you haven't received that yet? 3 A No, I was not. 4 Q I'm not asking were you. I'm asking will you 5 be paid for the 12 months? 6 A You are wrong. You do not. 7 Q The indication you had for net pay, you deduct 8 everything out of -- that she's only entitled to 35 percent 9 of your reti rement pay, is that correct, after all of these 10 deductions, to use your argument? 11 A Okay. For April, she gets the 1,250 out of that. 12 Q I'm just asking -- are you just saying that 13 it's your net pay? 14 A After state and federal, yes, that was my net pay. 15 Q What about the child support? 16 A I was paying that out of my check from working. 17 Q You have that as an allotment for -- 18 THE COURT: One month. I got the point. 19 Move on. It is what it is. 20 MS. COYNE: Okay. 21 THE COURT: So your gross pay, military 22 pension, is $1,458.00 a month, is that correct? 23 THE WITNESS: That is correct, sir. 24 THE COURT: And 35 percent of that is 25 $510.30, is that correct? 51 • • 1 THE WITNESS: Out of the gross pay, yes, that 2 is correct. 3 THE COURT: Okay. I got it. 4 MS. COYNE: I have no further questions, Your 5 Honor. 6 REDIRECT EXAMINATION 7 BY MR. BAYLEY: 8 Q How long does this pension pay out? 9 A It's my lifetime. 10 THE COURT: And the 55 percent annuity 11 amount, that's payable to your ex-wife on your death, t he 12 $801.90? 13 THE WITNESS: Yes. That annuity amount is 14 actually saying that I'm getting 55 percent of my base pay 15 as a -- the base pay of an E-6 in the military. That's what 16 that's saying. 17 THE COURT: What is that annuity for, or does 18 that have nothing -- 19 THE WITNESS: That has nothing to -- it' s 20 just saying what I would receive. 21 THE COURT: That's fine. Anything else, 22 Ms. Coyne? 23 MS. COYNE: Nothing, Your Honor. 24 THE COURT: Anything else, Mr. Bayley? 25 MR. BAYLEY: No. 52 1 THE COURT: Thank you, sir. You may step 2 down. Any other evidence, Mr. Bayley? 3 MR. BAYLEY: No. 4 THE COURT: Argument. 5 (The parties argued their respective 6 positions, after which the following Order was entered by 7 the Court:) 8 "AND NOW, this 22nd day of December, 2005, 9 after hearing, the Defendant is directed to pay the sum of 10 $781.82 within 30 days of today's date. This represents the 11 $500.00 in child support that was due for July and August 12 and the deficit of $281.82 on the payment of 35 percent of 13 his pension amount. We note that wife is entitled to 14 $510.30 per month, and she shall be responsible for payment 15 of all taxes on said sum, and husband shall be entitled to 16 deduct said sum from his income for tax purposes. 17 "We defer our decision on the award of legal 18 fees at this point in time. The parties are given 10 days 19 to file briefs in support of their respective positions. We 20 note that the legal fees claimed are $2,931.99." 21 THE COURT: Petitioner's Exhibit Nos. 11 and 22 12 are admitted. Court is adjourned. 23 (Court was adjourned.) 24 25 53 • 0 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. 4t4MPX4? Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. X//y o G Date Edward E. Guido, J. 54 v COYNE & COYNE, P.C. Lisa Marie Coyne, Esquire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Petitioner MARJORIE R. KUTZ Plaintiff vs. RONALD E. KUTZ, Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-4155 CIVIL TERM : CIVIL ACTION-- Law PREACIPE TO THE PROTHONOTARY: Pursuant to Judge Guido's Order, dated April 11, 2006, please take appropriate steps to amend the caption of the case and docket to reflect MARJORIE R. MCMULLEN as the Plaintiff in this matter. Respectfully submitted: COYNE & COYNE, P.C. Dated: 4-1 By: - <.- --- L_l.isa Marie Coyne, Es ire Pa. Supreme Ct. No. 5 788 3901 Market Street Camp Hill, PA 17011 A227 (717) 737-0464 Attorney For Plaintiff COYNE & COYNE, P.C I Lisa Marie Coyne, Esquire 'APR 1 4 2006 Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Petitioner MARJORIE R. KUTZ : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Ys. NO. 2000-4155 CIVIL TERM RONALD E. KUTZ, Defendant. : CIVIL ACTION-- Law ORDER AND NOW THIS t f day of 2006, the upon consideration of Plaintiffs Motion to Amend the Caption of this case to reflect the current surname of the Plaintiff, it is hereby ORDERED that the Prothonotary shall amend to caption of this case to read: "MARJORIE R. MCMULLEN, Plaintiff'. COURT: Edward E. Guido, Judge CF: Lisa Marie Coyne, Esq. Attorney for Plaintiff Mark F. Bayley, Esq. Attorney for Defendant Prothonotary PROOF OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the Preacipe was served upon the persons by first class mail: Mark F. Bayley, Esq. 155 South Hanover Street Carlisle, PA 17013 Dated: t ?- d / ' 'Cti a Marie Coyne, E quire Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011 (717) 737-0464 Attorney for Plaintiff ' ? '?' r ? ?. . MARJORIE R. MCMULLEN, : IN THE COURT OF COMMON PLEAS OF Wa MARJORIE R. KUTZ : CUMBERLAND COUNTY, PENNSYLVANIA V. RONALD E. KUTZ : NO. 2000 - 4155 CIVIL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., May 30 , 2006 Plaintiff has appealed our order of February 21, 2006 granting her legal fees in the amount of $1200. She contends that we erred in failing to grant her total claim for $2931.99 in counsel fees. Plaintiff filed a "Petition to Enforce Marriage and Property Settlement Agreement" on September 13, 2005. It stemmed from the defendant's failure to pay $250 in child support for their oldest son in July and August of 2005, as well as for his alleged failure to pay plaintiff her full share of his military pension. At the hearing on her petition plaintiff claimed that she was entitled to $1292.12 representing a $792.12 shortfall in retirement benefits and $500 in unpaid child support. i After hearing the evidence, we found that the defendant owed only $292.12 in unpaid retirement benefits as well as $500 in child support for July and August. The evidence showed that defendant retired from the military early in 2005. Under the Marriage and Property Settlement Agreement, plaintiff was to receive 35% of his military pension. Eventually plaintiff's portion was forwarded directly to her by the Defense Finance and Accounting Service. Until that time the defendant made payments 'See Plaintiffs Exhibit 7. NO. 2000 - 4155 CIVIL TERM to her on a timely basis every month. However, the amount he paid was less than plaintiff received from DFAS. Defendant explained (and the evidence confirmed) that he was sending her 35% of his net retirement check.2 He also explained that he stopped paying support for his son over the summer because the child had graduated from high school, was working full time, and had not yet begun to attend college? While his uncounseled interpretation of the Marriage and Property Settlement Agreement was reasonable, we found that it was also erroneous. We did not, however, feel that it was reasonable for plaintiff to incur almost $3000 in legal fees to litigate this matter. We note that there was no attempt by her counsel to resolve these issues short of involving the courts. Counsel's first contact with defendant in connection with these matters was a letter which accompanied the "Petition to Enforce".4 The letter demanded payment of all sums due plus counsel fees. However, there was no breakdown of what sums were due, or the counsel fees being claimed. The issues involved in this case were simple and straightforward. Further, the record is devoid of any attempt by plaintiff, or her counsel, to resolve the issues or to keep counsel fees reasonable. Under those circumstances, we felt the award of $1200 for counsel fees (about 1.5 times the amount awarded for the underlying dispute) was reasonable. S]lj%G DATE Edward E. Guido, J. Z DFAS sent her 35% of his gross check. We note that the defendant timely paid $1000 support for his other children. The marital agreement sprovided that child support would continue after age 18 if the child attended college. See Plaintiff's Exhibit 12. 2 O? r ;19'1(l? SS :0169' 0£ I.VW 9401 lHJ1vPavk: add 3-Mi ?0 NO. 2000 - 4155 CIVIL TERM /sa M. Coyne, Esquire 3901 Market Street C p Hill, Pa. 17011 k F. Bayley, Esquire 64 South Pitt Street Carlisle, Pa. 17013 Ad Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 FAX: 7172406573 C 1021-10/99 8/2/00 to.k, Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. October 26, 2007 Deputy Prothonotary Certificate of Remittal/Remand of Record TO: RE: McMullen, M. v. Kutz, R. No.544 MDA 2006 Trial Court/Agency Dkt. Number: 2000-4155 Trial Court/Agency Name: Cumberland County Court of Common Pleas 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www.supenor.court.state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Part June 2, 2006 1 Date of Remand of Record: tocT 2 6 2W Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed c y to the Prothonotary Office or the Chief Clerk's office. James D. McCullough, Esq. Deputy Prothonotary Signature Date Printed Name Carbon Copy Recipient List Addressed To: Mr. Charles W. Johns Prothonotary P.O. Box 624 Harrisburg, PA 17108 Carbon Copied: Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 1021-10/99 8/2/00 fi ' z` W l 3 c f ? N ?,; } _ .U . =} :; ??, , ?,. . c?n ` ? .???` ;? v N ?? ,.._e ? ..: S uprem Court of P ennsyl vani a IraieM i3?, Es; Middle District 601 GomnorrnredthAvenu? ?e5 Acting Prothonotary Binbdh E Zi* Harridug PA 17106 Chid perk (717) 787-6181 January 29, 2010 %WM.peo7jtSL1 CERTIFICATE OF REMITTAUREMAND OF RECORD a =:" ^Tl T TO: Prothonotary RE: McMullen, Aplt. v. Kutz 103 MAP 2007 =? Intermediate Court Docket No: 544 MDA 2006 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2000-4155 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Original Record October 29, 2007 Additional Item(s): Certified copy of Opinion dated December 28, 2009. Remand/Remittal Date: 01/29/2010 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Very truly yours, Filed Date Description Office of the Prothonotary /esh Enclosure cc: Karen Reid Bramblett, Esq., Prothonotary McMullen, Aplt. v. Kutz 103 MAP 2007 Letter to: Buell, David D. January 29, 2010 Acknowledgement of Certificate of Remittal/Remand of Record (to be returned): Signature Date Printed Name pi p-' r L `i iY.OV [J-93-2008] ' IN THE SUPREME COURT OF PENNSYLVANIA 2010 FED _, 'I_l 4: 2J MIDDLE DISTRICT Cti11Y i, CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFER?i jl?' { MARJORIE R. MCMULLEN, : No. 103 MAP 2007 Appellant : Appeal from the order of the Superior Court entered May 16, 2007, at No. 544 MDA 2006, affirming the Order of the V. : Court of Common Pleas of Cumberland County, Civil Division, Entered February 21, 2006, at No. 2000-4155 RONALD E. KUTZ, 925 A.2d 832 Appellee ARGUED: May 14, 2008 MR. JUSTICE BAER OPINION DECIDED: December 28, 2009 We granted review in this case to determine whether a court may consider the reasonableness of attorney fees claimed in a breach of contract action where the contract does not specify that the fees incurred must be reasonable. In the case before us, the parties entered into a marriage and property settlement agreement that provided for the payment of attorney fees and costs incurred by one party in enforcing the contract against the breaching party. The trial court concluded that Appellee Ronald E. Kutz ("Husband") breached the agreement by failing to pay Appellant Marjorie R. McMullen ("Wife") sufficient child support and that the contract provided that the breaching party must pay the attorney fees expended by the non-breaching party. The trial court, however, granted Wife less than half of the attorney fees she claimed to have incurred in litigating her breach of contract action because the court found that the amount claimed was unreasonable in light of the nature of the claim and Wife's failure to seek an out-of-court settlement of the dispute prior to initiating litigation. On appeal to the Superior Court, Wife claimed that the trial court erred in considering the reasonableness of the fees when the contract provided for the full payment of the attorney fees "incurred." A divided Superior Court panel held that the trial court had the inherent duty to consider the reasonableness of a counsel fee award. We granted allowance of appeal, and, after full and careful consideration of Wife's arguments, affirm the decisions of the trial court and Superior Court, finding that courts may consider reasonableness when making a counsel fee award, regardless of the precise verbiage of the document authorizing such award. Wife and Husband were married in December 1985 and had five children prior to their divorce. On July 7, 2000, Wife and Husband entered into a Separation and Property Settlement Agreement ("Agreement"), under which Husband conceded that thirty-five percent of "his disposable military pension shall be the sole and exclusive property" of Wife. Agreement at % 9(d). Additionally, Husband agreed to pay Wife $1200 per month as support for the five children until an "Emancipation Event." Agreement at ¶ 12(a). The contractual provision describing an emancipation event relevant to this case states: Reaching the age eighteen (18); except and provided that an emancipation event shall be deferred beyond the eighteenth birthday of the child if and so long as the child pursues full time college education with reasonable diligence and on a normally continuous basis, and during such time the child lacks sufficient resources to be self-sustaining and is dependent upon his parents for support; but, in this respect, in no event shall emancipation be deferred beyond the child's twenty-first birthday Agreement at 112(c)(1). Significantly, the Agreement also provided that in the event of a breach, the non-breaching party would be entitled to collect the attorney fees incurred in enforcing the Agreement: If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, and the [J-93-2008] - 2 party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement. Agreement at 117. The Agreement did not require the non-breaching party to attempt to settle the claim prior to initiating suit, nor did it explicitly provide that the fees incurred must be reasonable. In September 2005, Wife filed a petition to enforce the Agreement alleging that Husband had breached it by failing to pay support for their eldest son during July and August 2005, following his graduation from high school, and for failing to pay Wife her full share of the military pension due. Although not relevant to our inquiry, the discrepancy resulted when Husband interpreted the Agreement as permitting him to cease payment of child support for his oldest son during the summer between his high school graduation and the beginning of college, despite the son's uncontested intent to enroll in college in the fall. Additionally, during the first few months of Husband's retirement, Husband paid to Wife 35% of Husband's net retirement check. At some point thereafter, the Defense Finance and Accounting Service (DFAS) began to pay Wife directly, and paid her 35% of his gross retirement check. Wife asserted that she was entitled to the child support for the months between the parties' eldest son's high school graduation and his enrollment in college, and the discrepancy in the calculation of her percentage of his retirement checks. The trial court found for Wife on both issues in December of 2005, and later explained its ruling: 'While [Husband's] uncounseled interpretation of the [Agreement] was reasonable, we found that it was also erroneous." Tr. Ct. Op. at 2. The court, thus, calculated the amount owed by Husband to Wife as $792.12 in unpaid retirement benefits and unpaid child support. Based upon the trial court's determination, there was no dispute that Husband breached the agreement, thus triggering the assessment of Wife's counsel fees against [J-93-2008] - 3 Husband. The court, in considering the imposition of counsel fees, refused to grant Wife the $3000 of fees she claimed. The court noted the following in this regard: We did not, however, feel that it was reasonable for [Wife] to incur almost $3000 in legal fees to litigate this matter. We note that there was no attempt by her counsel to resolve these issues short of involving the courts. Counsel's first contact with [Husband] in connection with these matters was a letter which accompanied the "Petition to Enforce." The letter demanded payment of all sums due plus counsel fees. However, there was no breakdown of what sums were due, or the counsel fees being claimed. The issues involved in this case were simple and straightforward. Further, the record is devoid of any attempt by [Wife], or her counsel, to resolve the issues or to keep counsel fees reasonable. Under those circumstances, we felt the award of $1200 for counsel fees (about 1.5 times the amount awarded for the underlying dispute) was reasonable. Trial Court Opinion at 2 (internal footnote omitted, emphasis in original). Wife appealed to the Superior Court urging that the trial court erred in considering the reasonableness of the attorney fees when the Agreement, signed by the parties, granted the non-breaching party the fees "incurred" without any qualification regarding the reasonableness of the fees. Wife argued that the decision should be controlled by the Superior Court's decision in Creeks v. Creeks, 619 A.2d 754 (Pa. Super. 1993). It is unclear to us why Wife views Creeks as controlling. In that case, the principal dispute concerned whether a party had, in fact, breached an agreement. The Superior Court concluded that the party had breached the applicable contract, and premised thereon, reversed the trial court's denial of attorney fees. The court in Creeks, however, did not address the reasonableness of the fees. Moreover, unlike the case at bar, the agreement in Creeks contained a clause specifically addressing the reasonableness of the potential attorney fees: "the prevailing party in such proceedings shall be entitled to an award of counsel fees for all time reasonably expended in connection with the enforcement of this [J-93-2008] - 4 Agreement." Creeks, 619 A.2d at 757 (emphasis added). Indeed, the agreement in Creeks even stipulated that $100 per hour was a reasonable hourly fee. The Superior Court, in the case at bar, framed the question as whether a court could find a reasonableness requirement to be implicit in a contract. In finding the reasonableness criteria to be implicit, the court relied upon its earlier decision in Duffy v. Gerst, 429 A.2d 645, 650 (Pa. Super. 1981), holding, "It may be assumed that implicit in this provision is the condition that the attorney's fee must be a reasonable fee." The Superior Court also considered the decisions of our sister state Maryland, which read a reasonable fee term into contracts providing for the recovery of attorney foes in the event of breach. See Atlantic Contr. & Material Co., Inc. v. Ulico Cas. Co., 844 A.2d 460, 478 (Md. 2004) ("When a contract entitles a party to recover attorney's fees, the trial court must examine the fee request to determine whether it is reasonable even in the absence of a provision requiring that the fee request be reasonable."). The Superior Court additionally concluded that the trial court properly considered Wife's counsel's failure to seek settlement when the court weighed the reasonableness of counsel's fees. Ultimately, the Superior Court held that the trial court did not abuse its discretion in reducing the amount claimed in counsel fees after finding the fees sought to be unreasonable. Judge Colville wrote in dissent. He agreed with the panel majority that reasonableness was an implicit component to the fee provision of the Agreement, but opined that a court may not evaluate the reasonableness of the fee unless a party contested that factor, whereas the panel majority stated that a trial court "must" consider the reasonableness of the fee. McMullen v. Kutz, 925 A.2d 832, 836 n.5 (Colville, J, dissenting). The dissent also found fault with the trial court's finding that the fee was unreasonable based upon Wife's counsel's failure to seek settlement: "Whether [Wife] attempted to settle this matter short of litigation simply is not a factor to be considered by a [J-93-2008] - 5 court in assessing the reasonableness of attorney's fees. Furthermore, the parties' agreement did not require that [Wife] attempt to settle her dispute with [Husband] before involving the courts." Id. at 837. The dissent opined that the better resolution would have been to remand the case to the trial court for further assessment of the reasonableness of the fees. We granted Wife's petition for allowance of appeal to consider whether reasonableness is an implicit term in a contractual provision awarding attorney fees for a breach of contract.' We note that the interpretation of the terms of a contract is a question Specifically, the question phrased for our review provided: Should this Court grant this petition for allowance of appeal when the decision by the Superior Court in this case is in conflict with the decisions of the Superior Court in both Creeks v. Creeks, [619 A.2d 754 (Pa. Super. 1993)] and Profit Wize Marketing v. Wiest, [812 A.2d 1270 (Pa. Super. 2002)? McMullen v. Kutz, 934 A.2d 1162 (Pa. 2007). We respectfully disagree with the dissent's interpretation of this question. Instead, we take a broader view of the arguably poorly worded question presented to us in Appellant's Petition for Allowance of Appeal. Obviously, we did not grant review to determine whether the Court "should ... grant this petition" as the question is literally phrased, and we recognize that the dissent does not so claim. Additionally, however, we did not grant review, as the dissent would suggest, to decide the very limited question of whether the Superior Court's decision in the case sub judice conflicts with prior decisions of that court. Our Rules of Appellate Procedure provide that we grant review "only when there are special and important reasons therefore." Pa.R.A.P. 1114. While our Internal Operating Procedures §5(A)(1) provides for granting review where "the holding of the intermediate appellate court conflicts with another intermediate appellate court opinion," there would be no special or important reason to draft an opinion that holds merely that a Superior Court decision does or does not conflict with prior precedent of that court unless we then clarified for the bench and bar the correct rule of law in the explored area. Accordingly, we conclude that the question granted extended to whether the decision below, finding that the trial court was authorized to consider the reasonableness of attorney fees, was correct, and we conclude further that it was for the reasons set forth in this Opinion. [J-93-2008] - 6 of law for which our standard of review is de novo, and our scope of review is plenary. Chen v. Chen, 893 A.2d 87, 93 (Pa. 2006). Wife observes that a court cannot rewrite a contract but instead must interpret the contract as written. She quotes the Superior Court's decision in Creeks for the standard of law that a court cannot modify the terms of a contract under the guise of interpretation because the written terms are the best indication of the parties' intent. Creeks, 619 A.2d at 756. She argues that the plain language of the Agreement provides that the "party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement," Agreement at $17. She contends that the lower courts impermissibly inserted a reasonableness term into the contract, when the plain language of the contract provides the non-breaching party with the total fees "incurred." Wife urges this Court to reverse the decisions of the courts below, which she claims destroys the bargained-for exchange of the parties: It was obviously created so that the parties could avoid the additional cost and burden on the non-breaching spouse of litigating the issue of attorney's fees, expenses, and costs in court. However, the failure of the trial court to adhere to the plain language of the contract resulted in just that. Brief for Appellant at 13. Assuming arguendo that we hold reasonableness to be implicit in the attorney fee provision, Wife also faults the trial court for raising the issue sua sponte, failing to hold hearings to ascertain whether the fees were in fact reasonable, and for not considering pre- established standards of reasonableness. Wife asserts that the trial court should have held hearings to consider the reasonableness of the attorney fees in accord with the factors set forth by this Court in In re Estate of LaRocca, 246 A.2d 337 (Pa. 1968): The facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property [J-93-2008] - 7 in question; the degree of responsibility incurred; whether the fund involved was "created" by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question. Id. at 339; see also Estate of Murray v. Love, 602 A.2d 366, 370 (Pa. Super. 1992). Additionally, she argues that the fees were reasonable because Husband contested the merits of Wife's petition. Moreover, Wife notes that the factor cited by the trial court to justify the reduction in the fees was the failure of counsel to seek settlement. Wife asserts that this is an improper factor under our caselaw which provides that "an offer to compromise a claim, not accepted, cannot be introduced into evidence," quoting Durant v. McKelvey, 144 A.2d 527, 529 (Pa. Super. 1958) and citing Danks, v. Government Employees Insurance Co., 453 A.2d 655, 657 (Pa. Super. 1982) (holding that offers of settlement and compromise were not admissible to show that the amount of time spent by attorneys was unreasonable). Accordingly, Wife urges the Court to remand to the trial court to enter an order granting Wife all the fees incurred, or in the alternative, to remand with an order that the trial court take evidence regarding the factors set forth above relating to the reasonableness of the fees actually incurred by Wife's counsel. In countering Wife's arguments, Husband addresses the two cases cited in the grant of review by this Court, supra note 2. He contends that Profit Wize Marketing v. Wiest, 812 A.2d 1270 (Pa. Super. 2002), and Creeks are not inconsistent with the decision of the Superior Court in the case at bar. He notes that neither cited decision involved the question of whether reasonableness is an implicit factor to be considered in the award of attorney fees for breach of contract. Husband notes that Profit Wize Marketing turned on a determination of which party had prevailed. When the Superior Court concluded that neither party had prevailed, and thus that neither party could be granted attorney fees, it did not need to address the reasonableness of the fees allegedly incurred. [J-93-2008] - 8 Similarly, Husband asserts that Creeks is neither inconsistent nor relevant to the issues in this case. Rather than addressing whether reasonableness can be an implicit criterion in the award of legal fees, the Superior Court in Creeks considered a contract where reasonableness was a stated criterion for the award of fees. Indeed the contentious issue in Creeks did not hinge on the reasonableness of the award but rather, on whether the contract had been breached. Finding a breach of the contract, the Superior Court remanded for determination of the reasonableness of the fees. Given the lack of on-point precedent, Husband next addresses whether courts must consider the reasonableness of the claimed attorney fees even where the contract is silent on reasonableness of the fees. Husband contends that public policy supports the incorporation of a reasonableness inquiry. He claims that reasonableness is implicit because Pennsylvania courts have inherent supervisory authority over attorneys and thus have the power to rule on the reasonableness of any attorney fee. Second, Husband contends that to refuse to read reasonableness into every provision for attorney fees could place courts in the untenable situation of being forced to award a "clearly excessive or scandalous" attorney fee. Brief for Husband at 7. Citing Dom, Husband notes that the Superior Court has considered a reasonableness inquiry proper since at least 1981. For the reasons discussed above, we agree with Husband that a trial court's consideration of the reasonableness of the attorney fees claimed does not conflict with the prior decisions of the Superior Court in Profit Wize Marketing and Creeks. In neither case did the Superior Court consider whether reasonableness could be an implied factor in determining an award of attorney fees in the event of a breach of contract. The cases support Wife's theory only to the extent that they stand for the general proposition that courts are bound by the plain language of a contract as the best evidence of the intent of the parties. [J-93-2008] - 9 Next, we must consider whether courts can find that contractual provisions for the shifting of attorney fees implicitly require that the claimed fees be reasonable, despite the lack of specific language, and thus, whether courts have the authority, and perhaps the obligation, to inquire into the reasonableness of the attorney fees claimed. "The general rule within this Commonwealth is that each side is responsible for the payment of its own costs and counsel fees absent bad faith or vexatious conduct." Lucchino v. Commonwealth, 809 A.2d 264, 267 (Pa. 2002). This so-called "American Rule" holds true "unless there is express statutory authorization, a clear agreement of the parties or some other established exception." Mosaica Academy Charter School v. Com. Dept. of Educ., 813 A.2d 813, 822 (Pa. 2002). As in similar fee-shifting provisions, the Agreement in this case contained the necessary "clear agreement of the parties" that in the event of a breach of the Agreement, the breaching party must pay the attorney fees "incurred" by the non- breaching party in enforcing the Agreement. There is no dispute that Husband was the breaching party, and thus, that Wife was entitled to attorney fees incurred in enforcing the Agreement against Husband. The dispute in this case concerns the trial court's authority to address the reasonableness of the attorney fees claimed. Wife, and a minority of courts across the country,2 would read the plain language of the contract to require any and all fees incurred by the non-breaching party to be payable by the breaching party. We cannot accept this See, g_%, Carter v. Warren Five Cents Say. Bank, 564 N.E.2d 579, 583 (Mass. 1991) ("The agreement was to pay attorney's fees Carter incurred in pursuing his rights. The agreement was not to pay Carter's reasonable attorney's fees as determined by a judge."); Turner v. Terry, 799 So.2d 25, 38 (Miss. 2001) (holding prevailing party is "entitled to all attorneys' fees resulting from this litigation, as a plain reading of the contract provides"); Lee v. Investors Title Co., 241 S.W.3d 366, 368 (Mo. Ct. App. 2007) ("The decision to award attorney's fees is not a matter of discretion in this situation and failure to do so is erroneous.") [J-93-2008] - 10 reading, however, because the potential for abuse is too high. If we were to forbid a reasonableness inquiry by a trial court, there would be no safety valve and courts would be required to award attorney fees even when such fees are clearly excessive. Instead, we join the majority of our sister states3 in finding that parties may contract to provide for the breaching party to pay the attorney fees of the prevailing party in a breach 3 See, e.g„ Alabama Educ. Ass'n v. Black, 752 So.2d 514,519 (Ala. Civ. App. 1999) ("In Alabama, where there is an agreement to pay an attorney fee and the agreement does not speak specifically to the reasonableness of the fee, a "reasonable" fee will be inferred."); McDowell Mountain Ranch Community Assn, Inc. v. Simons, 165 P.3d 667, 671 (Ariz. Ct. App. 2007) (collecting cases and stating: "Notwithstanding the general rule that attorneys' fees are enforced in accordance with the terms of a contract, a contractual provision providing for an award of unreasonable attorneys' fees will not be enforced."); Griffin v. First Nat. Bank of Crossett, 888 S.W.2d 306, 311 (Ark. 1994) ("Implicit in our holding is a requirement that any attorney's fees awarded should be reasonable."); Crest Plumbing and Heating Co. v. DiLoreto, 531 A.2d 177, 183 (Conn. App. Ct. 1987) ("We construe the term 'attorney's fees' as an award for'reasonable attorney's fees' in this case because the term 'reasonable' is implied by law even when it is absent in the contractual provision.") (emphasis in original); Mahani v. Edix Media Group, Inc., 935 A.2d 242,245 - 246 (Del. 2007) ("Delaware law dictates that, in fee shifting cases, a judge determine[s] whether the fees requested are reasonable."); Concord Enterprises, Ing. v. Binder, 710 A.2d 219, 225 (D.C. 1998) ("[W]here a contractual agreement expressly provides for the payment of attorney's fees, the trial court's discretion is limited to ascertaining what amount constitutes a'reasonable' fee award."); Dunn v. Sentry Ins., 462 So.2d 107,108 (Fla. Dist. Ct. App. 1985) (holding that a prevailing party is not entitled to recover the total amount which it has paid or agreed to pay if that amount is excessive or unreasonable); Lettunich v. Lettunich, 111 P.3d 110, 120 (Idaho 2005) (providing for trial courts to consider several factors in arriving at a reasonable attorney fee calculation); Heller Finangial, Inc. v. Johns- Byrne Co., 637 N.E.2d 1085, 1092 (III. App. Ct. 1994) ("While the parties may, by a private agreement, override the "American Rule" which holds that each will be responsible for any legal fees they incur in a civil litigation, such contractually-provided fees will be approved by the court only if they are reasonable."); Walton v. Claybridge Homeowners Ass'n, Inc., 825 N.E.2d 818, 826 (Ind. Ct. App. 2005) ("Attorney fees awarded under a contract must be reasonable."); Ales v. Anderson, Gabelmann, Lower & Whitlow, P.C., 728 N.W.2d 832, 842 (Iowa 2007) ("When a written contract allows for the recovery of attorney's fees, the award must be for reasonable attorney's fees."); Hollenbach v. Holden, 728 So.2d 544, 551 (La. Ct. App. 1999) ("[I]mplied within the attorney's fee provision of the contract is that the amount of attorney's fees to be determined to be due either party will be reasonable."); Yim K. Cheung v. Wing Ki Wu, 919 A.2d 619, 625 (Me. 2007) ("As a general rule, courts (continued ... ) [J-93-2008] - 11 of contract case, but that the trial court may consider whether the fees claimed to have been incurred are reasonable, and to reduce the fees claimed if appropriate. While we recognize that our decision herein results in affirming the curtailment of the fees in this case, we emphasize that we render no opinion on whether the attorney fees (... continued) must enforce contract provisions that require the payment of attorney fees, so long as they are reasonable."); Myers v. Kayhoe, 892 A.2d 520, 532 (Md. 2006) ("Even in the absence of a contract term limiting recovery to reasonable fees, trial courts are required to read such a term into the contract and examine the prevailing party's fee request for reasonableness."); Zeeland Farm Services, Inc. v. JBL Enterprises, Inc., 555 N.W.2d 733, 736 (Mich. Ct. App. 1996) ("[R]ecovery is limited to reasonable attorney fees."); State Bank of Cokato v. Ziehwein, 510 N.W.2d 268, 270 (Minn. Ct. App. 1994) ("Where loan documents authorize a lender to recover legal expenses associated with collection, however, Minnesota courts will enforce the provision as long as the fees are reasonable."); Belfer v. Merling, 730 A.2d 434, 443 (N.J. Super. Ct. App. Div. 1999) ("[A]ny fee arrangement is subject to judicial review as to its reasonableness."); Rogison v. Katz, 610 P.2d 201, 209 (N.M. Ct. App. 1980) ("It is clearly within the equitable power of the court to consider and reduce excessive fees."); SO/Bluestar, LLC v. Canarsie Hotel Corp., 825 N.Y.S.2d 80, 81 - 82 (N.Y. App. Div. 2006) ("While the plaintiff was entitled to attorneys' fees pursuant to the Note, [a]n award of attorneys' fees pursuant to such a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered.") (internal quotations omitted); Northwoods Condominium Owners' Assn v. Arnold, 770 N.E.2d 627, 630 - 631 (Ohio Ct. App. 2002) ("Under Ohio law, contractual provisions awarding attorney fees are enforceable and not void as against public policy so long as the fees awarded are fair, just, and reasonable as determined by the trial court upon full consideration of all the circumstances of the case."); Benchmark Northwest, Inc. v. Sambhi, 83 P.3d 348, 349 (Or. Ct. App. 2004) ("The award is mandatory; the trial court has no discretion to deny it, although it does have discretion as to what amount is `reasonable."); South Carolina Elec. & Gas Co. v. HartouQh, 654 S.E.2d 87, 91 (S.C. Ct. App. 2007) ("When an award of attorney's fees is based upon a contract between the parties, the determination of the fees is left to the discretion of the trial court and will not be disturbed absent an abuse of discretion."); Trayner v. Cushing, 688 P.2d 856, 858 (Utah 1984) ("Where the parties have agreed by contract to the payment of attorney fees, the court may award reasonable fees in accordance with the terms of the parties' agreement."); Dewey v. Wentland, 38 P.3d 402, 420 (Wyo. 2002) ("Even in the face of a valid contractual provision for attorney's fees, we have clearly stated that a trial court has the discretion to exercise its equitable control to allow only such sum as is reasonable or the court may properly disallow attorney's fees altogether on the basis that such recovery would be inequitable."). [J-93-2008] - 12 claimed were, in fact, reasonable, as that issue is not implicitly encompassed in the questioned granted for review. Instead, we hold only that the trial court had the authority to consider the reasonableness of the attorney fees claimed. Accordingly, we affirm the decisions of the Superior Court and the trial court. Madame Justice Todd did not participate in the consideration or decision of this case. Messrs. Justice Eakin and McCaffery join the opinion. Mr. Justice Saylor files a concurring and dissenting opinion. Mr. Chief Justice Castille files a dissenting opinion. JUDGMENT ENTERED December 28, 2009 Elizabeth Zisk, Chef Clerk [J-93-2008] - 13 [J-93-2008][M.O. - Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT MARJORIE R. MCMULLEN, V. RONALD E. KUTZ, Appellant Appellee No. 103 MAP 2007 Appeal from the Order of the Superior Court entered on 5116/07 at No. 544 MDA 2006, affirming the Order of the Court of Common Pleas of Cumberland County, Civil Division, entered on 2/21/06 at No. 2000-4155 ARGUED: May 14, 2008 CONCURRING AND DISSENTING OPINION MR. JUSTICE SAYLOR DECIDED: December 28, 2009 As the majority recognizes, appeal was allowed on a limited basis, solely to address a purported conflict between the Superior Court's decision in this case and its prior ones in Creeks v. Creeks, 422 Pa. Super. 432, 619 A.2d 754 (1993), and Profit Wize Mktg. v. Wiest, 812 A.2d 1270 (Pa. Super. 2002). The majority aptly determines that there simply is no conflict, and that neither decision has anything to do with a materially distinct question involving the courts' ability to consider reasonableness of attorneys' fees in assessing contractual fee-shifting matters where reasonableness is not a specific term of the agreement. See Majority Opinion, slip op. at 8-9. Nevertheless, the majority proceeds, beyond the limited grant of allocatur, to frame and address this extraneous question. Certainly, the issue is of substantial significance to Pennsylvania jurisprudence and warrants this Court's attention. Nevertheless, I do not believe this case is an appropriate one in which to address the matter. This is so, not only because the question is not within the scope of the issue formally accepted for review, but also because the advocacy presented touches only on a very limited subset of the many considerations relevant to a reasoned development of governing principles. The overarching subject of allocating attorneys' fees is a difficult one. On the one hand, as the majority observes, courts have settled upon the American Rule as the default approach. See Majority Opinion, slip op. at 10. However, application of this rule, under which parties must bear their own counsel fees regardless of faultlessness, can act as a restraint on contractual undertakings and/or discourage prosecution of meritorious actions. Thus, the American Rule is not sacrosanct and can be overridden at least by agreement or statute. In the context of contractual fee-shifting, there are two strong policies in tension. First, freely negotiated agreements entered into at arms length are generally enforced according to their terms to allow parties the benefit of their bargains. See generally Snow v. Corsica Constr. Co., 459 Pa. 528, 531, 329 A.2d 887, 889 (1974) (explaining that "[i]nadequacy of price, improvidence, surprise, and mere hardship, none of these, nor all combined, furnish an adequate reason for a judicial rescission of a contract." (citation omitted)). When this policy is given priority, faultless parties can be made whole upon breach, according to the terms of their agreements, and the judicial non- interference in contractual affairs fosters certainty and stability in economic relations.' ' Of course, any contractual provision is enforceable according to its terms only to the limits of unconscionability. See Salley v. Option One Mortgage Corp., 592 Pa. 323, 331-32, 925 A.2d 115, 119-20 (2007). Therefore, it is beyond dispute that an unconscionable fee-shifting provision, or a provision yielding unconscionable results, (continued ...) [J-93-2008][M.O. - Baer, J.] - 2 See, g&, Res Mgmt Co v. Weston Ranch and Livestock Co., 706 P.2d 1028, 1040 (Utah 1985) ("Although courts will not be parties to enforcing flagrantly unjust agreements, it is not for the courts to assume the paternalistic role of declaring that one who has freely bound himself need not perform because the bargain is not favorable."). On the other hand, perhaps on account of unease with shifting costs over which a non- prevailing party had less control, see, etc .., Majority Opinion, slip M. at 10-11, many courts assume a more active role in reviewing contractual fee-shifting. 'iSee, etc , Home Funding Group, LLC v. Kochmann, 2008 WL 4298325, at *5 (D. Conn. Sep. 18, 2008) (indicating, in the setting of contractual fee-shifting, "attorney's fees should be awarded with an eye towards moderation"' (citations omitted)). As the majority relates, in Pennsylvania, the Superior Court has found an implied reasonableness term in contractual fee-shifting provisions. See McMujllen v. Kutz, 925 A.2d 832, 834 (Pa. Super. 2007) (citing Duffy v. Gerst, 286 Pa. Super. 523, 531, 429 A.2d 645, 650 (1981)). The underlying decision in Duffy, however, is not well reasoned, in that it does not develop the relevant policy considerations. Rather, Puffy summarily invoked two decisions which, like those relied upon by Appellant, have little to do with the question of reasonableness in fee-shifting.2 The Superior Court's McMullen (... continued) should not be enforced according to its terms. The issue the majority undertakes to address here, however, is whether (and/or to what degree) the courts should engage in a more general reasonableness inquiry regardless of the specific terms of a contract. 2 Duffy supported its single-sentence reasoning with citations only to Kuhn v. Princess Lida of Thum & Taxis, 119 F.2d 704 (3d Cir. 1941), and In re Lohm's Estate, 440 Pa. 268, 269 A.2d 451 (1970). Kuhn concerned a suit by an attorney against a former client based on an equitable quantum meruit theory, see Kuhn, 119 F.2d at 705, circumstances very different from contractual fee-shifting. Lohm's Estate involved a claim for counsel fees asserted by an attorney for an estate against the estate, and adjustments reflecting a surcharge. The governing principle of law was stated narrowly (continued ...) [J-93-2008][M.O. - Baer, J.] - 3 decision relies on Duffy, which it also compared favorably with the approach of a single other jurisdiction. See McMullen, 925 A.2d at 834-35. The Superior Court did not consider, and the parties do not presently discuss, the approach of a number of jurisdictions which substantially limit the level of judicial scrutiny pertaining to contractual fee-shifting. See, a g„ Student Mktg. Group, Inc. v. Coll. P'ship, Inc., 247 Fed. Appx. 90, 103, 2007 WL 2269440, at *12 (10th Cir. 2007) (indicating that a trial court has "far less equitable discretion" in contractual as compared to statutory fee-shifting matters, and "the trial court is not responsible for independently calculating a `reasonable fee' and should only reject the contractually-stipulated award if it is `unreasonable or inequitable"' (citations omitted)); Carpenter Tech. Corp. v. Armco, Inc., 808 F.Supp. 408, 410 (E.D. Pa. 1992) (suggesting that, under Pennsylvania law, the "duty to scrutinize is less demanding when an award of counsel fees arises from a bargained-for contract clause rather than from a common fund or statute." (citations omitted)). In my view, such perspectives merit consideration in the reasoned development of our law. Indeed, I find troubling the prospect of Solomonic rulings by courts invested with broad discretion to dilute contractual fee-shifting, and I tend toward more limited judicial involvement .3 (... continued) as follows: "A court which has been requested to approve an amount of compensation for a fiduciary or his counsel sua sponte, may pass upon the reasonableness of the compensation claimed and, where appropriate, impose a surcharge by way of awarding a fee which is less than the customary minimum for an estate that size." Lohm's Estate, 440 Pa. at 273-74, 269 A.2d at 454. The Duffy court was not justified in relying on either of these decisions for a general proposition of law that reasonableness is an implied term of fee-shifting agreements, because neither supports any such proposition. 3 1 place the common pleas court's approach in this case within this category of troubling rulings. For example, as Judge Colville develops, the court gave substantial emphasis to its perceptions concerning Appellee's failure to pursue settlement. I agree (continued ...) [J-93-2008][M.O. - Baer, J.] - 4 In this arena, other issues arise. For example, there is a split of authority concerning whether attorneys' fees are merely an element of damages, to be determined by the fact-finder, whether judge or jury, in cases where the right to the fees is created by a contract. See Murphy v. Stowe Club Highlands, 761 A.2d 688, 700 (Vt. 2000). Moreover, it seems to me the appropriate frame of reference may depend, to some degree, on factors such as whether the contract arises in a consumer or commercial context, the degree of opportunity for arm's length bargaining, and whether fees are liquidated or unliquidated in the agreement. For the above reasons, I join the majority opinion as it relates to the specific issue on which allocatur was granted, but I do not support its broader analysis and legal conclusions.4 Instead, I would expressly leave for another day issues concerning the appropriate degree of judicial scrutiny of contractual fee-shifting, as well as the question (... continued) with Judge Colville that the common pleas court was not justified in considering its finding of an absence of settlement negotiations as a substantial factor in its analysis, see McMullen, 925 A.2d at 837 (Colville, J., dissenting), since individuals should not be penalized for exercising their right of access to the courts to enforce their legal interests. Thus, in my view, a remand might be appropriate were this matter within the scope of the limited appeal to this Court. Additionally, in my view, there are circumstances in which it is reasonable for parties to spend more for attorney services than the amount of their potential recovery in order to secure their rights against others. The alternative is to require parties to surrender their rights merely because enforcing them will be expensive, or to force attorneys to discount or shortcut their services. 4 Although I would not address the matter here, however, I also would not disturb the Superior Court's existing decisions implying reasonableness into contractual fee-shifting terms. Thus, such law would remain the prevailing precedent of Pennsylvania unless and until addressed by this Court in a case in which this precedent is meaningfully questioned and the alternatives appropriately explored. [J-93-2008][M.O. - Baer, J.] - 5 of whether (and/or under what circumstances) the reasonableness determination should be for a judge or the jurors in jury cases. [J-93-2008][M.O. - Baer, J.] - 6 [J-93-2008 MO: Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ. MARJORIE R. MCMULLEN, : No.103 MAP 2007 Appellant Appeal from the Order of the Superior Court entered May 16, 2007, at No. 544 MDA 2006, affirming the Order of the V. Court of Common Pleas of Cumberland County, Civil Division, entered February 21, 2006, at No. 2000-41515. RONALD E. KUTZ, : 925 A.2d 832 (Pa. Super. 2007) Appellee ARGUED: May 14, 2008 DISSENTING OPINION MR. CHIEF JUSTICE CASTILLE DECIDED: December 28, 2009 I join the dissenting portion of Mr. Justice Saylor's Concurring and Dissenting Opinion, which ably articulates the deficiencies in the new rule summarily adopted by the Majority. I write separately to elaborate upon those points of disagreement and also to explain why, if we must decide the question the Majority poses, I would reverse the courts below. The Majority adopts a new rule that adult parties to a contract, even those represented by counsel, cannot agree between themselves that, should one party breach the agreement, the breaching party must pay the non-breaching party's attorney's fees in full. The Majority concludes that courts are authorized to insert a requirement of reasonability of the fees due to the potential for abuse if one party knows the other will be paying the fee. Even if I shared the Majority's cynicism concerning the bar's charging practices, I would not adopt the policy the Majority has adopted to undo arms' length contracts that are a quintessential expression of American free will. Proper disposition of this appeal requires a proper framing, and there are three points that, I believe, provide necessary perspective. The first point is Justice Saylor's observation that this case is more momentous than the Majority would make it out to be, and the new rule summarily approved is rendered in a case where the briefing is not up to the task. See Saylor, J., Concurring and Dissenting Slip Op., 2. The parties' briefs, and particularly appellant's brief, present argument on the above issue but only as a secondary matter, not as the primary argument advanced. Instead, the parties appropriately devoted their arguments to the issue this Court actually agreed to hear regarding the potential conflict between different Superior Court panel decisions. In addition, the order granting allocatur was not framed in a manner to put other potentially interested parties, such as the organized bar, on notice that we might approve a rule which allows trial judges, in their discretion, to take it upon themselves to reduce contractually-based awards of attorneys' fees. And so we are left without the input of the practicing bar -- which knows more about the current financial pressures of practicing law than this Court does. Second, and similarly, the Majority's easy approval of the trial court's sua sponte action should not obscure just how intrusive that action was. The Majority apparently credits appellee's argument that reasonableness inquiries are appropriate because Pennsylvania courts have inherent supervisory authority over Pennsylvania attorneys. This Court indeed has such supervisory authority, but the lower courts have that authority, in a matter such as this, only to the extent we have approved it. The trial court here acted without the imprimatur of approval from this Court, and the existing Superior Court authority is, as Justice Saylor has demonstrated, uniquely unreasoned. It is perfectly appropriate for the aggrieved party to seek review of such an action. [J-93-2008] [MO: Baer, J.] - 2 Third is the fact, also duly noted by Justice Saylor, that there is already existing protection against unconscionable contract provisions, which logically extends to "an unconscionable fee-shifting provision, or a provision yielding unconscionable results." Saylor, J., Concurring and Dissenting Slip Op., 2-3 n.1 (citing Salley v. Option One Mortgage Corp., 925 A.2d 115 (Pa. 2007)). And so it is not accurate to conclude, as the Majority has, that failure to authorize sua sponte review for reasonableness will result "in no safety valve and courts would be required to award attorney's fees even when such fees are clearly excessive." Majority Slip Op., 11. Although the Majority's rule is cloaked in terms of "reasonableness," it will be an overly invasive rule, and difficult to define in a fashion that would promise any modicum of even and fair application. Although, like Justice Saylor, I would prefer to leave the broader questions to a more suitable case, since the Majority proceeds to decision, I offer my own view here. I find persuasive appellant's argument that, when the terms of a written contract are clear, a court should not re-craft the agreement to conflict with its plain language. Courts in Pennsylvania have long held that a contract is to be construed in accordance with the language chosen by the parties: In interpreting the language of a contract, we attempt to ascertain the intent of the parties and give it effect. Crawford Central Sch. Dist. v. Commonwealth of Pennsylvania, 585 Pa. 131, 143, 888 A.2d 616, 623 (2005). When the words of an agreement are clear and unambiguous, the intent of the parties is to be ascertained from the language used in the agreement, Steuart v. McChesney, 498 Pa. 45, 49, 444 A.2d 659, 661 (1982), which will be given its commonly accepted and plain meaning, J.K. Willison, Jr. v. Consol. Coal Co., 536 Pa. 49, 54, 637 A.2d 979, 982 (1994). LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009). See also Insurance Adiustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468 (Pa. 2006) (where terms of contract are clear and unambiguous, intent of parties is ascertained from [J-93-2008] [MO: Baer, J.] - 3 document itself); Chen v. Chen, 893 A.2d 87, 93 (Pa. 2006) (meaning of contract is ascertained from contents alone where no ambiguity exists). The parties' agreement in this instance was clear and unambiguous. It provided that: "the party breaching this contract shall be responsible for the payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement" (emphasis added). There is nothing about "reasonableness" in the contract; there is nothing reposing the measure of reasonableness in a trial court's idiosyncratic judgment (as opposed to, for example, the parties' familiarity with each other); and there is nothing inherently unconscionable in the omission of the term. Therefore, the meaning of the attorney's fees provisions should be divined from the language of the agreement itself, and not according to the trial court's imposition of a requirement that the attorney's fees be reasonable. To make matters worse, that "reasonableness" was then measured, without a relevant record, by the trial court's own idiosyncratic judgment. And that judgment, in turn, was suspect to the extent that the trial court factored in its disapproval of appellant for failing to pursue settlement in a case where she was the innocent and aggrieved party. There is no allegation that the parties' agreement was the result of anything other than arm's length negotiations. There is nothing on the face of the agreement, or in the amount of attorney's fees, that is unconscionable. Therefore, the parties should be held to the terms of the agreement they negotiated. The result of the trial court's decision is that appellant is now forced to bear a substantial portion of the financial burden of appellee's unilateral breach of their agreement. The inclusion of the attorney's fees provision in the parties' agreement obviously was intended as a disincentive to breach the agreement. The trial court has removed that disincentive and, in effect, penalized appellant for appellee's breach. That is contrary to the [J-93-2008] [MO: Baer, J.] - 4 clear intent of the parties' contract and to Pennsylvania authority regarding contract interpretation. Even assuming the trial court had the power to insert a requirement that the attorney's fees be reasonable, a fee of $3,000 to prosecute a petition to enforce the terms of this marital settlement agreement is not self-evidently unreasonable. Appellee has not shown the fee award here to be out of line when compared to what family law practitioners generally charge. Moreover, appellee had his own self-help remedy to shield himself against such costs: he could have just honored his obligation, and when called to task for failing to do so, he should be bound by his contractual agreement. I am also puzzled by the fact that the rule the Majority adopts provides that trial courts "may" consider the reasonableness of attorney's fees, without addressing the more salient question of whether they are authorized to do so sua sponte -- as actually happened here. Majority Slip Op., 12. Obviously, it is one thing to entertain issues actually raised by a party, and quite another thing to become a party's champion, uninvited. The Majority recognizes that appellant argues this very point, id. at 7, yet inexplicably leaves it undecided. Equally inexplicable is the fact that the Majority denies appellant any opportunity to prove the reasonableness of the fee. The Majority merely purports to authorize reasonableness inquiries at the trial court level and then washes its decisional hands. Nor does the Majority provide any guidance as to just how that inquiry should proceed: There is no discussion of which party has the burden of proof, the party seeking fees or the party responsible for the fees; no suggestions regarding factors trial courts should consider in making the reasonableness assessment; or even any parameters or limits on the trial court's discretion. Would a trial court's inquiry necessarily be different in cases in rural communities than in urban locations where average attorney hourly rates are likely higher? Should trial courts treat family law matters differently or the same as other civil matters? [J-93-2008] [MO: Baer, J.] - 5 The Majority Opinion leaves all of these questions unanswered. In short, the Majority reaches out to "decide" an issue arguably not encompassed in our grant of review and one that the parties did not fully brief, and then approves a general and intrusive power without offering the bench and bar any clue concerning the actual exercise of this new, disruptive power. There is nothing in the record before this Court to indicate that the trial court heard any evidence regarding the reasonableness of the fee. Notably, appellant has forwarded a very modest request that, if the intrusion be approved, this Court should remand to the trial court for just such a fact-finding. The Majority says no. The result is a judiicial double-blow: The Majority unnecessarily reaches out to decide a broad question of policy in a case ill- suited to the task, announcing a new rule of law allowing trial courts to sua sponte look outside the language of an arms' length contract and thereby drastically altering appellant's expectations; and then denies appellant any opportunity to prove the reasonableness of the fees her counsel charged, leaving intact an unmoored and unexplained fee reduction. I would not lose sight of the trial court action that the Majority lets stand. The attorney's fee reduction below is bottomed upon an assumption that reasonable minds could not disagree that one cent more than $1,200 would make the fee here "clearly excessive." I do not believe that the trial court was equipped to render such a pronouncement, especially where there was no record. Any decision on the reasonableness of a fee is fact-bound. For wealthy litigants employing major law firm partners, for example, it is difficult to imagine that a fee of $3,000 would be considered unreasonable for purposes of any litigation. I realize that the means of the parties here are more modest, but it is still difficult to see a $3,000 fee for litigation services as manifestly excessive. There is no support for a conclusion that the fee is per se unreasonable, and the trial court's 60% reduction of the actual fee was based, in part, upon an inappropriate punitive consideration. And so, if we must decide the abstract question the Majority [J-93-2008] [MO: Baer, J.] - 6 decides, I would also decide the actual case: and I would reverse since this fee-reduction is inherently suspect, it is unsupported by any factual record, it is uncabined by any defined parameters governing such interference, and the fee reduction, therefore, is essentially arbitrary. And that is unreasonable. 1 respectfully dissent. [J-93-2008] [MO: Baer, J.] - 7 A J-A37007-06 2007 PA Super 136 MARJORIE R. McMULLEN, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant c? V r7 ?T RONALD E. KUTZ, f - Appellee No. 544 MDA 2006 v Appeal from the Order Entered February 21, 2006 In the Court of Common Pleas, Civil Division Cumberland County, No. 2000-4155 BEFORE: TODD, BENDER, and COLVILLE,* JJ. OPINION BY TODD, J.: FILED: May 16, 2007 ¶ 1 Marjorie R. McMullen ("Wife") appeals the February 21, 2006 order of the Cumberland County Court of Common Pleas awarding her $1,200, instead of the $2,931.99 she had requested, in legal fees. We affirm. 12 The relevant facts and procedural history of this case may be summarized as follows. On July 7, 2000, the parties entered into a separation and property settlement agreement under which Ronald E. Kutz ("Husband") agreed to pay Wife $1,250 a month in child support for the support of their 5 children through the age of 22 provided the children pursued a full-time college education after their 18th birthday. The agreement further specified that if either party breached any provision of the agreement, that party would be responsible for paying legal fees and costs incurred by the other party in enforcing their rights under the agreement.' 'Retired Senior Judge assigned to the Superior Court. 1 Paragraph 17 of the agreement states: J-A37007-06 ¶ 3 On September 13, 2005, Wife filed a petition to enforce the settlement agreement, claiming that Husband had failed to pay child support for their oldest son in July and August of 2005, and that Husband had failed to pay her full share of his military pension. Wife requested the court find Husband in contempt and order him to pay in full the back child support and military pension amounts he owed, and pay her $2,931.99 in legal fees she incurred as a result of his breach. Following a hearing, on December 22, 2005, the court issued an order directing Husband to pay $500 in back child support and $281.82 in back pension pay, but deferred the issue of legal fees. On February 21, 2006, the court issued an order directing Husband to pay Wife $1,200 in counsel fees, and this appeal followed, wherein Wife presents two issues for our review: I. Did the trial court err in substituting its own judgment of reasonable attorney's fees when the contract, previously agreed to by both parties, required payment of the legal fees and costs actually "incurred"? II. Did the trial negotiations, or determining the actually incurred? (Appellant's Brief at 5.) court err in considering settlement any lack thereof, as a factor in reasonableness of the attorney's fees BREACH: If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, and the party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement. (Separation and Property Settlement Agreement, 7/7/00, at $ 17.) -2- J-A37007-06 1 4 Preliminarily, we note that this Court's review of an order resolving a contempt petition is limited to deciding whether the trial court abused its discretion. McMahon v. McMahon, 706 A.2d 350, 355 (Pa. Super. 1998). A trial court abuses its discretion if, in resolving the issue for decision, it misapplies the law, exercises its discretion in an unreasonable manner, or does not follow legal procedure. Glynn v. Glynn, 789 A.2d 242, 248 (Pa. Super. 2001). ¶ 5 Relying on this Court's decision in Creeks v. Creeks, 422 Pa. Super. 432, 619 A.2d 754 (1993), Wife first argues that by the clear and unambiguous terms of the parties' agreement, which specified that the breaching party, in this case Husband, was responsible for the "payment of legal fees and costs incurred by [Wife] in enforcing [her] rights under [the] Agreement," (Separation and Property Settlement Agreement, 7/7/00, at ¶ 17), upon finding that Husband breached the agreement, the trial court was required to award Wife the full amount of her legal fees, regardless of whether they were reasonable. We disagree, and find Creeks to be distinguishable. In Creeks, this Court found that the trial court had erred when it concluded that the husband in that case had not breached the parties' marital contract, and in refusing to award legal fees to the wife pursuant to a provision of that contract. Unlike Creeks, here, it is undisputed that Husband breached the parties' agreement and that Wife is entitled to an award of at least some of the legal fees she incurred in -3- J-A37007-06 pursuing this case. Moreover, contrary to the legal fees provision at issue here, which provides for the payment of such fees without specifying that they must be reasonable, the provision at issue in Creeks specifically required the fees to be "reasonably expended." See 422 Pa. Super. at 438, 619 A.2d at 757. ¶ 6 The issue in this case, which was not before us in Creeks, is whether legal fees must be reasonable even though the contract providing for the award of such fees does not specify that they must be reasonable-that is, whether a reasonableness requirement is implicit in the agreement. Based on our decision in Duffy v. Gerst, 286 Pa. Super. 523, 429 A.2d 645 (1981), we find that it is. In Duffy, the parties had entered into a contract for the sale of real estate, and the buyer was awarded $3,500 in counsel fees under the agreement after the seller defaulted.z Relevant to this case, although the agreement in Duffy provided for the award of attorneys fees, it did not specify that they must be reasonable. This Court read such a requirement into the agreement, however, noting: "It may be assumed that 2 The agreement of sale in Duffy provided that in the event of seller's default, the buyer could elect to: (w)aive any claim for loss of bargain, in which event Seller ... agrees to repay to Buyer the earnest money ... and, in addition, reimburse Buyer for all direct, out-of-pocket costs and expenses (i.e., title examination, survey, and attorney's fees) and to this end Seller does ... authorize ... any attorney .. . to . . . confess judgment . .. for said earnest money .... and for said direct, out-of-pocket costs and expenses including an attorney's commission of 10% (but not less than $200.00) together with costs of suit .... Duffy, 286 Pa. Super. at 530-31, 429 A.2d at 649. -4- ]-A37007-06 implicit in this provision is the condition that the attorney's fee must be a reasonable fee." See Duffy, 286 Pa. Super. at 531, 429 A.2d at 650. 17 Our finding on this issue is bolstered by decisions from our sister state of Maryland, most notably, the Maryland Court of Special Appeals decision in Rauch v. McCall, 761 A.2d 76 (Md. Spec. App. 2000). As in this case, the issue in Rauch involved whether the trial court was precluded from examining a counsel fee request for reasonableness when the agreement in question provided for the award of counsel fees but did not specify that they must be reasonable. Despite the lack of the specific word "reasonable" in the agreement, the Rauch court found it implicit in the agreement that the fees awarded were to be reasonable and that the fees were to be reviewed accordingly. This approach was subsequently adopted by the Maryland Court of Appeals. See Atlantic Contr. & Material Co., Inc. v. Ulico Cas. Co., 844 A.2d 460, 478 (Md. 2004) (citing Rauch, court held that when a contract entitles a party to recover counsel fees, the trial court must examine the fee request to determine whether it is reasonable even in the absence of a provision requiring that the fee request be reasonable). ¶ 8 Based on Duffy and the decisions from our sister state, we conclude that when a contract provides for the award of counsel fees, but does not specify that they must be reasonable, the trial court must nonetheless examine the fees for reasonableness. In other words, the prevailing party is only entitled to recover reasonable fees, even if the contract does not have a -5- J-A37007-06 provision specifying that the fees must be reasonable. In, this case, even though paragraph 17 of the parties' agreement does not specify that whatever fees are incurred must be reasonable, we read that requirement into the agreement and reject Wife's contention that the trial court erred by examining Wife's legal fees for their reasonableness. ¶ 9 Wife next argues that the trial court erred in considering the lack of settlement negotiations in determining the reasonableness of the legal fees she incurred.3 While we agree that offers of settlement or compromise of a disputed claim are not admissible in evidence to prove liability for or invalidity of the claim or its amount, see Pa.R.E. 408,4 the failure of Wife's 3The court provided the following explanation for finding some of Wife's legal fees to be unreasonable: We did not ... feel that it was reasonable for [Wife] to incur almost $3000 in legal fees to litigate this matter. We note that there was no attempt by her counsel to resolve these issues short of involving the courts. Counsel's first contact with [Husband] in connection with these matters was a letter which accompanied the "Petition to Enforce." The letter demanded payment of all sums due plus counsel fees. However, there was no breakdown of what sums were due, or the counsel fees being claimed. The issues involved in this case were simple and straightforward. Further, the record is devoid of any attempt by [Wife], or her counsel, to resolve the issues or to keep counsel fees reasonable. Under those circumstances, we felt the award of $1200 for counsel fees (about 1.5 times the amount awarded for the underlying dispute) was reasonable. (Trial Court Opinion, 5/30/06, at 2.) 4Rule 408 of the Pennsylvania Rules of Evidence provides: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. -6- J-A37007-06 counsel to attempt to resolve Wife's claim short of litigation is not an offer of settlement under this rule. This rule is also inapplicable because the court was considering the lack of settlement efforts to assess the reasonableness of Wife's legal fees, not the validity of her underlying claim. ¶ 10 As Husband points out, the factors considered by the court in determining the reasonableness of Wife's legal fees, including that the issues involved in the case were simple and straightforward, and its consideration of the amount awarded in the underlying dispute, are relevant considerations in determining the reasonableness of attorneys fees. See Estate of Murray v. Love, 411 Pa. Super. 618, 626-27, 602 A.2d 366, 370 (1992); Rule of Professional Conduct 1.5. Following our review of the record before us, and in consideration of these factors, we find no abuse of discretion in the court's determination that an award of $1,200 for legal fees incurred in this case was reasonable. ¶ 11 For all of these reasons, we affirm the trial court's order awarding Wife $1,200 in legal fees. $ 12 Order AFFIRMED. ¶ 13 Colville, J. files a Dissenting Opinion. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Pa. R. E. 408. -7- J-A37007-06 Judgment Entered: c e uty Prothonotary May 16, 2007 Date: -8- 1. A37007/06 MARJORIE R. McMULLEN, v. RONALD E. KUTZ, Appellee Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 544 MDA 2006 Appeal from the Order entered February 21, 2006, in the Court of Common Pleas, Civil Division, Cumberland County, No. 2000-4155 BEFORE: TODD, BENDER AND COLVILLE*, JJ. DISSENTING OPINION BY COLVILLE, J.: FILED: May 16, 2007 ¶ 1 In my view, the trial court erred in the manner in which it assessed Appellant's counsel's fees for reasonableness. I, therefore, dissent. $ 2 Pursuant to the clear and unambiguous terms of the parties' settlement agreement, Appellee was required to pay to Appellant the "legal fees and costs incurred by [Appellant] in enforcing her rights under th[e) Agreement." Separation and Property Settlement Agreement, 7/7/00, at ¶ 17. I have no quarrel with the Majority's conclusion that Appellant's counsel was required to charge Appellant a reasonable fee. See Majority Opinion, at _ ("It may be assumed that implicit in this provision is the condition that *Retired Senior Judge assigned to the Superior Court. 3. A37007/06 the attorney's fee must a reasonable fee.") (quoting Duffy v. Gerst, 429 A.2d 645, 650 (Pa. Super. 1981)).5 $ 3 The test for assessing the reasonableness of an attorney's fee has been stated as follows: [T]he trial court must consider: .. . . the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was "created" by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question. Estate of Murray v. Love, 602 A.2d 366, 370 (Pa. Super. 1992) (quoting In re Trust Estate of LaRocca, 246 A.2d 337, 339 (Pa. 1968)) (emphasis added). Moreover, [a]s in all cases where the reasonableness of an attorneys' fee is questioned, our power of review is necessarily limited. We may only reverse the trial court if we find an abuse of discretion or an error of law, and we will not find that the trial court has abused 5 I, however, distance myself from the Majority's conclusion that when a contract provides for the award of counsel fees, but does not specify that they must be reasonable, the trial court must nonetheless examine the fees for reasonableness." Majority Opinion at 5-6. If a contract, such as the agreement in this case, does not require that a court examine the reasonableness of counsel fees, then, as I see it, the trial court may not examine the reasonableness of the claimed fees unless the aggrieved party raises a specific objection to the fees. Here, Appellee challenged the amount of attorney's fees in a post-hearing brief requested by the court. -10- J. A37007/06 its discretion unless the award is based on erroneous factual findings or irrelevant legal factors. Estate of Murray, 602 A.2d at 370. ¶ 4 In its opinion, the trial court offered the following explanation as to why it considered $1,200 to be a reasonable fee for Appellant's counsel to collect: We did not, however, feel that it was reasonable for [Appellant] to incur almost $3,000 in legal fees to litigate this matter. We note that there was no attempt by her counsel to resolve these issues short of involving the courts. Counsel's first contact with [Appellee] in connection with these matters was a letter which accompanied the "Petition to Enforce". The letter demanded payment of all sums due plus counsel fees. However, there was no breakdown of what sums were due, or the counsel fees being claimed. The issues involved in this case were simple and straightforward. Further, the record is devoid of any attempt by plaintiff, or her counsel, to resolve the issues or to keep fees reasonable. Under those circumstances, we felt that award of $1,200 for counsel fees (about 1.5 times the amount awarded for the underlying dispute) was reasonable. Trial Court Opinion, 5/30/06, at 2 (emphasis in the original) (footnote omitted). ¶ 5 The trial court's stated reasons for drastically decreasing counsel's fees are insufficient. In assessing the reasonableness of Appellant's counsel's claimed fees, the court failed to consider a number of the factors listed above and considered legal factors wholly irrelevant to such an assessment. - 11 - ]. A37007/06 $ 6 In finding that $1,200 constituted a reasonable fee, the trial court put much stock in its observation that Appellant made no attempt to settle this matter short of taking Appellee to court. Whether Appellant attempted to settle this matter short of litigation simply is not a factor to be considered by a court in assessing the reasonableness of attorney's fees. Furthermore, the parties' agreement did not require that Appellant attempt to settle her dispute with Appellee before involving the courts. In fact, the agreement expressly allowed Appellant to sue Appellee for any breach of the agreement.6,' ¶ 7 For these reasons, I would vacate the trial court's order awarding Appellant $1,200 in attorney's fees, instruct the trial court to hold further proceedings in order for the court to obtain the information it would need to 6 The settlement agreement provides, in pertinent part: If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, and the party breaching this contract shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement. Separation and Property Settlement Agreement, 7/7/00, at $ 17 (emphasis added). I also note that, to the extent that it could be argued that Appellant had some sort of amorphous duty to attempt to settle this matter without involving the courts, I fail to see how this duty would not apply equally to Appellee. The record is just as devoid of any attempt by Appellee, or his counsel, to resolve the issues or to keep fees reasonable as it is devoid of the same in regard to Appellant. -12- 3. A37007/06 consider all of the factors relevant to determining whether counsel fees are reasonable, and instruct the trial court to consider to what extent Appellee is responsible for paying the legal fees and costs Appellant incurred in prosecuting this appeal in order to secure her contractual right to be reimbursed for these expenses. -13-